ATCP 35.14(15)(15) Costs incurred by any federal, state or local government entity. The department may reimburse a responsible person for corrective action costs incurred by the department of natural resources under s. 292.11 (7) (a), Stats., and charged to the responsible person, provided that the responsible person reimbursed the department of natural resources and did not fail or refuse to take corrective action in response to an order or directive from the department or the department of natural resources. ATCP 35.14(17)(17) Costs that the responsible person has not yet paid, or on which the responsible person may later receive a discount or rebate. ATCP 35.14(18)(18) Costs not supported by a canceled check or other conclusive proof of payment by the responsible person who is applying for reimbursement of those costs. ATCP 35.14(19)(19) Costs to investigate or repair environmental contamination involving substances that are not agricultural chemicals. If a corrective action under this chapter is combined with the investigation or repair of environmental contamination involving substances that are not agricultural chemicals, the department may reimburse a portion of the combined project costs based on a reasonable cost allocation formula approved by the department. If, for any combination project, a responsible person also submits a reimbursement application to another governmental agency, the cost allocation formula shall be approved by the department and that other agency. ATCP 35.14(20)(20) Costs to analyze environmental samples for substances that are not agricultural chemicals, except that the department may reimburse costs for the analysis of environmental parameters if that analysis is needed for the design or implementation of a corrective action. ATCP 35.14(21)(21) Costs to analyze environmental samples for agricultural chemicals that are not reasonably suspected of having been discharged at the discharge site. ATCP 35.14(22)(22) Costs for environmental audits, evaluations or appraisals, other than those needed for the effective planning and implementation of a corrective action. ATCP 35.14(23)(23) Costs incurred by a responsible person because of a contractor’s breach of contract. ATCP 35.14(24)(24) Costs to prepare an application under s. ATCP 35.06, to contest an application decision under s. ATCP 35.32 or to consult with the department on the application. ATCP 35.14(26)(26) Expense charges for meals, lodging, travel or other personal expenses that exceed actual, necessary or reasonable expenses. ATCP 35.14(27)(27) Supplementary charges for expedited services, including expedited laboratory analysis, mail service or parcel delivery service, unless the department approves those charges in advance. ATCP 35.14(29)(29) Interest expenses or other financing costs, except as calculated by the department under s. ATCP 35.25. ATCP 35.14(31)(31) Costs for subcontractor service charges or markups. ATCP 35.14(32)(32) Costs to plant or till land on which the responsible person landspreads soil or water under s. ATCP 35.03, unless the department requires that land to be planted or tilled. ATCP 35.14 HistoryHistory: Cr. Register, August, 1994, No. 464, eff. 9-1-94; am. (3) (intro.), (4), (15), (16), (24), (27), (28) and (30), cr. (3) (c), (31) and (32), Register, September, 1998, No. 513, eff. 10-1-98; am. (5) and (6), r. and recr. (30), Register, October, 2000, No. 538, eff. 11-1-00; CR 03-119: am. (5), r. and recr. (13) Register October 2004 No. 586, eff. 11-1-04; CR 10-122: am. (19) Register July 2011 No. 667, eff. 8-1-11. ATCP 35.16(1)(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). ATCP 35.16(2)(a)(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. ATCP 35.16(2)(b)(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). ATCP 35.16(2)(c)(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: ATCP 35.16(2)(c)1.1. The contractor providing the additional services was selected by the competitive bidding procedure under par. (a). ATCP 35.16(2)(c)2.2. 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). ATCP 35.16(2)(c)3.3. 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. ATCP 35.16(2)(c)5.5. The responsible person gives the contractor written authorization to proceed with the additional services, after receiving the contractor’s estimate under subd. 3. ATCP 35.16(2)(c)6.6. The cost for the additional services does not exceed the contractor’s estimate under subd. 3. ATCP 35.16(2)(c)7.7. The additional services do not involve the selection, design or installation of active groundwater remediation. ATCP 35.16(2)(d)(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. ATCP 35.16(2m)(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: ATCP 35.16(2m)(a)(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. ATCP 35.16(2m)(b)(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. ATCP 35.16(2m)(c)(c) The following information related to every service priced on an hourly or per unit basis: ATCP 35.16(2m)(c)2.2. A reasonable, good faith estimate of the number of hours or units of service to be provided. ATCP 35.16(2m)(e)(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. ATCP 35.16(3)(a)(a) Bids and cost estimates for the following services shall be priced on an hourly or per unit basis: ATCP 35.16(3)(b)(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. ATCP 35.16(4)(a)(a) The department may require a responsible person to explain that person’s choice of contractors. ATCP 35.16(4)(b)(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: ATCP 35.16 NoteNote: 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.
ATCP 35.16(5)(a)(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: ATCP 35.16(5)(b)(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. ATCP 35.16(5)(c)(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). ATCP 35.16(6)(a)(a) In every bid or cost estimate under sub. (2), the contractor shall certify both of the following: ATCP 35.16 NoteNote: 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. ATCP 35.16(6)(a)2.2. 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. ATCP 35.16(6)(b)(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. ATCP 35.16 NoteNote: 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.
ATCP 35.16(6)(c)(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. ATCP 35.16(6)(d)(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. ATCP 35.16(7)(a)(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. ATCP 35.16(7)(b)(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. ATCP 35.16(8)(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: ATCP 35.16(8)(a)(a) The responsible person demonstrates that compliance with subs. (2) to (7) is not reasonably possible. ATCP 35.16(8)(b)(b) The contract service costs charged by the contractor do not exceed $3,000. ATCP 35.16(8)(c)(c) The department pays reimbursement at a rate that is no more than 75% of the rate normally allowed under s. ATCP 35.22. ATCP 35.16(9)(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:
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Department of Agriculture, Trade and Consumer Protection (ATCP)
Chs. ATCP 20-54; Agricultural Resource Management
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administrativecode/ATCP 35.16(2)(c)1.
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