Title 157 W. Va. C.S.R.

Highways Highways

Series 01 Rules Relating Generally to Various Functions of the Commissioner of Highways

W. Va. Code R. § 157-1-1 General

1.1. Scope. -- This procedural rule addresses various functions of the office of the Commissioner of Highways and is submitted pursuant to the provisions of W. Va. Code §29A-3-3.

1.2. Authority. -- W. Va. Code §§17-2A-4b and 8.

1.3. Filing Date. – July 18, 2024

1.4. Effective Date. – August 19, 2024

W. Va. Code R. § 157-1-2 Commissioner's Orders

2.1. Purpose. The purpose of this section is to establish a system by which all orders of the Commissioner of Highways are permanently recorded and maintained in a manner that is conveniently accessible.

2.2. Scope of Commissioner's Order. The orders of the Commissioner of Highways are official determinations or decisions which relate to the internal management and organization of the Division of Highways, or to a specific person or group of persons, or to the public in general.

2.3. Commissioner's Order Database. The Commissioner of Highways maintains in his office a record of all orders issued by him or her, designated as the Commissioner of Highways' Order Database. All orders issued by the Commissioner during each day shall be entered therein, and all orders shall be formatted and archived in a way which affords access to each order issued by the Commissioner.

2.4. Effective Date. Each order of the Commissioner of Highways filed in the Commissioner's Order Book is effective immediately upon filing, unless provided by law or in the order.

2.5. Copies of Commissioner's Orders; Distribution. The Commissioner of Highways shall provide a certified copy of any Commissioner's Order, upon request to any person who is directly affected by an order. In addition to any person requesting a copy of an order, the Commissioner may furnish copies to any governmental agency, person, firm, or organization to provide notice of the order.

W. Va. Code R. § 157-1-3 Hearing Procedures

3.1. Purpose. The purpose of this section is to provide standards of conduct for all hearings by and before the Commissioner of Highways.

3.2. Scope. This section applies to hearings conducted by the Commissioner of Highways concerning the rights of citizens which may be adversely and directly affected by an action of the Commissioner except as provided in §3.2.a of this rule. A hearing may be initiated by the Commissioner or a citizen.

3.2.a. This section does not apply to claims heard and determined by the West Virginia Legislative Claims Commission. Nor does it apply to hearings and public meetings held by the Commissioner for purposes of acquiring information, making findings, and determining courses of action and procedure relative to the location of any road or proposed road, or to the advancement and improvement of the state road system.

3.2.b. This section will be applied in harmony with applicable state statutes and in case of conflict, state statutes shall prevail.

3.3. Records Pertaining to Hearings. The Commissioner of the Division of Highways or his or her designee shall be the presiding officer and shall be responsible for all administrative and clerical duties relating to hearings and for all records and pleadings pertaining to hearings. The presiding officer shall receive all applications, petitions, protests, claims or other written documents relating to a hearing before the Division of Highways. The presiding officer will, upon request, advise any party as to the form or condition of any paper to be filed in any proceeding before the Commissioner. He or she will maintain a docket book in which shall be entered each formal case on complaint, claim, application or petition, investigation, or protest, with a file number corresponding to the number of the case together with brief chronological notations of the proceedings had in the case. He or she shall also maintain the Commissioner's Order Book, in which shall be recorded, on the day of their filing, any orders made or passed by the Commissioner of Highways in the performance of his or her statutory duties.

3.3.a. All papers or documents, of whatever character, which are received or filed with the Division of Highways, shall be stamped showing the date of receipt or filing thereof.

3.4. Complaints, Claims, Applications, Petitions, Protests. Claims, complaints, or applications may be either informal or formal.

3.4.a. Informal Pleadings and Procedures. Informal claims, complaints or applications may be made by letter or other writing addressed to the West Virginia Department of Transportation, Commissioner of Highways, Building 5, Room A109, 1900 Kanawha Boulevard, East, Charleston, West Virginia 25305-0430, or the office of the District Manager of the affected district. Matters thus presented, if their nature warrants, may be negotiated and settled by the Commissioner of Highways, the District Manager, or some other duly authorized employee, without formal hearings. If the matters cannot be resolved satisfactorily to all parties, the proceeding is held to be without prejudice to the right of any party to file and prosecute a formal claim, complaint or application, whereupon the informal proceeding will be discontinued. No form of informal complaint, claim or application is prescribed, but the letter or other writing must contain a clear and concise statement of the facts and the specific relief sought. The names of all parties affected or involved shall be stated in full, and the address of each party, with the name and address of his or her attorney, if any, stated therein or thereon.

3.4.b. Formal Pleadings. All formal complaints, claims, applications, petitions and protests shall be verified and addressed to the Commissioner of Highways. Such papers shall set forth plainly and distinctly the grounds for the relief sought or reasons for protest and should be written as fully and completely to advise the Commissioner of Highways of the nature of the grievances or alleged violations of law.

3.4.b.1. The names of all parties affected or involved shall be stated in full and the address of each party, with the name and address of his or her attorney, if any.

3.4.b.2. Two (2) copies of all papers shall be filed with the presiding officer.

3.5. Answers or Responsive Pleadings. Within 30 days after receipt of a formal pleading or protest, the Division of Highways or the Division Director or District Manager affected shall file an answer to such pleading or protest. The answer shall fully and plainly inform the parties involved of the nature of the Commissioner's defense or reason for the decision or action upon the particular matter involved. The Division of Highways shall serve the answer upon the parties either in person or by registered or certified mail, facsimile or email to the party or his or her attorney.

3.6. Stipulations or Agreed Facts. The parties to any proceeding may, by stipulation in writing filed with the presiding officer, agree upon the facts, or any portion thereof, involved in the controversy, which stipulation shall be recorded and used at the hearing.

3.7. Hearings; Notices; Evidence. When issue is joined by the service of an answer on the complainant upon any matter for which the Commissioner is required by law to hold a hearing or shall pursuant to this rule determine that a hearing shall be held, the presiding officer will assign a time and place for the hearing, which will be at the Division headquarters in the City of Charleston or elsewhere in the state at the discretion of the Commissioner. The hearing will be held by the presiding officer designated to hold hearings.

3.7.a. Notices. The presiding officer shall give all parties not less than 10 days' notice of the time and place of hearing, which may be served upon the parties by personal delivery, or by registered or certified mail, electronic means, or in any manner by which a notice may be served at law.

3.7.b. Evidence. The parties must prove the existence of the facts as alleged in their pleadings. The presiding officer will hear such proof of facts as he or she may deem proper and reasonable, and may make such investigation and enter such order as the facts justify and the circumstances may require.

3.7.b.1. The presiding officer shall not be bound by common law or statutory rules of evidence in conducting hearings. He or she will admit all testimony or other evidence having reasonable probative value, but will exclude immaterial, irrelevant or unduly repetitious testimony. He or she shall, however, give effect to any rules of privilege recognized by the law of this state.

3.7.b.2. All evidence, including records and documents in the possession of the Commissioner of Highways may be duly offered and made a part of the record in a case. Every party to the proceeding shall be afforded adequate opportunity to rebut or offer countervailing evidence.

3.7.b.3. The presiding officer may take official notice of any generally recognized fact or any established technical or scientific fact; but parties shall be notified either before or during the hearing or by full reference in preliminary reports or otherwise, of the facts so noticed, and they shall be afforded an opportunity to contest the validity thereof.

3.7.b.4. Witnesses shall be examined under oath in the manner and form, and in the order designated by the presiding officer. If the presiding officer so directs, or any party in interest so requests, the testimony given shall be reduced to writing or such other form of recording as the presiding officer may direct and preserved in the Commissioner's files. Should any party in interest request a transcript of the proceedings or should the presiding officer direct that a transcript be prepared, then sufficient copies shall be made and delivered to each party making such request, and at the expense of the person making the request.

3.8. Depositions. The testimony of any witness may be taken by deposition at the instance of a party, in any proceeding or investigation at any time after the same is at issue, with the consent of the Commissioner. The presiding officer may, of his or her own motion, order testimony to be taken by deposition in any proceeding or investigation pending before him or her, at any stage of such proceeding or investigation.

3.9. Subpoenas. Subpoenas requiring the attendance of witnesses, from any place in the State of West Virginia, at any designated place of hearing before the presiding officer for the purpose of taking the testimony of such witness, and subpoenas requiring the production of documentary evidence, will be issued upon the application of either party, by the presiding officer.

3.10. Decisions. Every decision of the presiding officer in a contested case shall be in writing accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise and separate statement of the ultimate conclusions upon each contested issue of fact without recital of evidence.

3.11. Service of Notices, Subpoenas and Decisions. All notices shall be served by personal delivery or by registered or certified mail or by electronic means to each party to the proceeding or to his or her attorney of record, or as provided by law. Every decision when made by the presiding officer shall be recorded in the Commissioner’s Order Book and a copy served forthwith by personal delivery or by registered or certified mail or electronic means to each adversary party to the proceeding or to his or her attorney or record.

W. Va. Code R. § 157-1-4 Scholarships for Prospective Division of Highways Personnel

4.1. General. Pursuant to the provisions of W. Va. Code §17-2A-4b, the Commissioner of Highways is authorized to award scholarships to competent persons, whether employed by Division of Highways or not, for the purpose of enabling and encouraging them to attend a college or university to pursue such course of study as may be approved by the Commissioner of Highways, to aid in attracting and holding competent personnel for the Division of Highways. No more than 15 students may hold such scholarships at any one time.

4.2. Eligibility. To be eligible for a scholarship, an applicant must:

4.2.a. have a minimum overall (cumulative) college grade point average (GPA) of 2.50 on a four-point scale;

4.2.b. be enrolled in an accredited college or university program within the State of West Virginia seeking a degree in engineering, computer sciences, accounting, a doctor of juris prudence, or other programs for professionals and para-professionals which have an application to some aspect of the activities of the Division of Highways;

4.2.c. declare an intent to work for the Division of Highways immediately following the date of the receipt of an eligible degree;

4.2.d. complete and file, as referenced in this rule, an application as well as comply with all other requirements adopted by the Commissioner of Highways;

4.2.e. be a Division of Highways Co-op student in good standing for at least one (1) year; and

4.2.f. be entering the junior year of college in degree program of study or second year of law school.

4.3. Application. Applicants may request an application packet by visiting or contacting the West Virginia Department of Transportation, Human Resources Division, 1900 Kanawha Boulevard, East, Building 5, Room 450, Charleston, West Virginia 25305-0430, telephone (304) 558-3111 or DOHCareers@wv.gov. The following must be delivered or mailed to the Division of Highways at the address specified in the application packet by the date prescribed by the, Commissioner of Highways:

4.3.a. a completed application packet with all specified forms with information printed or typed legibly and with original or digital signatures;

4.3.b. a written essay of not less than 300 or more than 500 words explaining why the applicant is interested in the Division's scholarship program; and

4.3.c. an official college transcript.

4.4. Applicant Review and Ranking. Applications will be reviewed and those applicants meeting the eligibility requirements will be ranked according to the following criteria:

4.4.a. college grade point average;

4.4.b. written essay;

4.4.c. honors and awards from, and participation in, technical or academic organizations;

4.4.d. vocational education; and

4.4.e. work experience as a Co-op documented by recommendation of Division of Highway supervisor of applicant.

4.5. Personal Interview. If after receiving the application and other papers required by the preceding sections, the Commissioner feels that the applicant is entitled to further consideration, a personal interview will be arranged and the applicant will be notified of the time and place at least 10 days in advance.

4.6. Award of Scholarship. Upon the basis of the documented information and personal interview, the Commissioner may award a scholarship to such person or persons as he or she considers competent and entitled thereto. The Division will send a written notice to applicants selected to receive a scholarship informing them of the amount to be awarded for the scholarship.

4.6.a. Any such scholarship shall carry a stipend in an amount fixed by the Commissioner. The amount of the scholarship may vary depending on the number of students accepted into the program and funds available but will not be less than $3,000 per semester.

4.6.b. Each scholarship awarded will be paid to the recipient of the scholarship in equal installments at the beginning of each quarter or semester for which the recipient is enrolled.

4.7. Execution of Notes. Each recipient of a scholarship will be required to execute a negotiable promissory note prior to receiving each quarter or semester stipend. The note will be in a form prescribed by the Commissioner and will set forth the terms and conditions of the scholarship including, but not limited to, the amount of the stipend and the requirements of continued eligibility pursuant to section 4.8 of this rule. The negotiable promissory note shall state that if the recipient is held in default at any time prior to or after graduation, he or she must choose one of the following repayment plans: a) repayment of the full amount within 48 months with no interest accruing to the debt; or b) repayment of the full amount within 60 months with 6% annual interest added to the debt.

4.8. Maintaining Scholarship Eligibility After Award. In order to maintain eligibility, the scholarship recipient must: a) be enrolled as a full-time college student pursuing the eligible declared degree program with a minimum of 12 credit hours of course study each semester; b) maintain an overall institutional grade point average of 2.50 cumulative through graduation; c) maintain employment in the Division of Highways’ Co-op program until graduation unless relevant summer employment in the field of study is obtained elsewhere and approved by the Commissioner of Highways; and d) receive satisfactory evaluations from the Co-op supervisor. The recipient enrolled in the Co-op program will complete an evaluation at the end of each Co-op year on his or her Co-op experience and submit it to the Department of Transportation’s Human Resources Training and Development Section.

4.8.a. If the scholarship recipient fails to meet the minimum grade point average or fails to meet the minimum credit hours for a single quarter or semester, eligibility will be maintained if: a) the recipient receives credit for no fewer than 12 credit hours in each successive quarter or semester; and b) attains a grade point average of at least 3.00 cumulative in subsequent years for all quarters or semesters thereafter until graduation.

4.8.b. If the scholarship recipient fails to maintain employment as a Division of Highways Co-op, the recipient is in default of the scholarship agreement and will receive no further scholarship funds. Upon graduation, the defaulting recipient is required to repay the amount of funds he or she has received by setting up a repayment schedule with Division of Highway Finance Division, Accounts Receivable Section.

4.9. Employment Credited Against Notes. If, upon graduation, or completion of the approved course of study, the person awarded a scholarship becomes an employ of the Division of Highways and remains so employed, the Commissioner of Highways will credit the oldest outstanding note of such person in the amount of $1,500.00 for every six-month period that the person is employed by the Division of Highways.

4.10. Default. The Commissioner of Highways will declare a recipient in default of the scholarship agreement and will require the recipient to repay all scholarship funds received from the Division of Highways if the recipient: 1) withdraws from the education institution; or 2) fails to comply with any portion of these rules or the promissory note; or 3) changes their major or declared course of study that is not approved through the scholarship program.

4.11. Repayment. If a scholarship recipient is required to repay funds as a result of being declared in default or as a result of leaving employment of the Division of Highways prior to earning full credit for all notes, a repayment schedule will be established. The recommended repayment schedule will be: a) repayment of the full amount within 48 months with no interest accruing to the debt or b) repayment within 60 months with 6% annual interest added to the debt. However, the scholarship recipient may elect a shorter term for repayment and an alternative schedule may be approved by the Division of Highways’ Business Manager if it meets the needs of the agency and/or the recipient.

4.11.a. The scholarship recipient will make the first installment payment 90 days after being declared in default or after leaving the employment of the Division of Highways.

4.11.b. Installment payments may be temporarily reduced or deferred and the prescribed repayment schedule extended if the scholarship recipient demonstrates an inability to pay due to catastrophic illness or family emergency. The recipient must submit a written request and justification for the temporary payment reduction or suspension to the Commissioner of Highways for approval. Any reduction, deferral or extension will not relieve the scholarship recipient's responsibility to repay all funds.

4.12. Deviation. Any deviation in the process or policies dictated by Section 4 of this rule must have the written approval of the Commissioner of Highways.

W. Va. Code R. § 157-1-5 Location, Relocation, Classification or Reclassification of State Roads

5.1. General. Pursuant to the provisions of W. Va. Code §17-2A-8(3), the Commissioner of Highways may conduct investigations and experiments, and he or she may hold formal or informal hearings or other public meetings and conferences for the purpose of acquiring information from which he or she can determine future courses of action and procedure relative to the state road system.

5.2. Commissioner's Order; Distribution. When the Commissioner has received the results of any engineering study or survey, or investigation, or when as the result of any hearing, public meeting or conference, he or she determines the location, relocation, classification or reclassification or designation by number of any road in this state, he or she shall set forth his or her conclusions in an order and entered into the Commissioner's Order Book to be retained as a permanent record of his or her conclusions and his or her actions regarding any such road. All orders of the Commissioner are effective immediately upon being signed and entered in the Commissioner's Order Book.

5.2.a. Copies of Commissioner's Order. Copies of any such order of the Commissioner shall be sent to the office of the District Manager of the District wherein any such road is located and shall be available for public inspection during all normal business hours. The Commissioner may also send copies of any order to any public officials or private persons or groups as he or she may feel will provide adequate public notice of his or her action.

5.3. Petition of Interested Persons. Any group of 25 or more persons interested in the location, relocation, classification or reclassification of any road or proposed road may file a petition in writing with the Commissioner of Highways setting forth therein the request, complaint or demand of the persons signing the petition, the Commissioner shall immediately designate one or more employees of the Division of Highways to investigate the situation described in the petition. All such petitions shall be directed to the West Virginia Department of Transportation, Commissioner of Highways, Building 5, Room A109, 1900 Kanawha Boulevard, East, Charleston, West Virginia 25305-0430, and shall contain at least the following information:

5.3.a. a description of the road or proposed road in as definite terms as possible, with references to route numbers and approximate distances from intersections with other roads or from city limits where possible;

5.3.b. a concise and clear statement of the problem or situation which the petitioners are asking the Commissioner to resolve;

5.3.c. a concise and clear statement of the action the petitioners want the Commissioner of Highways to take to remedy the situation described in the petition; and

5.3.d. signatures and mailing addresses of the petitioners.

