DEP Construction Reclamation Standard Terms and Conditions 9.21.2020-ARFQ DEP2100000019.pdf

WV DEPARTMENT OF ENVIRONMENTAL PROTECTION

Revised: September 21, 2020

1 INDEX

2 ABBREVIATIONS & DEFINITIONS

3 VENDOR REQUIREMENTS AND CONDITIONS

DISQUALIFICATION OF BIDDERS

wvOASIS REGISTRATION

COLLUSION AM ONG BIDDERS

CONTRACTUAL AGREEMENT

CONTRACT TERM

NOTICE TO PROCEED

QUANTITIES

REQUIRED DOCUMENTS

SUBMISSION OF BIDS

PRICING

PAYMENT

TAXES

ADDITIONAL FEES

FUNDING

CANCELLATION

TIME

4 CONTENTS AND ISSUANCE OF SOLICITATION

PREPARATION OF SOLICITATION RESPONSE

PRE-BID QUESTIONS AND ANSWERS AND MANDATORY PRE-BID CONFERENCE

5 AWARD AND EXECUTION OF THE CONTRACT

SURETY BOND

INSURANCE REQUIREMENTS

5.2.1 COMMERCIAL LIABILITY AND COMPREHENSIVE VEHICLE LIABILITY INSURANCE

5.2.2 WORKERS’ COMPENSATION AND EMPLOYERS LIABILITY INSURANCE

5.2.3 PROOF OF INSURANCE

5.2.4 DEFENSE AND INDEMNIFICATION

SPECIAL BONDS AND INSURANCE

EXECUTION OF CONTRACT

NOTICE TO PROCEED

PRE-CONSTRUCTION CONFERENCE AND PROJECT MEETINGS

6 SCOPE OF WORK

CORRELATION OF DOCUMENTS

ALTERATIONS OF PLANS OR CHARACTER OF WORK

FURNISHING RIGHT OF ENTRY

TEMPORARY STRUCTURES

MAINTENANCE OF TRAFFIC

RIGHTS IN AND USE OF MATERIALS FOUND ON THE PROJECT

ROUTINE AND FINAL CLEAN-UP

CHANGES IN THE WORK

6.8.1 CHANGE ORDERS

6.8.2 MINOR CHANGES IN THE WORK

6.8.3 DELETIONS

SUSPENSION OF WORK ORDERED BY THE DEPARTMENT

FUNDING SOURCE IDENTIFICATION SIGNS

7 CONTROL OF WORK

AUTHORITY OF DEPARTMENT EMPLOYEES

SHOP DRAWINGS, PRODUCT DATA, AND SAMPLES

MEASUREMENTS AND MANUFACTURER’S DIRECTIONS

LINES, LEVELS, GRADES, AND LAYOUT

DOCUMENTS AT THE SITE

COORDINATION OF PLANS, SPECIFICATIONS, SUPPLEMENTAL SPECIFICATIONS, SPECIAL

PROVISIONS, AND ADDENDA

COOPERATION BY CONTRACTOR

COOPERATION WITH UTILITIES

COOPERATION BETWEEN CONTRACTORS

INSPECTION OF WORK AND MATERIALS

MAINTENANCE DURING CONSTRUCTION AND FAILURE TO MAINTAIN

ACCEPTANCE

8 WARRANTY OR GUARANTEE PERIOD

9 PROTECTION OF PERSONS AND PROPERTY

10 FORCE ACCOUNT WORK

LABOR

MATERIALS

EQUIPMENT

10.3.1 RENTED EQUIPMENT

10.3.2 OWNED EQUIPMENT

10.3.3 IDLE EQUIPMENT

10.3.4 MISCELLANEOUS

TAXES

INSURANCE AND BONDS

ADMINISTRATIVE ALLOWANCE

RECORDS

BASIS OF PAYMENT

11 CONTROL OF MATERIALS

TESTING

QUALITY STANDARDS AND APPROVALS

DOMESTIC ALUMINUM, GLASS OR STEEL IN PUBLIC WORKS PROJECTS

STORAGE OF MATERIALS AND EQUIPMENT

SILENCE OF SPECIFICATIONS

12 PROSECUTION AND PROGRESS

SUBCONTRACTING THE PRIME CONTRACT

NOTICE TO PROCEED

PROSECUTION OF THE WORK

13 LEGAL RELATIONS AND RESPONSIBILITY TO THE PUBLIC

LAWS TO BE OBSERVED

PERMITS, LICENSES, AND TAXES

SAFETY

WEST VIRGINIA JOBS ACT

SANITARY PROVISIONS, ELECTRICITY, AND WATER SUPPLY

USE OF EXPLOSIVES

CONTRACTOR’S RESPONSIBILITY FOR DAMAGE CLAIMS

PERSONAL LIABILITY OF PUBLIC OFFICIALS

NO WAIVER OF LEGAL RIGHTS

LEGAL REMEDIES

PROTECTION OF THE ENVIRONMENT AND SITE CONDITIONS

TEMPORARY ACCESS ROADS

14 DETERMINATION AND EXTENSION OF CONTRACT TIME

CONTRACT TIME

PROGRESS SCHEDULE

DELAYS AND EXTENSIONS OF TIME

14.3.1 EXCUSABLE NON-COMPENSABLE DELAYS

14.3.2 EXCUSABLE COMPENSABLE DELAYS

FAILURE TO COMPLETE ON TIME AND LIQUIDATED DAMAGES

DEFAULT AND TERMINATION OF CONTRACT

15 PAYMENTS AND COMPLETION

CONTRACT SUM

SCHEDULE OF VALUES

PROGRESS ESTIMATES AND APPLICATIONS FOR PAYMENT

PAYMENTS WITHHELD

ACCEPTANCE AND FINAL PAYMENT

DEPARTMENT OF ENVIRONMENTAL

PROTECTION

STANDARD TERMS AND CONDITIONS

FOR

CONSTRUCTION AND RECLAMATION

CONTRACTS

The titles or headings of the sections and subsections are intended for convenience of reference and shall not be considered as having any bearing on their interpretation except those titles and headings used in conjunction with the definition of terms.

2 ABBREVIATIONS & DEFINITIONS

ADDENDUM – A document or information attached or added to the contract to clarify, modify or support the information contained therein. An addendum issued by the Department during the bidding process becomes part of the contract documents when the contract is awarded.

ADVERTISEMENT – The public announcement, as required by law, inviting bids for work to be performed or material to be furnished.

AMENDMENT – A change to the contract made by adding, altering or omitting a certain provision or term. An amended contract retains the legal validity of the original contract.

AWARD – The Department’s notice to a bidder of its acceptance of the submitted bid.

BLACKOUT PERIOD – From the time a requisition is submitted to the DEP Purchasing section for public advertisement until an award is made, evaluators and DEP employees are not permitted to communicate with vendors/contractors about the solicitation or any component thereof without prior approval from the DEP Purchasing Section. All vendors/contractors must direct all communications regarding the solicitation to the DEP Purchasing Section until the agency has issued an award.

