(e)Required Provisions for Construction ContractsMunicipalities must include, when appropriate, the following clauses or their equivalent in each subagreement and may substitute other terms for "grantee" and "contractor" in their subagreements:
(1) Supersession The grantee and the contractor agree that the following general provisions or their equivalent apply to state grant eligible work to be performed under this contract and that these provisions supersede any conflicting provisions of this contract.
(2) Privity of contract This contract is expected to be funded in part by the State of Connecticut. Neither the State, nor any of its departments, agencies, or employees is or will be a party to this contract or any lower tier subcontract. This contract is to be subject to regulations adopted in accordance with Section 22a-439 of the Connecticut General Statutes.
(3) Changes for contracts for construction: (A) The municipality may, at any time, without notice to any surety, by written order designated or indicated to be a change order, make any change in the work within the general scope of the subagreement, including but not limited to changes: (i) In the specifications (including drawings and designs);(ii) In the time, method, or manner of performance of the work;(iii) In the grantee-furnished facilities, equipment, materials, services, or site; or(iv) Directing acceleration in the performance of the work.(B) A change order shall also be any other written or oral order (including direction, instruction, interpretation or determination) from the municipality which causes any change, provided the contractor gives the municipality written notice stating the date, circumstances, and source of the order and that the contractor regards the order as a change order.(C) Except as provided in this clause, no order, statement, or conduct of the municipality shall be treated as a change under this clause or entitle the contractor to an equitable adjustment.(D) If any change under this clause causes an increase or decrease in the contractor's cost or the time required to perform any part of the work under this contract, whether or not changed by any order, an equitable adjustment shall be made and the subagreement modified in writing. However, for claims based on defective specifications, no claim for any change under (B) above shall be allowed for any costs incurred more than 20 days before the contractor gives written notice as required in paragraph (B). In the case of defective specifications for which the municipality is responsible, the equitable adjustment shall include any increased cost reasonably incurred by the contractor in attempting to comply with those defective specifications.(E) If the contractor intends to assert a claim for an equitable adjustment under this clause, he must, within thirty (30) days after receipt of a written change order under (A) of this change clause or the furnishing of a written notice under (B) of this clause, submit to the grantee a written statement setting forth the general nature and monetary extent of such claim. The municipality may extend the 30-day period. The statement of claim may be included in the notice under (B) of this clause.(F) No claim by the contractor for an equitable adjustment shall be allowed if made after final payment under this contract.(4) Changes for contracts for supplies. (A) The municipality may at any time, by a written order and without notice to the sureties, make changes within the general scope of this subagreement in any one or more of the following: (i) Drawings, designs, or specifications, where the supplies to be furnished are to be specially manufactured for the grantee;(ii) Method of shipment or packing; and(B) If any change causes an increase or decrease in the cost or the time required to perform any part of the work under this subagreement, whether or not changed by any such order, an equitable adjustment shall be made in the subagreement price or delivery schedule, or both, and the subagreement shall be modified in writing. Any claim by the contractor for adjustment under this clause must be asserted within 30 days from the date of receipt by the contractor of the notification change. If the municipality decides that the facts justify such action, the municipality may receive and act upon any such claim asserted at any time before final payment under this subagreement. Where the cost of property made obsolete or excess as a result of a change is included in the contractor's claim for adjustment, the grantee shall have the right to prescribe the manner of disposition of such property. Nothing in this clause shall excuse the contractor from proceeding with the subagreement as changed.(5) Differing site conditions. (A) The contractor shall promptly, and before such conditions are disturbed, notify the municipality in writing of: (i) Subsurface or latent physicial conditions at the site differing materially from those indicated in this subagreement, or(ii) Unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this subagreement. The municipality shall promptly investigate the conditions and, if it finds that conditions are materially different and will cause an increase or decrease in the contractor's cost or the time required to perform any part of the work under this subagreement, whether or not changed as a result of such conditions, an equitable adjustment shall be made and the subagreement modified in writing.(B) No claim of the contractor under this clause shall be allowed unless the contractor has given notice required in (A) of this clause. However, the municipality may extend the prescribed time.(C) No claim by the contractor for an equitable adjustment shall be allowed if asserted after final payment under this subagreement.(6) Suspension of work (A) The municipality may order the Contractor, in writing to suspend, delay, or interrupt all or any part of the work for such period of time as the municipality may determine to be appropriate for the convenience of the municipality.(B) If the performance of all or any part of the work is suspended, delayed, or interrupted for an unreasonable period of time by an act of the municipality in administration of the contract, (or if no time is specified, within a reasonable time), an adjustment shall be made for any increase in the cost of performance of this contract (excluding profit) necessarily caused by such unreasonable suspension, delay, or interruption and the contract modified in writing. However, no adjustment shall be made under this clause for any suspension, delay, or interruption to the extent that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the contractor, or for which an equitable adjustment is provided for or excluded under any other provision of the contract.(C) No claim under this clause shall be allowed for any costs incurred more than 20 days before the contractor notified the municipality in writing of the act or failure to act involved (this requirement does not apply to a claim resulting from a suspension order), and unless the claim, in an amount stated, is asserted in writing as soon as practicable after the termination of such suspension, delay, or interruption, but not later than the date of final payment under the contract.(7) Termination (A) This contract may be terminated in whole or in part in writing by either party in the event of substantial failure by the party to fulfill its obligations under this subagreement through no fault of the terminating party, provided that no termination may be effected unless the other party is given not less than ten (10) calendar days written notice (delivered by certified mail, return receipt requested) of intent to terminate and an opportunity for consultation with the terminating party prior to termination.(B) This contract may be terminated in whole or in part in writing by the municipality for its convenience, provided that the contractor is given not less than ten (10) calendar days written notice (delivered by certified mail, return receipt requested) of intent to terminate and an opportunity for consultation with the terminating party prior to termination.(C) If termination for default is effected by the municipality, an equitable adjustment in the price provided for in this contract shall be made but no amount shall be allowed for anticipated profit on unperformed services or other work, and any payment due to the contractor at the time of termination may be adjusted to cover any additional costs to the municipality because of the contractor's default. If termination for default is effected by the contractor, or if termination for convenience is effected by the municipality, the equitable adjustment shall include a reasonable profit for services or other work performed. The equitable adjustment for any termination shall provide for payment to the contractor for services rendered and expenses incurred prior to the termination in addition to termination settlement costs reasonably incurred by the contractor relating to commitments which had become firm prior to the termination.(D) Upon receipt of a termination action pursuant to (A) or (B) above, the contractor shall promptly discontinue all services affected (unless the notice directs otherwise), and deliver or otherwise make available to the recipient all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by the contractor in performing this contract whether completed or in process.(E) Upon termination under (A) or (B) of this clause the municipality may take over the work and may award another party a contract to complete the work under this contract.(F) If, after termination for failure of the contractor to fulfill contractual obligations, it is determined that the contractor had not failed to fulfill contractual obligations, the termination shall be deemed to have been for the convenience of the municipality. In such event, adjustment of the price provided for in this contract shall be made as provided in (C) of this clause.(8) Remedies. Except as may be otherwise provided in this contract, all claims, counter-claims, disputes, and other matters in question between the municipality and the contractor arising out of or relating to this contract or the breach thereof will be decided by arbitration if the parties mutually agree or in a court of competent jurisdiction within the district in which the municipality is located.
