Chapter NR 747

NR 747.62 Note Note: This paragraph is no longer effective and is subject to future repeal. Section 101.144, Stats., was repealed by 2013 Wis. Act 20. The “department” in this paragraph refers to the department of safety and professional services, which no longer has responsibility for occurrences under this section.

NR 747.62 History History: CR 04-058: cr. Register February 2006 No. 602, eff. 5-1-06; correction in (2) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; corrections in (1) (a) 2., (2), (3), (5), (6) made under s. 13.92 (4) (b) 6., 7., Register October 2013 No. 694.

NR 747.623 NR 747.623 Assignment to public bidding.

NR 747.623(1) (1) Cost estimate exceeds $60,000.

NR 747.623(1)(a) (a) Occurrences under the department’s jurisdiction. Unless exempted under s. NR 747.63, an occurrence covered under s. 101.144 (2) (b), Stats., shall be subject to the public bidding process in s. NR 747.68 if the department estimates that the cost to complete a site investigation and remedial action will exceed $60,000, including interest.

NR 747.623 Note Note: Section 101.144, Stats., was repealed by 2013 Wis. Act 20.

NR 747.623(1)(b) (b) Occurrences under department jurisdiction. Unless exempted under s. NR 747.63, an occurrence that is not covered under s. 101.144 (2) (b), Stats., shall be subject to the public bidding process in s. NR 747.68 if the department estimates that the cost to complete a site investigation and remedial action will exceed $60,000, including interest.

NR 747.623 Note Note: Section 101.144, Stats., was repealed by 2013 Wis. Act 20.

NR 747.623(2) (2) Cost estimate does not exceed $60,000, or incurred costs exceed $60,000, including interest. Occurrences not included in sub. (1) shall be subject to the public bidding process in s. NR 747.68 if so directed by the department.

NR 747.623 History History: CR 04-058: cr. Register February 2006 No. 602, eff. 5-1-06; correction in (1) (a), (b), (2) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; corrections in (1) (a), (b), (2) made under s. 13.92 (4) (b) 6., 7., Stats., Register October 2013 No. 694.

NR 747.625 NR 747.625 Claim submittal required.

NR 747.625(1) (1) Assignment to public bidding. Whenever the department notifies a responsible party and the consulting firm that an occurrence is subject to the public bidding process in s. NR 747.68, a claim for eligible costs incurred up to then shall be submitted to the department, no later than 120 days after the date of the department’s notice.

NR 747.625(2) (2) Completion of a scope of work.

NR 747.625(2)(a) (a) Whenever a consulting firm completes a scope of work designated by the department, a claim for eligible costs incurred for that scope of work shall be submitted to the department, no later than 120 days after completing that work.

NR 747.625(2)(b) (b) The department may waive the requirement in par. (a) for small scopes of work that do not include a change to a different consulting firm.

NR 747.625(3) (3) Ineligible interest costs.

NR 747.625(3)(a) (a) Failure to file a claim prior to the deadline prescribed in sub. (1) shall result in ineligibility of any interest expenses incurred between the date of the department’s notice and the date a claim is filed.

NR 747.625(3)(b) (b) Failure to file a claim prior to the deadline prescribed in sub. (2) shall result in ineligibility of any interest expenses incurred between the date of the completion of the scope of work and the date a claim is filed.

NR 747.625 History History: CR 04-058: cr. Register February 2006 No. 602, eff. 5-1-06; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.

NR 747.63 NR 747.63 Exemptions from competitive public bidding.

NR 747.63(1) (1) General. Pursuant to s. 292.63 (3) (cp), Stats., the following exemptions may apply to an occurrence:

NR 747.63(1)(a) (a) The department may waive the public bidding process in s. NR 747.68 for the reasons set forth in s. 292.63 (3) (cp) 2., Stats.

NR 747.63 Note Note: Section 292.63 (3) (cp) 2., Stats., provides that the department may waive the competitive public bidding requirement “if an enforcement standard is exceeded in groundwater within 1,000 feet of a well operated by a public utility, as defined in s. 196.01 (5), or within 100 feet of any other well used to provide water for human consumption.”

NR 747.63(1)(b) (b) An occurrence is exempt from the public bidding process in s. NR 747.68 where or while the circumstances in subs. (2) to (5) apply, or where the bidding process is otherwise waived by the department.

NR 747.63(2) (2) Emergency actions. Work performed as part of an emergency action within the initial 72 hours after the onset of the need for the action, is not subject to the public bidding process in s. NR 747.68.