BID – Anything that a vendor submits in response to a solicitation that constitutes an offer to the Department and includes, but is not limited to, documents submitted in response to a request for quotation, proposals submitted in response to a request for proposal, or proposals submitted in response to an expression of interest.

BID BOND – A bond in which a third party agrees to be liable to pay a certain amount of money in the event a selected bidder fails to accept the contract as bid. Pursuant to the requirements contained in W.Va. Code § 5-22-1 (c), all vendors submitting a bid on a construction project shall furnish a valid bid bond in the amount of five percent (5%) of the total amount of the bid protecting the State of West Virginia. The bid bond must be submitted with the bid.

BIDDER – An individual, firm, corporation or combination thereof, acting directly or through a duly authorized representative, submitting a bid for the proposed work.

CALENDAR DAY – Every day shown on the calendar.

CHANGE ORDER – A unilateral written order by the Department used when it becomes necessary to amend, clarify, change or cancel purchasing documents issued by the Department.

CONSTRUCTION – The clearing, dredging, excavating, grading of land and other activities associated with the reclamation of property once used to extract coal, oil or natural gas or operate landfills in this State.

CONSULTING ENGINEER – The individual or firm meeting the requirements of W. Va. Code § 30- 13-1, et seq. who is contracted by the Department to provide engineering-related services such as design, supervision, execution, repair, operation, maintenance, technology or the creation of drawings and specifications for the project.

CONTRACT – The written agreement between the Department and the Contractor that covers the performance of the work, the furnishing of labor, equipment, and materials, and the basis of payment. The contract includes the invitation of bids, proposal, contract form, contract bond, specifications, supplemental specifications, special provisions, plans, addendum, notice to proceed, any change orders, and any supplemental agreements that are required to complete the construction project in an acceptable manner, including authorized extensions thereof, all of which constitute one instrument.

CONTRACT ADMINISTRATOR – A person authorized by the Cabinet Secretary to be responsible for the management of contracts, including approval of any necessary changes that may be needed over the course of the contract. The Department will identify the contract administrator for each awarded contract. Vendors should rely only upon written notification by the Contract Administrator of changes to the scope of work or approval of change orders.

CONTRACT BOND – The approved form of security, executed by the Contractor and its surety, guaranteeing completion of the work and payment of all legal debts pertaining to the construction of the project.

CONTRACT PERIOD – The period from the specified date of commencement of work to the specified date of completion of the work, both dates inclusive, as is specified in the contract.

CONTRACTOR – Every person, individual, firm or corporation, including a subcontractor, who agrees, by written contract, to engage in a construction project for the Department.

CRITICAL PATH ACTIVITIES – Project tasks that must start and finish on time to ensure that the project ends on schedule.

DEPARTMENT – West Virginia Department of Environmental Protection.

EMPLOYEE – Any person working on behalf of the project who is under the direction of the contractor or any subcontractor.

ENGINEER – A person employed by the Department who is qualified to practice engineering per W. Va. Code § 30-13-1, et seq. and is authorized by the Cabinet Secretary to administer the engineering components of reclamation and construction contracts, limited by scope of duties assigned.

EQUIPMENT – All machinery, tools, and apparatus necessary for the proper construction and acceptable completion of the work, together with the necessary supplies for upkeep and maintenance of the same.

ESTIMATE – The official written itemization of the approximate calculation or judgment of the value of materials in place and work performed.

EXTRA WORK – An item of work not provided for in the contract as awarded, but found essential to the satisfactory completion of the contract within its intended scope. See further, Section 10 below.