5.4. Investigation by Division. Upon receipt of any such petition, the Commissioner of Highways shall immediately forward a copy thereof to the District Manager of the District wherein the road problem or road situation described in the petition is located, and request that a complete investigation be undertaken. The District Manager shall then immediately commence such investigation, and during the course thereof, no less than two of the persons who have signed their names to the petition shall be personally interviewed by the District Manager or his or her duly authorized representative. Where possible, the first two (2) people who signed the petition will be interviewed.

5.5. Hearing. If, after completing his or her investigation, the Commissioner of Highways believes that a hearing should be held, or if the petitioners request a hearing, the Commissioner shall set a time and place for the hearing and shall notify all persons who have signed the petition and any other person he or she feels may be interested in order that all such persons may appear at the hearing and express their views. The Commissioner may, if in his or her opinion the situation warrants, cause a notice of the hearing to be published in some newspaper of general circulation in the county in which the road to be affected is situated.

5.6. Commissioner's Determination. Upon the completion of his or her study of the results of the investigation provided for herein, and after reviewing the evidence presented at the hearing, if a hearing was held, the Commissioner shall decide whether the relief requested by the petition shall be granted and will notify at least the first five (5) persons whose signatures and mailing addresses appear on the petition of his or her conclusions, unless the petitioners have designated some other person or group of persons to receive such notice. If the Commissioner's decision is such that it must be put into effect by means of a formal Commissioner's Order as provided in this rule, the Commissioner shall send copies of the order to at least the first five (5) persons whose signatures and mailing addresses appear on the petition.

W. Va. Code R. § 157-1-6 Abandonment and Discontinuance of State Roads

6.1. General. Pursuant to the provisions of W. Va. Code §17-2A-8(12), the Commissioner of Highways may discontinue, vacate and close any road or highway, or any part thereof, where he or she finds the continuance and maintenance of any such road unnecessary and improper.

6.2. Petition of Interested Persons. Any person whose property or property interests are affected by any road or highway subject to the control and jurisdiction of the Commissioner of Highways may petition the Commissioner for the abandonment and discontinuance of the road. The petition shall describe the road, or portion of the road, in such a fashion and by reference to some form of landmarks so that it can be readily located by Division of Highways' personnel; the petition shall state the reasons why the petitioner wants the road abandoned; and the petitioner shall sign his or her full name and provide his or her mailing address.

6.3. Hearing. Upon receiving a petition for the abandonment of a road, the Commissioner may, if he or she deems it necessary or desirable, or shall, if the petitioner so requests, set the matter for a hearing as provided in Section 3 of this rule, and upon the basis of the evidence produced at the hearing, the Commissioner will determine whether the road or portion of the road should be abandoned. If requested by the petitioner or if the Commissioner in his or her discretion deems it advisable, a notice of the proposed abandonment of said road shall be advertised in a newspaper of general circulation in the county in which the road is located as a Class I legal advertisement advising any person having objections to the proposed abandonment to notify the Commissioner by registered letter at least 10 days prior to said date of the proposed abandonment of his or her desire for a hearing. In which event the Commissioner shall set a hearing at the earliest convenient time. If a public hearing is requested, the time and place of said hearing shall be advertised in the same manner as above set forth.

6.4. Investigation by Commissioner. The Commissioner of Highways may on his or her own motion, cause an investigation to be made of any road or highway, and upon the basis of the information produced, determine whether it is in the best interests of the state for a road, or a part of a road, to be abandoned and discontinued, and if he or she finds that it is in the best interests of the state so to do, he or she may abandon and discontinue the same. Where an investigation is made by the Commissioner prior to a hearing, as provided for in the preceding section, the Commissioner shall produce the findings of the investigation at the hearing and allow all other interested parties to either rebut or support his or her findings.

6.5. Abandonment by Commissioner's Order. In every case where the Commissioner of Highways determines that it is in the best interests of the state to abandon and discontinue a road or portion of a road, he or she shall abandon, discontinue, vacate or close it by a formal Commissioner's Order, duly entered in the permanent Commissioner's Order Book as provided for in Section 1 of this rule. Any such road or portion of a road shall be abandoned as of the date the Commissioner's Order is entered in the Commissioner's Order Book.

6.6. Copies of Commissioner's Order of Abandonment. The Commissioner shall send a certified copy of any order wherein a road or a part of a road is abandoned, discontinued, vacated or closed to the following persons:

6.6.a. the office of the District Manager of the District where the road is located, which order shall be available for public inspection during all normal business hours;

6.6.b. the Clerk of the County Commission of the county where the abandoned road is located; and

6.6.c. any person who has notified the Commissioner that his or her personal or property interests may be affected by the abandonment, discontinuance, vacating or closing of the road in question.

W. Va. Code R. § 157-1-7 Procurement Procedures for Negotiated Contracts

7.1. Purpose. To set forth procedures for negotiated contracts to ensure that a qualified consultant is obtained through an equitable selection process and that prescribed work is properly accomplished in a timely manner at a just and reasonable cost pursuant to 23 CFR 172 for federally funded work and pursuant to W. Va. Code §5G-1, et seq., for state funded work.

7.2. Application. This rule applies to all design services and design related service contracts financed with federal-aid highways funds and contracts authorized under procedures codified in State statutes funded by State funds such as: * project management * construction management and inspection * feasibility studies * preliminary engineering * design engineering * design * engineering * surveying * mapping * architectural * materials, inspection, sampling, and testing * archaeological investigation * historic investigation * preliminary right of way engineering services * related services to any above

7.2.a. When it is necessary to utilize the services of a consultant, the Division Director or the District Manager will submit the reasons for so doing through appropriate channels to the Commissioner, or designee, for approval. The request will also indicate whether competitive or non-competitive selection is appropriate. Competitive selection must be used for all federally funded work. Non-competitive selection may be used on state funded work, provided that in all non-competitive selections, justification must be demonstrated in accordance with the procedures of Subsection 7.7 of this Rule.

7.2.b. The West Virginia Department of Transportation, Division of Highways, policy requires that Disadvantaged Business Enterprises shall have the maximum opportunity to participate in the performance and award of contracts, whether financed in whole or in part with Federal funds in accordance with the Division of Highways; Disadvantaged Business Enterprise Program.

7.3. Definitions.

7.3.a. Audit. – An official inspection of an organization’s accounts that is done in accordance with Government Auditing Standards issued by the Comptroller General of the United States and all eliminations required by the Federal Acquisition Regulations (FAR) will be made. The submitted certified audit overhead (indirect cost rate) report shall include the certification for the allowable costs used to establish the final indirect cost rate are in accordance with the FAR cost principles, or a verification indicating this certification was previously submitted and accepted by the cognizant agency.

7.3.b. CFR. – C ode of Federal Regulations.

7.3.c. Cognizant Agency. – Any federal or state agency that has conducted and issued an audit report of as defined in 23 CFR 172.3.

7.3.d. Competitive Selection. – All procurement transactions conducted in such a manner as to provide unrestricted opportunities for any and all prospective consultants to obtain work with the Division of Highways.

7.3.e. Consultant. – A business, educational institution, individual or public agency qualified to perform a service required by the Division of Highways. A consultant may be a consulting engineer, architect, public agency or other professional firm or agency.

7.3.f. Consultant Confidential Qualification Questionnaire (CCQQ). – A Division of Highway’s form on which a consultant's experience data, personnel, fields of work performed, and present and past activities are listed.

7.3.g. Contract Modification. – A n agreement modifying the existing contract, such as an agreement to accomplish work beyond the scope of the original contract.

7.3.h. Cost Analysis. – A review and evaluation of the separate cost elements and proposed fixed fee of (a) a consultant’s cost or pricing data and (b) the judgmental factors applied in projecting from the data to the Engineer’s Cost Estimate in order to form an opinion on the degree to which the proposed costs represent what the cost of the contract should be, assuming reasonable economy and efficiency.

7.3.i. Delegated Projects. – Federally funded projects where Federal Highway Administration (FHWA) and the Division of Highways have agreed that the Commissioner of Highways will act on behalf of the FHWA. Also known as Exempt Projects.

7.3.j. Disadvantaged Business Enterprises (DBE). – A for-profit small business concern which is at least 51 percent owned by one or more socially or economically disadvantaged individuals, whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it, and which meets all certification criteria under 49 CFR, Part 26 and has been certified by the Unified Certification Program.

7.3.k. Engineer's Cost Estimate. – A written detailed estimate prepared after the detailed scope of work meeting and prior to the receipt of the consultant’s price proposal. This will have an appropriate breakdown of specific types of labor required, work hours, indirect cost, and an estimate of the consultant’s fixed fee (considering the risk and complexity of the work) for use during negotiations.

7.3.l. Extra Work. – Any service or actions required of the consultant above and beyond the obligations of the original or modified contract.

7.3.m. Fixed Fee. – A dollar amount established to cover the consultant's profit and business expenses not allocable to overhead.

7.3.n. Indefinite Delivery/Indefinite Quantity (ID/IQ). – On call contract for the performance of services for a number of projects, under task or work orders issued on an as-needed basis, for an established contract period. ID/IQ contract period cannot exceed five (5) years and must specify a maximum total contract dollar amount to be awarded under a contract. ID/IQ Master Agreements authorized under this rule shall not exceed five (5) years, unless otherwise approved by the Commissioner.

7.3.o. Internal Control Questionnaire (ICQ). – A statement that provides adequate details to demonstrate that the prospective consultant has a job cost accounting system that is capable of segregating, identifying, and accumulating costs for cost type contracts.

7.3.p. Letter of Qualification. – A written expression of interest made by the consultant indicating his or her desire to perform a particular project, task, or service. This shall include, at a minimum, the evaluation factors and other information needed to verify the consultant’s qualifications and a completed Technical Evaluation form. Additional statements as to the consultant’s particular abilities and qualifications, pertinent to preliminary scope of work may be included if deemed necessary. Forms and example sheets are available through Engineering Division’s consultant services personnel or on online at: https://transportation.wv.gov/highways/engineering/Consultant/DDC%20Manual%20with%20updated%20PMD.pdf

7.3.q. Management Support Consultant (MSC). – Consultants hired to perform specific engineer functions normally performed by Division of Highways’ staff. These services may include but are not limited to review of other consultants work, procurement activities, and other quality assurance tasks. Firms selected as MSC will receive oversight from the Division of Highways but many of the tasks assigned will be of an independent nature.

7.3.r. Master Agreement. – A written agreement covering a specified period of time for the performance of a particular service or services that establishes specific methods of pay. A master agreement shall not exceed a two (2) year period, without time extensions, unless approved by the Commissioner.

7.3.s. Methods of Pay. – Methods of pay which may be used are as follows:

7.3.s.1. lump sum;

7.3.s.2. cost per unit of work;

7.3.s.3. cost plus a fixed fee;

7.3.s.4. specific rates of compensation; or

7.3.s.5. cost plus percentage of cost (state funded work only).

Each contract shall have a maximum amount payable which shall not be exceeded unless adjusted by a contract modification.

7.3.t. Negotiation Memorandum. – A t the conclusion of each negotiation of an initial or revised price, the Division shall promptly prepare a memorandum of the principal elements of the price negotiation. The memorandum shall be included in the contract file and shall include at a minimum: 7.3.t.1 the project number; 7.3.t.2 the purpose of the negotiation; 7.3.t.3 the name and position of each person representing the consultant and the Division; and

7.3.t.4. the most significant facts or considerations controlling the establishment of the negotiated price.

7.3.u. Noncompetitive Selection. – The method of procurement of professional design and related services when it is not feasible to award the contract using competitive negotiation or small purchase procurement methods. This process may be utilized only for state funded work. This type of procurement will follow procedures set forth in 23 CFR 172.7(3).

7.3.v. Non-Delegated Projects. – Federally funded projects that require the involvement and oversight of the FHWA.

7.3.w. Non-Project Specific Work. – Work of a general nature such as soils investigations, materials sampling, testing, and aerial photography.

7.3.x. Performance Reports. – A report prepared by the Division or District monitoring the service after the final acceptance of work or after contract termination, as applicable, evaluating the overall performance of the consultant.

7.3.y. Preliminary right of way engineering services. – Preliminary right of way services shall be those tasks that can be performed without conflict with any professional appraisal services and may be reimbursed using engineering phase funding as defined by any federal reimbursable requirements. 7.3.y.1 Tasks included in these services are; title research, 7.3.y.2 Tasks not included in these services are; appraisals, 7.3.y.3 Other right of way tasks not identified in 7.3.z.1 shall be approved by the Right of Way Division Director, or their designee.

7.3.z. Preliminary Selection Committee (also known as the “Shortlist Committee”). – The Commissioner will establish guidance for the creation and composition of the shortlist committee and interview panels for projects selected under Section 7.4. A minimum of three (3) members are necessary to transact the shortlist. The interview panel shall consist of a minimum of five (5) members identified by the shortlist committee.

7.3.aa. Prenegotiation Audit. – The renegotiation audit or shortlist scoring sheet is an examination of a consultant's records made in accordance with generally accepted performance standards and shall be used for evaluation of qualifications and availability for work.

7.3.bb. Prequalified List. – A list of prequalified firms available to perform specific categories of work. The prequalified list shall be open for a maximum of five (5) years. Any consultant who wants to request inclusion on the list may file the proper pre-qualification documents pursuant to an advertisement at any time the list is open. If the consultant meets the qualifications to be included on the list, the consultant shall be placed on the list for the remainder of the term of the list.

7.3.cc. Price Proposal. – A statement by a consultant which is submitted after the consultant is selected to accomplish the work and after the detailed scope of work meeting, indicating the consultant’s proposed costs to perform the required service. The Price Proposal cannot be submitted until the Engineer’s Cost Estimate is completed. The Consultant shall obtain approval prior to submitting their Price Proposal.

7.3.dd. Scope of Work.

7.3.dd.1. Preliminary: A general description of the work to be accomplished, including the location.

7.3.dd.2. Detailed: A clear, accurate, and detailed description of the technical requirements for the services to be rendered.

7.3.ee. Selection Authority. – The Commissioner of Highways is the Selection Authority for projects following Subsection 7.4 et seq., for firms selected for use on a Master Agreement per Subdivision 7.4.h., and for firms included on a Prequalification List per Subdivision 7.6.b. The Commissioner of Highways is the Selection Authority for individual selections from a Master Agreement and Prequalified List per Subdivisions 7.5.d. and 7.6.e., respectively. The Commissioner of Highways is the Selection Authority for individual selections for district specific Master Agreements and Prequalified Lists per Subdivision 7.5.e. and Subdivision 7.6.e. respectively.

7.3.ff. Selection List. – A list of consultants, the minimum number being two (2) more than required, in order of preference, prepared by the Preliminary Selection Committee.

7.3.gg. Selection Report. – A report prepared by the Division Director or District Manager requesting the service and sent to the Selection Authority, along with the Selection List. The report shall include a description of the interviews and evaluation conducted by the Preliminary Selection Committee upon which the Selection List is based.

7.3.hh. Short List. – A list of consultants, with a minimum of two (2) more than required, all considered to be most qualified to accomplish a proposed project, determined by the evaluation factors shown on the Shortlist Scoring Sheet.

7.3.ii. Short List Selection Criteria Technical Evaluation Factor Form. – A form used to aid in the review of a consultant’s qualifications per the evaluation factors.

7.4. Competitive Selection. Quality-Based Selection (QBS) following the guidelines set forth under the Brooks Act to be used on projects where services are estimated to cost more than the maximum limits as established by 23 CFR 172 for federally funded work or W.Va. Code §5G-1-4 for state funded work, for the selection of consultants. When the service of a consultant under this procedure is desired, the Division or District will advertise for letters of qualification from consultants interested in performing the service and develop a list for the specific project.

7.4.a. At a minimum, a solicitation for work will appear for two (2) weeks on the Division’s website at: http://www.transportation.wv.gov/highways/Pages/UpcomingContracts.aspx. The notice will also be furnished to other organizations, which may desire to disseminate the information to their members (such as engineering societies).

7.4.b. The solicitation shall include a clear and accurate description of the service to be performed, shall identify all significant evaluation factors and their relative importance, and shall include the latest date by which the Letter of Qualification must be submitted.

7.4.c. All Letters of Qualification received from consultants will be reviewed by the Division or District initiating the request to assure that all pertinent information and data have been submitted. Any letters which were received not containing complete information or which were not received prior to the submission date deadline, shall be rejected and the consultant so notified. The deadline shall be at least 10 working days after the initial day of solicitation. Letters of qualification shall be received electronically. The solicitation shall identify the delivery means, addresses and deadlines of electronic submittal.

7.4.d. The Division or District responsible for the direct conduct of the contract will provide a completed copy of the Short List Selection Criteria Technical Evaluation Factor Form for each proposal to the Preliminary Selection Committee. The forms pertaining to short list criteria and selection are available on the division’s website at: https://transportation.wv.gov/highways/engineering/Consultant/DDC%20Manual%20with%20updated%20PMD.pdf This evaluation will be filed in the Division’s or District’s records.

7.4.e. The Preliminary Selection Committee will evaluate the firms, in accordance with the services requested in the solicitation, and will develop a short list of consultants who are, in their its opinion, best qualified to perform the desired service. The minimum number of firms on the short list shall be two (2) more than required to complete the project.

7.4.f. All Disadvantaged Business Enterprises on the list of consultants who submitted proposals will be identified on the qualifications and technical evaluation.

