Chapter NR 166

NR 166.08(7) (7) Projects funded jointly with other agencies. If a project is receiving funding from another state or federal agency, and the department is unable to obtain the same type of documentation typically submitted for a specific project requirement due to differences between agencies in items or procedures, including a project that is let with a group of projects by the department of transportation or a project for which the contents of a contract includes language specific to another agency, the department may determine what documentation is appropriate to satisfy the application requirements.

NR 166.08(8) (8) Deadline for signing financial assistance agreement. The department shall set in the SDWLP annual intended use plan under s. NR 166.05 (1) a deadline for signing a financial assistance agreement. An applicant shall sign the financial assistance agreement within the timeframe set by the department. An applicant shall time its submittal of the application accordingly. If a financial assistance agreement is not signed within the established timeframe, the applicant’s project shall lose its SDWLP allocated subsidy.

NR 166.08 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23; correction in (4) (i) (intro.), (6) (a) made under s. 35.17, Stats., Register October 2023 No. 814.

NR 166.09 NR 166.09 Land ownership and easements documentation.

NR 166.09(1) (1) For projects for which an applicant requests financial assistance through the application process under s. NR 166.08, the applicant shall sign and submit a certification regarding ownership of the land or required easements and permits for access to the land, or both, on which the project takes place.

NR 166.09(2) (2) The department may require the applicant in addition to or in lieu of a certification under sub. (1) to submit a legal opinion when it is necessary, as determined by the department, to establish land ownership or easement rights, or both, of the project site.

NR 166.09 Note Note: Examples of when the department may require a legal opinion in addition to or in lieu of a certification include projects for which new land is being purchased by the applicant or the applicant is extending its facilities onto land on which no municipally owned infrastructure was previously located.

NR 166.09(3) (3) An applicant is not required to submit a land ownership certification or legal opinion for portions of a project that include removal of lead service lines or galvanized pipe on private property.

NR 166.09 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.10 NR 166.10 Financial assistance requirements. Before executing a financial assistance agreement for any project under this chapter, the department shall determine that all of the applicable requirements of s. NR 166.08 are met and that all of the following are satisfied:

NR 166.10(1) (1) All of the following documentation, if applicable to the scored project, is submitted to the department:

NR 166.10(1)(a) (a) Certification for force account as required by s. NR 166.11 (5).

NR 166.10(1)(b) (b) A certification or legal opinion regarding land ownership and acquisition of easements and rights-of-way necessary for the project. The certification or legal opinion shall be in accordance with s. NR 166.09. Section NR 166.09 (3) applies to this paragraph.

NR 166.10(1)(c) (c) Items related to bids for each prime contract including all of the following:

NR 166.10(1)(c)1. 1. The proposal of the successful bidder.

NR 166.10(1)(c)2. 2. An engineer’s evaluation of the bids, including bid tabulation, and an award recommendation.

NR 166.10(1)(c)3. 3. If an applicant awards a construction or equipment contract to a contractor other than the lowest bidder, any of the following:

NR 166.10(1)(c)3.a. a. Written documentation of the reasons why the lowest bidder is considered nonresponsive or not responsible.

NR 166.10(1)(c)3.b. b. A legal opinion stating that the award to a contractor other than the lowest responsive, responsible bidder meets the requirements of municipal bidding law.

NR 166.10(1)(c)4. 4. Solicitation and utilization information regarding DBEs.

NR 166.10(1)(c)5. 5. Evidence of bid advertisement, including a copy of the affidavit of publication and a copy of the newspaper advertisement, which should include appropriate language regarding DBEs submitting bid proposals, American-made product requirements, and wage rates, when applicable.

NR 166.10(1)(c)6. 6. A copy of the bid bond and the performance bond.

NR 166.10(1)(c)7. 7. Evidence of award of the construction contract by the municipality, which may be a notice of award, a municipal resolution, or minutes from the municipal meeting at which the determination of award was made.

NR 166.10(1)(c)8. 8. A complete copy of the executed construction contract with up-to-date copies of all addenda, attachments, appendices, appropriate Davis-Bacon or other wage rate information, and all other applicable documentation that makes the contract complete. If available, the contract submittal should be a copy of the conformed contract.