(9) Price reduction for defective cost or pricing data. (NOTE-This clause is applicable to any contract negotiated between the municipality and its contractor in excess of $500,000; negotiated change orders in excess of $500,000 or 10 percent of the contract, whichever is less, affecting the price of a formally advertised, competitively awarded, fixed price contract; or any lower tier subcontract or purchase order in excess of $500,000 or 10 percent of the assistance agreement, whichever is less, under a contract other than a formally advertised, competitively awarded, fixed price subagreement. This clause is not applicable for contracts to the extent that they are awarded on the basis of effective price competition.)
The contractor and subcontractor, where appropriate, warrant that cost and pricing data submitted for evaluation with respect to negotiation of prices for negotiated contracts, lower tier subcontracts and change orders is based on current, accurate, and complete data supported by their books and records. If the municipality or the Commissioner determines that any price (including profit) negotiated in connection with this contract, any lower tier subcontract, or any amendment thereunder was increased by any significant sums because the data provided was incomplete, inaccurate, or not current at the time of submission, then such price, cost or profit shall be reduced accordingly, and the contract shall be modified in writing to reflect such reduction.
(NOTE-Since the contract is subject to reduction under this clause by reason of defective cost or pricing data submitted in connection with lower tier subcontracts, the contractor may wish to include a clause in each lower tier subcontract requiring the lower tier subcontractor to appropriately indemnify the contractor. It is also expected that any lower tier subcontractor subject to such indemnification will generally require substantially similar indemnification for defective cost or pricing data required to be submitted by lower tier contractors.)
(10) Audit; Access to records. (A) The contractor shall maintain books, records, documents, and other evidence directly pertinent to performance on grant work under this contract in accordance with generally accepted accounting principles and practices consistently applied. The contractor shall also maintain the financial information and data used by the contractor in the preparation or support of the cost submission required under Section 22a-439-4(g) (6) for any negotiated contract or change order and a copy of the cost summary submitted to the municipality. The municipality and the Commissioner or any of his authorized representatives shall have access to all such books, records, documents, and other evidence for the purpose of inspection, audit and copying during normal business hours. The contractor will provide proper facilities for such access and inspection.(B) If this is a formally advertised, competitively awarded, fixed price contract, the contractor agrees to make (A) through (F) of this clause applicable to all negotiated change orders and contract amendments affecting the contract price. In the case of all other types of prime contracts, the contractor agrees to include (A) through (F) of this clause in all his subcontracts in excess of $10,000 and to make paragraphs (A) through (F) of this clause applicable to all change orders directly related to project performance.(C) Audits conducted under this provision shall be in accordance with generally accepted auditing standards and established procedures and guidelines of the reviewing or audit agency(ies).(D) The contractor agrees to disclose all information and reports resulting from access to records under (A) and (B) of this clause to any of the agencies referred to in (A).(E) Records under (A) and (B) above shall be maintained and made available during performance on assisted work under this contract and until three years from the date of final State payment for the project. In addition, those records which relate to any dispute appeal arising under a grant assistance agreement, to litigation, to the settlement of claims arising out of such performance, or to costs or items to which an audit exception has been taken, shall be maintained and made available until three years after the date of resolution of such appeal, litigation, claim, or exception.(F) This right of access clause (with respect to financial records) applies to: (i) Negotiated prime subagreements;(ii) Negotiated change orders or contract amendments in excess of $10,000 affecting the price of any formally advertised, competitively awarded, fixed price contract, and(iii) Subcontracts or purchase orders under any contract other than a formally advertised, competitively awarded, fixed price contract. However, this right of access does not apply to a prime contract, lower tier subcontract, or purchase order awarded after effective price competition, except with respect to records pertaining directly to contract performance, (excluding any financial records of the contractor); if there is any indication that fraud, gross abuse, or corrupt practices may be involved or if the contract is terminated for default or for convenience.(11) Covenant against contingent fees. The contractor warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the contractor for the purpose of securing business. For breach or violation of this warranty the grantee shall have the right to annul this agreement without liability or, at its discretion, to deduct from the contract price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
(12) Gratuities. (A) If the municipality finds, after a notice and hearing, that the contractor, or any of the contractor's agents or representatives, offered or gave gratuities (in the form of entertainment, gifts, or otherwise, to any official, employee, or agent of the municipality or the State, in an attempt to secure a contract or favorable treatment in awarding, amending, or making any determinations related to the performance of this agreement, the municipality may, by written notice to the contractor, terminate this agreement.The municipality may also pursue other rights and remedies that the law or this agreement provides. However, the existence of the facts on which the municipality bases such findings shall be in issue and may be reviewed in proceedings under the Remedies clause of this agreement.(B) In the event this contract is terminated, as provided in (A) in this clause, the recipient may pursue the same remedies against the contractor as it could pursue in the event of a breach of the contract by the contractor and, as a penalty, in addition to any other damages to which it may be entitled by law, to exemplary damages in an amount (as determined by the grantee) which shall be not less than three nor more than ten times the costs the contractor incurs in providing any such gratuities to any such officer or employee.(13) Responsibility of the contractor. (A) The contractor agrees to perform all work under this agreement in accordance with this agreement's designs, drawings, and specifications.(B) The contractor warrants and guarantees for a period of one (1) year from the date of substantial completion of the system that the completed system is free from all defects due to faulty materials, equipment or workmanship; and the contractor shall promptly make whatever adjustments or corrections necessary to cure such defects, including repairs of any damage to other parts of the system resulting from such defects. The municipality shall give notice to the contractor of observed defects with reasonable promptness. In the event that the contractor fails to make adjustments, repairs, corrections or other work that may be made necessary by such defect, the municipality may do so and charge the contractor the cost incurred. The performance bond shall remain in full force and effect through the guarantee period.(C) The contractor's obligations under this clause are in addition to the contractor's other express or applied warranties under this agreement or State law and in no way diminish any other rights that the municipality may have against the contractor for faulty material, equipment, or work.(14) Final payment. Upon satisfactory completion of the work performed under this agreement, as a condition before final payment under this agreement, or as a termination settlement under this agreement, the contractor shall execute and deliver to the municipality a release of all claims against the municipality arising under or by virtue of this agreement, except claims which are specifically exempted by the contractor to be set forth therein. Unless otherwise provided in this agreement or by State law or otherwise expressly agreed to by the parties to this agreement, final payment under this agreement or settlement upon termination of this agreement shall not constitute a waiver of the municipality's claims against the contractor or his sureties under this agreement or applicable performance and payment bonds.