7.4.g. Multiple consultants may be obtained through the use of a single solicitation when the services to be performed are of a similar nature and can be clearly defined in the advertisement. The listing submitted to the Selection Committee should indicate the number of consultants required.

7.4.h. When the services of a consultant are desired for a continuing or master agreement for items such as inspection services, subsurface investigation, or design services, the procedures of this section shall be used for the selection process only. Individual assignments for master agreements shall follow Subsection 7.5.d.

7.4.i. The Division Director, District Manager, or designee, requesting the service will schedule interviews with each shortlisted firm. Discussions will be held regarding anticipated concepts and proposed methods of approach to the assignment, including those items noted in the qualification and technical evaluation.

7.4.j. After scheduled interviews with the short-listed consultants, the Division Director or District Manager shall prepare a Selection Report for review and approval by the Selection Authority.

7.4.k. The award of negotiated contracts financed with Federal funds will take into consideration projects utilizing DBE participation.

7.4.l. All consultants who have submitted proposals will be notified that the selection has been made and the name of the preferred consultant. The notification shall inform the successful and unsuccessful firms that debriefings are available at their request.

7.5. ID/IQ Project Procurement. To be used for procuring professional services for projects estimated to cost less than the maximum limits established by 23 CFR 172 for federally funded work or WV Code §5G-1-4 for state funded work. This type of procurement will follow procedures set forth in 23 CFR 172.9.

7.5.a. Projects that can utilize this form of procurement are:

7.5.a.1. State funded projects. This contract shall match maximum thresholds as set by state code.

7.5.a.2. Federal-aid projects using the ID/IQ type of contract.

7.5.a.3. Individual assignments under a Master Agreement.

7.5.b. The Division Director or District Manager requesting the service shall obtain approval from the Commissioner to use the ID/IQ project procedure.

7.5.c. The Division Director or District Manager shall follow all the requirements of Subsection 7.4 and shall serve on the Preliminary Selection Committee.

7.5.d. The Division Director or District Manager requesting the service shall submit a Selection List to the Commissioner of Highways, the Selection Authority, for review and approval.

7.5.e. For project specific assignments to be performed under an ID/IQ Master Agreement, the following steps shall be utilized;

7.5.e.1. The Division Director or District Manager requesting the service of a consulting firm, who has an ID/IQ Master Agreement in place, is not required to obtain pre-approval from the Commissioner to use this process. Pre-approval shall be assumed due to the Selection Authority having approved the ID/IQ Master Agreement process and selection.

7.5.e.2. The Division Director or District Manager requesting the service shall consider three or more regionally based professional firms qualified to perform the service and have a current ID/IQ Master Agreement.

7.5.e.3. The Division Director or District Manager requesting the service shall submit a selection list to the Selection Authority for review and approval.

7.5.e.4. ID/IQ Master Agreements shall have the following monetary and term length limits:

7.5.e.4.A. Maximum Dollar limits as established by 23 CFR 172 for federally funded work or WV Code §5G-1-4 for state funded work, per individual project assignment.

7.5.e.4.B. Maximum dollar limits in aggregate, $7,500,000.00, per agreement, per year.

7.5.e.4.C. Maximum length of two (2) years, provided that up to three one-year extensions shall be permissible with consent of both parties.

7.6. Procurement using Prequalified List. May be used for procuring professional services for projects estimated to cost less than maximum limits established by 23 CFR 172 for federally funded work or W.Va. Code §5G-1-4 for State funded work. The Commissioner must approve the use of this procurement method for all categories of work. Division Director or District Manager, who intend to use this procurement method, shall prepare prequalification categories, a general description of work to be performed by firms under each prequalification category, and obtain approval from the Commissioner. Prequalification lists shall be maintained by Engineering Division, Consultant Services Unit, unless otherwise directed by the Commissioner, and made available to the public on the WV DOT website. Information on the website must include, at a minimum, the various categories of prequalification lists, firms available for use in the category, and the terms of the prequalification list. This type of procurement will follow procedures set forth in 23 CFR 172.9.

7.6.a. Projects that can utilize this form of procurement are:

7.6.a.1. State funded projects.

7.6.a.2. Federal-aid projects using the ID/IQ type of contract. This contract form is limited to contracts whose costs are less than the maximum amount set forth in W.Va. Code § 5G-1-4; and

7.6.a.3. Individual assignments shall be from a Categorized Prequalification List of approved firms.

7.6.b. A solicitation will be placed, in accordance with Subdivision 7.4.a, requesting interested firms submit a Letter of Qualification for the categorized prequalification list. A firm must submit a separate Letter of Qualification for each prequalification list for which it is interested. The solicitation will address the information to be included on the Letter of Qualification, all significant factors used in evaluating the interested firm and their relative importance, the term of the pre-qualification list and the length of time the firm may remain on the list before renewal is required.

7.6.c. The Division Director or District Manager, receiving a request from a firm for inclusion on a prequalification list, shall review the firm’s Letter of Qualification to determine if the interested firm submitted all required information and if the firm is qualified for the work advertised. If the firm meets all required qualifications, the Division Director or District Manager shall obtain approval for inclusion on the list from the Commissioner. Once approved, the firm’s name will be included on the prequalified list with the appropriate information.

7.6.d. The Division Director or District Manager shall follow all the requirements of Subsection 7.4 and shall serve on the Preliminary Selection Committee.

7.6.e. The Division Director requesting the service shall submit a Selection List to the Commissioner of Highways, who shall serve as the Selection Authority, for review and approval.

7.6.f. For project specific assignments to be performed using the Prequalification List, the following steps shall be utilized:

7.6.f.1. The Division Director or District Manager requesting the service of a consulting firm, using the available firms from the Prequalified List, is not required to obtain pre-approval from the Commissioner to use this process. Pre-approval shall be assumed due to the Commissioner having approved the firm’s inclusion on the Prequalification List.

7.6.f.2. The Division Director or District Manager requesting the service shall conduct discussions with three or more professional firms from active firms available from a prequalified list.

7.6.f.3. The Division Director or District Manager requesting the service shall submit a selection list to the Selection Authority for review and approval.

7.6.f.4. Agreements using firms from the Prequalified list shall have the following monetary limits:

7.6.f.4.A. Less than the maximum limits as established by 23 CFR 172 for federally funded work or WV Code §5G-1-4 for State funded work, per individual project assignment.

7.6.f.4.B. No more than $7,500,000.00 aggregate per Prequalified List in original agreements per calendar year.

7.6.f.5. Agreements using firms from the Prequalified List shall have the following term limits:

7.6.f.5.A. A Prequalified Category List will be advertised and remain open for a maximum of five (5) years.

7.6.f.5.B. Prequalification lists may be closed or removed at the direction of the Commissioner.

7.6.f.5.C. Firms applying for inclusion on the List will be available for assignment for the limits of the original advertisement no matter when the firm makes application unless the list was previously closed by the Commissioner.

7.6.g. Prequalification lists created for management support roles will follow 23 CFR 172.7(b)(5) and guidance found in the WVDOH Consultant Services Manual. Firms seeking approval to be placed on the Management Support Consultant (MSC) prequalification list, must fill out and maintain an updated Confidentiality Agreement and Conflicts of Interest form per 23 CFR 172.7(b)(4). Selected firms shall report to a responsible charge Division employee as designated by the Division Director or District Manager per 23 CFR 172.9(d)(1).

7.7. Noncompetitive Selection.

7.7.a. Approval from the Commissioner must be received prior to using this process.

7.7.b. Circumstances under which a contract may be awarded under this procedure are limited to the following:

7.7.b.1. the item is available only from a single source;

7.7.b.2. when there is an emergency, as determined by the Commissioner, or his or her designee, which will not permit the time necessary to conduct competitive selections;

7.7.b.3. after solicitation of a number of sources, competition is determined inadequate; or

7.7.b.4. when it is determined appropriate to use available services of a public agency or educational institution.

7.7.c. The name of the consultant who is considered qualified to perform the service will be submitted to the Selection Authority with an explanation of the circumstance in paragraph (2), Subsection 7.7.

7.8. Negotiation of Fee.

7.8.a. The most preferred consultant on the selection list approved by the Selection Authority will be requested to attend a detailed scope of work meeting, after which time the consultant is to submit a price proposal. The price proposal shall not be submitted without approval by the Division or District. The initial scope of work meeting may be waived for those consultants that are satisfactorily providing the required service such as drilling, sampling, inspection, etc. The price proposal shall address the evaluation factors and shall include a complete listing of all anticipated sub-consultants.

7.8.b. The Division Director or District Manager initiating the request for service is responsible for preparing an independent engineer's cost estimate prior to the receipt of the fee proposal from the consultant and for negotiating an agreement with the preferred consultant, except for services obtained on a per unit cost.

7.8.c. Negotiations shall be conducted by the Division or District requesting the service.

7.8.d. Price proposals will be subject to audits in accordance with 23 CFR 172.11.

7.8.e. The proposed contract, including the agreed upon cost figures, shall be submitted to the Commissioner, or his or her designee, for approval and execution. All proposed contracts for non-delegated projects shall be subject to approval by FHWA prior to execution. When approved by the Commissioner, the consultant may be given a notice to proceed on federally funded work. This notice to proceed shall be subject to authorization of federal funds.

7.8.f. In the event that the fee cannot be agreed on, the Division Director or District Manager shall advise the Commissioner in writing, through the appropriate channels, and with approval by the Commissioner, may begin negotiations with the consultant who was listed number two by the Selection Authority and so on, if necessary. The Division Director or District Manager shall obtain a written final proposal from the firm and notify the firm that negotiations have been terminated.

7.8.g. Should it be impossible to reach an agreement with any of the consultants selected, the Commissioner will be so advised in writing.

7.8.h. The Commissioner will then request the Preliminary Selection Committee to make a reassessment to determine whether to extend the list, to renegotiate with consultants from the existing selections, to accomplish the service "in-house", or to remove the work from the program.

7.8.i. A negotiation memorandum shall be maintained for a three (3)year period after final payment.

7.8.j. On July 1st of each year, in accordance with W. Va. Code §17-2A-22, the Commissioner will issue guidance regarding allowable overhead ceilings the Commissioner may deem necessary to regulate.

7.9. Contract Modifications.

7.9.a. Contract modifications are required for any modifications in the terms of the original contract that significantly change the character, scope, complexity, or duration of the work or significantly change the conditions under which the work is required to be performed. All contract modifications for non-delegated projects shall be subject to prior approval by FHWA.

7.9.b. A contract modification shall clearly outline the changes made and determine a method of compensation.

7.9.c. Changes to the scope of work may require adjustment, either positive or negative, of the fixed fee portion in a cost plus fixed fee contract, or in a lump sum contract. Overruns or underruns in project costs, as part of the original scope of work, shall not warrant an adjustment in the fixed fee portion of a cost plus fixed fee contract.

7.9.d. When necessary to maintain schedules or as determined by the Commissioner of Highways, or his or her designee, the consultant may be authorized to proceed with work prior to agreement on the amount of compensation and execution of the contract modifications with adequate justifying documentation. On non-delegated projects at least verbal prior approval by FHWA must be obtained.

7.9.e. A modification to an original agreement, where the original advertisement concerned all phases of the work, shall be negotiated following the requirements of Subsection 7.8. A detailed scope of work meeting and an independent engineer’s estimate are required. The original advertisement must have included all phases of work for this procedure to be used. If the original advertisement did not contain all phases of the work, the requirements of Subsection 7.4 shall be followed for the selection of a consultant, unless the Commissioner of Highways, or his or her designee, finds that the work requiring the modification was not known or anticipated at the time of the advertisement, and not allowing the modification would result in additional costs and delays. Examples of this type of modification are development of construction contract plans as Phase II of an original Phase I design study or rehabilitation of a structure where Phase I was a detailed inspection and Phase II is reconstruction or alteration of the construction project delivery.

7.9.f. Contract modifications are required for any modification in the terms of the original contract that change the cost of the contract or that significantly change the character, scope, complexity, or duration of the work. In the interest of efficiency and continuing the work on the project, the scope of work will be established in the proposal and during negotiations. The scope of work shall be recommended by the Division Director or District Manager responsible for the work for approval by the Commissioner. An independent engineer’s estimate will not be necessary, but a negotiation memorandum shall indicate a thorough review was made and that the scope of work and the adjusted fee are complete and compatible. An example of this type of modification is a change in the design of construction plans due to a geotechnical investigation which shows soil stability inadequacies. Written notification of changes to scope or level of effort that occur past the next possible scheduled meeting in accordance with Subsection7.10 of this rule, will be ancillary and within the scope, but they must be documented in the project file.

7.10. Control of Work. The Commissioner may authorize a notice to proceed or an advanced notice to proceed by a properly executed agreement between the parties. After notification to proceed is given to a consultant in writing, or electronically, the responsible Division or District will meet regularly with the consultant to discuss progress and problems as they may occur with notes of the meetings recorded (either on paper or electronically) in the project files. These meetings may be held every month. At these meetings, a complete review of the progress to date is made with emphasis on acceptability of costs billed, the next phases of the work to be performed, schedules, and submissions of contract modification documents. Periodic submission of data is made in accordance with the applicable type of project involved. All phases of contract work are viewed by the Division or District within the Division of Highways concerned with that work and that Division's or District’s opinion of the consultant's performance and expertise in their field is considered in the evaluation of the consultant for future work. If deemed necessary by the Division or District, visitation of the consultant's office shall be made. For those tasks of short duration, the need for regular meetings may be waived. The responsible Division or District shall discuss problems as they occur. Documentation of the discussions shall be kept in the Division or District file.

7.11. Evaluation of Work.

7.11.a. Performance evaluations should include, but not be limited to, an assessment of the timely completion of work, adherence to contract scope and budget, and quality of the work conducted. The contracting agency shall provide the consultant with a copy of the performance evaluation and the opportunity to provide written comments to be attached to the evaluation. Interim evaluations may be necessary based on the scope, complexity, and size of the contract as a means to provide feedback, foster communication, and achieve desired changes or improvements. Completed performance evaluations should be archived for consideration as an element of past performance in the future evaluation of the consultant to provide similar services.

7.11.b. Upon completion or performance termination of the consultant's work, the Project Manager or Project Supervisor of the responsible Division or District will prepare a report recording its evaluation of the consultant's efforts. It should include comments from other Divisions when appropriate. The performance report shall be reviewed by a reviewing official, which shall be the Division Director or District Manager of the responsible Division or District. A copy shall be sent to the consultant for review and comment, and any written comments received shall be attached to the final report. All consultants with active contracts shall be evaluated in March of each year on each active project. On contracts where the final product has been accepted by the Division or District, but the final invoice has not been paid, the consultant will not need to be evaluated.

7.12. Contract Closeout or Finalization. Upon completion of all contractual obligations by the consultant, a final audit will be requested from West Virginia Department of Transportation’s Auditing Division by the responsible contracting officer.

7.13. Audit Follow-up. Primary responsibility for action and follow-up on audit findings and recommendations rest with the Division or District supervising the work. Timely action by these officials is an integral part of the audit system.

7.14. Protest Procedures.

7.14.a. Consultants who feel they have not been selected to perform work for unjust cause may appeal to the Commissioner for a hearing to be held on their behalf. They must do so in writing within 10 days after the date of being notified of the determination. In addition, any claims, or disputes in reference to payment, work, method of compensation, or performance evaluation may be appealed to the Commissioner.

7.14.b. Matters concerning work performed, wherein Federal funds are used in whole or part, may be protested to FHWA once all administrative procedures have been exhausted with the State. Please refer to the FHWA Consultant Services website for a link to Best Practices in Management of Design Errors and Omissions, as prepared as part of NCHRP Project 20-70, Task 225. However, reviews of protests by the federal agency will be limited to:

7.14.b.1. violations of federal law or regulations; and

7.14.b.2. violations of the State's protest procedures for failure to review a complaint or protest. Protests received by the FHWA other than those specified above will be referred to the State.

7.15. Contractual Responsibilities. The Division of Highways is responsible for the settlement of all contractual/administrative issues. All settlements relating to contracts using federal-aid funds shall be reviewed and approved by FHWA prior to participation in any additional costs (only on non-delegated projects). The Division of Highways is responsible for determining the extent to which consultants are accountable for the professional quality, technical accuracy, coordination of services, and costs, for which consultants may be reasonably liable, resulting from errors or deficiencies in design furnished under its contracts. When a modification to a construction contract is required because of an error or deficiency in the services provided by the consultant, the Division or District responsible for oversight of the consultant’s contracted work shall follow the procedure in Subsection 7.16. The Division or District shall be responsible to enforce the liability and collect the amount due as determined by the Commissioner.

7.16. Disposition of Errors and Deficiencies. The Commissioner of Highways will establish guidance for the creation and composition of the Error and Omission Committee. The Division or District that identifies that an error has occurred, shall forward that information to committee “chair”, per the rules and guidance created. The Division or District responsible for oversight of the consultant’s contracted work shall investigate and provide a report to the Error and Omission Committee for final determination.

7.16.a. The committee chair shall report the findings to the Commissioner for final disposition.

7.17. Redesign for Errors and Deficiencies. The consultant is required to make necessary corrections at no cost to the Division of Highways when the contract documents furnished under their contract contain errors, deficiencies, or inadequacies.

7.18. Record Keeping. Unless otherwise noted, all documentation under this procedure will be retained on file at the Division of Highways and will be available for review by FHWA.

157CSR1

157CSR1

Series 02 Disposal, Lease and Management of Real Property and Appurtenant Structures and Relocation Assistance

W. Va. Code R. § 157-2-1 General

1.1. Scope. -- This rule governs the disposal, lease and management of real property and appurtenant structures, and relocation assistance for persons dislocated by highway construction.