FORCE ACCOUNT WORK ORDER – An order signed by the Contract Administrator directing the Contractor to perform additional work, with payments based on labor, materials used, equipment cost, plus specified percentages of profit.

HOLIDAYS – State holidays an observed day of recreation when no work is done.

INSPECTOR – The Department’s authorized representative assigned to make any or all necessary inspection of the work as further described below.

ITEM – A specifically described unit of work for which a price is provided in the contract.

LOWEST QUALIFIED RESPONSIBLE BIDDER – The bidder who bids the lowest price and that meets, as a minimum, all the following requirements in connection with the bidder’s response to the bid solicitation. The bidder must certify that it:

Is ready, able, and willing to timely furnish the labor and materials required to complete the contract;

Is in compliance with all applicable laws of the State of West Virginia; and Has supplied a valid bid bond or other surety authorized or approved by the Department.

MATERIALS – Any apparatus, equipment, parts or supplies (as distinguished from employees) specified for use in the construction of the project. Materials testing will be addressed in the Technical Specifications.

NOTICE TO PROCEED – A formal written communication from the Department to the Contractor that establishes the date for work on the project to commence and determines the date for project completion.

PAYMENT BOND – (a.k.a. Labor and Materials Payment Bond). A surety bond posted by the Contractor at the request of the Department to guarantee that its subcontractors and materials suppliers on the project will be paid.

PERFORMANCE BOND – A bond in which a surety agrees to be liable to pay a certain amount of money in the event a vendor fails to perform a contract as bid. This bond must be for the full amount of the contract.

PLANS – A written account of the intended future course of action aimed at achieving the specific goals and objectives of the contract within the timeframe specified in the contract. It explains in detail what needs to be done, when, how, and by whom. The plans include, but are not limited to, the approved profiles, typical cross sections, working drawings, standard drawings, and supplemental drawings, or exact reproductions thereof, which show the location, character, dimensions and details of the work to be done.

PRE-BID CONFERENCE – A mandatory meeting between vendors and Department personnel that offers an opportunity to emphasize and clarify critical aspects of a solicitation, eliminate misunderstanding, and permit vendor input.

PRE-CONSTRUCTION CONFERENCE – A conference normally called by the Contract Administrator following award of the Contract and prior to the start of construction, to be attended by Department personnel and the Contractor (or his or her superintendent or authorized agent with direct responsibility for job decisions) to review the activities that shall take place during the construction of the project.

PRODUCT DATA – Illustrative data, brochures, schedules, catalog cuts, charts, informative material or specifications to illustrate materials, articles, items or products for use in some portion of the work.

PROJECT – A planned set of interrelated tasks to be executed over a fixed period and within certain cost and other limitations. For purposes of this document, “project” means the venture undertaken pursuant to the contract.

SAMPLES – Physical examples that show and illustrate materials, finishes, equipment or workmanship of products proposed for use in some portion of the work.

SEASONAL RESTRICTIONS – Limitations imposed on the work which prohibit the Contractor from performing certain types of work during specific seasons of the year.

SHOP DRAWINGS – Drawings, diagrams schedules, and other data prepared for the project by the Contractor, subcontractor, manufacturer or supplier to illustrate and/or install some portion of the work.

SOLICITATION – An attempt made by the Department to obtain bids or proposals for the purpose of entering into a contract, which attempts may include Requests for Quotations (RFQs), Requests for Proposals (RFPs) or other documents approved by the Department.

SOLICITATION RESPONSE – A written answer from a vendor to a solicitation made by the Department, usually made in the form of a bid on a contract.

SPECIAL PROVISIONS – Additions and revisions to the Standard and Supplemental Specifications covering conditions peculiar to an individual project.

SPECIFICATIONS – A general term applied to all directions, provisions, and requirements pertaining to performance of the work.

STATE – The State of West Virginia.

SUBCONTRACTOR – A secondary contractor who contracts with the primary Contractor, not the Department, to perform some or all of the primary Contractor’s obligations under the contract.

SUBSTANTIAL COMPLETION or SUBSTANTIALLY COMPLETE – The stage in the progress of the work when the work or designated portion thereof is sufficiently complete in accordance with the Contract so that the property can be utilized for its intended use, as determined by the Contract Administrator using his or her best professional judgment.

SUPERINTENDENT – The Contractor's authorized representative in responsible charge of the work.

SUPPLEMENTAL AGREEMENT – A bilateral change order to a contract where the parties agree that specified additional work will be accomplished in return for a specified consideration, normally additional money and/or time.

SUPPLEMENTAL SPECIFICATIONS – Additions to and revisions of the Standard Specifications that are included in the solicitation for a specific project. Supplemental Specifications prevail over Standard Specifications when in conflict therewith.

SURETY – The corporation, partnership or individual (e.g. a bank, bonding company or insurance company), other than the Contractor, that is a guarantor of payment or performance if the Contractor fails to perform all of its obligations under the contract.

UNBALANCED BIDDING – refers to the practice of pricing individual line items on a bid sheet at more (or less) than what the bidder would normally offer. The bidder believes that the owner will actually use more or less of the item than is provided in the bidding documents. In doing so, the bidder attempts to take advantage of an owner’s over or under-estimation.