(f)Procurement Requirements-General(1) Applicability. This defines the responsibilities of the State and the municipality and the minimum procurement standards for each municipality's procurement system.
(2) Municipality responsibility.(A) The municipality is responsible for the settlement and satisfactory completion in accordance with sound business judgment and good administrative practice of all contractual and administrative issues arising out of subagreements entered into under the assistance agreement. This includes issuance of invitations for bids or requests for proposals, selection of contractors, award of subagreements, settlement of protests, claims, disputes and other related procurement matters.(B) The municipality shall maintain a subagreement administration system to assure that contractors perform in accordance with the terms, conditions and specifications of their subagreements.(C) The municipality shall review its proposed procurement actions to avoid purchasing unnecessary or duplicative items.(D) The municipality shall consider consolidating its procurement or dividing it into parts to obtain a more economical purchase.(E) Where appropriate, the municipality shall make an analysis of lease versus purchase alternatives in its procurement actions.(F) A municipality may request technical assistance from the Commissioner for the administration and enforcement of any subagreement awarded under this section. However, such assistance does not relieve the municipality of its responsibilities under this section.(G) A municipality may use innovative procurement methods or procedures only if it receives the Commissioner's prior written approval.(3) Municipality reporting requirements. The municipality shall request, in writing, the Commissioner's authorization to award each construction subagreement which has an aggregate value over $10,000. The request shall include:
(A) Name, address, telephone number and employee identification number of the construction contractor,(C) Estimated starting and completion dates,(D) Project number, name and site location of the project, and(E) Copy of the tabulations of bids or offers and the name of each bidder or offeror.(4) Copies of contract documents. The municipality must promptly submit to the Commissioner copies of any prime contract or modification thereof, and revisions to plans and specifications.
(5) Limitations on subagreement award.(A) The municipality shall award subagreements only to responsible contractors that possess the potential ability to perform successfully under the terms and conditions of a proposed procurement. A responsible contractor is one that has: (i) Financial resources, technical qualifications, experience, an organization and facilities adequate to carry out the project, or a demonstrated ability to obtain these.(ii) Resources to meet the completion schedule contained in the subagreement.(iii) A satisfactory performance record for completion of subagreements.(iv) Accounting and auditing procedures adequate to control property, funds and assets.(v) Demonstrated compliance or willingness to comply with the civil rights, equal employment opportunity, labor laws and other statutory requirements.(B) The municipality shall not make awards to contractors who have been suspended or debarred by Connecticut State Agencies. The municipality shall refer violations of law to the local or State officials having the proper jurisdiction.
(7) Competition. (A) The municipality shall conduct all procurement transactions in a manner that provides maximum open and free competition.(B) Procurement practices shall not unduly restrict or eliminate competition. Examples of practices considered to be unduly restrictive include: (i) Noncompetitive practices between firms.(ii) Organizational conflicts of interest.(iii) Unnecessary, experience and bonding requirements.(iv) Local laws, ordinances, regulations or procedures which give local bidders or proposers preference over other bidders or proposers in evaluating bids or proposals.(v) Placing unreasonable requirements on firms in order for them to qualify to do business.(C) The municipality may use a prequalification list(s) of persons, firms or products if it: (i) Updates its prequalified list(s) at least every six months.(ii) Reviews and acts on each request for prequalification made more than thirty (30) days before the closing date for receipt of proposals or bid opening.(iii) Gives adequate public notice of its prequalification procedures in accordance with the public notice procedures.(D) A municipality may not use a prequalified list(s) of persons or firms if the procedure unnecessarily restricts competition.(8) Profit. (A) Municipalities must assure that only fair and reasonable profits are paid to contractors awarded subagreements under State assistance agreements.(B) The municipality shall negotiate profit as a separate element of price for each subagreement in which there is no price competition, or where price is based on cost analysis.(C) Where the grantee receives two or more bids, profit included in a formally advertised, competitively bid, fixed price subagreement shall be considered reasonable.(D) Off-the-shelf or catalog supplies are exempt from this section.(9) Use of small, minority, and women's businesses. The municipality must take affirmative steps to assure that small, minority, and women's business are used whenever possible.
(10) Privity of subagreement. The State shall not be a party to any subagreement nor to any solicitation or request for proposals.