1.2. Authority. -- W.Va. Code §17-2A-8, §17-2A-17, §17-2A-19, and §17-2A-20.

1.3. Filing Date. -- April 4, 2023

1.4. Effective Date. -- April 4, 2023

1.5. Sunset Provision -- This rule shall terminate and have no further force or effect on August 1, 2028.

W. Va. Code R. § 157-2-2 Sale, Exchange or Lease of Real Property and Structures

2.1. Relocation and Property Management Section of the Right of Way Division. -- The sale, exchange, or lease of real property or any interest or right therein or any structure thereon, held by the Department of Transportation, Division of Highways, shall be under the control and management of the Relocation and Property Management Section of the Right of Way, Division of the Division of Highways.

2.2. District Office. -- In each District Office, the District Right of Way Manager or his or her designee shall perform the duties and functions relating to the sale, exchange or lease of real property, any interest therein, or structures thereon, within the District.

2.3. Excess Real Estate. -- -- Excess real estate, as used in this rule, means any real property or any interest or right therein, which is held by the Division of Highways and which is not necessary or desirable for present or presently foreseeable future state road purposes, or any directly or indirectly related purposes connected with the construction, maintenance or operation of state roads. The Commissioner of Highways has exclusive authority to designate excess real property. All deeds transferring any interest owned by the Division of Highways shall be quitclaim deeds.

2.4. Temporary Disposition. – Temporary disposition of real property or any interest therein, not needed for state road purposes, may be either by lease or permit.

2.5. Permanent Disposition.

2.5.1. Excess real estate may be permanently disposed of by:

2.5.1.a. Exchange for other real property needed for any state road purpose.

2.5.1.b. Public sale.

2.5.1.c. Abandonment. In the usual instance will apply only to road right of way easement.

2.5.1.d. Private negotiated sale at fair market value to the principal abutting landowners.

2.5.2. If excess real estate acquired subsequent to December 31, 1973, through voluntary real estate acquisition or exercise of the power of eminent domain is to be sold, it shall be first offered for sale to the principal abutting landowner(s) at a cost equal to the amount paid by the Division of Highways in acquiring the real estate less any applicable reduction attributable to the value of improvements which have been removed, plus an adjusted amount to reflect interest at a rate equal to the increase in the consumer price index for all urban consumers as reported by the United States Department of Labor since the disbursement of funds, provided that the following conditions are met:

2.5.3. A principal abutting landowner for purposes of this subsection is an abutting landowner who is an individual from whom the real estate was acquired or his or her surviving spouse or descendent as defined in West Virginia Code, §42-1-1; and

2.5.4. The primary use of the principal abutting property has not substantially changed since the time of the acquisition. If there is no principal abutting landowner(s), all abutting landowners shall have a right of first refusal to purchase the property as provided in subparagraph 2.5.c.

2.5.5. The right of first refusal gives the abutting landowners the right to purchase the excess property as provided in this section. The abutting landowner shall be notified in writing sent by certified mail, return receipt requested, of his or her right of first refusal and that he or she has sixty (60) days to exercise this right. The right of first refusal is exercised by an abutting landowner through his or her remittance of the price determined by the Division of Highways to be fair market value within 60 days of notification. If no abutting landowner exercises the right of first refusal by remitting the purchase price to the Division of Highways within 60 days, then the property may be otherwise sold. The Division of Highways will recognize and act upon a written release of the right of first refusal. The right of first refusal is not transferrable or assignable.

2.5.6. If multiple abutting landowners opt to purchase the property, the property shall be sold at public auction.

2.5.7. For purposes this rule, an abutting landowner is an abutting landowner at the time of the disposition. Such landowner shall be determined by the Commissioner's employees or agents. In all cases the landowner shall submit proof satisfactory to the Division of Highways of his or her ownership, which may include but is not limited to a certified copy of his or her deed, an abstract of title certified by an attorney licensed to practice law in West Virginia, payment of current year's taxes evidenced by tax receipt, or in the case of heirs who do not have deeds, such proof shall be by way of certified documented records of heirship or intestate ownership. Principal abutting landowners and abutting landowners shall be determined in the same manner.

2.5.8. If public utilities are present on property being permanently disposed, that portion being used by the utility shall be excepted and/ or reserved from the conveyance.

2.5.9. The provisions of 23 CFR §710.403 and §710.405 shall be followed when federal highway aid funds were used to purchase the property being offered for the sale, exchange, or lease.

2.6. Initiating Disposition. -- Any person, firm or corporation, in accordance with the provisions of subsection 3.3 of this rule may make a written request to the District Manager of the Division of Highways District where the property involved is located, or directly to the Commissioner of Highways in Charleston, West Virginia, for the disposition of any parcel or tract of real estate owned or otherwise held by the Division of Highways. No real estate owned or held by the Division of Highways shall be sold, offered for sale, or released in any manner until such sale, offer or release has been approved by the District Manager, the State Highway Engineer, and the Commissioner of Highways or his or her designee.

2.7. Finding of Value as Hiking Trail. -- Prior to any transfer, sale or other disposal of real property, the Commissioner of Highways must determine that the property or right of way has no significant value to the state as a hiking trail or serve as a link between two or more state owned properties. Such determination is not required if the property is within 600 feet of any dwelling house and the owner of the dwelling house is acquiring the property from the Division of Highways.

W. Va. Code R. § 157-2-3 Exchange of Real Property

3.1. Property Not Necessary for Road Purposes. -- Any real property, or any part thereof, or any interest or right therein the Commissioner determines is not necessary or desirable for present or presently foreseeable state road purposes may be exchanged for other real property, or any interest or right therein, which is determined by the Commissioner to be necessary or desirable for present or presently foreseeable state road purposes.

3.2. Property Necessary for Road Purposes. -- Any real property, or any part thereof, or any interest or right therein, even though it may be necessary or desirable for present or presently foreseeable state road purposes, may be exchanged for other real property, or any interest or right therein, in close proximity thereto which the Commissioner determines to be of equal or superior useful value for present or presently foreseeable future state road purposes.

3.3. Appraisal. -- Any exchange of real property, or any interest therein, must be based on an approved appraisal of each separate property involved, and a determination by the Right of Way Chief Appraiser or his or her designee for the Commissioner of Highways at the fair market value of the property. The Director of the Right of Way Division shall make a recommendation to the Commissioner as to whether the property the Commissioner desires to acquire by exchange is of equal or superior useful value for present or presently foreseeable future state road purposes as the property already owned by the Division.

3.4. Difference in Value. -- The Commissioner of Highways may pay or require payment of any substantial difference in the value of the properties being exchanged and may move or pay the cost of moving buildings, structures, or appurtenances in connection with any such exchange.

W. Va. Code R. § 157-2-4 Public Sale of Excess Real Property

4.1. Public sales of excess real property shall be in accordance with this section. In conformity with state and federal law, all property shall be sold in a manner which will bring the highest and best price.

4.2. Auction. -- Excess real property, or any interest or right therein or structure thereon, not purchased by an abutting landowner or public body in a negotiated sale or which was not acquired for use, or used, as a highway, shall be sold at public auction in the county in which the real property, or the greater part by value, is located. Such sale shall be made as provided by law and this rule. Conveyance of real property by the Division of Highways to other public bodies may be handled on a negotiated basis. Any public body which requires the Division of Highways to purchase real property for highway purposes at fair market value shall be required to purchase excess real property from the Division of Highways at fair market value. Such conveyances are subject to the approval of the Board of Public Works.

4.3. Published Notice of Auction. -- Notice of public auction of excess real property shall be published on three different days in a newspaper of general circulation in the county in which the real property, or a part thereof, is situate.

4.3.a. The first publication of the notice shall be at least 20 days prior to the date of the public sale.

4.3.b. The notice shall set forth the time, place, date and terms of the proposed sale and a general description of the real property to be offered for sale.

4.3.c. The notice shall clearly state that the Division of Highways reserves the right to reject any or all bids received at a sale.

4.3.d. An affidavit of publication of notice, or a copy of the published notice, shall be obtained and filed with the Right of Way Division Office.

4.4. Conduct of Auctions. -- The Relocation and Property Management Section Manager, or his or her designee shall conduct, or cause to be conducted, the public auction at the time and place specified in the notice. Another person appointed by the Relocation and Property Management Section Manager, or his or her designee, shall act as clerk and record the high bid and the name and address of the high bidder. The clerk shall also receive any monies paid at the time of sale and give a receipt therefor to the highest bidder. The Relocation and Property Management Section Manager, or his or her designee, shall promptly forward the results of the auction, a copy of the receipt, a cashier's or certified check payable to the Division of Highways for all money received, and his or her recommendations to the Director of the Right of Way Division.

4.5. Closing Sales of Real Property. -- If the sale is approved by the Right of Way Division and the Commissioner of Highways, an executed quitclaim deed shall be forwarded to the District Office for completion of the transaction. The District Right of Way Manager shall collect any balance of money due in the form of a cashier's or certified check prior to the delivery of the executed quitclaim deed. Any monies so received shall be promptly forwarded to the Director of the Right of Way Division. The Relocation and Property Management Section Manager, or his or her designee will submit a funds transmittal letter and the cashier's or certified check, to the Accounts Receivable Section of the Finance Division. The District Right of Way Manager shall send the Director of the Right of Way Division a copy of the recorded deed.

W. Va. Code R. § 157-2-5 Disposition of Structures

5.1. Methods of Disposing of Structures. -- Structures which are not needed for road purposes, but which are situated on land required for present or future contemplated road needs shall be disposed of by the following methods:

5.1.1. Retention by former owner as a part of the consideration of acquisition of the land; or

5.1.2. Public sale; or

5.1.3. Letting a demolition contract; or

5.1.4. Giving to a local public agency; or

5.1.5. Removal by Division of Highways maintenance forces; or

5.1.6. Inclusion in the prime construction contract.

5.2. Retention by Owner. -- Property owners may be permitted to retain improvements for clearance from the right of way. Such improvements must be properly removed within the time agreed to between the property owner and the Commissioner of Highways, and if not so removed, the Commissioner of Highways, shall take proper action to clear the right of way of any such improvements.

5.3. Public Sale of Structures. -- The sale of improvements upon state road property shall be at public auction in accordance with West Virginia Code §17-2A-19 and this rule.

5.3.1. Notice of Auction -- The District Right of Way Manager shall cause a notice of the proposed sale of structures to be published during at least three different weeks in a newspaper of general circulation in the county in which the structures are located The first such notice shall be published at least 20 days prior to date of the proposed public auction.

5.3.2. Form of Notice -- Notice of sale of structures shall set forth the time, place, and terms of the proposed sale. The notice shall clearly state that the Commissioner of Highways reserves the right to reject any or all bids. The notice shall describe the structures to be sold, indicate the location of the structures, set forth the terms of payment, and inform prospective bidders where they may obtain a copy of the specifications for removal and clearance of the structures and terms of the proposed bill of sale.

5.3.3. Proof of Publication -- An affidavit of publication of the notice shall be obtained and filed with the Right of Way Division.

5.3.4. Auction Procedure -- At the time and place specified in the notice, the Relocation and Property Management Section Manager, or his or her designee, shall first advise prospective bidders concerning the terms under which the improvements may be sold. Terms discussed include those concerning payments to the Division of Highways, the posting of a performance bond and rules governing the removal of the improvements and cleanup. After completing the discussion concerning the terms, the auctioneer may commence taking bids.

Only after all such items have been read shall the auction commence. Another person appointed by the Relocation and Property Management Section Manager, or his or her designee, shall act as clerk to record the high bid and the name and address of the high bidder on each property. The clerk shall also receive any monies paid at the time of the sale and give a receipt therefor to the high bidder. The clerk shall retain two copies of each such receipt.

5.3.5. Recommendation of Approval -- If time is of the essence, the Relocation and Property Management Section Manager, or his or her designee, may request an advance indication from the Director of the Right of Way Division as to whether the high bid will be acceptable and inform the bidder that contingent upon final approval of the bill of sale, he or she may make arrangements to remove the improvement. However, actual work of removing the structure cannot begin until final approval has been given by the Director of the Right of Way Division. If advance notice is given the high bidder, he or she shall be clearly advised that the sale is still contingent upon approval by the Director of the Right of Way Division, and that the advance notice does not bind the Division of Highways.

5.3.6. Bill of Sale -- The bill of sale, in quadruplicate, shall be completed and signed by the purchaser on the day of the auction for immediate transmittal to the Right of Way Division with the results of the auction and the recommendations of the Relocation and Property Management Section Manager.

5.3.7. Approval and Closing of Sale -- If the sale is approved by the Director of the Right of Way Division, the District Office will notify the successful bidder by giving him or her the original, fully executed bill of sale and shall obtain any balance due by certified or cashier's check and receive any required performance bond.

5.3.8. Removal of Structures. -- All improvements shall be removed from the state right of way by the buyer, at his or her own expense, in accordance with the terms of the bill of sale, or any extension of time authorized in writing by the Director of the Right of Way Division. If such improvements are not so removed, title thereto shall revert to the Division of Highways and all sums paid pursuant to said bill of sale shall be forfeited as liquidated damages.

5.4. Demolition Contract. -- Removal of structures by demolition contract shall be solicited by public advertisement. The contracts are subject to the relevant provisions of "Construction and Reconstruction of State Roads," 157CSR3.

5.5. Removal of Structures From the Right of Way by Fire Department. -- Structures which have been offered for sale, but no acceptable bids were received may be removed by local fire departments after approval of the Director or Assistant Director of the Right of Way Division.

5.6. Removal by Maintenance Forces. -- Removal by maintenance forces may be made after bids have been taken if there is no acceptable bid. Maintenance forces may remove structures prior to taking bids with prior approval of the Director of the Right of Way Division when removal by maintenance forces is in the public interest.

5.7. Removal by Contractor. -- Structures may be left on the right of way for the prime contractor to remove when in a particular case it is more practicable or in the public interest to do so.

Persons Ineligible to Purchase Real Property or Structures from the Division of Highways.

6.1. Employees of the Division of Highways. -- No employee of the Division of Highways, or his or her immediate family, is eligible to bid, either directly or indirectly on any real property or structure offered for sale by the Division of Highways.

W. Va. Code R. § 157-2-7 Lease of Division of Highways' Property

7.1. General. -- In all instances where property or any interest or right therein, including airspace or any part thereof, is being held by the West Virginia Division of Highways, it may be leased pursuant to the provisions of West Virginia Code §17-2A-19 and §17-2A-19a; provided, that the amount of the lease rental must be updated every five years based upon then existing market conditions unless longer lease terms have been approved by the Commissioner for utility accommodation leases. The leases will be made in accordance with the following requirements.

7.2. Prior Approval. -- Prior approval of a lease must be obtained from the District Manager and Commissioner of Highways except where the lease is a temporary continuation of an existing occupancy at the time of the Division of Highways acquisition and does not interfere with right of way clearance.

7.3. Appraisal. -- Rentals shall be based on a written approval and determination of fair rental value approved by the Commissioner of Highways or his or her designee.

7.4. Continuation of Existing Lease. -- When a property acquired by the Division of Highways is subject to an existing lease or tenancy, the Relocation and Property Management Section Manager, or his or her designee, with the approval of the Director of the Right of Way Division, may continue the existing lease at the existing rental amount; provided, that proper arrangements are made to vacate the property promptly, in advance of its need for highway construction; provided, that the amount of the lease rental must be updated every five years, based upon existing market conditions unless longer lease terms have been approved by the Commissioner for utility accommodation leases.

7.5. Owner Occupant Retaining Possession. -- Where property is acquired and the owner occupant is permitted by the Division of Highways to retain possession in excess of the time allotted under the option or 30 days after closing, whichever is greater, the former owner occupant may rent the property or interest therein at a fair rental determined by the Commissioner of Highways or his or her designee, provided satisfactory arrangements are made for vacating the property prior to its need for highway purposes.

7.6. Rental Principles. -- Division of Highways property which is leased to others, except to an owner occupant or tenant at time of acquisition, shall be leased in accordance with the following principles:

7.6.1. The Right of Way Chief Appraiser or his or her designee shall establish the fair rental value for the Commissioner of Highways.

7.6.2. Each prospective tenant shall be required to execute a lease agreement which has been approved by the Right of Way Legal Section.

7.6.3. All rent is due and payable on the first day of each rental period.

7.6.4. All lease agreements shall be in effect for an agreed term and may provide for termination upon thirty (30) days written notice by either party.

7.6.5. The Division of Highways shall make no repairs or alterations without written authorization from the Director of the Right of Way Division.

7.6.6. The Division of Highways assumes no liability for any utility bills, sewer charges, or trash disposal costs.

7.6.7. No tenant shall be allowed to occupy Division of Highways property until he or she has paid first to the Division of Highways (by certified or cashier's check or money order) one (1) month’s rent in advance.

7.6.8. No employee of the Division of Highways may occupy Division of Highways property without authorization from the Commissioner of Highways.

7.6.9. The District Property Manager shall only collect the first rental payment. All future rents shall be paid directly by the tenant to the Accounts Receivable Section, Finance Division of the Division of Highways. The payment requirements shall be clearly stated on the rental agreement or lease.

7.6.10. Occupants of properties acquired by the Division of Highways may remain in possession of such properties as tenants of the Division on a preferential basis.

7.6.11. The Division of Highways may lease its property to a public body for an amount less than fair market rental value; provided, that such property is used by that public body for public purposes. No public body may sublet any property owned by the Division of Highways for any purpose without the consent of the Commissioner of Highways.

