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When it is necessary to utilize the services of a consultant, the Division Director or the Responsible Charge District Engineer/Manager will submit the

    157CSR1

    TITLE 157

    PROCEDURAL RULE

    DEPARTMENT OF TRANSPORTATION

    DIVISION OF HIGHWAYS

    SERIES 1

    REGULATIONS PERTAINING TO PARTICULAR

    FUNCTIONS OF THE COMMISSIONER OF HIGHWAYS

     2.4. Effective Date. Each order of the ?157-1-1. General.

     Commissioner of Highways filed in the

     1.1. Scope. -- This procedural rule Commissioner's Order Book as provided in the addresses particular functions of the office of the preceding section, shall become effective Commissioner of Highways and is submitted immediately upon filing, unless some provision pursuant to the provisions of W. Va. Code of law or some statement as to the effective date ?29A-3-3. of such decision is stated in the order itself.

     1.2. Authority. -- W. Va. Code ?17-2A-4b 2.5. Copies of Commissioner's Orders; and 8. Distribution. The Commissioner of Highways

     shall provide a certified copy of any

     1.3. Filing Date. -- September 25, 2007. Commissioner's Order to any person who is

     directly affected by any such order and who

     1.4. Effective Date. -- October 25, 2007. requests a copy thereof. In addition to any

     person requesting a copy of such order, the

    Commissioner may furnish copies to any ?157-1-2. Commissioner's Orders.

     governmental agency or to such other persons,

     2.1. Purpose. The purpose of this section is firms or organizations as he may deem suitable to establish a system by which all orders of the or proper in order to provide the most effective Commissioner of Highways may be notice of the order. permanently recorded and maintained in such manner that they will be conveniently accessible ?157-1-3. Hearing Procedures.

    to interested persons.

     3.1. Purpose. The purpose of this section is

     2.2. Scope of Commissioner's Order. The to provide standards of conduct for all hearings orders of the Commissioner of Highways are by and before the Commissioner of Highways. official determinations or decisions which relate to the internal management and organization of 3.2. Scope. These rules shall apply to all the Division of Highways, or to a specific person hearings which may be held by the or group of persons, or to the public in general. Commissioner of Highways, whether the same

     be initiated by the Commissioner or by any

     2.3. Commissioner's Order Database. The citizen, it being the intent hereof that these rules Commissioner of Highways shall maintain in his shall be applicable whenever, by any action of office a record of all orders issued by him, the Commissioner of Highways, the rights of which record shall be designated as the any citizen will be adversely and directly Commissioner of Highways' Order Database. affected and it is proper that such citizen have All orders issued by the Commissioner during due notice and an opportunity to be heard each day shall be entered therein, and all such thereon. orders so entered shall be formatted and archived so as to afford a method of ready and 3.2.a. These rules shall also apply to the convenient access to each such order issued by conduct of all hearings on claims asserted the Commissioner. against the Division of Highways, other than

     claims heard and determined by the Court of

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    Claims. These rules shall not apply to hearings Administrator. Matters thus presented, if their and public meetings held by the Commissioner nature warrants, may be negotiated and settled for purposes of acquiring information, making by the Commissioner of Highways, the District findings and determining courses of action and Administrator, or some other duly authorized procedure relative to the location of any road or employee, without formal hearings. If the proposed road, or to the advancement and matters cannot be resolved satisfactorily to all improvement of the state road system. parties, the proceeding is held to be without

     prejudice to the right of any party to file and

     3.2.b. These rules shall be applied in prosecute a formal claim, complaint or harmony with applicable state statutes and in application, whereupon the informal proceeding case of conflict, state statutes shall prevail. will be discontinued. No form of informal

