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(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(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(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)(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.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)(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)(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)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).
NR 747.68 Note
Note: See s.
NR 747.71 (5) for special requirements for existing sites.
NR 747.68 History
History: CR 04-058: cr.
Register February 2006 No. 602, eff. 5-1-06; correction in (7) (d) 1., 2. made under s.
13.92 (4) (b) 7., Stats.,
Register December 2011 No. 672;
corrections in (6), (7) (c), (d) 1., 2. made under s. 13.92 (4) (b) 6., 7., Stats., Register October 2013 No. 684. NR 747.69
NR 747.69 Responsible party's contract with a bidder. NR 747.69(1)(a)(a) Except as provided in
pars. (c) or
(d), no later than 60 days after the department issues the notification under
s. NR 747.68 (7) (b) or
(c), the responsible party shall execute a written contract with one of the firms that submitted a bid under
s. NR 747.68 (2), to perform the work identified in the notification.
NR 747.69(1)(b)
(b) Failure to execute the written contract as required in
par. (a) shall result in ineligibility of any interest expenses incurred from the date of the notification under
s. NR 747.68 (7) (b) or
(c), until a contract is executed and work commences on the occurrence.
NR 747.69(1)(c)
(c) This subsection does not apply to a bidder who becomes disqualified under
s. NR 747.67, or where all subsequent work will not be submitted for reimbursement from the PECFA fund.
NR 747.69(1)(d)
(d) The department may grant an extension of the 60-day period specified in
par. (a) only after a claimant demonstrates that substantive efforts to obtain financing have been unsuccessful.
NR 747.69 Note
Note: As established in s.
NR 747.30 (2) (s) and
(i), the department will not reimburse costs, including interest costs, for unauthorized services that are performed by any party other than a firm which submitted a bid under s.
NR 747.68 (2) and which is contracted with under this section, if they are conducted after the qualified low bid is determined under s.
NR 747.68 (3).
NR 747.69 Note
Note: See sub. (4) for criteria that apply to an affected site after a bidder who submits the least costly qualified bid becomes disqualified, and no other bidder agrees to perform the work within the corresponding reimbursement cap.
NR 747.69(2)
(2) Notification of consulting firm selection. No later than 14 days after any contract for remediation under
sub. (1) is executed or terminated with the responsible party, the consulting firm shall submit to the department a notification form prescribed by the department.
NR 747.69(3)
(3) Commencing work. The consulting firm that executes a contract under
sub. (1) shall commence the work specified therein no later than 45 days after the contract is executed.
NR 747.69(4)
(4) Rebidding or selection of next-lowest, qualified bid. Where a bidder who submitted the least costly qualified bid becomes disqualified under
s. NR 747.67, and no other bidder agrees to perform the work identified in the notification under
s. NR 747.68 (7) (b) or
(c), within the reimbursement cap established under
s. NR 747.68 (7), the department may either redirect the scope of work through the entire public bidding process in
s. NR 747.68, or reinitiate that process at the bid evaluation stage in
s. NR 747.68 (3).
NR 747.69 History
History: CR 04-058: cr.
Register February 2006 No. 602, eff. 5-1-06; correction in (1) (a), (b), (c), (4) made under s.
13.92 (4) (b) 7., Stats.,
Register December 2011 No. 672;
corrections in (1) (a) to (c), (4) made under s. 13.92 (4) (b) 7., Stats., Register October 2013 No. 694. NR 747.70
NR 747.70 Monitoring the progress of the scope of work in the bid. NR 747.70(1)(a)(a) The consulting firm holding the contract required in
s. NR 747.69 (1) (a) shall report to the department, in a format prescribed by the department, the progress toward completing the scope of work defined in the bid specifications, at each of the following points:
NR 747.70(1)(a)2.
2. Twelve months after beginning the work in the successful bid, except as provided in
subd. 6.
NR 747.70(1)(a)3.
3. Twelve months after submitting the previous report required under this subsection, except as provided in
subd. 6.
NR 747.70(1)(a)4.
4. No later than 10 days after encountering a change in circumstances, as specified in
sub. (3).
NR 747.70(1)(b)
(b) For occurrences that are not covered under s.
101.144 (2) (b), Stats., the department shall send the DNR a copy of the reports received under
par. (a).
NR 747.70 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 747.70 Note
Note: See s.
NR 747.71 (5) for special requirements for existing sites.
NR 747.70(2)
(2) Failure to make progress. If the department determines that the consulting firm is failing to make adequate progress to complete the scope of work defined in the bid specifications for an amount not exceeding the reimbursement cap determined under
s. NR 747.68 (7), the department shall so notify the responsible party and may reduce the reimbursement to accurately reflect the work completed.
NR 747.70 Note
Note: See s.
NR 747.71 (5) for special requirements for existing sites.
NR 747.70(3)(a)(a) For occurrences under the direction of the department, the department may review and modify the reimbursement cap, and may reinitiate the public bidding process in
s. NR 747.68, based on a change in circumstances, if any of the following have occurred:
NR 747.70(3)(a)1.
1. Substantial new contamination has been discovered on the site. Substantial contamination must increase remediation costs to either obtain closure or complete a defined scope of work. New contamination is contamination not previously identified, such as contamination in a broader area or deeper depth than previously identified.
NR 747.70(3)(a)2.
2. Abnormal weather, previously unknown geologic conditions, or previously unknown subsurface structures have been encountered that directly affect the activities described in the least costly qualified bid identified under
s. NR 747.68 (3).