W. Va. Code R. § 157-2-8 Rental of Property from Other Persons

8.1. General. -- The Division of Highways may lease real property from other persons upon the written recommendation of the District Manager and the Director of the Right of Way Division and with the written approval of the Commissioner of Highways. If the property to be rented is for use of a Headquarters Division, the approval of the District Manager is not required. When recommended and approved, the amount of the rental shall be approved in writing by the Commissioner of Highways or his or her designee.

8.2. Office Space Leases. -- Pursuant to the provisions of West Virginia Code §5A-5, et seq., as amended, office space is leased for the Division of Highways by the Commissioner of Administration upon receipt of proper requisition from the Commissioner of Highways.

W. Va. Code R. § 157-2-9 Damage by Owner or Occupant

9.1. General. -- The owner or occupant of real property acquired by the Division of Highways who continues to do so by permission after the date of acquisition is responsible for all damages to or loss of the improvements which result from the negligent or willful actions of the owner or occupant.

9.2. Adjustment of Damages. -- If the owner or occupant does not pay for damages to the property, the Commissioner of Highways or his or her designee, shall determine the value of the missing or damaged property and make appropriate adjustment into the settlement price. If satisfactory adjustment is not made, the Legal Division shall take whatever action is necessary to protect the State's interest.

W. Va. Code R. § 157-2-10 Relocation Assistance

10.1. Incorporation of Federal Regulations.

10.1.1. Federal Aid Highway Projects -- The West Virginia Division of Highways adopts and incorporates by reference, the provisions, procedures, and regulations promulgated by the Federal Highway Administration of the United States Department of Transportation as they relate to federal aid highway projects, contained in 49 CFR Part 24.

10.1.2. State Highway Projects -- The West Virginia Division of Highways adopts and incorporates by reference, the provisions, procedures and regulations promulgated by the Federal Highway Administration of the United States Department of Transportation, insofar as they define terms, and relate to advisory assistance and relocation payments for state highway projects, contained in 49 CFR Part 24.

10.2. -- Relocation assistance shall be provided in accordance with the provisions of W.Va. Code §17-2A-20 and §54-3-1 et seq.

157CSR2

Series 03 Construction and Reconstruction of State Roads

W. Va. Code R. § 157-3-1 General

1.1. Scope. -- This rule relates to the construction and reconstruction of state roads.

1.2. Authority. -- W. Va. Code §§17-2A-8(1) and (2) and 17-4-19.

1.3. Filing Date. -- May 1, 2025

1.4. Effective Date. -- May 1, 2025

1.5. Sunset Provision. – This rule shall terminate and have no further force or effect on August 1, 2030.

W. Va. Code R. § 157-3-2 Definitions

2.1. Abbreviations. Whenever the following abbreviations are used in the specifications, plans or contract documents, they are defined as follows:

AAN - American Association of Nurserymen AAR - Association of American Railroads AASHTO - American Association of State Highway and Transportation Officials AIA - American Institute of Architects AISC - American Institute of Steel Construction, Incorporated AISI - American Iron and Steel Institute AMA - Automotive Manufacturer’s Association AMS - Aerospace Material Specification ANSI - American National Standards Institute ARA - American Railway Association AREA - American Railway Engineering Association AREMA - American Railway Engineering and Maintenance of Way Association ASCE - American Society of Civil Engineers ASD - Aluminum Standards and Data-Aluminum Association ASLA - American Society of Landscape Architects ASTM - American Society for Testing and Materials ATSSA - American Traffic Safety Services Association AWWA - American Water Works Association AWS - American Welding Society FHWA - Federal Highway Administration FSS - Federal Specifications and Standards, General Services Administration IEEE - Institute of Electronic and Electrical Engineers IPCEA - Insulated Power Cable Engineers Association ISA - Instrument Society of America MIL - Military Specification MP - Materials Procedure (See 2.51 for Definition)

NBFU - National Board of Fire Underwriters NEC - National Electric Code NEMA - National Electrical Manufacturer’s Association NFPA - National Fire Protection Association PEI-ALS - Porcelain Enamel Institute: Aluminum Standards UL - Underwriters Laboratories SAE - Society of Automotive Engineers SSPC - Steel Structures Painting Council TTE-TTP - Federal Specifications and Standards

2.2. Access Connection means any roadway facility by means of which vehicles enter or leave arterial highways.

2.3. Advertisements means the public announcement, as required by law, inviting bids for work to be performed, or material to be furnished.

2.4. Arterial highway means a general term denoting a highway primarily for through traffic.

2.5. Auxiliary lane means the portion of the roadway adjoining the traveled way for parking, speed-change or other purposes supplementary to through traffic movement.

2.6. Award means the acceptance by the division of a bid.

2.7. Base course means the layer or layers of specified material of designated thickness placed on a sub-base or a sub-grade to support a surface course or courses.

2.8. Bidder means an individual, firm, corporation, or combination thereof, acting directly or through a duly authorized representative, and prequalified according to the requirements and provisions of the division, submitting a bid for the proposed work.

2.9. Bridge means a structure, including supports, erected over a depression or an obstruction, such as water, a highway or railway and having a track or passageway for carrying traffic or other moving loads and having a length measured along the center of roadway more than 20 ft. between undercopings of abutments or extreme ends of openings for multiple boxes.

2.9.a. The length of a bridge structure is the overall length measured along the line of survey stationing back to back of abutments if present, otherwise, end to end of the bridge floor, but in no case less than the total clear opening of the structure. Roadway width is the clear width measured at right angles to the longitudinal centerline of the bridge between the bottom of curbs.

2.10. Calendar day means every day shown on the calendar.

2.11. Certified technician means an individual who has been examined by the joint Industry-Division Certification Board and deemed competent in the particular technical field for which the individual has been examined. This competency is documented by written notification and issuance of a certificate to the individual and remains in effect for a given period of time as determined by the regulations of the board. Should any questions develop concerning the status of an individual, verification may be made through the Training Section of the Personnel Division of the Division.

2.12. Change order means a general term referring to force account work orders, supplemental agreements, and work orders of the contract.

2.13. Channel means a natural or artificial water course.

2.14. City, town or district means a subdivision of the county used to designate or identify the location of the proposed work.

2.15. Commissioner means the West Virginia Commissioner of Highways.

2.16. Construction limits means the physical limits of construction as described by designated lines drawn on the Plans.

2.17. Contract means the written agreement between the division and the contractor covering the performance of the work, the furnishing of labor, equipment and materials, and the basis of payment. The contract includes the invitation for bids, proposal, contract form, contract bond, specifications, supplemental specifications, special provisions, plans, notice to proceed, any change orders that are required to complete the construction of the work in an acceptable manner, including authorized extensions thereof, all of which constitute one instrument.

2.18. Contract bond means the approved form of security, executed by the contractor and their surety, guaranteeing completion of the work and payment of all legal debts pertaining to the construction of the project.

2.19. Contract period means 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.

2.20. Contract time means the number of working or calendar days specified in the (proposal, indicating the time allowed for the completion of the work contemplated, including authorized time extensions. In case a calendar date of completion is specified in the proposal, the work shall be complete by that date or any approved extensions thereof.

2.21. Contractor means the individual, firm or corporation, party of the second part to the contract, acting directly or through their agents, employees, or subcontractors.

2.22. Control of access, full means the condition where the right of owners or occupants of abutting land or other persons to access, light, air or view in connection with a highway is fully controlled by public authority. The authority to control access is exercised to give preference to through traffic by providing access connections with selected public roads only and by prohibiting crossings at grade or direct driveway connections.

2.23. Control of access, partial means the condition where the right of owners or occupants of abutting land or other persons to access, light, air or view in connection with a highway is partially controlled by public authority. The authority to control access is exercised to give preference to through traffic to a degree that, in addition to access connections with selected public roads, there may be some crossings at grade and some private driveway connections.

2.24. County means the county or counties of West Virginia in which the work is to be done.

2.25. Culvert means any structure not classified as a bridge which provides an opening under the roadway.

2.26. Debarment means an exclusion or bar from contracting with or bidding on contracts let by the division.

2.27. Department means West Virginia Department of Transportation.

2.28. Disqualification means the debarment of a contractor by the revocation of the contractor's Certificate of Qualification that is necessary for contracting with or bidding on contracts let by the division for a specified period of time.

2.29. Divided highway means a highway with separated roadways for traffic in opposite directions.

2.30. Division means West Virginia Division of Highways, a corporation.

2.31. Easement means a right acquired by one party to use land belonging to another party for a specified purpose.

2.32. Embankment means the structure of soils, soils aggregate and broken rock between the embankment foundation and the sub-grade. .2.33. Embankment foundation means the material below the original ground surface whose physical characteristics affect the support of the embankment.

2.34. Employee means any person working on behalf of the project who is under the direction of the contractor or any subcontractor.

2.35. Engineer means the Chief Engineer, assigned by the Commissioner, or a designated representative, who acts within the scope of particular duties or authority given to them by West Virginia State Code, the Commissioner, these Specifications, or the Contract Documents.

2.36. Equipment means all machinery and equipment, together with the necessary supplies for upkeep and maintenance, and also tools and apparatus necessary for the proper construction and acceptable completion of the work.

2.37. Estimates means the official written itemization of the value of materials in place and work performed.

2.38. Expressway means a divided arterial highway for through traffic with full or partial control of access and generally with grade separations at intersections.

2.39. Extra work means 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 section 6.3 of this rule.

2.40. Force account work order means an order signed by the engineer or his or her authorized representative, directing additional work to be performed, with payments based on labor, materials used, equipment cost, plus specified percentages.

2.41. Freeway means an expressway with full control of access.

2.42. Frontage street or road means a local street or road auxiliary to and located on the side of an arterial highway for service to abutting property and adjacent areas, and for control of access.

2.43. Highway means the entire improvement comprising the entire right-of-way. See (70).

2.44. Highway grade separation means any structure carrying highway or street traffic over or under another highway or street.

2.45. Holidays means official holidays which are New Year's Day, Martin Luther King, Jr. Day, President’s Day, Memorial Day, West Virginia Day, Independence Day, Labor Day, Columbus Day, Veteran's Day, Thanksgiving Day, Lincoln’s Day, Christmas Day, and any day in which an election (primary or general) is held throughout the state and such other days as the president, governor, or other duly constituted authority shall proclaim to be holidays. If a holiday falls on a Sunday, the following Monday shall be observed in lieu thereof. If a holiday falls on a Saturday, the previous Friday shall be observed in lieu thereof.

2.46. Inspector means the engineer's authorized representative assigned to make any or all necessary inspection of the work as further described in subsection 7.10 of this rule.

2.47. Instructions to bidders means the notice to contractors containing all necessary information as to provisions, requirements, date, location, and time of submitting Proposals.

2.48. Invitation for bids means the advertisement for bids, as required by law, inviting bids for work to be performed or material to be furnished.

2.49. Item means a specifically described unit of work for which a price is provided in the contract.

2.50. Laboratory means the testing laboratories of the division or any other testing laboratories designated by the division.

2.51. Lot means an isolated quantity of specified material from a single source or a measured amount of specified construction assumed to be produced by the same process.

2.52. Materials means any substances specified for use in the construction of the project and its appurtenances.

2.53. Materials procedure means a procedure defining standard methods or guidelines for the inspection, sampling, testing, evaluation, and documentation of the Materials Division's activities relative to the quality assurance program for materials, products, and processes. Each materials procedure is identified by the letters MP followed by seven digits, (i.e. MP XXX.XX.XX).

2.54. Median means the portion of a divided highway separating the traveled ways for traffic in opposite directions.

2.55. Median lane means a speed-change lane within the median to accommodate left turning vehicles.

2.56. Multiple deficiency means a multiple deficiency is defined as a failure to meet specified requirements involving more than one characteristic of a material within the same lot.

2.57. Notice to proceed means a written notice to the contractor to proceed with the contract work including, when applicable, the date of beginning of contract time.

2.58. Parking lane means an auxiliary lane primarily for the purpose of vehicular parking.

2.59. Parkway means an arterial highway for noncommercial traffic, with full or partial control of access, and usually located within a park or a ribbon of park-like development.

2.60. Pavement structure means the combination of sub-base, base course, and surface course placed on a sub-grade to support the traffic load and distribute it to the roadbed.

2.61. Plans means the approved plans, profiles, typical sections, 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.

2.62. Pre-construction conference means a conference normally called by the district engineer, following award and prior to start of construction, to be attended by division officials and by the responsible officials of the contractor and other affected parties.

2.63. Pre-qualification statement means the approved form or forms upon which Contractors shall furnish information as to their ability to perform work, their experience, manpower, equipment and financial condition.

2.64. Profile grade means the trace of a vertical plane intersecting the top surface of the proposed wearing surface, usually along the longitudinal centerline of the roadway. Profile grade means either elevation or gradient of such trace according to the context.

2.65. Project means the specific section of the highway, together with all appurtenances and construction to be performed thereon, under the Contract.

2.66. Project engineer or project supervisor means the representative of the engineer on a project. See section 6.9.

2.67. Proposal means the offer of a bidder, on the prescribed form, to perform the work and to furnish the labor and material at the prices quoted.

2.68. Proposal form means the approved form on which the division requires a bid to be prepared and submitted for the work.

2.69. Proposal guaranty means the security furnished with a bid to guarantee that the bidder will enter into the contract if his or her bid is accepted.

2.70. Railway-highway separation means any structure carrying highway traffic over or under the tracks of any railway.

2.71. Ramp means a connecting roadway between two intersecting highways, usually at a highway grade separation.

2.72. Right-of-way is a general term denoting land, property, or interest therein, usually in a strip, acquired for or devoted to a highway.

2.73. Road is a general term denoting a public way for purposes of vehicular travel, including the entire area within the right-of-way, or needed for the maintenance of travel. See W. Va. Code §17-1-3.

2.74. Roadbed means the grade portion of a highway, within top and side slopes, prepared as a foundation for the pavement structure and shoulders.

2.75. Roadside is a general term denoting the area adjoining the outer edge of the roadway. Extensive areas between the roadways of a divided highway may also be considered roadside.

2.76. Roadside development means those items necessary to the complete highway which provide for the preservation of landscape materials and features; the rehabilitation and protection against erosion of all areas disturbed by construction through seeding, sodding, mulching and the placing of other ground covers; such suitable plantings and other improvements as may increase the effectiveness and enhance the appearance of the highway.

2.77. Roadway means the portion of the highway within limits of construction.

2.78. Seasonal restrictions means limitations imposed on the work which prohibit the contractor from performing certain types of work during specific seasons of the year.

2.79. Shoulders means the portion of the roadway contiguous with the traveled way for accommodation of stopped vehicles, for emergency use, and for lateral support of base and surface courses.

2.80. Sidewalk means that portion of the roadway primarily intended for the use of pedestrians.

2.81. Single deficiency means a failure to meet specified requirements involving one characteristic of a material.

2.82. Special provisions means additions and revisions to the standard and supplemental specifications covering conditions peculiar to an individual project.

2.83. Specialty item means an item of work designated as “Specialty Item” in the proposal that is limited to work which requires highly specialized knowledge, craftsmanship, or equipment that is not ordinarily available in contracting organizations prequalified to bid and is usually limited to minor components of the overall contract.

2.84. Specifications is a general term applied to all directions, provisions, and requirements pertaining to performance of the work.

2.85. State means the State of West Virginia.

2.86. Street is a general term denoting a public way for purposes of vehicular travel, including the entire area within the right-of-way.

2.87. Structures means bridges, culverts, catch basins, drop inlets, retaining walls, cribbing, manholes, endwalls, buildings, sewers, service pipes, underdrains, foundation drains, and other features which may be encountered in the work and not otherwise classed.

2.88. Sub-base means the layer or layers of specified or selected materials of designed thickness placed on a sub-grade to support a base course.

2.89. Subcontractor means an individual, firm, or corporation to whom the contractor sublets part of the contract.

2.90. Sub-grade means the upper portion of a roadbed upon which the pavement structure and shoulders are constructed.

2.91. Substantial completion or substantially complete means when the project could be opened continuously for the safe, convenient, and unimpeded use of the traveling public, or the project has met the intention of the plans, as reasonably determined by the engineer.

2.92. Substructure means all that part of the structure below the bearings of simple and continuous spans, skewbacks of arches and tops of footings of rigid frames, together with the backwalls, wingwalls, and wing protection railings.

2.93. Superintendent means the contractor's authorized representative in responsible charge of the work.

2.94. Superstructure means the entire structure except the substructure.

2.95. Supplemental agreement means a modification of the contract covering changes in the plans or quantities, or both, and establishing the basis of payment and time adjustment for the work necessitated by reason of the modification, requiring the signature of the commissioner, the contractor, and the surety, or their authorized representatives.

2.96. Supplemental specifications means additions to and revisions of the standard specifications that are approved subsequent to issuance of the standard specification book. supplemental specifications prevail over standard specifications when in conflict therewith.

2.97. Surety means the corporation, partnership, or individual, other than the contractor, executing a bond furnished by the contractor.

2.98. Temporary structure means a structure required for the use of traffic or other purposes while construction is in progress and not to be retained as part of the improvement.

2.99. Titles means 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 the terms.

2.100. Traffic lane means the portion of the roadway for the movement of a single line of vehicles.

2.101. Traveled way means the portion of the roadway for the movement of vehicles, exclusive of shoulders and auxiliary lanes.

2.102. Work means 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.

2.103. Working day means every day shown on the calendar, exclusive of Saturdays, Sundays, and holidays as set forth in subsection 2.45, on which weather and other conditions not under the control of the contractor will permit construction operations to proceed for a minimum of five hours with normal working forces engaged in performing the controlling item or items of work.

2.104. Working drawings means stress sheets, shop drawings, erection plans, falsework plans, framework plans, cofferdam plans, bending diagrams for reinforcing steel, or any other supplemental plans or similar data which the contractor is required to submit to the engineer for approval.