NR 747.63(3) (3) Bidding is not cost effective. The department may waive the public bidding process in s. NR 747.68 after determining that either bidding would not be cost-effective, or the estimated additional cost to complete a scope of work is reasonable.

NR 747.63(4) (4) Alternative acceptable bidding process. The department may waive the public bidding process in s. NR 747.68 after determining that a responsible party has used an acceptable alternative competitive bidding process to choose the consulting firm and establish an estimated cost to define a closure standard, remediation target, or scope of work for the remediation.

NR 747.63(5) (5) Temporary deferral of public bidding.

NR 747.63(5)(a) (a) The department may defer public bidding for an occurrence that is subject to the public bidding process in s. NR 747.68 after determining that additional investigation activities will produce specific data and information which will contribute to the bidding process in s. NR 747.68 for that occurrence.

NR 747.63(5)(b) (b) The department shall provide a written notice to the responsible party and the consulting firm specifying the conditions to be met during the deferral period.

NR 747.63(5)(c) (c) The consulting firm shall cease work on the occurrence after the conditions that justified the deferral have been met, and shall submit a written notice thereof to the department within the 14 days following. Work may recommence only after authorization to proceed is received from the department.

NR 747.63 Note Note: As established in s. NR 747.30 (2) (q) and (i), the department will not reimburse costs, including interest costs, for any work performed in violation of this paragraph.

NR 747.63 Note Note: Under s. 292.63 (3) (cp) 5., Stats., the agency waiving competitive public bidding for an occurrence must provide notice to the other agency prior to issuing the waiver.

NR 747.63 Note Note: Under s. 292.63 (4) (cm), Stats., the schedule of usual and customary costs referenced in s. NR 747.325 must be used to determine the amount of eligible costs for an occurrence for which a competitive bidding process is not used, except in circumstances under which higher costs must be incurred to comply with s. 292.63 (3) (c) 3., Stats., and with enforcement standards.

NR 747.63 Note Note: Section 292.63 (3) (c) 3., Stats., provides that the owner shall “conduct all remedial activities at the site of the discharge from the petroleum product storage system or home oil tank system necessary to restore the environment to the extent practicable and minimize the harmful effects from the discharge as required under s. 292.11.”

NR 747.63 History History: CR 04-058: cr. Register February 2006 No. 602, eff. 5-1-06; correction in (1) (a), (b), (2), (3), (4), (5) (a) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; corrections in (1) (intro.), (a), (b), (2) to (4), (5) (a) made under s. 13.92 (4) (b) 6., 7., Stats., Register October 2013 No. 694.

NR 747.64 NR 747.64 Bidding completion of an investigation.

NR 747.64(1) (1) Investigation activities may be bid. During a site investigation, if either the department determines that an occurrence is subject to the public bidding process in s. NR 747.68, the department shall proceed under either of the following:

NR 747.64(1)(a) (a) For occurrences that are covered under s. 101.144 (2) (b), Stats., the department shall issue a written directive to the responsible party and the consulting firm to cease all work except as otherwise authorized by the department. The department shall then direct the occurrence through the public bidding process in s. NR 747.68.

NR 747.64 Note Note: Section 101.144, Stats., was repealed by 2013 Wis. Act 20.

NR 747.64(1)(b) (b) For occurrences that are not covered under s. 101.144 (2) (b), Stats., the department shall notify the responsible party and the consulting firm that no further costs will be reimbursed except as established through the public bidding process in s. NR 747.68 or as otherwise authorized by the department.

NR 747.64 Note Note: Section 101.144, Stats., was repealed by 2013 Wis. Act 20.

NR 747.64(2) (2) Scope of work for bidding an investigation. The department may bid a scope of work to include the remainder of an investigation, where the investigation has stopped under sub. (1).

NR 747.64 History History: CR 04-058: cr. Register February 2006 No. 602, eff. 5-1-06; correction in (1) (intro.), (a), (b) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.

NR 747.65 NR 747.65 Department to determine scope of work to be bid. Prior to public bidding, the department shall determine whether the scope of work to be bid will be the work necessary to achieve closure, work to a defined remediation target, or completion of a defined set of activities.

NR 747.65 History History: CR 04-058: cr. Register February 2006 No. 602, eff. 5-1-06.

NR 747.66 NR 747.66 Bidder qualifications.

NR 747.66(1) (1) General. Bids may be submitted only by representatives of consulting firms which are registered under s. SPS 305.80 and which meet all eligibility requirements in this section and in the bid specifications.

NR 747.66 Note Note: The consulting firm retained by the responsible party to carry out the investigation is eligible to bid remedial activities if the consulting firm meets all eligibility requirements in this section and in the bid specifications.