(11) Documentation. (A) Procurement records and files for procurements in excess of $10,000 shall include the following: (i) Basis for contractor selection.(ii) Written justification for selection of the procurement method.(iii) Written justification for use of any specification which does not provide for maximum free and open competition.(iv) Written justification for the type of subagreement.(v) Basis for award cost or price, including a copy of the cost or price analysis made and documentation of negotiations.(vi) A municipality must state the reasons in writing for rejecting any or all bids and the justification for procurements on a noncompetitively negotiated basis and make them available for public inspection.(12) Specifications (A) Nonrestrictive specifications. (i) No specification for bids or statement of work in connection with such works shall be written in such a manner as to contain proprietary, exclusionary or discriminatory requirements other than those based upon performance, unless such requirements are necessary to test or demonstrate a specific thing or to provide for necessary interchangeability of parts and equipment, or at least one brand name or trade name of comparable quality or utility is listed and is followed by the words "or equal." If brand or trade names are specified, the municipality must be prepared to identify to the Commissioner, or in any protest action, the salient requirements (relating to the minimum needs of the project) which must be met by any offeror. The single base bid method of solicitation for equipment and parts for determination of a low, responsive bidder may not be utilized. With regard to materials, if a single material is specified, the municipality must be prepared to substantiate the basis for the selection of the material.(ii) Project specifications shall, to the extent practicable, provide for maximum use of structures, machines, products, materials, construction methods, and equipment which are readily available through competitive procurement, or through standard or proven production techniques, methods, and processes.(B) Sole source restriction. A specification shall not require the use of structures, materials, equipment, or processes which are known to be available only from a sole source, unless the Commissioner determines that the municipality's engineer has adequately justified in writing that the proposed use meets the particular project's minimum needs or the Commissioner determines that use of a single source is necessary to promote innovation.(C) Experience clause restriction. The general use of experience clauses requiring equipment manufacturers to have a record of satisfactory operation for a specified period of time or of bonds or deposits to guarantee replacement in the event of failure is restricted to special cases where the municipality's engineer adequately justifies any such requirement in writing. Where such justification has been made, submission of a bond or deposit shall be permitted instead of a specified experience period. The period of time for which the bond or deposit is required should not exceed the experience period specified.(13) Force account work. (A) The municipality must receive the Commissioner's prior written approval for use of the force account method for any planning, design work or construction work unless the grant agreement stipulates the force account method.(B) The Commissioner may approve the force account method upon the municipality's demonstration that it possesses the necessary competence required to accomplish such work and that the work can be accomplished more economically by use of the force account method, or emergency circumstances dictate its use.(C) Use of the force account method for construction work shall generally be limited to minor portions of a project.(14) Code of conduct. (A) The municipality shall maintain a written code or standards of conduct which shall govern the performance of its officers, employees, or agents engaged in the award and administration of subagreements supported by State funds. No employee, officer or agent of the municipality shall participate in the selection, award or administration of a subagreement supported by State funds if a conflict of interest, real or apparent, would be involved.(B) Such a conflict would arise when:(i) Any employee, officer or agent of the municipality, any member of the immediate families, or their partners, have a financial or other interest in the firm selected for award.(ii) An organization which may receive or has been awarded a subagreement employs, or is about to employ, any person under (B) (i) of this Section.(C) The municipality's officers, employees or agents shall neither solicit nor accept gratuities, favors or anything of monetary value from contractors, potential contractors or other parties to subagreements.(D) Municipalities may set minimum rules where the financial interest is not substantial or the gift is an unsolicited item of nominal value.(E) To the extent permitted by State or local law or regulations, the municipality's code of conduct shall provide for penalties, sanctions or other disciplinary actions for violations of the code by the municipality's officers, employees or agents or by contractors or their agents.(15) Payment to consultants.(A) For all State assistance agreements, the State will limit its participation in the salary rate (excluding overhead) paid to individual consultants retained by a municipality or by a municipality's contractors or subcontractors to the maximum daily rate for a GS-18 federal employee. (Municipalities may, however, pay contractors and subcontractors more than this amount.) This limitation applies to consultation services of designated individuals with specialized skills who are paid at a daily or hourly rate. The rate does not include transportation and subsistence costs for travel performed; municipalities will pay these in accordance with their normal travel reimbursement practices.(B) Subagreements with firms for services which are awarded using these procurement requirements are not affected by this limitation.(16) Cost and price considerations.(A) The municipality shall conduct a cost analysis of all negotiated change orders and all negotiated subagreements estimated to exceed $10,000.(B) The municipality shall conduct a price analysis of all formally advertised procurements estimated to exceed $10,000 if there are fewer than three bidders.(C) For negotiated procurement, contractors and subcontractors shall submit cost or pricing data in support of their proposals to the municipality.(17) Small purchases. (A) Small Purchase Procurement. If the aggregate amount involved in any one procurement transaction does not exceed $10,000 including estimated handling and freight charges, overhead and profit, the municipality may use small purchase procedures.
(B) Small Purchase Procedures. Small purchase procedures are relatively simple procurement methods that are sound and appropriate for procurement of services, supplies or other property costing in the aggregate not more than $10,000.
(C) Requirements for Competition. (i) Municipalities shall not divide a procurement into smaller parts to avoid the dollar limitation for competitive procurement.(ii) Municipalities shall obtain price or rate quotations from an adequate number of qualified sources.(18) Negotiation and award of subagreements.(A) Unless the request for proposals states that award may be based on initial offers alone, the municipality must conduct meaningful negotiations with the best qualified offerors with acceptable proposals within the competitive range, and permit revisions to obtain best and final offers. The best qualified offerors must have equal opportunities to negotiate or revise their proposals. During negotiations, the municipality must not disclose the identity of competing offerors or any information from competing proposals.(B) The municipality must award the subagreement to the responsible offeror whose proposal is determined in writing to be the most advantageous to the municipality, taking into consideration price and other evaluation criteria set forth in the request for proposals.(C) The municipality must promptly notify unsuccessful offerors that their proposals were rejected.(D) The municipality must document its procurement file to indicate how proposals were evaluated, what factors were used to determine the best qualified offerors within the competitive range, and what factors were used to determine the subagreement award.(19) Optional selection procedure for negotiation and award of subagreement for architectural and engineering services. (A) The municipality may evaluate and select an architect or engineer using the procedures in this subdivision in place of the procedures in "Negotiation and award of subagreements" in subdivision (18).