     complaint, claim or application is prescribed, but

     3.3. Records Pertaining to Hearings. The the letter or other writing must contain a clear Commissioner of the Division of Highways or and concise statement of the facts and the his designee shall be responsible for all specific relief sought. However, the names of administrative and clerical duties relating to all parties affected or involved shall be stated in hearings and for all records and pleadings full, and the address of each party, with the pertaining to hearings. He shall receive all name and address of his attorney, if any, stated applications, petitions, protests, claims or other therein or thereon. written documents relating to a hearing before the Division of Highways. The designee will, 3.4.b. Formal Pleadings. All formal upon request, advise any party as to the form or complaints, claims, applications, petitions and condition of any paper to be filed in any protests shall be in writing and addressed to the proceeding before the Commissioner. He will Commissioner of Highways. Such papers shall maintain a docket book in which shall be entered set forth plainly and distinctly the grounds for each formal case on complaint, claim, the relief sought or reasons for protest and application or petition, investigation, or protest, should be so drawn as fully and completely to with a file number corresponding to the number advise the Commissioner of Highways of the of the case together with brief chronological nature of the grievances or alleged violations of notations of the proceedings had in the case. He law. shall also maintain the Commissioner's Order Book, in which shall be recorded, on the day of 3.4.b.1. The names of all parties their filing, any orders made or passed by the affected or involved shall be stated in full and Commissioner of Highways in the performance the address of each party, with the name and of his statutory duties. address of his attorney, if any.

     3.3.a. All papers or documents, of 3.4.b.2. Formal pleadings shall be whatever character, which are received or filed substantially in the form hereinafter prescribed, with the Division of Highways, shall be stamped and verification shall likewise be substantially in showing the date of receipt or filing thereof. the form hereinafter prescribed. (See Forms No.

     1 and 2, Appendix A, Regulations Pertaining to

     3.4. Complaints, Claims, Applications, Particular Functions of the Commissioner of Petitions, Protests. Claims, complaints or Highways, 157CSR1.) applications may be either informal or formal.

     3.4.b.3. Two copies of all such

     3.4.a. Informal Pleadings and papers shall be filed with the Commissioner. Procedures. Informal claims, complaints or applications may be made by letter or other 3.5. Answers or Responsive Pleadings by writing addressed to the WV Department of Commissioner of Highways. Within thirty days Transportation, Commissioner of Highways, after receipt of a formal pleading or protest, the Building 5, Room A109, 1900 Kanawha Commissioner of Highways or the director of Boulevard, East, Charleston, West Virginia the division thereby affected shall file an answer 25305-0430, or the office of the District to such pleading or protest. Such answer shall

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    157CSR1

    fully and plainly inform the parties involved of effect to any rules of privilege recognized by the the nature of the Commissioner's defense or law of this state. reason for the decision or action upon the particular matter involved. The Commissioner 3.7.b.2. All evidence, including of Highways shall serve such answer upon the records and documents in the possession of the parties either in person or by registered or Commissioner of Highways may be duly offered certified mail to the party or his attorney. and made a part of the record in a case. Every

     party to the proceeding shall be afforded

     3.6. Stipulations or Agreed Facts. The adequate opportunity to rebut or offer parties to any proceeding before the countervailing evidence. Commissioner of Highways may, by stipulation in writing filed with the Commissioner, agree 3.7.b.3. The Commissioner of upon the facts, or any portion thereof, involved Highways, or his duly authorized hearing in the controversy, which stipulation shall be examiner, may take official notice of any recorded and used at the hearing. generally recognized fact or any established

     technical or scientific fact; but parties shall be

     3.7. Hearings; Notices; Evidence. When notified either before or during the hearing or by issue is joined by the service of an answer on the full reference in preliminary reports or otherwise, complainant upon any matter for which the of the facts so noticed, and they shall be Commissioner is required by law to hold a afforded an opportunity to contest the validity hearing or shall pursuant to these rules and thereof. regulations determine that a hearing shall be held, the Commissioner will assign a time and 3.7.b.4. At any hearing conducted place for such hearing, which will be at his by the Commissioner, or by a designated offices in the City of Charleston or elsewhere in employee thereof, witnesses shall be examined the state at the discretion of the Commissioner. under oath in the manner and form, and in the The hearing will be held by the Commissioner order designated by the presiding officer. If the of Highways or by one or more of his employees Commissioner or presiding officer so directs, or who shall have been designated by him to hold any party in interest so requests, the testimony hearings. given shall be reduced to writing in the form of