NR 166.10(1)(c)9. 9. Documentation of the construction start date and estimated substantial and final completion dates.

NR 166.10 Note Note: A notice of award and a notice to proceed are preferred but not required for this documentation.

NR 166.10(1)(c)10. 10. All negotiated pending change orders and all executed change orders.

NR 166.10(1)(d) (d) A request for disbursement and required supporting invoices, payoff statements for interim debt, and other applicable documentation of expenditures, including a copy of the title or deed for land purchased for the project if the applicant is requesting financial assistance for land purchase costs, and complete copies of any contract change orders for which costs are included in the request for disbursement, along with a copy of the department construction management engineer’s change order approval.

NR 166.10(1)(e) (e) Evidence that a bond counsel is drafting legal documents related to the authorization and issuance of bonds for action at a municipal meeting prior to the scheduled loan closing.

NR 166.10(1)(f) (f) Completed federal forms, if applicable, and any other required documentation of compliance with federal requirements, which may include certification of compliance with Davis-Bacon wage rate requirements, certification of use of American-made products in the project, and the cost, effectiveness, energy efficiency, and water efficiency of the selected design.

NR 166.10(1)(g) (g) A final list described under s. NR 166.08 (4) (i), if 2 or more municipalities utilize shared or interconnected water systems and the project serves more than one of the municipalities.

NR 166.10(1)(h) (h) A copy of each executed construction management or other professional services contract associated with the project if funds are requested for services included in the contract.

NR 166.10(1)(i) (i) A completed design life calculation worksheet with any backup documentation required by the department if, after the application submittal, the applicant requested a loan term greater than 20 years. All of the following apply to applicants requesting a loan term greater than 20 years:

NR 166.10(1)(i)1. 1. The applicant shall submit the design life calculation worksheet at least 9 weeks prior to loan closing.

NR 166.10(1)(i)2. 2. The applicant shall pledge system revenues to secure the SDWLP loan.

NR 166.10(1)(i)3. 3. A loan term greater than 20 years is not available for projects for which the applicant pledges general obligation bonds to secure the loan.

NR 166.10 Note Note: The design life calculation worksheet is an excel spreadsheet that is available on the department’s website at https://dnr.wisconsin.gov/aid/documents/EIF/Forms/forms.html#sdwform. The department strongly encourages applicants to submit the design life calculation worksheet with the rest of its application submittal in order to allow enough review and response time for the worksheet contents. Later submittal of the design life calculation worksheet may delay a loan closing.

NR 166.10(2) (2) The department has done all of the following, if applicable to the scored project:

NR 166.10(2)(a) (a) Complied with the Wisconsin environmental policy act requirements pursuant to the procedures in ch. NR 150.

NR 166.10(2)(b) (b) Reviewed and approved the plans and specifications if approval is required under ch. NR 108 or 811,

NR 166.10(2)(c) (c) Reviewed and concurred with the design life calculation for the scored project if the applicant is requesting a loan term greater than 20 years.

NR 166.10(3) (3) The scored project is entitled to priority in accordance with ss. NR 166.23 to 166.25.

NR 166.10(4) (4) The applicant has the legal, institutional, managerial, technical, and financial capability to ensure adequate construction, operations, and maintenance of the water system throughout the applicant’s jurisdiction.

NR 166.10(5) (5) DOA finds that the municipality is likely to be able to meet the terms and conditions for receiving financial assistance under ch. Adm 35 and s. 281.59, Stats.

NR 166.10(6) (6) The applicant has received or applied for permits required by the department for the scored project, including those under chs. 30 and 283, Stats.

NR 166.10(7) (7) If a public water system is regulated by the public service commission, the applicant has filed the appropriate applications to increase water rates with the public service commission, if necessary for the scored project, and the public service commission has issued the corresponding order authorizing the water rates and operating rules.

NR 166.10(8) (8) If a public water system is not regulated by the public service commission, the applicant has, to the satisfaction of the department and DOA, developed and adopted water rates and operating rules.

