Wyo. Code R. 045-0003-18
General Agency, Board or Commission Rules
Chapter 18: Consulting & Special Services Agreements
Effective Date: 11/25/1974 to 06/12/2001
Rule Type: Superceded Rules & Regulations
Reference Number: 045.0003.18.11251974
These rules are necessary to implement and administer the hiring of consultants and specialists. The rules herein announced are subject to change by the Superintendent and Chief Engineer through administrative rulings, as exigencies may require.
Section 1. Authority. The highway authorities of the Wyoming State Highway Department pursuant to Section 24-33 W.S 24-2-105, Wyoming Statutes 1957, Cumm. Suppl. 1973, are authorized to, "employ such engineers, superintendents, and employees with salaries to be approved by the commission, as may be necessary for the proper performance of the duties of the commission and the construction work undertaken by it."
Section 2. Definitions.
a. Actual Cost of Consultant Plus a Fixed Amount: By this method, the consultant is reimbursed for his costs and receives, in addition, a predetermined amount as a net fee.
b. Consultant: Engineering firms or individual(s) or other specialists whose services are to be retained to perform services necessary to supplement Department forces and to provide information and data that the State is not equipped or staffed to produce.
c. Contract Time: Specified number of calendar days for completion of the contract.
d. Cost Per Unit of Work: By this method, the consultant is paid on the basis of work performed. This method is appropriate when the cost of the work per unit can be determined in advance with reasonable accuracy, but the extent of the work is indefinite.
e. Department: Wyoming State Highway Department.
f. Direct Costs: Those costs which are specifically incurred in the performance of work on the particular project. These include such items as salaries paid to the various classes of employees including those of the principal of the firm for actual time expended on the project, transportation and mileage costs, payroll additives and material actually used on the work.
g. Director: The Director of Administration, Planning and Programming, Engineering, and Operations of the Wyoming State Highway Department.
h. Indirect Costs: Those costs involved with the maintenance of the office, various taxes, insurance, outside services, assignable percentage of salaries of supervisory personnel which are not charged as direct costs, training, research, and other costs commonly referred to as overhead costs.
i. Lump Sum Payment: By this method, the consultant undertakes to perform the services stated in the agreement for an agreed amount as prime compensation.
j. Progress Payments: Payments made as the work is advanced for portions completed and for costs incurred in collection of data and other preliminary work.
k. Responsible Charge: Definite responsibility for work of substantial importance. Said responsibility to include the direction of work, the successful accomplishment of which rested upon the individual, where required to decide questions of methods of execution and suitability of materials, without relying upon advice or instructions from superiors. Responsibility to carry out important assignments, demanding resourcefulness and originality, or responsibility to make plans and write specifications. Also teaching at a college or university of recognized standing having a grade of assistant professor or its equivalent will fulfill the requirement in lieu of actual experience.
l. Specific Rates of Compensation: By this method, the consultant is paid at an agreed and supported specific fixed hourly rate or daily rate for each class of employee directly engaged in the work. Such rates of pay include the consultant’s estimated costs and net fee.
m. Superintendent and Chief Engineer: The Superintendent and Chief Engineer of the Wyoming State Highway Department.
a. Each consultant desiring to provide services to the Department is required to qualify with the Department prior to being considered eligible for obtaining work from the Department. Engineering and architectural firms interested in being engaged by the Department should disclose complete information regarding their qualifications, using U.S. Government Form 251 for this purpose, then, if requested, submit up-to-date, year by year. This form develops the basic information regarding the engineering or architectural firm, its personnel, the general type of work done, the personal history of the principals and key men, the current work load of the firm, and a record of projects previously designed. The firm’s own brochure with photographs and general background data will be satisfactory if all the above data is included.
b. Firms and individuals whose services are to be retained for special studies or special projects will be required to submit a resume of their experience, educational background, and special qualifications. This information will be considered equivalent to that presented by engineering and architectural firms as a qualification prerequisite.
Consultants will be selected based on the following criteria:
a. The general policy concerning the selection of a consultant will be that the determination will be considered in the best interest of the public.
b. The selection of a consultant will be based upon but not necessarily limited to the following:
(i) A principal of the firm must be licensed by the Wyoming State Board of Examining Engineers to engage in engineering services in the State of Wyoming.