     shorthand notes or such other form of recording

     3.7.a. Notices. The Commissioner shall as the Commissioner may direct, and preserved give all parties not less than ten days' notice of in the Commissioner's files. Should any party in the time and place of hearing, which notice may interest request a transcript of the proceedings, be served upon the parties by personal delivery, or should the Commissioner direct that a or by registered or certified mail, or in any transcript be prepared, then sufficient copies manner by which a notice may be served at law. shall be made and delivered to each party

     making such request, and at the expense of the

     3.7.b. Evidence. The parties must person making the request. prove the existence of the facts as alleged in their pleadings. The Commissioner, however, 3.8. Depositions. The testimony of any will hear such proof of facts as he may deem witness may be taken by deposition at the proper and reasonable, and may make such instance of a party, in any proceeding or investigation and enter such order as the facts investigation at any time after the same is at justify and the circumstances may require. issue, by the consent of the Commissioner. The

     Commissioner may, of his own motion, order

     3.7.b.1. The Commissioner of testimony to be taken by deposition in any Highways shall not be bound by common law or proceeding or investigation pending before him, statutory rules of evidence in conducting at any stage of such proceeding or investigation. hearings. He will admit all testimony or other Depositions shall be taken in a manner evidence having reasonable probative value, but consistent with the provisions of Section 3, will exclude immaterial, irrelevant or unduly Regulations Pertaining to Particular Functions of repetitious testimony. He shall, however, give the Commissioner of Highways, 157CSR1.

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    157CSR1

     scholarship, an applicant must:

     3.9. Subpoenas. Subpoenas requiring the attendance of witnesses, from any place in the 4.2.a. be a West Virginia resident; State of West Virginia, at any designated place of hearing before the Commissioner, or any 4.2.b. have a minimum overall employee of the Commissioner whom he shall (cumulative) high school grade point average have designated to hold such hearing, for the (GPA) of 2.50 on a four-point scale or a purpose of taking the testimony of such witness, minimum score of 850 on the Stanford and subpoenas requiring the production of Achievement Test (SAT) or a minimum score of documentary evidence, will be issued upon the 21 on the ACT test or a minimum overall application of either party, by the Commissioner college grade point average of 2.00; or his designee.

     4.2.c. declare an intent to seek a

     3.10. Decisions of the Commissioner of baccalaureate degree in Civil Engineering or Highways. Every decision of the Commissioner Computer Sciences at an accredited college or of Highways in a contested case shall be in university; writing accompanied by findings of fact and conclusions of law. The findings of fact shall 4.2.d. demonstrate the need for consist of a concise and separate statement of financial assistance to attend the selected college the ultimate conclusions upon each contested or university; issue of fact without recital of evidence.

     4.2.e. declare an intent to work for the

     3.11. Service of Commissioner's Decision, Division of Highways immediately following Subpoenas and Notices. Every decision when the date of the receipt of an eligible degree; and made by the Commissioner of Highways shall be recorded in the Commissioner's Order Book, 4.2.f. complete and file, as referenced in and a copy thereof shall be served forthwith by this rule, an application as well as comply with personal delivery or by registered or certified all other requirements adopted by the mail to each adversary party to the proceeding Commissioner of Highways. or to his attorney of record; and all subpoenas for parties or witnesses and all notices shall be 4.3. Application. Applicants may request served by personal delivery or by registered or an application packet by visiting or contacting certified mail to each adversary party to the the Division of Highways, Human Resources proceeding or to his attorney of record, or as Division, 1900 Kanawha Boulevard, East, provided by law. Building Five, Room 949, Charleston, West

     Virginia 25305-0430, telephone (304) 558-3111.