VENDOR SELF-SERVICE (VSS) PORTAL – A computer program that allows the vendor to access data regarding the State purchasing process. In West Virginia, this feature incorporates the vendor registration function as well as the West Virginia Purchasing Bulletin, which includes commodities and services currently out for bid. The VSS portal also allows vendors to receive solicitation notifications by e-mail based on commodities and services noted at the time of registration; review awarded contracts; perform inquiries pertaining to awards; view payment status and update company contact information, including mail and e-mail addresses.

WINTER SHUTDOWN – Period of time typically from November 30 to April 1 that work may not be practical.

WORK – The furnishing of all labor, materials, equipment, and other incidentals necessary or convenient to the successful completion of the project and the carrying out of all duties and obligations imposed by the contract.

WORKING DAYS – Monday through Friday, but excluding Saturday, Sunday, state holidays and days that governmental offices are closed due to declaration of an emergency.

WORK ORDER – A written order, signed by the Contract Administrator, providing authorization to the Contractor to proceed with performance of the contract without further instructions or negotiation. This order shall not create new items or make revisions to item prices.

wvOASIS – An enterprise resource planning (ERP) system used by the State to process all financial transactions, including procurement.

3 VENDOR REQUIREMENTS AND CONDITIONS

DISQUALIFICATION OF BIDDERS

The Department shall not award a contract to any party who has outstanding environmental enforcement actions pending against it for any environmental violation.

Further, the Department shall not award a contract to any party who has unresolved vendor complaints, unpaid liabilities outstanding with the Department or the State or who fail to meet any requirements outlined within these specifications or any supplemental specifications associated with an individual solicitation.

wvOASIS REGISTRATION

It is the Contractor’s responsibility to complete any wvOASIS VSS Portal registration forms and acquire all the necessary software, hardware, and networking capabilities for the electronic bidding process. All solicitations will be issued electronically in wvOASIS and all bids must be submitted electronically in wvOASIS.

The Contractor shall receive all payments electronically via direct deposit. Prior to award of the contract, the Contractor shall be approved and registered to accept payments electronically through the West Virginia State Auditor’s Office. (www.wvsao.gov)

COLLUSION AMONG BIDDERS

In addition to the requirements stated in Section 3.1, bidders shall be disqualified if there is evidence of collusion among them.

Collusion among bidders means a situation in which companies share information illegally among themselves when offering to supply goods or services, in order to control the price.

Participants in collusion will receive no recognition as bidders for any future work of the Department for a period of one year or until those participants found in collusion have been reinstated as qualified bidders, whichever is longer.

When Department personnel believe that collusion among bidders has occurred, the Department will provide written notice to the bidders. Bidders have ten days from the date of notification to respond to the notice, providing credible evidence that no collusion exists.

The Department has discretion to determine if the evidence is credible.

CONTRACTUAL AGREEMENT

Issuance of a Purchase Order signed by the Department and approved as to form by the Attorney General’s office, if required, constitutes acceptance of the contract made by and between the Department and the Vendor. The Vendor’s electronic signature on its bid signifies its agreement to be bound by and accept the terms and conditions contained in the contract.

CONTRACT TERM

The term of the contract shall be stated in the specifications for the solicitation.

NOTICE TO PROCEED

The Vendor shall begin performance of the contract immediately upon receiving notice to proceed, unless otherwise instructed by the Department.

QUANTITIES

For this solicitation, which is a Combined Service and Goods solicitation, the scope of the service and deliverable goods to be provided will be more clearly defined in the Technical Specifications included herewith.

REQUIRED DOCUMENTS

The Vendor shall provide to the Department all of the items identified in the specifications for the solicitation.

SUBMISSION OF BIDS

The Vendor’s submission of its bid in the wvOASIS VSS Portal constitutes an offer to the Department that cannot be unilaterally withdrawn after the time of bid close; signifies that the service and goods proposed by the Vendor meet the mandatory requirements contained in the solicitation for that service and goods, unless otherwise indicated; and signifies acceptance of the terms and conditions contained in the solicitation, unless otherwise indicated.

3.10 UNBALANCED BIDS

The Agency may reject a bid as nonresponsive if the prices bid is materially unbalanced between line items or subline items. A bid is materially unbalanced when it is based on prices significantly less than cost for some work and prices which are significantly overstated in relation to cost for other work, and if there is a reasonable doubt that the bid will result in the lowest overall cost to the Agency even though it may be the low evaluated bid, or if it is so unbalanced as to be tantamount to allowing an advance payment.

Any submitted unit bid item falling outside a reasonable range will require the vendor to provide written justification supporting the need and feasibility of the unit price bid. The Agency will review and determine if submitted justification supports award or disqualification of the contract.

3.11 PRICING

The pricing set forth herein is firm for the life of the contract, unless specified by the Department elsewhere within the solicitation or contract. A Vendor’s inclusion of price adjustment provisions in its bid, without an express authorization to do so from the Department in the solicitation, may result in bid disqualification.

3.12 PAYMENT

Payment in advance is prohibited under the contract. Payment may only be made after the delivery and acceptance of the service and goods called for by the contract. The Vendor shall submit invoices in arrears.

3.13 TAXES

The Vendor shall pay any applicable sales, use, personal property or any other taxes arising out of the contract and the transactions contemplated thereby. The Department is exempt from Federal and State taxes and will not pay or reimburse for them.