2.105. Work order means a written order, signed by the engineer, requiring certain performance by the contractor without negotiation. Such order shall not change quantities of major items beyond the 25 percent limitations, shall not create new items, nor make revisions to item prices.

W. Va. Code R. § 157-3-3 Plans and Specifications for the Construction and Reconstruction of State Roads

3.1. General Purposes. This series of rules is promulgated pursuant to W. Va. Code §29A-1-2(c) to provide Legislative rules to make specific the procedures in relation to the construction and reconstruction of roads and bridges and furnishing of materials and supplies to the commissioner and to govern contracts pertaining thereto pursuant to the provisions of W. Va. Code §17-4-19, 1931, as amended.

3.2. Preparation of Plans and Specifications. The Commissioner of Highways, either through his or her staff employees or through consultants, shall prepare all plans and specifications for the construction and reconstruction of state roads. No such plans or specifications shall be used by any contractor or by any employee or agent of the State of West Virginia for the purpose of constructing, altering, or repairing any state road until such plans or specifications have been approved in writing by the Commissioner of Highways or his or her authorized representative.

3.2.a. Amendments to Plans and Specifications. The plans and specifications for any state road project may be altered at any time by the Commissioner of Highways if he or she believes the alteration is necessary or desirable for the benefit of the citizens of this state.

3.3. Purpose of Plans and Specifications. The purpose of plans and specifications for the construction or reconstruction of any road is to provide the contractor or any other person undertaking such work with detailed directions regarding the work to be done, the manner in which or the method by which such work is to be done, and the materials and equipment which are to be used in such work. The bidder is required to carefully examine the plans, specifications, special provisions, supplemental specifications, contract forms, and the site of the work contemplated. The submission of a bid shall be considered prima facie evidence that the bidder has made such examination and has judged and satisfied himself or herself as to the character, quality, and quantity of work to be performed and material to be furnished under the contract. Accordingly, it is expected that the contractor, or other person who undertakes such work, will follow the plans and specifications in each and every detail.

3.4. Copies of Plans and Specifications. Plans and proposals may be viewed and purchase on the Division’s Bid Express website https://transportation.wv.gov/highways/TechnicalSupport/Pages/default.aspx

3.5. Adoption of Standard Specifications. The Commissioner of Highways may prepare standard specifications to be followed in the construction process of any state road project unless specific provisions of another nature are set forth in the contract. Although these general or standard specifications may be amended or altered by the commissioner at any time, the specifications in effect at the time of the execution of the contract as referenced in the contract documents shall serve as the basis for all transactions between the contractor and the commissioner concerning the compensation due the contractor.

W. Va. Code R. § 157-3-4 Bidding Requirements and Conditions

4.1. Pre-qualification of Bidders. All bidders on projects let to contract by the division shall be pre-qualified as provided for by rules or regulations, or both, of the commissioner. Certificate of Qualification will be issued by the commissioner listing the category(s) of work a contractor is qualified to perform.

4.1.a. To obtain a Certificate of Qualification, the contractor must file an Application containing the information as required based on the category of work for which prequalification is being requested.

4.1.b. Applications for qualification will be accepted by the commissioner until 15 calendar days prior to the date set for receiving bids on projects on which the applicant may wish to submit a proposal. Award of a certificate may be held in abeyance until such time as the commissioner is able to verify all references and satisfy himself or herself as to the applicant's qualifications.

4.1.c. No contractor will be issued a Certificate of Qualification until the division has had adequate time to review and verify the adequacy of the information provided in the "Contractor's Prequalification Statement".

4.1.d. It is the contractor’s responsibility to complete any electronic bidding registration from the division, and acquire all the necessary software, hardware, and networking capabilities for the electronic bidding process.

4.2. Contents of Proposal Forms. The proposal forms will show the location and description of the proposed work, the approximate estimates of the various quantities of work to be performed, the amount of the proposal guaranty, the number of working days or date on which the work is to be completed, and the date, time and place of opening of proposals. The form will also include any special provisions or requirements not contained in the Standard Specifications.

4.2.a. The plans, specifications, and other documents designated in the proposal form are considered a part of the proposal form whether attached or not attached.

4.3. Interpretation of Approximate Estimates. The quantities appearing in the proposal form are approximate only and are prepared for the comparison of bids. Payment to the contractor will be made only for the actual quantities of work and accepted, or for materials furnished in accordance with the contract. If upon completion of the construction the actual quantities show either increase or decrease, the unit bid prices offered in the proposal will prevail except as further provided.

4.4. Examination of Plans, Specifications and Site of Work. The bidder is required to examine carefully the plans, specifications, supplemental specifications, contract forms, and the site of the work contemplated. The submission of a bid shall be considered prima facie evidence that the bidder has made such examination and has judged for and satisfied himself or herself as to the character, quality, and quantity of work to be performed and material required to be furnished under the contract.

4.5. Preparation of Proposal. The bidders’ proposal must be submitted through the division’s bid express website. The bidder must furnish a unit price or a lump sum price as called for in the proposal, in numerical figures, for each pay item listed, except that in the case of alternates, the bid may be made on only one alternate if so desired.

4.5.a. The contractor or qualified and authorized agent shall use a digital signature as provided at law for the proposal submission.

4.5.b. The proposal shall comply with West Virginia Contractor Licensing Act, W. Va. Code §30-42-1 et seq., except that on federal-aid projects a contractor’s license is not required at time of bid, but will be required before work can begin.

4.6. Irregular Proposals. Proposals will be considered irregular and will be rejected for any of the following reasons:

4.6.a. When the Proposal is not submitted by the electronic file furnished by the Contract Administration Division on Bid Express or if the form is altered. Use of a Contract Administration Division approved computer generated Schedule of Items is not considered an alteration of the form or format. 4.6.b When there are unauthorized additions, conditional or alternate bids, or irregularities of any kind which may tend to make the proposal incomplete, indefinite, or ambiguous as to its meaning. Also, when division approved computer generated schedule of items show any alteration of format, additions or amendments not called for, errors or omissions in units of measure, or measures or erasures. 4.6.c 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 letting, provided that any selection of awards will be made by the division. 4.6.d Failure to sign or properly execute the proposal. 4.6.e Failure to indicate a proposed goal in Section C, Item 3 of the notice contained in the proposal, when a division determined goal is indicated in paragraph 5 of the special provision for Disadvantaged Business Enterprise Utilization.

4.6.f. Failure to properly acknowledge receipt of amendments in accordance with Section J of the notice contained in the proposal.

4.6.g. Failure to show an unexpired West Virginia Contractor’s License Number when required in Section H of the notice contained in the proposal.

4.6.h. The bidder is not prequalified in the categories of work indicated in the proposal in a combination of those categories of work in order to perform work amounting to not less than 30% of the contract cost.

4.6.i. The proposal is mathematically and materially unbalanced. A mathematically unbalanced bid contains lump sum or unit price items that do not include reasonable labor, equipment, and material costs plus a reasonable proportionate share of the Bidder’s overhead costs, other indirect costs and anticipated profit. A Materially Unbalanced Bid is when the Division determines that an award to the Bidder submitting a Mathematically Unbalanced Bid will not result in the lowest ultimate cost to the Division.

4.7. Proposal Guaranty. No proposal will be considered unless accompanied by a digitally signed proposal guaranty bid bond in the amount specified in the proposal, made payable to the West Virginia Division of Highways. Bid bonds will be accepted only if submitted electronically. Any proposal accompanied by a bond executed on a copy, duplicate, or facsimile will be rejected.

4.8. Delivery of Proposals. Each proposal shall be submitted electronically and must be received by the Bid Express website by the time designated in the proposal to proceed with the letting.

4.9. Bidders may withdraw Proposals during the course of reading of bids prior to the actual reading of bids on the project for which the bid is withdrawn only electronically through the Bid Express automatic bid withdrawal function or by providing a written document at the site of the letting in the following form: “I, the undersigned, of ________________________, Contractor(s) hereby acknowledge that I have this day withdrawn the sealed bid of _________________________________, Contractor(s) on West Virginia Division of Highways Project No. __________________________”.

Should a bidder wish to provide a written document at the site of the letting, they must notify the Division of their intent to do so via email to DOHContractProcure@wv.gov no later than 4:00 PM Eastern Time on the Friday before the scheduled letting. Additionally, the written notice(s) provided by the bidder withdrawing his or her bid(s) must be provided prior to the reading of the call(s) on which the bid is being withdrawn. No bid may be withdrawn on any call once the apparent bids have been read by the Division.

4.10. Combination Proposals. If the division so elects, proposals 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 division reserves the right to make awards on combination bids or separate bids to the best advantage of the division. No combination bids other than those specifically set up in proposals by the division will be considered. Separate contracts will be written for each individual project included in the combination.

4.11. Public Reading of Proposals. Proposals will be received, decrypted, read publicly, and published at the time and place indicated in the notice to contractors. Bidders, their authorized agents, and other interested parties are invited to be present.

4.12. Disqualification of Bidders. Either of the following reasons may be considered as being sufficient for the disqualification of a bidder and the rejection of his or her proposal or proposals.

4.12.a. More than one proposal for the same work from an individual, firm, or corporation under the same or different name.

4.12.b. Evidence of collusion among bidders. Participants in such collusion will receive no recognition as bidders for any future work of the division until any such participant shall have been reinstated as a qualified bidder.

4.13. Material Guaranty. The successful bidder shall furnish a complete statement of the origin, composition and manufacture of all materials to be used in the construction of the work, together with samples when required. Samples may be subjected to the tests provided for in the specifications to determine their quality and fitness for the work.

4.14. Free Competitive Bidding Affidavit. Prior to the approval of federal-aid contracts, a sworn statement in the form of an affidavit shall be executed by, or on behalf of, the person, firm, association, or corporation to whom such contract is to be awarded.

W. Va. Code R. § 157-3-5 Award and Execution of Contract

5.1. Consideration of Proposals. After the proposals are opened, read publicly, and published, they will be compared on the basis of the summation of the products of the approximate quantities shown in the bid schedule by the unit prices. The results of such comparisons will be made immediately available to the public after they are presented to the Division’s award committee. In the event of discrepancy between unit bid prices and extensions, the unit bid price shall govern.

5.1.a. The right is reserved to reject any or all proposals, to waive technicalities or to advertise for new proposals if, in the judgment of the commissioner, the best interests of the State will be promoted.

5.1.b. Proposals containing special provisions for Disadvantaged Business Enterprise utilization will be considered as follows: 5.1.b.1 When the low bidder's goal submitted in section C DBE Utilization Certificate, of the notice contained in the project proposal, meets or exceeds the contract DBE goals, and the division considers the amount of the bid to be reasonable, such bidder will be the successful bidder.

5.1.b.2. When the low bidder's goal submitted in section C, DBE Utilization Certificate, of the notice contained in the project proposal, does not meet the DBE contract goal and the division considers the amount of the bid to be reasonable, the bid will be accepted if he or she can show that good faith efforts were made prior to the bid to meet the contract goals.

5.1.b.3. When the low bidder cannot satisfy the division that good faith efforts have been made, then this bid may be rejected and the second low bid will be evaluated in the same manner. This procedure will continue, evaluating bids in ascending order, until either the contract DBE goal is attained or good faith efforts can be verified and that bid will be accepted provided the amount thereof is considered reasonable by the division.

5.2. Award of Contract. The award of contract, if it be awarded, will be made within 30 calendar days after the opening of proposals to the lowest pre-qualified bidder. The commissioner may, with the agreement of the successful bidder, withhold award for any length of time. The successful bidder will be notified in writing to the email address or mailing address on file with the Division, that their bid has been accepted and that they have been awarded the contract.

5.2.a. Contractor’s Direct Deposit Requirements. 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)

5.3. Cancellation of Award. The division 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 division.

5.4. Release of Proposal Guaranty. All proposal guaranties, except those of the two lowest bidders, will be released immediately following the opening and checking of the Proposals. The retained proposal guaranty of the unsuccessful of the two lowest bidders will be released within ten 10 days following the award of contract, and that of the successful bidder will be released after a satisfactory contract bond has been furnished and the contract has been executed.

5.5. Requirement of Contract Bond. At the time of the execution of the contract, the successful bidder shall execute and deliver to the division a good and sufficient surety or collateral bond payable to the State of West Virginia.

5.5.a. The successful bidder is required to submit the aforementioned bond in the amount indicated by that bidder's published Performance Rating. The Ratings and their corresponding bond amounts are available in the Contractor Prequalification Application. The submission of the aforementioned bond in the amount specified is the standard expectation of the Division in order to comply with the current Special Provision for Subcontractor Prompt Payment and does not necessitate the withholding of retainage by the Division from monies due on future progress voucher estimates payable under the terms of the contract. The specified percentage of the contract price required for the bond shall be consistent and applicable throughout the duration of the contract for which the bond is being submitted.

5.6. Insurance Requirements. The contractor shall be required, in addition to any other form of insurance or bonds required under the terms of the contract and specifications, to procure and maintain during the life of the contract the following types of insurance in the amounts set forth.

5.6.a. All such policies of insurance, except for Workers’ Compensation, shall name the Division as an additional insured and shall be occurrence policies and the Certificate of Insurance provided to the Division shall so specify. The policies must provide coverage during the life of the contract regardless of when the claim is filed subject to statute of limitations.

5.6.a.1. Contractor’s General Liability Insurance: The Contractor shall maintain commercial general liability (CGL) coverage with limits not less than:

General G General Aggregate $2,000,000 Products/Completed Operations Aggregate $2,000,000 Personal & Advertising Injury $1,000,000 Each Occurrence * $1,000,000 Damages to Rented Property $300,000 Medical Expense Limit *Each Occurrence limit shall be $2,000,000 when performing any operations that are subject to 107.8 – Railway-Highway Provisions. $5,000

5.6.a.2. The CGL shall be written on ISO occurrence form CG 00 01, or equivalent, and shall cover liability arising from premises-operations, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract. There shall be no endorsement or modification of the CGL limiting the scope of coverage for liability arising from explosion, collapse, or underground property damage whenever work involving these exposures are undertaken. The CGL policy shall include endorsements that amend the aggregate limits of insurance to be applicable to each construction project separately.

5.6.a.3. Contractor shall furnish an Acord Form 25-S Certificate of Insurance, or its equivalent, with a 30 day notice of cancellation provisions to evidence this CGL coverage.

5.6.b. Workers’ Compensation Insurance and Employer’s Liability Insurance. The contractor shall also give evidence of insurance for Workers’ Compensation Insurance and Employer’s Liability Insurance, with a 30-day notice of cancellation. The Employer’s Liability policy must include coverage to protect the contractor for claims brought under W. Va. Code §23-4-2. The limits of insurance under this section shall be as follows:

Each accident $1,000,000 Each disease $1,000,000 Each disease/employee $1,000,000

5.6.b.1. Evidence of this coverage can be set forth on the ACORD 25-S specified in paragraph 5.6.a.1 or other approved form and shall provide that West Virginia statutory Workers Compensation coverage is included.

5.6.c. Automobile Insurance. The Contractor shall furnish evidence, with a 30-day notice of cancellation, to the state that it maintains an insurance services office commercial automobile liability insurance policy Form CA0001 or its equivalent. The policy shall include coverage for owned, non-owned, and hired vehicles.

5.6.c.1. The limits for liability insurance must be at least $1,000,000 combined single limit. Evidence for the coverage shall be set forth on an ACORD Form 25-S Certificate of Liability Insurance.

5.6.d. Steam Boiler Insurance. In event steam boilers are used on the work, the Contractor shall furnish evidence that the Contractor carries in their own behalf standard Steam Boiler Insurance having an aggregate limit of not less than $250,000.

5.6.d.1. The insurance specified shall be carried until all work required to be performed under the terms of the Contract is satisfactorily completed as evidenced by the formal acceptance of the State.

5.7. 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 proposal for the project. This coverage could include, but not be limited to, builder’s risk, installation floater, maritime exposures, environmental exposures, and professional liability.

5.8. 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 division within 20 days after the date of the notice of the award.

5.9. Failure to Execute Contract. 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; and it is understood by the bidder, in the event of such an annulment of award or the Contract, that the amount of the guaranty deposited with the Proposal will be retained by the Division and deposited in the Division of Highways Fund, not as a penalty, but as liquidated damages. Award may then be made to the next lowest responsible bidder, or the work may be readvertised and constructed under contract or otherwise, as the Division may decide.

5.10. Pre-Construction Conference. As soon as possible after the award of each contract a pre-construction conference will be arranged by the division. The contractor, his or her superintendent, or an authorized agent shall be present at the conference and shall present the proposed schedule of work, list of proposed subcontractors, if any, and a list of suppliers from whom materials are anticipated to be purchased. The information so presented shall be on forms submitted to the contractor with the letter of contract award. The division will make arrangements for utility representatives to be present.

W. Va. Code R. § 157-3-6 Scope of Work

6.1. Intent of Contract. 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.

6.1.a. Should any misunderstanding arise as to the intent or meaning of the contract, or any discrepancy appears therein, the decision of the commissioner shall be final.

6.2. Alteration of Plans or Character of Work. Under no circumstances shall alterations of plans or the nature of the work involve work beyond the termini of the proposed construction except as may be necessary to satisfactorily complete the project.

6.2.a. In addition to the above, 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, the related contractor organization demobilized, and related equipment essentially removed from the project. Under these circumstances, if it is demonstrated that the unit cost to the contractor has increased, additional compensation may be allowed by the Engineer and the additional work performed as prescribed in subsection 6.3 as "Extra Work."