    The following must be delivered or mailed to the ?157-1-4. Scholarships for Prospective

    Division of Highways at the address specified in Division of Highways Personnel.

     the application packet by the date prescribed by

     4.1. General. Pursuant to the provisions of the Commissioner of Highways: W. Va. Code ?17-2A-4b, the Commissioner of Highways is authorized to award scholarships to 4.3.a. a completed application packet competent persons, whether employed by with all specified forms with information printed Division of Highways or not, for the purpose of or typed legibly and with original signatures; enabling and encouraging them to attend a college or university to pursue such course of 4.3.b. a written essay of not less than study as may be approved by the Commissioner 300 or more than 500 words explaining why the of Highways, to aid in attracting and holding applicant is interested in the Division's competent personnel for the Division of scholarship program; and Highways. No more than fifteen persons may hold such scholarships at any one time. 4.3.c. an official high school or college

     transcript.

     4.2. Eligibility. To be eligible for a

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     4.4. Applicant Review and Ranking. and will set forth the terms and conditions of the Applications will be reviewed and those scholarship including, but not limited to, the applicants meeting the eligibility requirements amount of the stipend and the requirements of will be ranked according to the following criteria: continued eligibility pursuant to section 4.8 of

     this rule.

     4.4.a. financial need;

     4.8. Maintaining Scholarship Eligibility

     4.4.b. secondary school or college grade After Award. In order to maintain eligibility, point average; the scholarship recipient must: a) be enrolled as

     a full-time college student pursuing the eligible

     4.4.c. SAT or ACT score; curriculum with a minimum of 12 credit hours

     of course study each semester; and b) maintain

     4.4.d. written essay; an overall institutional grade point average of at

     least 2.00 on a four-point scale.

     4.4.e. honors and awards from, and participation in, technical or academic 4.8.a. If the scholarship recipient fails organizations; to meet the minimum grade point average or

     fails to meet the minimum credit hours for a

     4.4.f. vocational education; and single quarter or semester, eligibility will be

     maintained if: a) the recipient receives credit for

     4.4.g. work experience. no fewer than 12 credit hours in each successive

     quarter or semester; and b) attains a grade point

     4.5. Personal Interview. If after receiving average of at least 2.00 for all quarters or the application and other papers required by the semesters thereafter until graduation. preceding sections, the Commissioner feels that the applicant is entitled to further consideration, 4.9. Employment Credited Against Notes. a personal interview will be arranged and the If, upon graduation, or completion of the applicant will be notified of the time and place at approved course of study, the person awarded least ten days in advance. the scholarship herein described enters the

     employ of the Division of Highways and

     4.6. Award of Scholarship. Upon the basis remains so employed, the Commissioner of of the documented information and personal Highways will credit the oldest outstanding note interview, the Commissioner may award a of such person in the amount of $1,500.00 for scholarship to such person or persons as he every six months period that such person is considers competent and entitled thereto. The employed by the Division of Highways. Division will send a written notice to applicants selected to receive a scholarship informing them 4.10. Default. The Commissioner of of the amount to be awarded for the scholarship. Highways will declare a student in default of the

     scholarship agreement and will require the

     4.6.a. Any such scholarship shall carry student to repay all scholarship funds received a stipend in an amount fixed by the from the Division of Highways if the student: 1) Commissioner. withdraws from the education institution; or 2)

     fails to comply with any portion of these rules or

     4.6.b. The sum so awarded will be paid the promissory note. to the recipient of the scholarship in equal installments at the beginning of each quarter or 4.11. Repayment. If a scholarship recipient semester for which the recipient is enrolled. is required to repay funds as a result of being

     declared in default or as a result of leaving the

     4.7. Execution of Notes. Each recipient of a employ of the Division of Highways prior to scholarship will be required to execute a earning full credit for all notes, a repayment negotiable promissory note prior to receiving schedule will be established. The repayment each quarter or semester stipend. The note will schedule will be 120 equal monthly installments be in a form prescribed by the Commissioner providing that the minimum installment shall be

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    $20. However, the scholarship recipient may signed and entered in the Commissioner's Order elect a shorter term for repayment. Book by the Business Manager of the Division

     of Highways.