3.14 ADDITIONAL FEES

The Vendor is not permitted to charge additional fees or assess additional charges that were not either expressly provided for in the solicitation published by the Department or included in the unit price or lump sum bid amount that the Vendor is required by the solicitation to provide. Including such fees or charges as notes to the solicitation may result in rejection of the Vendor’s bid. Requesting such fees or charges to be paid after the contract has been awarded may result in cancellation of the contract.

3.15 FUNDING

The contract shall continue for the term stated herein, contingent upon funds being appropriated by the Legislature or otherwise being made available. In the event funds are not appropriated or otherwise made available, the contract becomes void and of no effect beginning on July 1 of the fiscal year for which funding has not been appropriated or otherwise made available.

3.16 CANCELLATION

The Department reserves the right to cancel the contract immediately upon written notice to the Vendor if the materials or workmanship supplied do not conform to the specifications contained in the contract. The Department may also cancel any contract upon 30 days written notice to the Vendor.

3.17 TIME

Time is of the essence with regard to all matters of time and performance in this contract.

4 CONTENTS AND ISSUANCE OF SOLICITATION

All solicitations will be both published on the VSS Portal Business Opportunities tab and e-mailed to Contractors or to their authorized representatives who are registered for construction and reclamation commodities in the wvOASIS VSS Portal. Vendors are responsible for assuring that they are properly registered to receive these e-mails from wvOASIS.

The solicitation will show the location and description of the proposed project and all of the necessary particulars to allow for vendors to respond to the solicitation. The solicitation will also include any special provisions or requirements not contained in the Terms and Conditions.

All documents included in the electronic solicitation, including plans, specifications, and other documents, are considered a part of the solicitation and must not be altered.

The quantities appearing in the solicitation specifications are approximate only and are prepared for the comparison of bids. Payment to the Contractor will only be made for the work accepted or for materials furnished in accordance with the contract. If, upon completion of the construction, the actual quantities used show either an increase or a decrease, the unit bid prices offered in the Purchase Order will prevail.

The bidder is required to examine carefully the Plans, Specifications, Supplemental Specifications, contract forms, and the site of the project, as well as any other documents contained in the solicitation. The submission of a bid shall be considered prima facie evidence that the bidder has made such examination and has judged for and satisfied him-or herself as to the character, quality, and quantity of work to be performed and material required to be furnished under the Contract. Failure to conduct such examination or inspection will not relieve the successful bidder of any obligation to furnish all material and labor necessary to carry out the provisions of the contract.

PREPARATION OF SOLICITATION RESPONSE

The bidder’s Solicitation Response must be submitted through the wvOASIS VSS Portal.

The bidder must furnish a unit price or a lump sum price as called for in the solicitation, in numerical figures, for each pay item listed.

The Contractor or the Contractor’s authorized agent shall use a digital signature for the Solicitation Response submission, as provided for in W. Va. Code § 39A-1-5.

The Solicitation Response shall comply with West Virginia Contractor Licensing Act, W.

Va. Code § 21-11-1, et seq. The Contractor is required to have a valid contractor’s license at the time of bid and throughout its work on the project.

Solicitation Responses will be considered irregular and will be rejected for any of the following reasons:

When the Solicitation Response is on a form other than that furnished by the Department or if the Department-furnished form is altered.

When there are unauthorized additions, conditional or alternate bids or irregularities of any kind that may tend to make the Solicitation Response incomplete, indefinite or ambiguous as to its meaning, or when there are errors or omissions in units of measure or measures.

When the bidder adds any provisions reserving the right to accept or reject an award or to enter into a contract pursuant to an award. This does not exclude a bid limiting the maximum gross amount of awards acceptable to any one bidder at any one bid close, provided that any selection of awards will be made by the Department.

The Department will not consider any Solicitation Response unless it is accompanied by a bid bond, in the amount of five percent (5%) of the bid total, made payable to the West Virginia Department of Environmental Protection. Bid bonds will be accepted only if executed on the official form furnished by the Department and uploaded to the wvOASIS system.

The Contractor shall submit each Solicitation Response electronically, and the wvOASIS VSS Portal must receive it by the time designated in the solicitation in order to proceed with the bid closing.

Bidders may withdraw Solicitation Responses in a manner approved by the VSS Portal, so long as it does so in the VSS Portal prior to the time and date established for bid closing. It is the responsibility of the Vendor to withdraw any bid.

Contractors who are found to be low bidders on a number of projects, the total of which exceeds the Contractor’s bonding capacity, may, upon approval by the Contract Administrator, withdraw bids on the project or projects so as to bring the remaining total to within the limit of its bonding capacity. At his or her discretion, the Contract Administrator may award contracts for the project or projects on which bids have been so withdrawn to the next lowest qualified bidder.

At the Department’s discretion, solicitations may be issued for projects in combination or separately, so that bids may be submitted either on the combination or on separate units of the combination. The Department reserves the right to make awards on combination bids or separate bids to the best advantage of the Department. The Department will not consider any combination bids other than those specifically set up in proposals by the Department.

Separate Contracts will be written for each individual project included in the combination.

Solicitation Responses will be publicly available on the Department’s website on a page dedicated solely to the Department’s solicitations and solicitation responses, as well as on

VSS.

Should the apparent successful bidder fail or refuse, for any reason, to execute and deliver its required bonds within 14 calendar days after it received notice of the Department’s acceptance of its bid, the Department may forfeit the security deposited with its bid.