NR 166.10 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.

NR 166.11 NR 166.11 Procurement.

NR 166.11(1) (1) Applicability. Procurement of professional services and construction contracts by financial assistance recipients under this chapter shall be in accordance with local, state, and federal laws applicable to the SDWLP project. No contract may be awarded to any person or organization that does not operate in conformance with state and federal civil rights and equal opportunity laws.

NR 166.11(2) (2) Profits. Contractors may earn only fair and reasonable profits under contracts for projects receiving SDWLP assistance. Profit included in a formally advertised, competitively bid, fixed price or unit price construction contract is presumed to be reasonable.

NR 166.11(3) (3) Financial assistance recipient responsibility. The recipient is responsible for the administration and successful completion of the project as well as acceptance of the terms of the financial assistance agreement.

NR 166.11(4) (4) Solicitation of disadvantaged business enterprises.

NR 166.11(4)(a) (a) Whenever a recipient or its prime contractor is procuring construction, equipment, raw materials, or supplies for a project funded wholly or in part with SDWLP financial assistance, the recipient or contractor shall make a good faith effort to provide DBEs opportunities to compete for participation in the project. Recipients and their prime contractors shall comply with DBE regulations contained in 40 CFR part 33, as modified by memoranda and exceptions, in the manner required by the department. Failure to comply with DBE regulations and requirements may result in a sanction as provided under par. (b). Recipient and contractor efforts under this subsection may include any of the following activities:

NR 166.11(4)(a)1. 1. Using outreach and recruitment activities to make DBEs aware of contracting opportunities, including any of the following activities:

NR 166.11(4)(a)1.a. a. Including a sentence in bid advertisements that encourages DBEs to submit bids or proposals and submitting a copy of the advertisement to the department with evidence of publishing.

NR 166.11(4)(a)1.b. b. Contacting DBEs via telephone, faxed or mailed letter, e-mail, or other methods of correspondence, informing the DBEs of the project and encouraging their participation, and submitting documentation of those contacts to the department.

NR 166.11(4)(a)1.c. c. Advertising the project in trade publications and submitting a copy of the advertisement and evidence of publishing to the department.

NR 166.11(4)(a)2. 2. Arranging timeframes for contracts and establishing delivery schedules in a way that encourages and facilitates participation by DBEs in the competitive process, including posting solicitations for bids or proposals for at least 30 calendar days before the bid or proposal closing date, when possible.

NR 166.11(4)(a)3. 3. Dividing total project requirements into smaller tasks or quantities, when economically feasible, to permit maximum participation by DBEs in the competitive process.

NR 166.11(4)(a)4. 4. Considering contracting with a consortium of DBEs when a contract is too large for one DBE to handle individually.

NR 166.11(4)(a)5. 5. Using the services and assistance of the federal small business administration and the minority business development agency of the U.S. department of commerce.

NR 166.11(4)(a)6. 6. Using required federal forms when applicable.

NR 166.11(4)(a)7. 7. Including in project bidding documents DBE information prescribed by the department.

NR 166.11(4)(a)8. 8. Soliciting DBEs certified under the unified certification program or by the U.S. environmental protection agency or an agency approved by the U.S. environmental protection agency to certify DBEs and providing to the department documentation of solicitation efforts made.

NR 166.11 Note Note: The Wisconsin department of transportation unified certification program’s list of certified DBEs is available online at https://wisconsindot.gov/Pages/doing-bus/civil-rights/dbe/certified-firms.aspx.

NR 166.11(4)(a)9. 9. Documenting all participation of DBEs, including MBEs and WBEs, and submitting the documentation in the required form to the department. Documentation of all participation of DBEs under this subdivision includes documentation participation of engineering or other professional services firms, materials suppliers, equipment suppliers and contractors, and construction contractors that are certified DBEs as described in subd. 8.

NR 166.11(4)(b) (b) Failure to comply with par. (a) may result in a sanction of up to 8 percent of the construction costs otherwise eligible for financial assistance being determined ineligible for financial assistance. This paragraph does not apply to a recipient that awards at least one contract directly related to the project to at least one MBE or WBE selected through proper solicitation methods.