     4.11.a. The scholarship recipient will make the first installment payment six months 5.2.a. Copies of Commissioner's Order. after being declared in default or after leaving Copies of any such order of the Commissioner the employ of the Division of Highways. shall be sent to the office of the District

     Administrator of the District wherein any such

     4.11.b. Installment payments may be road is located and shall be kept available for temporarily reduced or deferred and the public inspection during all normal business prescribed repayment schedule extended if the hours. The Commissioner may also send copies scholarship recipient demonstrates an inability of any such order to such public officials or to pay due to catastrophic illness or family private persons or groups as he may feel will emergency. The recipient must submit a written provide adequate public notice of his action. request and justification for the temporary payment reduction or suspension to the 5.3. Petition of Interested Persons. Any Commissioner of Highways for approval. Any group of twenty-five or more persons interested reduction, deferral or extension will not relieve in the location, relocation, classification or the scholarship recipient's responsibility to repay reclassification of any road or proposed road all funds. may file a petition in writing with the

     Commissioner of Highways setting forth therein

     4.12. Deviation. Any deviation in the the request, complaint or demand of the persons process or policies dictated by Section 4 of this signing such petition, and the Commissioner rule must have the written approval of the shall immediately designate one or more Commissioner of Highways. employees of the Division of Highways to

     investigate the situation described in the petition.

    All such petitions shall be directed to the WV ?157-1-5. Location, Relocation, Classification

    Department of Transportation, Commissioner of or Reclassification of State Roads.

     Highways, Building 5, Room A109, 1900

     5.1. General. Pursuant to the provisions of Kanawha Boulevard, East, Charleston, West W. Va. Code ?17-2A-8(3), the Commissioner of Virginia 25305-0430, and shall contain at least Highways may conduct investigations and the following information: experiments, and he may hold formal or informal hearings or other public meetings and 5.3.a. A description of the road or conferences for the purpose of acquiring proposed road in as definite terms as possible, information from which he can determine future with references to route numbers and courses of action and procedure relative to the approximate distances from intersections with state road system. other roads or from city limits where possible.

     5.2. Commissioner's Order; Distribution. 5.3.b. A concise and clear statement of When the Commissioner has received the results the problem or situation which the petitioners of any engineering study or survey, or are asking the Commissioner to resolve. investigation, or when as the result of any hearing, public meeting or conference, he 5.3.c. A concise and clear statement of determines the location, relocation, classification the action the petitioners want the Commissioner or reclassification or designation by number of of Highways to take to remedy the situation any road in this state, he shall set forth his described in the petition. conclusions in an order and spread such order upon the pages of the Commissioner's Order 5.3.d. Signatures and mailing addresses Book to be retained as a permanent record of his of the petitioners. conclusions and his actions regarding any such road. All such orders of the Commissioner shall 5.4. Investigation by Department. Upon become effective immediately upon being receipt of any such petition, the Commissioner

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    of Highways shall immediately forward a copy W. Va. Code ?17-2A-8(12), the Commissioner thereof to the District Administrator of the of Highways may discontinue, vacate and close District wherein the road problem or road any road or highway, or any part thereof, where situation described in the petition is located, and he finds the continuance and maintenance of any request that a complete investigation be such road unnecessary and improper. undertaken. The District Administrator shall then immediately commence such investigation, 6.2. Petition of Interested Persons. Any and during the course thereof, no less than two person whose property or property interests are of the persons who have signed their names to affected by any road or highway subject to the the petition shall be personally interviewed by control and jurisdiction of the Commissioner of the District Administrator or his duly authorized Highways may petition the Commissioner for representative. Where possible, the first two the abandonment and discontinuance of any persons who have signed the petition will be such road. The petition shall describe the road, interviewed. or portion of the road, in such a fashion and by