(ii) A principal member of the engineering or architectural firm's staff must have at least ten (10) years recent experience in responsible charge of engineering or architectural work of the type involved in the project. Also, at least one additional member of the firm's staff must have at least five years experience in responsible charge in the field or fields, required by the project.
(iii) The consultant shall be of high ethical and professional standing with all members being of good moral character.
(iv) Members of the consultant under consideration shall possess requirements in education, training, and experience that meet the satisfaction of the selecting function.
Section 5. Approval of Consultant. After all eligible firms or individuals have been reviewed, the Director of the affected function will submit the name of the firm or individual of his choice, to the Superintendent and Chief Engineer for approval. This submission will include a brief explanation of the reasons for the selection based upon the qualification listed in Section 4 above.
Section 6. Development of the Proposal. Upon receipt of approval to hire a particular consultant or specialist, a project proposal accurately setting forth and defining the extent of the work shall be developed by the applicable function. This proposal will be utilized as a basis for negotiating an agreement between the selected consultant and the Department.
a. The basis of payment for consultant services that will be considered in the negotiation phase developing the agreement is as follows:
(i) Lump Sum. May be used when extent of work can be accurately established and estimate of cost can be evaluated in advance with reasonable accuracy. The basic amount shall be supported by an itemized estimate detailing anticipated costs for the individual items of work expecting to be incurred in performing the services required. The estimate is to be established by the Department with suitable documentation that it is just and equitable in comparison with other cost records and knowledge and experience gained from projects of similar type work. Breakdown of the estimate shall detail direct salary costs, payroll additives, indirect costs, non-labor costs and profit.
(ii) Cost Per Unit of Work Payment. May be used when cost of work can be determined in advance with reasonable accuracy but extent is indefinite. Quantities and characteristics of each unit should be consistently uniform. A suitable estimate shall be developed to establish the cost per unit. A maximum amount payable shall be established.
(iii) Actual cost of Consultation Plus a Fixed Amount. May be used when it is not feasible to establish payment on the basis of a lump sum or unit of work basis. Payment may be the actual cost to the consultant plus a predetermined amount to cover profit only. Actual costs payable are those incurred in discharge of the work and properly assignable to the specific project for which the consultant's services have been engaged. These will include:
(A) All costs related to individual salaries of employees for time worked on the project and salaries of principals for time directly involved with work necessary to complete the project;
(B) direct non-salary costs incurred in performing the contract work; and
(C) the consultant’s overhead or indirect costs which are properly assignable to the project. Payment shall be limited to a maximum amount.
b. The above methods of payment for consultant services are prescribed for use in all but exceptional cases. In special cases when a consultant’s services are required to perform a particular task of which the cost is difficult to estimate or where the Department is without previous experience in the field for which consultant services are required, the following method of payment may be used upon approval by the Superintendent and Chief Engineer:
(i) Specific rates of pay for certain classes of employees or principals of consultant firms plus travel, and
(ii) Payment to the consultant should represent a fair payment for the services performed.
c. The rates of pay as established herein are based on the direct and indirect costs of the consultant, a listing of which shall be furnished during negotiations for review and approval by the Department. In these categories, costs are classified in accordance with the following:
(i) Direct costs are those costs which are specifically incurred in the performance of work on the particular project. These include such items as salaries paid to the various classes of employees including those of the principal of the firm for actual time expended on the project, transportation and mileage costs, payroll additives and materials actually used on the work.