(B) The municipality may use responses from requests for statement of qualifications to determine the most technically qualified architects or engineers.(C) After selecting and ranking the most qualified architects or engineers, the municipality will request technical proposals from those architects or engineers and inform them of the evaluation criteria the municipality will use to rank the proposals.(D) The municipality shall then select and determine, in writing, the best technical proposal.(E) After selecting the best proposal, the municipality shall attempt to negotiate fair and reasonable compensation with that offeror.(F) If the municipality and the offeror of the best proposal cannot agree on the amount of compensation, the municipality shall formally terminate negotiations with that offeror. The municipality shall then negotiate with the offeror with the next best proposal. This process will continue until the municipality reaches agreement on compensation with an offeror with an acceptable proposal. Once the municipality terminates negotiations with an offeror, the municipality cannot go back and renegotiate with that offeror.(20) Noncompetitive negotiation procurement method. Noncompetitive negotiation may be used only when the award of a subagreement is not feasible under small purchase, formal advertising, or competitive negotiation procedures. The grantee may award a noncompetitively negotiated subagreement only under the following circumstances:
(A) The item is available only from a single source;(B) A public exigency or emergency exists and the urgency for the requirement will not permit a delay incident to competitive procurement;(C) After solicitation from a number of sources, competition is determined to be inadequate.(21) Use of the same architect or engineer during construction.(A) If the municipality is satisfied with the qualifications and performance of the architect or engineer who provided any or all of the planning or design services for the project, it may wish to retain that firm or individual during construction of the project. The municipality may do so without further public notice and evaluation of qualifications provided that it received a planning or design grant and selected the architect or engineer in accordance with these procurement regulations.(B) However, if the municipality uses the procedures in (A) to retain an architect or engineer, any construction subagreements between the architect or engineer and the municipality must meet the procurement provisions of Section 22a-439-4(g) (5).(22) Negotiation of subagreements. (A) Formal advertising, with adequate purchase descriptions, sealed bids, and public openings shall be the required method of procurement unless negotiation under (B) of this section is necessary to accomplish sound procurement.(B) All negotiated procurement shall be conducted in a manner to provide to the maximum practicable extent open and free competition appropriate to the type of project work to be performed. The municipality is authorized to negotiate subagreements if any of the following conditions exist:(i) Public exigency will not permit the delay incident to formally advertised procurement (e.g. an emergency procurement).(ii) The aggregate amount involved does not exceed $10,000.(iii) The material or service to be procured is available from only one person or entity. If the procurement is expected to aggregate more than $10,000, the municipality must document its file with a justification of the need for noncompetitive procurement, and provide such documentation to the Commissioner on request.(iv) The procurement is for personal or professional services (including architectural or engineering services) or for any service that a university or other educational institution may render.(v) No responsive, responsible bids at acceptable price levels have been received after formal advertising, and the Commissioner's prior written approval has been obtained.(vi) The procurement is for materials or services where the price is established by law.(vii) The procurement is for technical items or equipment requiring standardization and interchangeability of parts with existing equipment.(viii) The procurement is for experimental, developmental or research services.(23) Enforcement. If the Commissioner determines that the municipality has failed to comply with any of these procurement provisions, he may impose any of the following sanctions:
(A) The grant may be terminated or annulled under Section 22a-439-4(s).(B) Project costs directly related to the noncompliance may be disallowed.(C) Payment otherwise due to the municipality of up to 10 percent may be withheld.(D) Project work may be suspended under Sec. 22a-439-4(e) (6).(E) A noncomplying municipality may be found nonresponsible or ineligible for future state funding assistance or a noncomplying contractor may be found nonresponsible or ineligible for approval for future contract award under state grants.(F) An injunction may be entered or other equitable relief afforded by a court of appropriate jurisdiction.(G) Such other administrative or judicial action may be instituted if it is legally available and appropriate.(24) Contract Enforcement. (A) Commissioner authority. At the request of a municipality, the Commissioner is authorized to provide technical and legal assistance in the administration and enforcement of any contract related to pollution abatement facilities for which a State grant was made and to intervene in any civil action involving the enforcement of such contracts, including contract disputes which are the subject of either arbitration or court action in accordance with the requirements of Section 22a-439-4(d) (1).(g)Architectural/Engineering Procurement Requirements.(1) Type of Contract (Subagreement). (A) General. Cost-plus-percentage-of-cost and percentage-of-construction-cost contracts are prohibited. Cost reimbursement, fixed price, or per diem contracts or combinations of these may be negotiated for architectural or engineering services. A fixed price contract is generally used only when the scope and extent of work to be performed is clearly defined. In most other cases, a cost reimbursement type of contract is more appropriate. A per diem contract may be used if no other type of contract is appropriate. An incentive fee may be used if the municipality submits an adequate independent cost estimate and price comparison.(B) Cost reimbursement contract. Each cost reimbursement contract must clearly establish a cost ceiling which the engineer may not exceed without formally amending the contract and a fixed dollar profit which may not be increased except in the case of a contract amendment to increase the scope of work.(C) Fixed price contract. An acceptable fixed price contract is one which establishes a guaranteed maximum price which may not be increased unless a contract amendment increases the scope of work.(D) Compensation procedures. If, under either a cost reimbursement or fixed price contract, the municipality desires to use a multiplier type of compensation, all of the following must apply: (i) The multiplier and the portions of the multiplier allocable to overhead and allocable to profit have been specifically negotiated.(ii) The portion of the multiplier allocable to overhead includes only allowable items of cost under the cost principles.(iii) The portions of the multiplier allocable to profit and allocable to overhead have been separately identified in the contract.(iv) The fixed price contract includes a guaranteed maximum price for completion of the specifically defined scope of work; and the cost reimbursement contract includes a fixed dollar profit which may not be increased except in the case of a contract amendment which increases the scope of work.(E) Per diem contracts. A per diem agreement may be utilized only after a determination that a fixed price or cost reimbursement type contract is not appropriate. Per diem agreements should be used only to a limited extent, e.g., where the first task under a planning grant involves establishing the scope and cost of succeeding planning tasks, or for incidental services such as expert testimony or intermittent professional or testing services. (Resident engineer and resident inspection services should generally be compensated at cost plus fixed fee). Cost and profit included in the per diem rate must be specifically negotiated and displayed separately in the engineer's proposal. The contract must clearly establish a price ceiling which may not be exceeded without formally amending the contract.