PRE-BID QUESTIONS AND ANSWERS AND MANDATORY PRE-BID CONFERENCE

Any questions to be asked regarding solicitations issued by the Department are to be made by contacting the Department employee listed in the solicitation for the project published on the VSS Portal or by emailing DEPProcurement@wv.gov.

However, during the blackout period, Vendors may only contact the Department’s Purchasing Section and no other Department employees with questions regarding the project.

Doing so may result in the Vendor’s bids being disqualified. When questions are submitted to the Department, the Vendor must provide valid contact information. If the Department is unable to verify the contact information, then the Department may not answer any questions associated with the invalid contact information.

The mandatory pre-bid conference is to provide the vendors the opportunity to see the site and discuss and clarify any questions they may have regarding the advertised specifications.

All vendors who provide a solicitation response are required to attend the pre-bid conference. If the vendor sends an authorized representative to the mandatory pre-bid conference, that representative may only attend and sign in on behalf of that one vendor; no representative may represent more than one vendor.

Questions and answers during the pre-bid conference are for informational purposes only.

No questions or answers alter the terms and conditions of the advertised contract in question.

The Department shall only issue official changes to the contract through an addendum to the applicable contract, which will be made available on the VSS Portal and which all bidders must acknowledge prior to bidding.

Potential bidders may ask technical questions up until the deadline stated in the Solicitation for the submission of technical questions and “how to bid” questions up until the time of the posted bid closing with no exceptions.

Potential bidders may submit technical questions relating to the solicitation to the Department at DEPProcurement@wv.gov. All questions must be submitted on or before the date and time as listed in the solicitation as the technical question deadline in order to be considered.

A written response will be published in a Solicitation addendum. Non-written discussions, conversations, or questions and answers regarding this solicitation are preliminary in nature and are nonbinding.

5 AWARD AND EXECUTION OF THE CONTRACT

After the Department has opened and read the solicitation responses, it will compare them on the basis of the summation of the products of the approximate quantities shown in the bid schedule by the unit bid prices. The Department will make available to the public the results of these comparisons within 24 hours of the bid closing. In the event of discrepancy between unit bid prices and extensions, the unit bid price shall govern.

The Department reserves the right either to reject any or all solicitation responses or to waive technicalities in construing the regularity of proposals submitted by vendors, provided that the technicality so waived does not change the meaning, substance or intent of the proposal, and the proposal remains unmistakably clear as to its intent and meaning.

The Department further reserves the right to advertise for new proposals if, in the judgment of the Contract Administrator, the best interests of the Department will be promoted thereby.

All installed materials and equipment shall be new, and all materials, equipment, and mailto:DEPProcurement@wv.gov workmanship shall be of the kind and type specified in the contract, and, in all cases, be of good quality.

The award of the contract, if it is awarded, will be made to the lowest qualified responsible bidder within 45 calendar days after the closing of solicitation responses. The Contract Administrator may, with the agreement of the successful bidder, withhold issuing the Notice to Proceed for any length of time. The Department will notify the successful bidder by electronic mail to the address shown on the solicitation response, that its bid has been accepted and that it is the apparent low bidder.

The Department reserves the right to cancel the award of any contract at any time before the execution of the contract documents by all parties without any liability against the Department.

SURETY BOND

For contracts that are $25,000 or more, at the time of the execution of the contract, the successful bidder shall execute and deliver to the Department a Performance surety bond and a Labor and Materials surety bond payable to the Department of Environmental Protection in an amount equal to one hundred percent (100%) of the original contract price. This bond must be written by a company (or companies) licensed to do business in West Virginia and in good standing with the West Virginia Insurance Commissioner at the time the bond is issued. The bond shall be held in full force throughout the one-year warranty period. The Department will release the bonds upon the Contractor’s completion of the guarantee period and the Department’s acceptance of the work. The Department requires a bond rider for any increases to the project regardless of dollar amount unless the approved bond is already reflective of the project cost. The bond rider amount shall be for the amount of increase in the contract and shall reflect the total amount of the contract.

In the event that the Contractor’s surety(ies) becomes insolvent or is placed in the hands of a receiver or loses the right to conduct business in the State, the Department may, at its own discretion, withhold payment or any estimate until the Contractor has obtained a sufficient bond in lieu of the bond executed by such surety.

INSURANCE REQUIREMENTS

5.2.1 COMMERCIAL LIABILITY AND COMPREHENSIVE VEHICLE LIABILITY INSURANCE

The Contractor shall maintain commercial general liability (CGL) coverage and comprehensive vehicle liabil ity insurance with limits not less than two million dollars ($2,000,000) for bodily injury and property damage for each occurrence.

5.2.1.1 For contracts of $25,000.00 or less, a minimum limit of liability for this coverage should be $1,000,000.00 for each occurrence.

5.2.2 WORKERS’ COMPENSATION AND EMPLOYERS LIABILITY INSURANCE

The Contractor shall also give evidence of Workers’ Compensation Insurance coverage and Employers Liability Insurance coverage, with a 30-day notice of cancellation. The benefits provided under the Workers’ Compensation coverage shall be benefits prescribed by State law.

The Employer’s Liability policy must include coverage to protect the contractor for claims brought pursuant to the “deliberate intention” provisions of W. Va. Code § 23-4-2(d)(2).