(ii) Indirect costs are those costs involved with the maintenance of the office, various taxes, insurance, outside services, assignable percentage of salaries of supervisory personnel which are not charged as direct costs, training, research, and other costs commonly referred to as overhead costs.
d. Periodic progress payments may be made as the work is advanced for portions completed and for costs incurred in collection of data and other preliminary work. Partial payments are to be documented by Department review of status of work to determine percentage completion.
a. The information developed in the proposal will be provided the consultant as well as any other documents such as specifications, standard plans, reports, maps, and regulations concerning consultant agreements. This data may be used by the consultant to aid in developing the estimate for the proposed work. The consultant will be advised at the beginning of negotiations that his selection is subject to the negotiation of a satisfactory agreement as to the terms and fee and that the Department assumes no obligation to the firm until an agreement is reached.
b. If the consultant's proposed fee is approximately equal to the Department's estimate and the work proposed is acceptable, the agreement will be recommended to the Superintendent and Chief Engineer for approval. If the proposed fee is substantially more or less than the Department's estimate the items of variance will be identified and discussed in detail with the consultant in order to resolve them and complete the agreement. Upon reaching agreement on terms and fee, the consultant will submit a final estimate of costs in support of the agreed fee if different than the initial proposal.
c. Should negotiations be successful with the first firm, the representative will be notified in writing.
a. After agreement has been reached between the Department and the consultant, a contract will be prepared by the Department for approval by both parties. Pursuant to appropriate approval of the contract by all concerned, the Department shall notify the consultant in writing to commence work, such notification being referred to herein as the 'authorization to proceed.'
b. In the event Federal funds are involved in the contract, compliance with the Federal Highway Administration planning and policy directives shall be required.
a. All consulting agreements shall contain a covenant providing a specified number of calendar days for completion of the contract. If prescribed by the Department, liquidated damages for overrun of time will be determined in accordance with the schedule as set forth in the contract.
b. If the consultant is unable to complete the work within the time frame prescribed by the contract, an extension of contract time may be authorized by the Department providing there is sufficient justification for such an extension.
Section 11. Changes in Scope. In the event the Department shall require changes in the scope, character or complexity of the work to be performed, which changes cause an increase or decrease in the consultant's costs or time for performance, an equitable adjustment in fees and completion time shall be negotiated between the parties and the original contract shall be modified accordingly by a Supplemental Agreement. Any claims by the consultant for adjustment hereunder must be made in writing prior to performance of any work or services covered in the change order. Any change made without such prior agreement shall be deemed covered in the compensation and time provided for in the original contract.
Section 12. Termination Procedure. The Department reserves the right to terminate the contract for any cause, in which event, compensation shall be made to the consultant based upon a percentage of completion of the work. The ownership of the work completed or practically completed at the time of such termination or abandonment shall be retained by the Department.
Section 13. Ownership of Engineering Documents. The ownership of all data and material developed in the course of and pertinent to the project shall vest in the Department and shall be delivered upon completion with no restrictions as to its use and application. No data or material will be released by consultant without prior approval, in writing, from the Department.
a. The consultant will be required to save harmless the Department or other agency of government from all claims and liability resulting from activities of himself, his subcontractors, agents, or employees.
b. In this connection, the consultant will carry insurance to the extent required by the Department. The insurance as required shall be maintained until the consultant's work has been completed and accepted by the Department. Proof of insurance coverage shall be furnished by the consultant.
Section 15. Non-Raiding Clause. The consultant shall not engage the services of any person or persons presently in the employ of the Department for work covered by this Agreement without the written consent of the employer of such persons.
Section 16. General Compliance with Laws. The consultant shall comply with all Federal, State, and local laws and ordinances applicable to the work.
Section 17. Subletting, Assignment or Transfer. Subletting assignment or transfer of all or part of the interest of the consultant in this Agreement is prohibited, unless written consent is obtained from the Department.
Section 18. Forbidding Use of Outside Agents. The consultant shall warrant that it has not employed or retained any company or person, other than a bona fide employee working solely for the consultant, to solicit or secure an Agreement, and that it has not paid or agreed to pay any company or person, other than a bona fide employee working solely for the consultant, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or making of said Agreement. For breach or violation of this warranty, the Department shall have the right to annul said Agreement without liability.
Section 19. Professional Registration. Prepared documents shall be duly endorsed by the consultant, and the seal of registered professional engineer licensed to practice in the State of Wyoming shall be affixed thereto.
Section 20. Nondiscrimination Clause. All contracts or agreements will contain a clause requiring the consultant to comply with the provisions of the Equal Employment Opportunity Law.