     reference to some form of land marks so that it

     5.5. Hearing. If, after completing his can be readily located by Division of Highways' investigation, the Commissioner of Highways personnel; the petition shall state the reasons believes that a hearing should be held, or if the why the petitioner wants the road abandoned; petitioners request a hearing, the Commissioner and the petitioner shall sign his full name and shall set a time and place for the hearing and provide his mailing address. shall notify all persons who have signed the petition and any other person he feels may be 6.3. Hearing. Upon receiving a petition for interested in order that all such persons may the abandonment of a road, the Commissioner appear at the hearing and express their views. may, if he deems it necessary or desirable, or The Commissioner may, if in his opinion the shall, if the petitioner so requests, set the matter situation warrants, cause a notice of the hearing for a hearing as provided in section 3 of to be published in some newspaper of general Regulations Pertaining to Particular Functions of circulation in the county in which the road to be the Commissioner of Highways, 157CSR1, and affected is situated. upon the basis of the evidence produced at the

     hearing, the Commissioner shall determine

     5.6. Commissioner's Determination. Upon whether the road or portion of the road should be the completion of his study of the results of the abandoned. If requested by the petitioner or if investigation provided for herein, and after the Commissioner in his discretion deems it reviewing the evidence presented at the hearing advisable, a notice of the proposed abandonment provided for herein, if such hearing be held, the of said road shall be advertised in a newspaper Commissioner shall decide whether the relief of general circulation in the county in which the requested by the petition shall be granted and road is located as a Class I legal advertisement will notify at least the first five persons whose advising any person having objections to the signatures and mailing addresses appear on the proposed abandonment to notify the petition of his conclusions, unless the petitioners Commissioner by registered letter at least ten have designated some other person or group of days prior to said date of the proposed persons to receive such notice. If the abandonment of his desire for a hearing in which Commissioner's decision is such that it must be event the Commissioner shall set a hearing at the put into effect by means of a formal earliest convenient time. If a public hearing is Commissioner's Order as provided for herein, requested, the time and place of said hearing the Commissioner shall send copies of the order shall be advertised in the same manner as above to at least the first five persons whose signatures set forth. and mailing addresses appear on the petition.

     6.4. Investigation by Commissioner. The

    Commissioner of Highways may on his own ?157-1-6. Abandonment and Discontinuance

    motion, cause an investigation to be made of any of State Roads.

     road or highway, and upon the basis of the

     6.1. General. Pursuant to the provisions of information so produced, determine whether it is

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    in the best interests of the state for a road, or a negotiated contracts to ensure that a qualified part of a road, to be abandoned and discontinued, consultant is obtained through an equitable and if he finds that it is in the best interests of selection process and that prescribed work is the state so to do, he may abandon and properly accomplished in a timely manner at a discontinue the same. Where such an just and reasonable cost pursuant to 23 CFR 172 investigation is made by the Commissioner prior and 23 U.S.C. ?112 for Federally funded work

    to a hearing, as provided for in the preceding and to W. Va. Code ?5G-1, et seq., for State

    section, the Commissioner shall produce the funded work. findings of his investigation at the hearing and allow all other interested parties to either rebut 7.2. Application. This regulation applies to or support his findings. all design services and design related service

     contracts financed with Federal-aid highways

     6.5. Abandonment by Commissioner's funds and contracts authorized under procedures Order. In every case where the Commissioner codified in State statutes funded by State funds of Highways determines that it is in the best such as: interests of the state to abandon and discontinue a road or portion of a road, he shall abandon, a) project management discontinue, vacate or close the same by a b) construction management and formal Commissioner's Order, duly entered in inspection the permanent Commissioner's Order Book as c) feasibility studies provided for in section 1, Regulations Pertaining d) preliminary engineering to Particular Functions of the Commissioner of e) design engineering Highways, 157CSR1. Any such road or portion f) design of a road, shall be abandoned as of the date the g) engineering Commissioner's Order is entered in the h) surveying Commissioner's Order Book. i) mapping

     j) architectural

     6.6. Copies of Commissioner's Order of k) materials, inspection, sampling, and Abandonment. The Commissioner shall send a testing certified copy of any order wherein a road or a l) archaeological investigation part of a road is abandoned, discontinued, m) historic investigation vacated or closed to the following persons: n) related services to any above