(2) Public Notice. Adequate public notice must be given of the requirement for architectural or engineering services for all subagreements.(A) Public announcement. A notice of request for qualifications should be published in professional journals, newspapers, or publications of general circulation over a reasonable area and, in addition, if desired, through posted public notices or written notification directed to interested persons, firms, or professional organizations inviting the submission of statements of qualifications. The announcement must clearly state the deadline and place for submission of qualification statements.(B) Exceptions. Public notice is not required under the following circumstances: (i) For design or construction phases of a grant funded project if the municipality is satisfied with the qualifications and performance of any engineer who performed all or any part of the planning or design work and the engineer has the capacity to perform the subsequent steps.(ii) The municipality desires the same engineer to provide architectural or engineering services for the subsequent steps or for subsequent segments of design work under one grant if a single pollution abatement facilities is segmented into two or more construction projects. If the design work is accordingly segmented so that the initial contract for preparation of construction drawings and specifications does not cover the entire pollution abatement facilities to be built under one grant and the municipality may use the same engineering firm that was selected for the initial segment of design work for subsequent segments.(3) Evaluation of Qualifications. (A) The municipality shall review the qualifications of firms which responded to the announcement or were on the prequalified list and shall uniformly evaluate the firms.(B) Qualifications shall be evaluated through an objective process (e.g., the appointment of a board or committee which, to the extent practicable, should include persons with technical skills).(C) Criteria which should be considered in the evaluation of candidates for submission of proposals should include: (i) Specialized experience and technical competence of the candidate or firm and its personnel (including a joint venture, association or professional subcontractor) considering the type of services required and the complexity of the project.(ii) Past record of performance on contracts with the municipality, other government agencies or public bodies, and with private industry, including such factors as control of costs, quality of work, and ability to meet schedules.(iii) The candidate's capacity to perform the work (including any specialized services) within the time limitations, considering the firm's current and planned workload.(iv) The candidate's familiarity with the types of problems applicable to the project.(v) Avoidance of personal and organizational conflicts of interest.(4) Solicitation and Evaluation of Proposals. (A) Solicitation of Professional Services Proposals.(i) Requests for professional services proposals must be sent to no fewer than three candidates who either responded to the public announcement or were selected from the prequalified list, unless, after good faith effort to solicit qualifications, fewer than three qualified candidates respond, in which case all qualified candidates must be provided request for proposals.(ii) Requests for professional services proposals must be in writing and must contain the information necessary to enable a prospective offeror to prepare a proposal properly. The request for proposals must include a solicitation statement and must inform offerors of the evaluation criteria.(iii) Submission deadline. Requests for proposals must clearly state the deadline and place for submission.(B) Evaluation of Proposals. (i) All proposals submitted in response to the request for professional services proposals must be uniformly evaluated. The municipality shall also evaluate the candidate's proposed method of accomplishing the work required.(ii) Proposals shall be evaluated through an objective process (e.g., the appointment of a board or committee) which, to the extent practicable, should include persons with technical skills. Oral (including telephone) or written interviews should be conducted with top rated proposers, and information derived therefrom shall be treated on a confidential basis.(iii) Municipalities must base their determinations of qualified offerors and acceptable proposals solely on the evaluation criteria stated in the request for proposals.(5) Negotiation. (A) Municipalities are responsible for negotiation of their contracts for architectural or engineering services. Contract procurement including negotiation may be performed by the municipality directly or by another person or firm retained for the purpose. Contract negotiations may include the services of technical, legal, audit, or other specialists to the extent appropriate.(B) Negotiations may be conducted in accordance with State or local requirements, as long as they meet the minimum requirements as set forth in this section.(C) The object of negotiations with any candidate shall be to reach agreement on the provisions of the proposed contract. The municipality and the candidate shall discuss, as a minimum: (i) The scope and extent of work and other essential requirements.(ii) Identification of the personnel and facilities necessary to accomplish the work within the required time including, where needed, employment of additional personnel, subcontracting, joint venture, etc.(iii) Provisions of the required technical services in accordance with regulations and criteria established for the project.(iv) A fair and reasonable price for the required work, to be determined in accordance with the cost and profit considerations.(6) Cost and Price Considerations. (A) The candidate(s) selected for negotiation shall submit to the municipality for review sufficient cost and pricing data to enable the municipality to ascertain the necessity and reasonableness of costs and amounts proposed and the allowability and eligibility of costs proposed.(B) The municipality shall submit to the Commissioner for review: (i) Documentation of the public notice of need for architectural or engineering services and selection procedures.(ii) The cost and pricing data the selected engineer submitted.(iii) A certification of review and acceptance of the selected engineer's cost and price.(iv) A copy of the proposed subagreement.(C) The Commissioner shall review the complete subagreement procurement procedure and approve the municipality's compliance with appropriate procedures before the municipality awards the subagreement.(D) Cost review. (i) The municipality shall review proposed subagreement costs.(ii) As a minimum, proposed subagreement costs shall be presented on EPA form 5700-41 on which the selected engineer shall certify that the proposed costs reflect complete, current, and accurate cost and pricing data applicable to the date of anticipated subagreement award.(iii) In addition to the specific elements of cost, the estimated amount of profit shall be set forth separately in the cost summary for fixed price contracts and a maximum total dollar amount of profit shall be set forth separately in the cost summary for cost reimbursement contracts.(iv) The municipality may require more detailed cost data than the form requires in order to substantiate the reasonableness of proposed subagreement costs. The Commissioner may require more detailed documentation only when the selected engineer is unable to certify that the cost and pricing data used are complete, current, and accurate. The state may on a selected basis, perform a pre-award cost analysis on any subagreement. A provisional overhead rate should be agreed upon before contract award.(v) The engineer shall have an accounting system which accounts for costs in accordance with generally accepted accounting principles. This system shall provide for the identification, accumulation, and segregation of allowable and unallowable project costs among projects. Allowable project costs shall be determined by the Commissioner. The engineer must propose and account for costs in a manner consistent with his normal accounting procedures.(vi) Subagreements awarded on the basis of a review of a cost element summary and a certification of complete, current, and accurate cost and pricing data shall be subject to downward renegotiation or recoupment of funds where the Commissioner determines that such certification was not based on complete, current, and accurate cost and pricing data or was not based on allowable costs at the time of award.(7) Profit. The objective of negotiations shall be the exercise of sound judgment and good administrative practice including the determination of a fair and reasonable profit based on the firm's assumption of risk and input to total performance and not merely the application of a predetermined percentage factor. For the purpose of subagreements under State grants, profit is defined as the net proceeds obtained by deducting all allowable costs (direct and indirect) from the price. (This definition of profit may vary from the firm's definition of profit for other purposes.) Profit on a subagreement and each amendment to a subagreement under a grant should be sufficient to attract engineers who possess the talent and skills necessary for the accomplishment of project objectives, and to stimulate efficient and expeditious completion of the project. Where cost review is performed, the municipality should review the estimate of profit as it reviews all other elements of price.
(8) Award of Subagreement. The municipality shall obtain the written approval of the Commissioner prior to the award of any subagreement or amendment.
(B) The municipality shall promptly notify unsuccessful candidates.(9) Required Solicitation and Subagreement Provisions.(A) Required solicitation statement. Requests for qualifications or proposals must include the following statement, as well as the proposed terms of the subagreement. Any contract awarded under this request for (qualifications/professional proposals) is expected to be funded in part by a grant from the State of Connecticut, Department of Environmental Protection. This procurement will be subject to requirements contained in Section 22a-439 4 (f), (g), and (m) of the Regulations of Connecticut State Agencies. The State of Connecticut will not be a party to this request for (qualifications/professional proposals) or any resulting contract.