NR 747.66(2) (2) Performance assurance. Every bidding firm shall submit a certified commitment to complete the work described in the bid specifications and in the submitted bid, for the price proposed in the bid.

NR 747.66(3) (3) Disqualified individuals or firms. No individual or firm that has been disqualified under s. NR 747.67 may submit a bid until the period of disqualification has ended and all corrective actions required by the department to reinstate the individual or firm have been met.

NR 747.66 History History: CR 04-058: cr. Register February 2006 No. 602, eff. 5-1-06; correction in (1), (3) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; corrections in (1), (3) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694.

NR 747.67 NR 747.67 Disqualification from bidding.

NR 747.67(1) (1) Grounds for disqualification.

NR 747.67(1)(a) (a) The department may disqualify from public bidding any individual or firm that has done any of the following:

NR 747.67(1)(a)1. 1. Failed to complete a scope of work within a reimbursement cap established through public bidding.

NR 747.67(1)(a)2. 2. Failed to complete the scope of work in a bid in a timely manner.

NR 747.67(1)(a)3. 3. Failed to meet requirements in department rules on a bid project.

NR 747.67(1)(a)4. 4. Received one or more notices from the department under s. NR 747.62 (2) that assess the financial management of an investigation as unacceptable.

NR 747.67(1)(a)5. 5. In any prior occurrence that has been publicly bid, failed to do either of the following:

NR 747.67(1)(a)5.a. a. Pay subcontractors after receiving payment for them.

NR 747.67(1)(a)5.b. b. Obtain lien waivers on or before the date of the final payment by the responsible party or the PECFA program, from all subcontractors paid under subd. 5. a.

NR 747.67(1)(a)6. 6. Failed to execute a contract with a responsible party as required in s. NR 747.69 (1).

NR 747.67(1)(a)7. 7. Failed to commence work within 45 days after executing a contract, as required in s. NR 747.69 (3).

NR 747.67(1)(b) (b) In making disqualification decisions under this section, the Department shall excuse failures that are shown to be due to factors which are beyond the control of a bidding individual or firm, such as a responsible party’s inability to obtain financing.

NR 747.67(2) (2) Period of disqualification. The period of disqualification shall be 2 rounds of public bidding for the first disqualification, 4 rounds for the second disqualification, and 6 rounds for any subsequent disqualification.

NR 747.67 Note Note: The department may consider disqualification from public bidding as a contributing factor when applying other disciplinary actions to any individual or firm.

NR 747.67(3) (3) Written notice of disqualification. The department shall provide written notification to any individual or firm disqualified from submitting bids. The notification shall specify the reasons for the disqualification, the period of the disqualification, the consequence under s. NR 747.69 that post-bidding contracts at other sites may not be executed, and the right to protest or appeal the department’s decision.

NR 747.67(4) (4) Corrective action by disqualified individual or firm. The department may require an individual or firm that has previously been disqualified to post a fidelity, surety, or performance bond or to take other corrective action specified by the department, to protect owners or operators and the PECFA fund from failure to carry out the work specified in the public bidding process in s. NR 747.68.

NR 747.67(5) (5) Protests and appeals by disqualified individuals or firms. An individual or firm that receives a notice of disqualification may protest the disqualification. The individual or firm shall file a written protest with the director of the bureau of PECFA no later than 5 business days after issuance of the notice in sub. (3). The filing shall include all of the reasons for the protest. Any reason not listed for the protest shall be deemed waived. The director or the director’s designee may resolve the protest by either upholding the department’s determination or by removing a disqualification, and shall issue a written decision no later than 5 business days after receiving the protest. A protestor may file a written appeal of the decision of the bureau director or designee, to the administrator of the environmental and regulatory services division, no later than 5 days after issuance of the decision, provided the protestor alleges a violation of s. 292.63, Stats., or of this chapter. The administrator or designee shall resolve the appeal without hearing and issue a written decision no later than 5 business days after receiving the appeal. The decision on the appeal shall be mailed or otherwise furnished to the protestor. In the event of the filing of a timely appeal under this subsection, the department may not proceed further with disqualifying an individual or firm from public bidding until a decision is issued on the appeal.

NR 747.67 History History: CR 04-058: cr. Register February 2006 No. 602, eff. 5-1-06; correction in (1) (a) 4., 6., 7., (3), (4) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672; corrections in (1) (a) 3., 4., 6., 7., (3), (4) made under s. 13.92 (4) (b) 6., 7., Stats., Register October 2013 No. 694.