The limits of insurance under this section shall be one million dollars ($1,000,000) for each of the following: Each Accident, Each Disease, and Each Disease / Employee.

5.2.3 PROOF OF INSURANCE

Prior to contract award, the Contractor shall provide to the Department certificates provided by the insurance company or companies issuing the insurance policies required by this Section. The certificates must include the State as an additional insured for each policy. The certificates shall show the type, amount, class of operations covered, effective dates, and dates of expiration of such policies. The certifications shall provide that written notice shall be given to the Department prior to expiration, cancellation or modification of any such policy and shall contain substantially the following representation: “The insurance covered by this certificate will not be canceled or materially modified or altered, except after ten (10) days written notice has been verified as received by the Department of Environmental Protection.” All certificates of insurance used to verify the policies issued must be endorsed by an agent licensed in West Virginia. The endorsement must include the printed name, street address, city, zip code, and West Virginia license number and signature of the agent. The Contractor must have continuous insurance coverage throughout the life of the contract.

5.2.4 DEFENSE AND INDEMNIFICATION

By executing the contract, the Contractor agrees to d e f e n d , indemnify and hold harmless the Department from all liability for personal injury, including death resulting therefrom, and against all liability for property damage sustained by any person or persons, including persons employed by the Contractor or its subcontractors, which is caused in whole or in part by an act or omission, negligent or otherwise, of the Contractor, its agents, servants or employees, and to assume the defense of any action brought by such persons to recover damages and to pay all costs and expenses, including attorney’s fees, incurred by the Department as a result thereof.

SPECIAL BONDS AND INSURANCE

When the work is of such nature that special bond or insurance is required, the special requirements will be detailed and included in the solicitation for the project.

EXECUTION OF CONTRACT

The contract shall be executed by the bidder to whom the contract has been awarded, the bond executed by the principal and the sureties, and the contract and bond returned to the Department within 14 calendar days after the date of the notice of the award.

Failure by the bidder to execute the contract and file acceptable bond within 20 days after notice of award shall be just cause for the annulment of the award. It is understood by the bidder, in the event of an annulment of award, that the difference between the contractor’s bid and the bid of the next lowest qualified bidder will be deducted from the amount of the bid bond and retained and deposited by the Department, not as a penalty, but as liquidated damages. Award may then be made to the next lowest qualified bidder or the work may be re-advertised, at the Department’s discretion.

NOTICE TO PROCEED

The Department will create a change order that will include the Notice to Proceed date so it will be included in the Purchase Order. The Notice to Proceed establishes the effective dates of the contract. The Department will e - mail the Change Order to the Contractor.

PRE-CONSTRUCTION CONFERENCE AND PROJECT MEETINGS

The Department will arrange a pre-construction conference as soon as possible after the award of each contract. The Contractor, its superintendent or its authorized agent shall be present at the conference and shall present the proposed schedule of work, a list of proposed subcontractors, if any, and a list of suppliers from whom the Contractor expects to purchase materials. The information so presented shall be on forms submitted to the Contractor.

The parties shall hold meetings at periodic intervals throughout the construction contract period for discussion of matters pertinent to the execution and administration of the project.

The Engineer or Consulting Engineer, Contract Administrator, Inspector, Contractor and/or its superintendent, subcontractor(s), and/or project foremen, as required, shall attend these meetings.

6 SCOPE OF WORK

The intent of the contract is to provide for the construction and completion in every detail of the work described. The Contractor shall furnish all labor, materials, equipment, tools, transportation, and supplies required to complete the work in accordance with the plans, specifications, and terms of the contract. Should any misunderstanding arise as to the intent or meaning of the contract, or any discrepancy appear, the decision of the Contract Administrator shall be final.

CORRELATION OF DOCUMENTS

The contract documents include all labor, materials, equipment, operations, and transportation necessary for the proper execution and completion of the work. The contract documents are complementary and what is required by one is required by all. The Contractor shall carefully study and compare the contract documents and shall report immediately to the Department any error, inconsistency or omission it may discover. The Contractor shall not proceed with the work affected by such error, inconsistency or omission until it is resolved to the satisfaction of both the Contractor and the Department.

The drawings and specifications are correlative, and the Contractor shall accept and use them as a whole and not separately. Should any item be omitted from the drawings but included in the specifications, and that item is required to complete the work under the contract, the Contractor shall execute that item as though it were shown on both. However, the Contractor is not required to provide items or work not required by the contract documents or applicable to the project, unless such item or work is consistent with the contract documents and reasonably inferable therefrom as being necessary to produce the results contemplated by the contract.

If the Contractor finds disagreement or conflict between drawings and specifications or inconsistencies, errors or omissions in the drawings and specifications or if the Contractor considers any part of the meaning of either the drawings or specifications vague, obscure or uncertain, the Contractor shall immediately notify the Contract Administrator. The Contractor shall not conduct any work so affected by such circumstances until the Contract Administrator renders a decision or interpretation thereon.

ALTERATIONS OF PLANS OR CHARACTER OF WORK

When the accepted quantities of work vary from the quantities in the bid schedule, the Contractor shall accept as payment in full, so far as contract items are concerned, payment at the original contract unit price for the accepted quantities of work done.