(B) Content of subagreement. Each subagreement must adequately define the scope and extent of project work; the time for performance and completion of the contract work including, where appropriate, dates for completion of significant project tasks; personnel and facilities necessary to accomplish the work within the required time; the extent of subcontracting and consultant agreements; and payment provisions. If any of these elements cannot be defined adequately for later tasks or steps at the time of contract execution, the contract should not include the subsequent tasks or steps at that time.(10) Subagreement Payments-Architectural or Engineering Services. The municipality shall make payment to the engineer in accordance with the payment schedule incorporated in the engineering agreement. Any retainage is at the option of the municipality. No payment request made by the engineer under the agreement may exceed the estimated amount and value of the work and services performed.
(11) Subcontracts under Subagreements for Architectural or Engineering Services. Neither award and execution of subcontracts under a prime contract for architectural or engineering services nor the procurement and negotiation procedures used by the engineer in awarding such subcontracts are required to comply with any of the provisions, selection procedures, policies or principles set forth herein.
(n)Grant Conditions.Grants for pollution abatement facilities shall be subject to the following conditions:
(1) Municipality Responsibilities.(A) Review or approval of engineering reports, plans and specifications or other documents by the Commissioner is for administrative purposes only and does not relieve the municipality of its responsibility to properly plan, design, build and effectively operate and maintain the pollution abatement facilities described in the grant agreement as required under law, regulations, permits, and good management practices. The Commissioner is not responsible for increased building costs resulting from defects in the plans, design drawings and specifications or other subagreement documents.(B) By its acceptance of the grant, the municipality agrees to complete the pollution abatement facilities in accordance with the engineering report, plans and specifications and related grant documents approved by the Commissioner and to maintain and operate the pollution abatement facilities to meet the enforceable requirements of the permit issued pursuant to Section 22a-430 of the Connecticut General Statutes for the design life of the pollution abatement facilities. The Commissioner may seek specific enforcement or recovery of funds from the municipality, or take other appropriate action if he determines that the municipality has failed to make good faith efforts to meet its obligations under the grant.(C) The municipality agrees to pay the non-State costs of the pollution abatement facilities construction associated with the project and commits itself to complete the construction of the operable pollution abatement facilities, and the complete pollution abatement facilities of which the project is a part.(2) Nondiscrimination. Contracts involving construction work of $5,000 or more are subject to nondiscrimination requirements of the Governor's Executive Order No. Three and to the Guidelines and Rules issued by the State Labor Commissioner to implement Executive Order No. Three.
(3) State Wage Rates. Contracts involving construction work are subject to the appropriate State wage rates issued by the State Labor Commissioner.
(4) Access. The municipality must insure that the Commissioner and his duly authorized agents will have access to the project work whenever it is in preparation or progress. The municipality must provide proper facilities for access and inspection. The municipality must allow any authorized agent of the State to have access to any books, documents, plans, reports, papers, and other records of the contractor which are pertinent to the project for the purpose of making audit, examination, excerpts, copies and transcriptions. The municipality must insure that a party to a subagreement will provide access to the project work, sites, documents, and records.
(5) Project Changes. (A) Minor changes in the project work that are consistent with the objectives of the project and within the scope of the grant agreement do not require the execution of a formal grant amendment before the municipality's implementation of the change. However, if such changes increase the costs of the project, the amount of the funding provided by the grant agreement may only be increased by a formal grant amendment.(B) The municipality must receive from the Commissioner a formal grant amendment before implementing changes which: (i) Alter the project performance standards.(ii) Alter the type of treatment facilities provided by the project.(iii) Delay or accelerate the project schedule.(iv) Substantially alter the engineering report, design drawings and specifications, or the location, size, capacity, or quality of any major part of the project.(6) Operation and Maintenance. (A) The municipality must make provisions satisfactory to the Commissioner for assuring economical and effective operation and maintenance of the pollution abatement facilities in accordance with a plan of operation approved by the Commissioner.(B) The Commissioner shall not pay more than 50 percent of the State share of any project unless the municipality has an approved final plan of operation, and shall not pay more than 90 percent of the State share of any project unless the municipality has an approved operation and maintenance manual.(7) Adoption of Sewer Use Ordinance and User Charge System. The municipality shall adopt the sewer use ordinance and implement the user charge system developed under Section 22a-439-3(e) and (f) and approved by the Commissioner before the pollution abatement facilities are placed in operation. Further, the municipality shall implement the user charge system and sewer use ordinance for the useful life of the pollution abatement facilities.
(8) Value Engineering. The municipality must comply with the applicable requirements of Section 22a-439-3(d) for value engineering.
(9) Project Initiation and Completion. (A) The municipality shall expeditiously initiate and complete the project in accordance with the project schedule contained in the grant agreement. Failure to promptly initiate and complete a project may result in annulment or termination of the grant.(B) The municipality shall initiate procurement action for building the project promptly after award of a construction grant. The Commissioner may annul or terminate the grant if the municipality has not awarded the subagreements and issued a notice to proceed, where one is required, for building all significant elements of the project within twelve (12) months of the construction grant award. Failure to promptly award all subagreement(s) for building the project will result in a limitation on allowable costs.(10) Municipality Responsibility for Project Performance. (A) The municipality shall select the engineer or engineering firm principally responsible for either supervising construction or providing architectural and engineering services during construction as the prime engineer to provide the following services during the first year following the initiation of operation: (i) Direct the operation of the project and revise the operation and maintenance manual for the project as necessary to accommodate actual operation experience.(ii) Train or provide for training of operating personnel including the preparation of curricula and training material for operating personnel.(iii) Advise the municipality whether the project is capable of meeting the project performance standards.(B) On the date one year after the initiation of operation of the project the municipality shall certify to the Commissioner whether the project is capable of meeting the project performance standards. If the project does not meet the project performance standards, the municipality shall submit the following: (i) A corrective action report which includes an analysis of the cause of the project's inability to meet the performance standards including infiltration/inflow reduction, and estimates of the nature, scope and cost of the corrective action necessary to bring the project into compliance. Such corrective action report shall be prepared at other than State expense.(ii) The schedule for undertaking in a timely manner the corrective action necessary to bring the project into compliance.(iii) The scheduled date for certifying to the Commissioner that the project is capable of meeting the project performance standards.(C) Corrective action necessary to bring a project into compliance with the project performance standards shall be undertaken by the municipality at other than State expense.(D) Nothing in this section shall be construed to prohibit a municipality from requiring more assurances, guarantees, or indemnity or other contractual requirements from any party performing project work.(11) Final Inspection. The municipality shall notify the Commissioner of the completion of project construction. The Commissioner shall cause final inspection to be made within 60 days of the receipt of the notice. When final inspection is completed and the Commissioner determines that the pollution abatement facilities have been satisfactorily constructed in accordance with the grant agreement, the municipality may make a request for final payment.