NR 166.11(5) (5) Force account work. The department may approve financial assistance for force account work based on the applicant’s certification that at least one of the following applies:

NR 166.11(5)(a) (a) The applicant’s staff has the necessary competence required to accomplish the work and can accomplish the required tasks more economically as force account work.

NR 166.11(5)(b) (b) Emergency circumstances make force account work necessary.

NR 166.11(6) (6) Contracts for professional services.

NR 166.11(6)(a) (a) The department may review professional services contracts and amendments for eligibility and reasonableness of costs. The department shall only provide financial assistance for costs that are eligible, necessary, and reasonable for the scored project.

NR 166.11(6)(b) (b) Reasonableness reviews may include a comparison of professional services fees for the project to the range of professional services fees for similar work on similar projects undertaken within the state. The department may consider the scope of work, conditions unique to the project, and any other factors affecting costs.

NR 166.11(6)(c) (c) Professional services contracts shall indicate a maximum estimated cost for a defined scope of work that the contractor may not exceed without a negotiated contract amendment for additional costs.

NR 166.11(6)(d) (d) The department shall disburse funds for professional services costs in excess of the estimated or not-to-exceed amount of a contract only after the applicant submits an amendment to the contract that includes signatures of all parties to the contract, a description of the additional work covered by the amendment, and a revised not-to-exceed amount.

NR 166.11(6)(e) (e) The recipient shall submit each professional services agreement amendment within 90 days of execution of the amendment, or, for amendments executed prior to submittal of the SDWLP application, with the application submittal. The department may deny the costs included in the amendment if the recipient does not submit the amendment within the timeframes specified in this paragraph.

NR 166.11(7) (7) Construction contracts and subcontracts.

NR 166.11(7)(a) (a) Applicability. This subsection applies to construction contracts or subcontracts awarded by recipients for any construction activity. The department may provide SDWLP financial assistance for costs of a construction contract if the municipality complies with all applicable procurement laws in obtaining the construction contractor.

NR 166.11(7)(b) (b) Type of contract. The scored project work shall be performed under one or more contracts awarded by the recipient to private firms except for force account work authorized under sub. (5). Unless the department gives advance written approval for the recipient to use some other acceptable type of contract, each contract shall be one of the following types or a combination of these types: lump sum, unit price, or time and expense. A cost–plus–a–percentage–of–cost type contract may not be used in any circumstance.

NR 166.11(7)(c) (c) Contract change orders.

NR 166.11(7)(c)1. 1. The recipient shall secure a fair and reasonable price for each contract change order.

NR 166.11(7)(c)2. 2. The recipient shall promptly and no later than 90 days after execution of the change order submit to the department construction management engineer each change order and all associated backup documentation.

NR 166.11(7)(c)3. 3. If a change order is executed fewer than 90 days but no more than 9 weeks prior to the estimated loan closing date for the project, the recipient shall submit the change order to the department promptly after execution and no later than 9 weeks prior to the loan closing in order to have the impact of the change order on the contract reflected in the financial assistance agreement budget.

NR 166.11(7)(c)4. 4. The department may deny the costs of the change order if the recipient does not submit the change order to the department within the timeframes specified in subds. 2. and 3.

NR 166.11(7)(c)5. 5. If the recipient is in the process of negotiating a change order, has a change order pending execution, or executes a change order less than 9 weeks but no more than 3 weeks prior to the estimated loan closing date, the recipient shall provide information regarding the purpose of and likely cost for the change order in writing to the department construction management engineer or loan project manager for consideration of inclusion in the financial assistance agreement budget.

NR 166.11(7)(c)6. 6. The recipient shall submit for approval by the department all change orders for all contracts included in whole or in part in a project funded under this chapter.

NR 166.11(7)(c)7. 7. The recipient shall receive the department construction management engineer’s approval of the costs included in the change order prior to submitting to the department a request for disbursement of funds for costs of the change order.

NR 166.11 History History: CR 22-068: cr. Register October 2023 No. 814, eff. 11-1-23.