6.2.b. Any adjustment in compensation because of a change or changes resulting from one or more of the conditions described above will be made in accordance with the provisions of subsection 10.3 of this rule. Any adjustment in contract time because of such change or changes will be made in accordance with the provisions of subsection 10.6 of this rule.

6.3. Extra Work. The contractor shall perform unforeseen work, for which there is no price included in the contract, whenever it is deemed necessary or desirable in order to complete fully the work as contemplated. The work shall be performed 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 the engineer and the contractor are unable to agree upon the terms of the supplemental agreement, the contractor shall proceed with the work and receive payment therefore in the manner and amount prescribed in subsection 11.4 of this rule.

6.4. Temporary Structures. In contracts for bridges only, 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 engineer. 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 his or her employees, arising from its construction or maintenance, shall extend to such structure and its roadway approaches.

6.5. Maintenance of Traffic. The project, while undergoing improvement, shall be kept open to all traffic by the contractor so that both local and through traffic will be adequately and safely accommodated. All construction operations shall be scheduled to keep traffic delay to a minimum. The division has adopted, and the contractor shall follow the standard, "Traffic Control for Street and Highway Construction and Maintenance Operations", published by the West Virginia Division of Highways.

6.5.a. All expenses for the following items shall be borne by the contractor without extra compensation except when the proposal provides for payment under 636, Maintaining Traffic:

6.5.a.1. The construction and maintenance of temporary detours, temporary structures, temporary approaches, crossings and intersections with streets and roads, including the furnishing and application of aggregates for maintenance of traffic and liquid asphalt oil, calcium chloride, or water for use as dust palliative.

6.5.a.2. Furnishing flaggers, pilot trucks and drivers.

6.5.a.3. Furnishing, erecting, and maintaining warning devices, such as signs, auxiliary barriers, channelizing devices, hazard warning lights, barricades, flares and reflective markers.

6.5.a.3.A. If actual field conditions are not illustrated in the plans, engineering judgment and discretion shall be exercised to select devices that will be adaptable, but the general policies herein prescribed shall be adhered to. Final responsibility for the installation of adequate safety devices for the protection of the traveling public and employees, as well as for the safeguard of the work in general, shall rest with the contractor.

6.5.a.3.B. During any suspension of work, the contractor shall make passable and shall open to traffic such portions of the project and temporary roadways or portions thereof as may be agreed upon between the contractor and the engineer for the temporary accommodation of necessary traffic during the anticipated period of suspension. Thereafter, and until an issuance of order for the resumption of construction operations, the maintenance of the temporary route or line of travel agreed upon will be by and at the expense of the division. When work is resumed, the contractor shall replace or renew any work or materials lost or damaged because of such temporary use of the project and shall remove, to the extent directed by the engineer, any work or materials used in the temporary maintenance thereof by the division and shall complete the project in every respect as though its prosecution has been continuous and without interference. All additional work caused by such suspensions, for reasons beyond the control of the contractor, will be paid for by the division at contract prices or by extra work.

6.5.b. The division will provide all necessary snow removal.

6.6. Rights In and Use of Materials Found on the Work. The contractor, with the approval of the engineer, may use on the project such stone, gravel, sand, or other material determined suitable by the engineer, as may be found in the excavation and will be paid both for the excavation of such materials at the corresponding contract unit price and for the pay item for which the excavated material is used. The contractor shall replace at his or her own expense 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. No charge for the material so used will be made against the contractor. The contractor shall not excavate or remove any material from within the highway location which is not within the grading limits, as indicated by the slope and grade lines, without written authorization from the engineer.

6.6.a. Unless otherwise provided in the contract, the material from any existing old structures and pipes shall become the property of the contractor and shall be removed from the project.

6.7. Final Clean Up. Before final acceptance is made, the contractor shall clear the highway, waste areas, borrow pits and all ground occupied by the contractor during the construction of all rubbish, excess materials, temporary structures, and equipment. The contractor shall restore in an acceptable manner all property, both public and private, which has been damaged during the prosecution of the work; and shall leave the highway or bridge site, including streams and banks, in a neat and presentable condition in accordance with applicable laws of the state. All excavated material or falsework placed in stream channels shall be removed, and all material from around piers and abutments shall be replaced and compacted to the level of the original surface.

6.8. Bridge Plate. A bronze plate, carrying the project number, the number of the bridge, and the year of the bridge construction, will be furnished and placed by the Contractor without extra compensation. The name plate on through steel bridges shall be placed on the end posts about eight feet vertically above the floor. On other bridges, they shall be placed in the railings as shown on the Plans or as designated by the engineer. The plate shall be a minimum of 8 in. by 10 in. wide, with letters and numbers of 3/4 in. minimum height raised 1/8 in. above the surface of the plate. The information on the plate shall be arranged as follows:

Project No.

Bridge No.

Built (Year of Construction)

6.9. Differing Site Conditions. During the progress of the work, if subsurface or latent physical conditions are encountered at the site differing materially from those indicated in the contract or if unknown physical conditions of an unusual nature, differing 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 the site is disturbed and before the affected work is performed.

6.9.a. Upon written notification, the engineer will investigate the conditions. If it is determined that the conditions materially differ and cause an increase or decrease in the cost or time required for the performance of any work under the contract, an adjustment, excluding anticipated profits, will be made and the contract modified in writing accordingly. The engineer will notify the contractor of their determination whether or not an adjustment of the contract is warranted.

6.9.b. No contract adjustment which results in a benefit to the contractor will be allowed unless the contractor has provided the required written notice.

6.9.c. The contractor shall promptly notify the Engineer of alleged changes to the Contract due to differing site conditions, extra work, altered work beyond the scope of the Contract, or action(s) taken by the Division that changed the Contract terms and conditions.

6.9.c.1. No further work is to be performed or contract item expense incurred with relation to the claimed change after the date the change allegedly occurred unless directed otherwise in writing or orally followed up in writing in 48 hours by the engineer.

6.9.c.2. Immediately notify the engineer verbally of the alleged change or extra work occasioned by site conditions or actions by the division, and in writing within five calendar days of the date the alleged change or action was noted. Within 15 calendar days of the written notice, the contractor shall provide the following information to the engineer in writing.

6.9.c.2.A. The date of occurrence and the nature and circumstances of the occurrence that constitute a change.

6.9.c.2.B. Name, title, and activity of each Division representative knowledgeable of the claimed change.

6.9.c.2.C. Identify any documents and the substance of any oral communication involved in the claimed change.

6.9.c.2.D. Basis for a claim of accelerated schedule performance.

6.9.c.2.E. Basis for a claim that the work is not required by the Contract.

6.9.c.2.F. Particular elements of Contract performance for which additional compensation may be sought under this Section including:

6.9.c.2.F.1. Pay item(s) that has been or may be affected by the claimed change.

6.9.c.2.F.2. Labor or materials, or both, that will be added, deleted, or wasted by the claimed change and what equipment will be idled or required.

6.9.c.2.F.3. Delay and disruption in the manner and sequence of performance that has been or will be caused.

6.9.c.2.F.4. Adjustments to contract price(s), delivery schedule(s), staging, and contract time estimated due to the claimed change.

6.9.c.2.F.5. Estimate of the time within which the Department must respond to the notice to minimize cost, delay, or disruption of performance.

6.9.c.2.G. Following submission of the notification to the engineer, and in the absence of directions received to the contrary from an authorized representative of the division, the contractor shall continue diligent prosecution of the work under the contract to the maximum extent possible. Within 15 calendar days after receipt of the written notice and required information, the engineer shall respond in writing to the contractor to:

6.9.c.2.G.1. Confirm that a change occurred and, when necessary, direct the method and manner of further performance, or

6.9.c.2.G.2. Deny that a change occurred and, when necessary, direct the method and manner of further performance, or

6.9.c.2.G.3. Advise the contractor that adequate information has not been submitted to decide whether paragraphs 6.9.c.2.G.1. or 6.9.c.2.G.2. applies, and indicate the needed information and date it is to be received by the engineer for further review. The division will respond to such additional information within 15 calendar days of receipt from the contractor.

6.10. Suspension of Work Ordered by the Engineer. If the performance of all or any portion of the work is suspended or delayed by the engineer in writing for an unreasonable period of time (not originally anticipated, customary or inherent in the construction industry) and the contractor believes that additional compensation and/or contract time is due as a result of such suspension or delay, the contractor shall submit to the engineer in writing a request for adjustment within seven (7) calendar days of receipt of the notice to resume work. The request shall set forth the reasons and support for such adjustment.

6.10.a. Upon receipt, the engineer will evaluate the contractor's request. If the engineer agrees that the cost and/or time required for the performance of the contract has increased as a result of such suspension and the suspension was caused by conditions beyond the control of and not the fault of the contractor, its suppliers, or subcontractors at any approved tier, and not caused by weather, the engineer will make an adjustment (excluding profit) and modify the contract in writing accordingly. The contractor will be notified of the engineer's determination whether or not an adjustment of the contract is warranted.

6.10.b. No contract adjustment will be allowed unless the contractor has submitted the request for adjustment within the time prescribed.

6.10.c. No contract adjustment will be allowed under this clause to the extent that performance would have been suspended or delayed by any other cause, or for which an adjustment is provided or excluded under any other term or condition of this contract.

6.11. Significant Changes In the Character of the Work. The engineer reserves the right to make, in writing, at any time during the work, changes in quantities and alterations in the work as are necessary to satisfactorily complete the project. Such changes in quantities and alterations shall not invalidate the contract nor release the surety, and the contractor agrees to perform the work as altered.

6.11.a. If the alterations or changes in quantities 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 such other work to become significantly different in character, an adjustment, excluding anticipated profit, will be made to the contract. The basis for the adjustment shall be agreed upon prior to the performance of the work. If a basis cannot be agreed upon, then an adjustment will be made either for or against the contractor in such amount as the engineer may determine to be fair and equitable.

6.11.b. If the alterations or changes in quantities do not significantly change the character of the work to be performed under the contract, the altered work will be paid for as provided elsewhere in the contract. The term "significant change" shall be construed to apply only to the following circumstances:

6.11.b.1. When the character of the work as altered differs materially in kind or nature from that involved or included in the original proposed construction; or

6.11.b.2. When a major item of work, (any item having an original contract value in excess of 10 percent of the original contract amount or $50,000 dollars), is increased in excess of 125 percent or decreased below 75 percent of the original contract quantity. Any allowance for an increase in quantity shall apply only to that portion in excess of 125 percent of original contract item quantity, or in case of a decrease below 75 percent, to the actual amount of work performed.

6.12. Value Engineering. The contractor may submit to the engineer, in writing, Value Engineering Proposals (VEP) for modifying the plans, specifications or other requirements of the contract for the purpose of reducing the total cost of construction without reducing design capacity or quality of the finished product. If accepted by the division, net savings resulting from the VEP will be shared by the contractor and the division on a fifty-fifty basis.

6.12.a. This subsection applies to all VEPs initiated and developed by the contractor and which are identified as such by the contractor at the time of their submission to the engineer; however, nothing shall be construed as requiring the engineer to consider or approve a VEP submitted hereunder.

6.12.b. As a minimum, the following information shall be submitted, in quadruplicate, with each VEP:

6.12.b.1. a statement that this proposal is submitted as a VEP;

6.12.b.2. a description of the difference between the existing contract requirements and the proposed change;

6.12.b.3. a statement concerning the basis for the VEP and benefits to the Division together with an itemization of the contract items and requirements affected by the VEP;

6.12.b.4. separate detailed cost estimates for both the existing contract requirements and the proposed change;

6.12.b.5. an itemization of plan details, design standards or specifications to be changed if the VEP is adopted;

6.12.b.6. an estimate of the effect on collateral costs to the division. Collateral costs are defined to be reduced costs of operation, maintenance or repair and extended useful service life; and

6.12.b.7. a statement of the time by which approval must be issued to obtain the total cost reduction during remainder of contract, noting any effect on contract completion time or delivery schedule.

6.12.c. The division will process the VEP in the same manner as prescribed for any other proposal which would necessitate issuance of a contract change order. The division may accept in whole or in part any VEP by issuing a change order which will identify the VEP on which it is based. The Division will not be liable to the contractor for failure to accept or act upon any VEP submitted pursuant to this provision nor for any delays to the work attributable to any such proposal. Until a proposal is effected by change order, the contractor shall remain obligated to the terms and conditions of the existing contract. When an executed change order has not been issued by the date upon which the contractor's proposal specifies that a decision should be made, or such other date as the contractor may subsequently have specified in writing, such proposal shall be deemed rejected.

6.12.d. The change order effecting the necessary contract modification will establish the estimated net savings agreed upon, will provide for adjustment in the contract prices and will indicate the net savings be equally divided between the contractor and the division. The contractor shall absorb all costs incurred in preparing a VEP for submission to the division. All reasonably incurred costs of reviewing and administering the VEP will be borne by the division. The division reserves the right to include in the change order any conditions it deems appropriate for consideration, approval and implementation of the proposal. The contractor's fifty-percent share of the net savings shall constitute full compensation for effecting all changes pursuant to the change order.

6.12.e. Acceptance of the VEP and performance of the work there under will not change the contract completion date as a result of the VEP, unless specifically provided for in the change order authorizing the VEP.

6.12.f. The division expressly reserves the right to adopt a VEP for general use in contracts administered by the division when it determines the VEP is suitable for application to other contracts without obligation or compensation of any kind to the contractor.

6.12.g. Proposed changes in the basic design of a bridge or pavement type, or which require different right-of-way limits, will not normally be considered as an acceptable VEP. The engineer shall be sole judge of the acceptability of a VEP.

6.12.h. When a VEP is accepted by the division, the provisions of subsection 5.2 of this rule pertaining to adjustment of contract unit price due to alterations of contract quantities will not apply to the items adjusted or deleted as a result of effecting the VEP by change order.

6.12.i. The cost of the revised work, as determined in the value engineering change order, will be paid on current estimates. In addition to such payment, the contractor will be paid, on a lump sum basis by a separate item, one half of the difference (net savings) of the cost of the original contract work and the final cost of the new work listed in the change order.

6.12.j. One fourth of the estimated net savings will be paid to the contractor upon approval of the change order. The remainder of the net savings due the contractor will be paid upon completion of all items of work included in the change order. This final lump sum payment will be determined by the actual quantities for items paid by the unit. Final payment for other lump sum or proposal quantity items will be the change order amount, subject to subsection 11.2 of this rule.

6.13. Funding Source Identification Signs. Funding source identification signs shall be furnished by the contractor if the total contract bid amount of the construction exceeds $500,000 or otherwise noted on the plans, and shall be erected during mobilization of the project. The cost of furnishing, erecting, maintaining, and removal of these signs shall be incidental to the cost of construction of the project.

6.13.a. Location. Funding Source Identification Signs shall be located as directed by the Engineer. The Contractor shall promptly remove each sign at the completion of the project for which the sign was erected.

6.13.b. Sign Content. The content of each sign and the size of letters and the size of board shall be as required by the engineer. The funding agencies and the dollar amounts involved will be furnished to the contractor by the engineer.

6.13.c. Sign Construction. The materials for funding source identification signs, such as for the sign panels, their supports, and for the legend and background, are to be of a type and method of fabrication that will be consistent with the conditions and estimated period of use. Signs shall have black letters for the legend on a white background. Reflective sheeting will be permitted, but not required. Mounting, transverse location, height, and similar features for funding source identification signs shall be consistent with practices used for the installation of other informational signs either on wooden or steel U-channel supports to comply with small sign support safety practices. The sign shall be mounted as directed by the engineer.

W. Va. Code R. § 157-3-7 Control of Work

7.1. Authority of the Engineer. The engineer will decide all questions which may arise as to the quantity, quality, and acceptability of materials furnished and work performed, and as to the rate of progress of the work; all questions which may arise as to the interpretation of the Plans and Specifications; and all questions as to the acceptable fulfillment of the contract on the part of the contractor. The decision of the engineer will be final.

7.1.a. The engineer will have the authority to suspend the work wholly or in part due to the failure of the contractor to correct conditions unsafe for the employees or the general public, for failure to carry out provisions of the contract, for failure to carry out orders, for such periods as he or she may deem necessary due to unsuitable weather, for conditions considered unsuitable for the prosecution of the work, or for any other condition or reason deemed to be in the public interest. All such suspension orders will be directed to the contractor in writing.

7.1.b. The engineer is not authorized to increase the obligation of the division to any contract except as provided.

7.2. Plans and Working Drawings. Approved plans will show the location, profile, typical cross section, structures except as specified, incidental items, and a summary of all items appearing in the proposal. Any deviations which may be required by the exigencies of the construction will be determined by the engineer and authorized by him or her in writing. The contractor shall keep one set of approved plans available on the work at all times.

7.2.a. Plans will show such details as are necessary to give a comprehensive idea of the construction contemplated. Any information which may be shown on drawings regarding results obtained from the test piles or borings will be a record of conditions encountered at the place where such test piles were driven or borings were made, as nearly as these conditions could be interpreted by the engineer observing the operations. The contractor shall interpret the data in the light of their own experience. The contractor is not bound to accept or rely on the data shown on the drawings, but may make such additional borings and investigations, including test piles, as he or she may desire in order to satisfy himself or herself concerning the lengths of piles and the conditions governing or entering into the construction of foundations.

7.2.b. The plans will show the foundation depths and dimensions on which the estimate of quantities is based. These depths and foundation dimensions, however, are subject to such variations as may be necessary to secure a foundation satisfactory to the engineer, and the right is expressly reserved to increase or diminish the dimensions and depths of the foundations as the engineer may determine.

7.2.c. The contractor shall submit to the engineer all stress sheets, shop drawings, erection plans, falsework plans, framework plans, cofferdam plans, bending diagrams for reinforcing steel, or any other supplemental plans or similar data for the engineers use.