NR 747.68 NR 747.68 Competitive public bidding process.

NR 747.68(1) (1) Publishing the request for bids. The department shall post a request for bids on the department’s Internet Web site.

NR 747.68(2) (2) Submitting bids. Firms submitting public bids in response to the bid specifications shall comply with all of the following:

NR 747.68(2)(a) (a) Bidders shall submit bids in a format prescribed by the department.

NR 747.68(2)(b) (b) Bidders shall submit bids so that the bids are received by the department no later than 4:00 p.m. on the bid-end date listed in the bid specifications.

NR 747.68(3) (3) Evaluating bids.

NR 747.68(3)(a) (a) The department may not consider any late bids. The department shall rank all remaining bids solely on the basis of cost, in ascending order from the least costly to the most costly. The department shall then evaluate only the bid containing the least costly proposal, to determine if all requirements of the bid specifications will be met, if the remedial strategy is appropriate to the geologic setting, and if the bid is likely to establish an amount to sufficiently fund the activities and outcome objective contained in the bid specifications. The department shall continue the evaluation process until the least costly qualified bid is identified.

NR 747.68 Note Note: As established in s. 292.63 (3) (cp) 1., Stats., the purpose of the least costly qualified bid is to assist the department in making a determination of the least costly method of remedial action. See sub. (7) for further information about that determination.

NR 747.68(3)(b) (b) The department shall reserve the right to reject any or all bids.

NR 747.68(4) (4) Notice of disqualified bid. The department shall provide written notification to any individual or firm that submitted a disqualified bid. The notification shall specify the reasons for the disqualification, and the right to protest or appeal the department’s decision.

NR 747.68(5) (5) Notice of intent. The department shall announce its intent to select the least costly qualified bid to assist in determining the least costly method of remedial action or a cap for a defined scope of work. The department shall send the announcement in writing to the responsible party and shall post the announcement on its Internet Web site. The announcement shall identify the bid the department has determined to be the least costly qualified bid. The announcement shall identify all low bids that have been disqualified. The announcement shall be provided at least 11 business days prior to the determination of the least costly method or the determination of a cap.

NR 747.68(6) (6) Protests and appeals. A responsible party or a bidder may protest the department’s selection and use of the least costly qualified bid to assist in making the determination in sub. (7). The protestor shall file a written protest with the director of the bureau of PECFA no later than 10 business days after issuance of the notice in sub. (4) or (5), whichever is later. The filing shall include all of the reasons for the protest. Any reason not listed for the protest shall be deemed waived. The director or the director’s designee may resolve the protest by upholding the department’s determination, by removing a disqualification, or by correcting an error in determining the cost contained in a bid, and shall issue a written decision no later than 5 business days after receiving the protest. A protestor may file a written appeal of the decision of the bureau director or designee, to the administrator of the environmental and regulatory services division, no later than 5 days after issuance of the decision, provided the protestor alleges a violation of s. 292.63, Stats., or of this chapter. The administrator or designee shall resolve the appeal without hearing and issue a written decision no later than 5 business days after receiving the appeal. The decision on the appeal shall be mailed or otherwise furnished to the protestor. In the event of the filing of a timely protest or appeal, the department may not proceed further with making the determination in sub. (7) until a decision is issued on the protest or appeal.

NR 747.68(7) (7) Determining the least costly method of remedial action, or the cap for a defined scope of work.

NR 747.68(7)(a) (a) The least costly method of remedial action or the cap for a defined scope of work shall be determined according to pars. (b) or (c).

NR 747.68(7)(b) (b) For occurrences under the direction of the department, the department shall consider the least costly qualified bid identified under sub. (3) in determining the least costly method of remedial action or the cap for a defined scope of work. No later than 10 business days after making its decision, the department shall notify the responsible party of the department’s determination of the least costly method of remedial action or the cap for a defined scope of work, and shall specify the maximum amount that will be reimbursed.

NR 747.68(7)(c) (c) For occurrences under the direction of the department, the department shall consider the least costly qualified bid identified under sub. (3) in determining the least costly method of remedial action or the cap for a defined scope of work. No later than 10 business days after making the decision, the department shall notify the responsible party of the department’s determination of the least costly method of remedial action or the cap for a defined scope of work, and shall specify the maximum amount that will be reimbursed.

NR 747.68(7)(d) (d)

NR 747.68(7)(d)1. 1. The determination of the least costly method of remediation or the determination of the cap for a defined scope of work shall establish the maximum costs eligible for reimbursement by the PECFA program, except where that maximum is increased under s. NR 747.70 (3).