The Department will not make any allowance, except as noted below, for any increased expense, loss of expected reimbursement or loss of anticipated profits suffered or claimed by the Contractor resulting either directly from such alterations or indirectly from unbalanced allocation among the contract items of overhead expense on the part of the bidder and subsequent loss of expected reimbursements therefor or from any other cause.

Increased work involving supplemental agreements will be paid for as stipulated in such agreements. The Contractor shall furnish substantiating data required in the preparation of these agreements.

Under no circumstances shall alterations of plans or the nature of the work involve work beyond the project limits of the proposed construction, except as may be necessary to satisfactorily complete the project.

Alterations in plans or increased quantities of items may be made necessary at a time when the contract or the items involved in the operations are substantially completed and the contractor has demobilized and essentially removed related equipment from the project.

Under these circumstances, the Contract Administrator may allow additional compensation for remobilization and demobilization as outlined in the unit pricing in the contract.

The Contractor shall perform unforeseen work for which there is no price included in the contract whenever the Contract Administrator deems it necessary or desirable in order to complete fully the work as contemplated. The Contractor shall perform the work in accordance with the specifications and as directed and will be paid for as provided by a written supplemental agreement on a unit price or lump sum basis. In the event that the Contract Administrator and the Contractor are unable to agree upon the terms of the supplemental agreement, the Contractor shall proceed with the work and receive payment therefor in the manner and amount prescribed in Section 10 (Force Account Work) below.

FURNISHING RIGHT OF ENTRY

The Department is responsible for securing all construction rights of entry in advance of construction. Any exceptions will be indicated in the Technical Specifications.

The Contractor shall secure all rights of way for borrow, disposal, access or other purposes as it sees fit and shall defend, indemnify and hold harmless the Department from all liability and/or damages resulting from the Contractor’s use thereof. This indemnification shall include, but is not limited to, liability and/or damages resulting from the Contractor’s failure to obtain a right of entry or failure to obtain a complete right of entry; failure to draft adequate right of entry agreement(s); or failure to obtain the permission and signatures of all persons or entities holding a legal interest in the subject property or properties covered by the right of entry agreement(s).

All right of entry agreements the Contractor obtains for borrow, disposal, access or other purposes shall include a provision requiring the property owner to indemnify and hold harmless the Department for the Contractor’s actions and any injury and/or damages whatsoever resulting from the Contractor’s use of the property and shall provide to the Agency prior to any disturbance.

TEMPORARY STRUCTURES

The Contractor will not be required to construct or maintain temporary structures unless the construction and maintenance of such structures are stipulated in the contract or ordered as extra work by the Contract Administrator. If the building of temporary structures is included in the contract or added by extra work order, the responsibility of the contractor for accidents to the public or to their employees arising from their construction or maintenance shall extend to such structure.

MAINTENANCE OF TRAFFIC

The Contractor must ensure that the project does not impede traffic on public roadways.

All expenses for traffic maintenance shall be borne by the Contractor without extra compensation, except when the proposal provides for payment for efforts necessary to maintain traffic on public roadways.

RIGHTS IN AND USE OF MATERIALS FOUND ON THE PROJECT

The Contractor, with the prior written approval of the Contract Administrator both as to use and material, may use on the project such stone, gravel, sand or other material as may be found in the excavation and will be paid for such materials at the corresponding contract unit price. If a unit price does not exist in the contract, a supplemental agreement may be issued with agreement of the contractor and Contract Administrator on a unit price and quantity, prior to any work allowed.

The Contractor shall replace, at its own expense and with other acceptable material, all of that portion of the excavation material so removed and used which was needed for use in the embankments, backfills, approaches or otherwise. The Department will not make any charge against the Contractor for the material not used. The Contractor shall not excavate or remove any material from within the project limits that is not within the grading limits, as indicated by the slope and grade lines, without written authorization from the Contract Administrator.

ROUTINE AND FINAL CLEAN-UP

The Contractor shall at all times keep the construction site free of accumulations of waste materials and rubbish caused by its operations. Periodically during the progress of the work, and also when requested to do so by the Department, the Contractor shall remove, or cause to be removed, accumulated waste materials, rubbish, and debris and leave the construction area in good order. The Contractor shall dispose of all debris and waste resulting from work at its dump site. The Contractor shall not put or spill any materials into any drainage system that would pollute area streams or waterways. The Contractor is liable for any stream pollution caused directly or indirectly by its own employees or those of its subcontractor(s).

Should disputes arise between the Contractor and other contractors or subcontractors as to responsibility for cleaning up, and refusals to do so result therefrom, the Department may perform the cleanup and charge the cost thereof to the Contractor, the other contractors, and/or the subcontractors responsible therefor, as the Department shall determine is fair and just.

CHANGES IN THE WORK

During the progress of the work, if subsurface or latent physical conditions are encountered at the site that differ materially from those indicated in the contract, or if unknown physical conditions of an unusual nature that differ materially from those ordinarily encountered and generally recognized as inherent in the work provided for in the contract are encountered at the site, the party discovering such conditions shall promptly notify the other party in writing of the specific differing conditions before they are disturbed and before the affected work is performed.

If there are alterations or changes in quantities that significantly change the character of the work under the contract, whether such alterations or changes are in themselves significant changes to the character of the work or, by affecting other work, cause that other work to become significantly different in character, the Department will make an adjustment to the contract,…