     6.6.a. The office of the District 7.2.a. When it is necessary to utilize the Administrator of the District wherein any such services of a consultant, the Division Director or road is located, which order shall be available the Responsible Charge District for public inspection during all normal business Engineer/Manager will submit the reasons for so hours; doing through appropriate channels to the

     Commissioner, or designee, for approval. The

     6.6.b. The Clerk of the County Court of request will also indicate whether competitive or the county wherein the abandoned road is noncompetitive selection is appropriate. located; Competitive selection must be used for all

     Federally funded work. Non-competitive

     6.6.c. Any person who has notified the selection may be used only on State funded Commissioner that his personal or property work. In the case of noncompetitive selections, interests may be affected by the abandonment, justification, in accordance with the procedures discontinuance, vacating or closing of the road in Section 7.6, Regulations Pertaining to in question. Particular Functions of the Commissioner of

     Highways, 157CSR1, will be given. ?157-1-7. Procurement Procedures for Negotiated Contracts. 7.2.b. It is the policy of the West

     Virginia Department of Transportation, Division

     7.1. Purpose. To set forth procedures for of Highways, that Disadvantaged Business

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    Enterprises shall have the maximum opportunity proposed fixed fee of (a) a consultant's cost or to participate in the performance and award of pricing data and (b) the judgmental factors contracts financed in whole or in part with applied in projecting from the data to the Federal funds in accordance with the Division of Engineer's Cost Estimate in order to form an Highways; Disadvantaged Business Enterprise opinion on the degree to which the proposed Program. costs represent what the cost of the contract

     should be, assuming reasonable economy and

     7.2.c. As allowed in 23 CFR 172.15, the efficiency. Any major variations from norms West Virginia Division of Highways has shall be documented and supported. requested approval under "Alternate Procedures" and the Federal Highway Administration 7.3.h. Disadvantaged Business (FHWA) has concurred. (See Exhibit D, Enterprises (DBE). - A small business concern Regulations Pertaining to Particular Functions of which is owned and controlled by one or more the Commissioner of Highways, 157CSR1.) socially or economically disadvantaged

     individuals which have been certified under the

     7.3. Definitions. Small Business Administration's 8(a) program or

     by the Division of Highways.

     7.3.a. CFR - Code of Federal Regulations. 7.3.i. Engineer's Cost Estimate. - A

     written detailed estimate prepared prior to the

     7.3.b. Competitive Selection. - All receipt of the consultant's priced proposal. This procurement transactions conducted in such a will have an appropriate breakdown of specific manner as to provide unrestricted opportunities types of labor required, work hours, indirect cost, for any and all prospective consultants to obtain and an estimate of the consultant's fixed fee work with the Division. (considering the risk and complexity of the work)

     for use during negotiations.

     7.3.c. Consultant. - A business, educational institution, individual or public 7.3.j. Exempt Projects. - Federally agency qualified to perform a service required funded projects where FHWA and the Division by the Division. A consultant may be a of Highways have agreed that the Commissioner consulting engineer, architect, public agency or of Highways will act on behalf of the FHWA. other professional firm or agency.