Section 21. Retention and Inspection of Costs Records. The consultant will retain the cost records for a period of three years from the date of completion of work, which records shall be open for inspection and subject to audit by Department.
Section 22. Certification of Consultant and Department. As part of each proposed agreement, a certification of consultant and Department is to be completed and submitted to the Department.
(a) The Chief Administrative Officer of the consultant shall provide the following information for the Certification:
(i) State the Chief Administrative Officer's position with the firm and that he is the duly authorized representative of said firm.
(ii) Address of the firm.
(iii) That neither the Chief Administrative Officer nor the firm have:
(A) employed or retained for a commission, percentage, brokerage, contingent fee or other consideration any firm or person (other than a bona fide employee working solely for me or the above consultant) to solicit or secure this contract,
(B) agreed, as an express or implied condition for obtaining this contract, to employ or retain the services of any firm or person in connection with carrying out the contract, or
(C) paid, or agreed to pay to any firm, organization or person (other than a bona fide employee working solely for me or the above consultant), any fee, contribution, donation, or consideration of any kind for or in connection with procuring or carrying out the contract;
except as expressly stated (if any):
(iv) Acknowledge that this certificate is to be furnished to the Department and the Federal Highway Administration, Department of Transportation, in connection with any contract involving participation of Federal-aid highway funds and is subject to applicable State and Federal laws, both criminal and civil.
b. The Chief Administrative Officer of the Department shall provide the following information for the Certification:
(i) State the Chief Administrative Officer's position.
(ii) That the consulting firm or its representative has not been required, directly or indirectly as an express or implied conclusion in connection with obtaining or carrying out this contract to:
(A) employ or retain, or agree to employ or retain, any firm or person, or
(B) pay, or agree to pay, to any firm, person, or organization any fee, contribution, donation, or consideration of any kind;
except as expressly stated (if any):
(iii) Acknowledge that this certificate is to be furnished to the Federal Highway Administration, Department of Transportation, in connection with any contract involving participation of Federal-aid highway funds and is subject to applicable State and Federal laws, both criminal and civil.
The consultant warrants that he has not employed or retained any company or person other than a bona fide employee working solely for the consultant to solicit or secure this contract, and that he has not paid or agreed to pay any company or person other than a bona fide employee working solely for the consultant any fee, commission, percentage, brokerage fee, gifts, or any other consideration contingent upon or resulting from the award or making of this contract. For breach or violation of this warranty, the State shall have the right to annul this contract without liability or in its discretion to deduct from the contract price or consideration or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee.
DATE
SIGNATURE
State Contract No. ____
Federal-aid Project ____
State ____
I hereby certify that I am the __ and duly authorized representative of the firm of __, whose address is ____, and that neither I nor the above firm I here represent has:
(a) employed or retained for a commission, percentage, brokerage, contingent fee or other consideration any firm or person (other than a bona fide employee working solely for me or the above consultant) to solicit or secure this contract, (b) agreed, as an express or implied condition for obtaining this contract, to employ or retain the services of any firm or person in connection with carrying out the contract, or (c) paid, or agreed to pay to any firm, organization or person (other than a bona fide employee working solely for me or the above consultant), any fee, contribution, donation, or consideration of any kind for or in connection with procuring or carrying out the contract;
except as expressly stated (if any):
I acknowledge that this certificate is to be furnished to the State Highway Department and the Federal Highway Administration, Department of Transportation, in connection with this contract involving participation of Federal-aid highway funds and is subject to applicable State and Federal laws, both criminal and civil.
DATE
SIGNATURE
I hereby certify that I am the __ of the Highway Department of the State of __ and that the above consulting firm or his representative has not been required, directly or indirectly as an express or implied condition in connection with obtaining or carrying out this contract to:
(a) employ or retain, or agree to employ or retain, any firm or person, or, (b) Pay, or agree to pay, to any firm, person, or organization any fee, contribution, donation, or consideration of any kind;
I acknowledge that this certificate is to be furnished the Federal Highway Administration, Department of Transportation, in connection with this contract involving participation of Federal-aid highway funds, and is subject to applicable State and Federal laws, both criminal and civil.
DATE
SIGNATURE