(r)Administrative Grant Changes.(1) Transfer of grants; Change of name agreements. Transfer of grant and change of name agreements require the prior written approval of the Commissioner. The municipality may not approve any transfer of a grant without the concurrence of the Commissioner. The Commissioner shall prepare the necessary grant transfer documents upon receipt of appropriate information and documents submitted by the municipality.
(2) Suspension of grants (stop work orders). Work on a project or on a portion or phase of a project for which a grant has been awarded may be ordered stopped by the Commissioner.
(A) Use of stop-work orders. Work stoppage may be required for good cause such as default by the municipality, failure to comply with the terms and conditions of the grant, realignment of programs, lack of adequate funding, or advancements in the state of the art. Inasmuch as stop-work orders may result in increased costs to the State by reason of standby costs, such orders will be issued only after a review by the Commissioner. Generally, use of a stop-work order will be limited to those situations where it is advisable to suspend work on the project or a portion or phase of the project for important program or agency considerations and a supplemental agreement providing for such suspension is not feasible. Although a stop-work order may be used pending a decision to terminate by mutual agreement or for other cause, it will not be used in lieu of the issuance of a termination notice after a decision to terminate has been made.(B) Contents of stop-work orders should be discussed with the municipality and should be appropriately modified in light of such discussions. Stop-work orders should include a clear description of the work to be suspended, instructions to the issuance of further orders by the municipality for materials or services guidance as to action to be taken on subagreements, and other suggestions to the municipality for minimizing costs.(C) Issuance of stop-work order. After appropriate review of the proposed action has occurred, the Commissioner may, by written order to the municipality, require the grantee to stop all or any part of the project work for a period of not more than forty-five (45) days after the order is delivered to the municipality, and for any further period to which the parties may agree. The Commissioner shall prepare the necessary documents for the stop-work order. Any such order shall be specifically identified as a stop-work order issued pursuant to this section.(D) Effect of stop-work order. (i) Upon receipt of a stop-work order, the municipality shall forthwith comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Within the suspension period or within any extension of that period which the parties shall have agreed, the State shall either cancel the stop-work order, in full or in part, terminate the work covered by such order as provided in Section 22a-439-4(s) (3), or authorize resumption of work.(ii) If a stop-work order is canceled or the period of the order or any extension thereof expires, the municipality shall promptly resume the previously suspended work. An equitable adjustment shall be made in the grant period, the project period, or grant amount, or all of these, and the grant instrument shall be amended accordingly if the stop-work order results in an increase in the time required for, or an increase in the municipality's cost properly allocable to, the performance of any part of the project and the municipality asserts a written claim for such adjustment within sixty (60) days after the end of the period of work stoppage.(iii) If a stop-work order is not canceled and the grant-related project work covered by such order is within the scope of a subsequently-issued termination order, the reasonable cost resulting from the stop-work order shall be allowed in arriving at the termination settlement.(iv) Costs incurred by the municipality or its contractors, subcontractors, or representatives, after a stop-work order is delivered, or within any extension of the stop-work period to which the parties shall have agreed, with respect to the project work suspended by such order or agreement which are not authorized by this section or specifically authorized in writing by the Commissioner, shall not be allowable costs.(3) Termination of Grants A grant may be terminated in whole or in part by the Commissioner in circumstances where good cause can be demonstrated.
(A) Termination agreement. The parties may enter into an agreement to terminate the grant at any time pursuant to terms which are consistent with these regulations. The agreement shall establish the effective date of termination of the project and grant, the basis for settlement of grant termination costs, and the amount and date of payment of any sums due either party. The Commissioner will prepare the necessary grant termination documents.(B) Project termination by municipality. A municipality may not unilaterally terminate the project work for which a grant has been awarded, except for good cause. The municipality must promptly give written notice to the Commissioner of any complete or partial termination of the project work by the municipality. If the Commissioner determines that there is good cause for the termination of all or any portion of a project for which the grant has been awarded, he may enter into a termination agreement or unilaterally terminate the grant, effective with the date of cessation of the project work by the municipality. If the Commissioner determines that a municipality has ceased work on the project without good cause, he may unilaterally terminate or annul the grant.(C) Grant termination by Commissioner. (i) Notice of intent to terminate. The Commissioner shall give not less than ten (10) days written notice to the municipality of intent to terminate a grant in whole or in part.(ii) Termination action. The municipality must be afforded an opportunity for consultation prior to any termination. After the Commissioner has been informed of any expressed views of the municipality and concurs in the proposed termination, the Commissioner may, in writing, terminate the grant in whole or in part.(iii) Basis for termination. A grant may be terminated by the Commissioner for good cause subject to negotiation and payment of appropriate termination settlement costs.(D) Effect of termination. Upon termination, the municipality must refund or credit to the State that portion of the grant funds paid or owed to the municipality and allocable to the terminated project work, except such portion thereof as may be required to meet commitments which had become firm prior to the effective date of termination and are otherwise allowable. The municipality shall not make any new commitment without State approval. The municipality shall reduce the amount of outstanding commitments insofar as possible and report to the Commissioner the uncommitted balance of funds awarded under the grant.(4) Annulment of Grant. The Commissioner may annul the grant if he determines that there has been no substantial performance of the project work without good cause, there is convincing evidence the grant was obtained by fraud, or there is convincing evidence of gross abuse or corrupt practices in the administration of the project. In addition to such remedies as may be available to the State under State, or local law, all grant funds previously paid to the municipality shall be returned or credited to the State and no further payments shall be made to the municipality.
(5) Deviations. The Commissioner is authorized to approve deviations from requirements of these regulations when he determines that such deviations are essential to effect necessary grant actions or where special circumstances make such deviations in the best interest of the State.
(A) Request for deviation. A request for a deviation shall be submitted in writing to the Commissioner as far in advance as the exigencies of the situation will permit. Each request for a deviation shall contain as a minimum:(i) The name of the municipality, the grant identification number, and the dollar value, if appropriate.(ii) Identification of the section of these regulations from which a deviation is sought.(iii) An adequate description of the deviation and the circumstances in which it will be used, including all appropriate justification for the deviation request.(iv) A statement as to whether the same or a similar deviation has been required previously and, if so, circumstances of the previous request.(B) Approval of deviation. Deviations may be approved only by the Commissioner. A copy of each such written approval shall be retained in the official State grant file.