     7.3.k. Extra Work. - Any service or

     7.3.d. Consultant Confidential actions required of the consultant above and Qualification Questionnaire. - A Division form beyond the obligations of the original or on which a consultant's experience data, modified contract. personnel, fields of work performed and present and past activities are listed. 7.3.l. Fixed Fee. - A dollar amount

     established to cover the consultant's profit and

     7.3.e. Contract Modification. - An business expenses not allocable to overhead. agreement modifying the existing contract, such as an agreement to accomplish work beyond the 7.3.m. Letter of Qualification. - A scope of the original contract. written expression of interest made by the

     consultant indicating his desire to perform a

     7.3.f. Cost Accounting Information particular project, task, or service. This shall Statement (CAIS). - A statement that provides include, as a minimum, the evaluation factors adequate details to demonstrate that the and other information shown on Exhibit A and a prospective consultant has a job cost accounting completed Technical Evaluation form. system that is capable of segregating, identifying Additional statements as to the consultant’s and accumulating costs for cost type contracts. particular abilities and qualifications, pertinent

     to preliminary scope of work may be included if

     7.3.g. Cost Analysis. - A review and deemed necessary. (See Exhibit A) evaluation of the separate cost elements and

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     7.3.n. Master Agreement. - An after the final acceptance of work or after agreement written for a specified period of time contract termination, as applicable, evaluating for a particular service or services establishing the overall performance of the consultant. specific methods of pay. Unless otherwise approved by the Commissioner, a master 7.3.t. Preliminary Selection Committee. agreement shall not exceed a two (2) year period - A committee consisting of the State Highway including time extensions. Engineer, the next lower level manager under

     whose direction the work will be performed and

     7.3.o. Methods of Pay. - Methods of the Division Director or the Responsible Charge pay which may be used are as follows: District Engineer/Manager requesting the

     service. The State Highway Engineer may

     (1) Lump sum. appoint additional members. At least three

     (2) Cost per unit of work. members are necessary to transact the short list.

     (3) Cost plus a fixed fee.

     (4) Specific rates of compensation. 7.3.u. Prenegotiation Audit. - An

     (5) Cost plus percentage of cost examination of a consultant's records made in (State funded work only). accordance with generally accepted auditing

     standards.

     Each contract shall have a maximum amount payable which shall not be exceeded 7.3.v. Priced Proposal. - A statement by unless adjusted by a contract modification. a consultant which is submitted after the

     consultant is selected to accomplish the work

     7.3.p. Negotiation Memorandum. - At and after the detailed scope of work meeting, the conclusion of each negotiation of an initial indicating the consultant’s proposed costs to or revised price, the Division shall promptly perform the required service. Per Section 7.3.8 prepare a memorandum of the principal of these rules the Price Proposal cannot be elements of the price negotiation. The submitted until the Engineer’s Cost Estimate is memorandum shall be included in the contract completed. The Consultant shall obtain file and shall include as a minimum: approval prior to submitting their Price Proposal.

     (1) The project number. 7.3.w. Procurement Standards. - The

     (2) The purpose of the negotiation. Division's own procurement procedures which

     (3) The name and position of each reflect applicable State and local laws and person representing the consultant and the regulations. Division.

     (4) The most significant facts or 7.3.x. Scope of Work. considerations controlling the establishment of the negotiated price. (a) Preliminary: A general

     description of the work to be accomplished,

     7.3.q. Noncompetitive Selection. - The including the location. procurement through solicitation of a proposal from only one source or, after solicitation of a (b) Detailed: A clear, accurate, and number of sources, competition is determined to detailed description of the technical be inadequate. This process may be utilized requirements for the services to be rendered. only for State funded work.

     7.3.y. Selection Authority. - This

     7.3.r. Non-Project Specific Work. - Authority shall consist of the Commissioner of Work of a general nature such as soils Highways. The Deputy Commissioner of investigations, materials sampling, testing, and Highways, the State Highway Engineer, and/or aerial photography. the next lower level of management beneath the

     State Highway Engineer under whose direction

     7.3.s. Performance Reports. - A report the work will be performed may be designated prepared by the Division monitoring the service by the Commissioner to serve as the selection

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