7.2.d. Working drawings for steel and timber structures shall consist of shop detail, erection and other working plans, showing details, dimensions, sizes of material, and other information necessary for complete fabrication and erection of the work. The division will require shop lists for structural steel to be submitted in a format as set forth by the engineer.

7.2.e. Working drawings for concrete structures shall consist of such detailed plans as may reasonably be required for the successful prosecution of the work and which are not included in the plans furnished by the engineer. These may include plans for falsework, bracing, centering and formwork, masonry layout diagrams, and diagrams for bent reinforcement.

7.2.f. The contractor shall furnish the engineer copies of the working drawings as may be required for approval and for construction purposes, and upon completion of the work, reproducible, full-size tracings of the original drawings shall be delivered to the engineer. The size of the original drawings shall be 22 inches by 36 inches (A1 metric paper), including margins, unless otherwise permitted. The working drawings submitted for approval may be reduced.

7.2.g. It is expressly understood that the approval by the engineer of the contractor's working drawing relates to the requirements for strength and general arrangement, and such approval will not relieve the contractor from responsibility for omission, errors in dimensions, shop fits, field connection, etc., for quantity of materials, or from any of their responsibility under the contract for the successful completion of the work.

7.2.h. The contract price shall include the cost of furnishing all working drawings, and the contractor will be allowed no extra compensation for such drawings.

7.2.i. It is the contractor's responsibility to determine the exact location of each utility in project areas where these utilities would be interrupted or damaged by performing work. In the event of damage or disruption to utilities which are active and are to remain in service, the contractor shall immediately notify the responsible official of the organization operating the utility that is interrupted. The contractor shall assume all costs, charges or claims connected with the interruption and repair of any utility damaged by the contractor.

7.2.j. Shop Drawings. Shop Drawings are working drawings necessary for the fabrication and inspection of the work as may reasonably be required for the successful prosecution of the work and which are not included in the plans furnished by the engineer.

7.2.j.1. Any contractor proposed changes to the contract document shall be submitted to the division for approval prior to certification of the shop drawings. The division will prepare and issue all revisions to the contract plans dictated by these approved changes.

7.2.j.2. Shop drawings shall be submitted sufficiently in advance of the start of the work to allow time for distribution by the engineer without delaying the work. Only certified copies of shop drawings that have been distributed by the engineer shall be considered approved by the project personnel. Copies of the shop drawings which do not contain the certification stamp and have not been distributed by the engineer and are used for construction of any part of the work shall be at the contractor’s risk.

7.2.j.3. Upon completion of the work, reproducible, full-size tracings of the original drawings shall be delivered to the engineer. The size of the original drawings shall be 22 inches x 34 inches, including margins, unless otherwise permitted.

7.2.j.4. Shop drawings shall give full detailed dimensions and sizes of component parts of the structure and details of all miscellaneous parts, such as pins, nuts, bolts, drains, reinforcing, inserts, strands, ducts, etc. Where specific orientation of parts is required, such as the rolling of plates, the direction shall be shown.

7.2.j.5. Shop drawings shall specifically identify the AASHTO material designation for all component parts.

7.2.j.6. All working drawings shall be in same units as those used in the plans. Use of dual (metric and English) units is not allowed.

7.2.j.7. Shop drawings shall give full detailed dimensions and sizes of component parts of the structure and details of all miscellaneous parts.

7.2.j.8. Design camber for all members shall be shown on the shop drawings.

7.2.j.9. Any time delays encountered due to incomplete or incorrect submittals shall be the contractor’s responsibility. The time delay shall not be grounds for a claim to extend the contact completion date or a claim for costs incurred by the contractor, his subcontractors, or his suppliers.

7.2.j.10. There are two methods for the approval of Shop Drawings and catalog sheets the “Division Approval Method” and the “Contractor Approval Method”. The item of work shown in the shop drawing shall determine the required approval method. Most projects will contain items of work requiring each method. Design Directive 102 (DD-102) latest version at the time of the bid shall be used to determine which method to use for a particular item of work and where to send each required submission.

7.2.k. “Division Approval Method”. The contractor shall be responsible for the submission of all shop drawings and catalog sheets, and shall submit two (2) review copies as shown in DD-102. After the division has approved the shop drawings the contractor shall submit nine (9) copies of the shop drawings to the Engineer for verification and distribution.

7.2.k.1. The review and approval or rejection of division approved shop drawings will normally require 14 calendar days after receipt of the drawings.

7.2.k.2. The verification and distribution of division approved shop drawings will normally require seven (7) calendar days after receipt of the drawings.

7.2.l. “Contractor Approval Shop Method”. The contractor shall be responsible for the submission of all approved shop drawings and catalog sheets, and shall submit nine (9) copies of all approved shop drawings and catalog sheets to the engineer for distribution. The contractor’s engineer shall be responsible for the preparation, review, and approval of all shop drawings and catalog sheets.

7.2.l.1. Each page/sheet of all shop drawings submittals shall be signed by a Professional Engineer Registered in the State of West Virginia. The approving engineer’s signature block shall be per the following: “I do hereby certify that the details, materials, methods, and dimensions shown on this document meet the requirements for general arrangement and comply with the contract documents provided by the West Virginia Department of Transportation, Division of Highways for the project.

This certification by the Contractor in no way shall relieve the Manufacturer, Supplier, Fabricator or Sub-Contractor of their Full Responsibility for the product or service provided.

Name

Reg.No.

Date”

7.2.l.2. Each page/sheet of all catalog sheet submittals shall be signed by a Professional Engineer Registered in the State of West Virginia. The approving engineer’s signature block shall be per the following: “I do hereby certify that this product complies with the contract documents provided by the West Virginia Department of Transportation, Division of Highways for the project.

This certification by the Contractor in no way shall relieve the Manufacturer, Supplier, Fabricator or Sub-Contractor of their Full Responsibility for the product or service provided.

Name

Reg.No.

Date”

7.2.l.3. The contractor’s authorized representative may sign and approve catalog sheets when the item on the catalog sheets is identical in every way to the item identified in the approved contract plans. If the item is not identical then the catalog sheets must be signed by a Professional Engineer Registered in the State of West Virginia as stated above. The contractor’s authorized representative must have the authority to sign legal binding contracts for the prime contractor. When the contractors’ authorized representative signs the certification the following approving signature block shall be used: “I do hereby certify that this product complies with the contract documents provided by the West Virginia Department of Transportation, Division of Highways for the project and is the identical item shown in the approved plans.

This certification by the Contractor in no way shall relieve the Manufacturer, Supplier, Fabricator or Sub-Contractor of their Full Responsibility for the product or service provided.

Name

Reg.No.

Date”

7.2.l.4. All nine (9) copies of each copy of each page/sheet shall be signed by the same engineer and shall contain the same date. Each revision to individual page/sheet shall be considered a new submittal and shall require nine (9) certified copies. The division will verify the above requirements are met prior to distribution. The division shall return all nine (9) sets on any submittal which does not comply with the requirements of this special provision. The verification and distribution or rejection of contractor approved shop drawings will normally require seven (7) calendar days after receipt of the drawings.

7.2.l.5. Additional certifications and/or slightly different wording of the above two certifications may be used if approval is given by the legal division. This approval must be obtained prior to any submission of contractor approved shop drawings. This approval may take up to thirty (30) days to be obtained. If this approval is obtained, a copy of the approval letter must be submitted with the first submission of shop drawings for distribution.

7.2.l.6. The division shall reserve the right to review any submission of shop drawings or catalog sheets. This review shall not delay the contractor in the construction project or delay the distribution of the approved shop drawings or catalog sheets.

7.3. Conformity with Plans and Specifications. All work performed and all materials furnished shall be in reasonably close conformity with the lines, grades, cross sections, dimensions, and material requirements, including tolerances, shown on the plans or indicated in the specifications.

7.3.a. Should the engineer determine the materials, or the finished product do not conform to the specifications or the plans, he or she will then make a determination if the work will be accepted and remain in place in accordance with subdivision 8.3.c.1 and subsection 8.7 of this rule. In this event, the engineer will document the basis of acceptance by contract modification which will provide for an adjusted payment. All nonconforming material or construction judged to be inadequate for the use intended shall be either reworked or removed and replaced at no expense to the division.

7.3.b. Each supplemental agreement containing an adjusted price will also have added the sum of two hundred dollars to each adjusted price, for the division's administration costs, to be deducted from monies due the contractor.

7.4. Coordination of Plans, Specifications, Supplemental Specifications, and Special Provisions. The specifications, the supplemental specifications, the plans, special provisions, and all supplementary documents are essential parts of the contract, and a requirement occurring in one is as binding as though occurring in all. They are intended to be complementary and to describe and provide for a complete work. In case of discrepancy, calculated dimensions will govern over scaled dimensions; supplemental specifications will govern over specifications; plans will govern over specifications and supplemental specifications; special provisions will govern over specifications, supplemental specifications, and plans. When the plans provide that new work is to connect with existing structures, the contractor must verify all dimensions with the engineer before proceeding with the work.

7.4.a. The specifications, supplemental specifications, and special provisions are preferred and primarily in English Units. However, there are instances when metric may be used.

7.4.b. The contractor shall take no advantage of any apparent error or omission in the plans or specifications. In the event the contractor discovers such an error or omission, he or she shall immediately notify the engineer. The engineer will then make such corrections and interpretations as may be deemed necessary for fulfilling the intent of the plans and specifications.

7.5. Cooperation By Contractor. The contractor will be furnished a maximum of one (1) complete set of plan and profile sheets and one (1) complete set of cross sections upon request, without charge. The contractor shall maintain on the project at all times one complete set of plans, specifications, and special provisions.

7.5.a. The contractor shall give the work the constant attention necessary to facilitate the progress thereof, and shall cooperate with the engineer, his or her inspectors, other contractors, and utilities in every way possible.

7.5.b. The contractor shall have on the work at all times, as his or her agent, a competent superintendent capable of reading and thoroughly understanding the plans and specifications, and thoroughly experienced in the type of work being performed, who shall receive instructions from the engineer or his or her authorized representatives. The superintendent shall have full authority to execute orders or directions of the engineer without delay, and to promptly supply such materials, equipment, tools, labor, and incidentals as may be required. Such superintendence shall be furnished irrespective of the amount of work sublet.

7.5.c. The contractor shall furnish to the engineer a list of addresses and telephone numbers of his or her personnel who may be reached in case of emergency during hours when no work is to be performed. On weekends, holidays, during suspensions of work, and during storms the contractor shall alert certain of his or her personnel to stand by and shall inform the engineer of arrangements so made.

7.5.d. The contractor shall provide all reasonable facilities and furnish the division the information, assistance and samples required by the engineer and inspector for proper inspecting or testing of materials and workmanship.

7.5.e. On some contracts it may be necessary to ensure proper coordination between the work of the contractor and the work of various utilities, to hold a pre-construction utility meeting. The division will arrange for the affected utilities to be present. The contractor or his or her representative, authorized to make decisions for him or her in regard to the scheduling of the proposed work, is required to attend the meeting. A report of the pre-construction utility meeting will be prepared and distributed by the engineer to all represented at the meeting.

7.6. Cooperation with Utilities. The division will notify all utility companies, all pipeline owners, or other parties affected, and endeavor to have all necessary adjustments of the public or private utility fixtures, sewers, pipe lines, and other appurtenances within or adjacent to the limits of construction, made as soon as practicable.

7.6.a. Water lines, gas lines, wire lines, sewer lines, service connections, water and gas meter boxes, water and gas valve boxes, light standards, cableways, signals, and all other utility appurtenances within the limits of the proposed construction which are to be relocated or adjusted are to be moved by the owners at their expense, except as otherwise provided for in the special provisions or as noted on the plans.

7.6.b. Should the contractor desire temporary changes of location for his or her convenience of any utility appurtenances, the contractor shall satisfy the division that the proposed relocation does not interfere with his or her or other contractors' operations of the requirements of the work and does not cause an obstruction or a hazard to traffic. The contractor shall make his or her own request to the utility or other parties affected by such relocation work. Such relocation work shall be made solely at the contractor's expense.

7.6.c. Any work done under or within the right-of-way of a railroad shall be under the supervision and control of the chief engineer, or other designated officer, of the railroad to the extent necessary in the judgment of the chief engineer, or other designated officer, to insure safe and uninterrupted operation of its trains and the convenient conduct of its business. Any additional conditions or requirements for doing work within the railroad right-of-way will be set forth in the contract. Provided that the railroad must act in good faith in commencing, proceeding with and concluding the plan review in a meaningful and prompt fashion. Examples of failing to act in good faith, include effecting delay to force terms into either a deed, agreement, or other instrument which violate state law or the state constitution or causing delay upon matters which do not relate to preventing the impeding of rail operations or posing undue safety risks or otherwise ensuring that works are planned to be so constructed as not to impede the passage or transportation of persons, property or commodities. Examples include but are not limited to insisting on direct indemnity by the state or any of its agencies.

7.6.d. In general, it is to be understood that the contractor has considered in his or her bid all of the permanent and temporary utility appurtenances in their present or relocated positions as shown on the plans, and that no additional compensation will be made by the State for any delays, inconvenience, or damage sustained by him or her due to interference from the utility appurtenances or the operation of moving them. The locations of the underground utilities shown on the plans have been obtained by diligent field checks and searches of available records. It is believed that they are essentially correct, but the division makes no guarantees as to their exact locations.

7.6.e. It is the contractor's responsibility to determine the exact location of each publicly or privately owned utility transmission line (pipeline, conduit, wires, cable, etc.) in project areas where these lines would be interrupted or damaged by performing work. In the event of damage or disruption to utility transmission lines which are active and are to remain in service, the contractor shall immediately notify the owner or the responsible official of the organization operating the lines that are interrupted. The contractor shall assume all costs, charges or claims connected with the interruption and repair of any utility transmission lines damaged by the contractor.

7.7. Cooperation Between Contractors. The division reserves the right at any time to contract for and perform other or additional work on or near the work covered by the contract.

7.7.a. When separate contracts are let within the limits of any one project, each contractor shall conduct his or her work so as not to interfere with or hinder the progress or completion of the work being performed by other contractors. Contractors working on the same project shall cooperate with each other as directed.

7.7.b. Each contractor involved shall assume all liability, financial or otherwise, in connection with his or her contract and shall protect and save harmless the division from any and all damages or claims that may arise because of inconvenience, delay, or loss experienced by him or her because of the presence and operations of other contractors working within the limits of the same project.

7.7.c. The contractor shall arrange his or her work and shall place and dispose of the materials being used so as not to interfere with the operations of the other contractors within the limits of the same project. The contractor shall join his or her work with that of the others in an acceptable manner and shall perform it in proper sequence to that of the others.

7.7.d. In the event the engineer finds that further coordination effort is necessary, he or she shall call a meeting of the contractors involved. After the meeting has been held, he or she may notify the contractors of the action required of each and his or her decision shall be final.

7.8. Construction Stakes, Lines and Grades. Except when "Construction Layout Stakes" is included in the contract, the engineer will set construction stakes establishing lines, slopes, and continuous profile-grade, together with necessary reference stakes and bench marks. The engineer will set sufficient right-of-way stakes to define right-of-way limits. The engineer will set stakes to mark center line and establish benchmarks for bridges and special structures as may be considered necessary.

7.8.a. The stakes and marks in the paragraph above shall constitute field control by and in accordance with which the contractor shall establish all additional stakes and marks necessary to secure a correct layout of all the work. All stakes, except those set by the engineer, shall be furnished by the contractor. The contractor shall not engage the services of any person or persons in the employ of the division for the performance of any of the contractor's layout work.

7.8.b. The contractor shall be responsible for having the finished work in reasonably close conformity with the lines, grades elevations, and dimensions called for on the plans or established by the engineer. The contractor shall be held responsible for the preservation of stakes, marks, and references, and shall have them reset at the contractor’s expense when they are damaged, lost, displaced, or removed.

7.9. Authority and Duties of the Project Engineer or Project Supervisor. The project engineer or supervisor has immediate charge of the engineering details of each construction project. The engineer or supervisor is responsible for the administration and satisfactory completion of the project. The project engineer or supervisor has the authority to reject defective material and to suspend any work that is being improperly performed.

7.9.a. The project engineer or supervisor will have the authority to suspend the work wholly or in part due to the failure of the contractor to correct conditions unsafe for the employees or the general public; for failure to carry out provisions of the contract; for failure to carry out orders; for such periods as he or she may deem necessary due to unsuitable weather. All such suspension orders will be directed to the contractor in writing. The suspension of the work for the above reasons does not relieve the contractor of his or her responsibility according to subsection 9.16 of this rule.

7.10. Authority and Duties of the Inspector. Inspectors employed by the division will be authorized to inspect all work done and materials furnished. Such inspection may extend to all or any part of the work and to the preparation, fabrication or manufacture of the materials to be used. The inspector is not authorized to alter or waive the provisions of the contract. The inspector is authorized to call the attention of the contractor to any failure of the work or materials to conform to the specifications and contract. The inspector is authorized to reject materials which do not meet specification requirements or suspend the portion of the work involved until any question at issue can be referred to the project engineer or project supervisor. The inspector is not authorized to issue instructions contrary to the plans and specifications. The inspector shall not act as foreman or perform other duties for the contractor, nor interfere with the management of the work by the latter.

7.11. Inspection of Work and Materials. All materials and each part or detail of the work shall be subject to inspection by the engineer. The engineer or a representative shall be allowed access to all parts of the work and shall be furnished with such information and assistance by the contractor as is required to make a complete and detailed inspection. To facilitate the inspection of materials, all delivery tickets shall contain as a minimum the information required in MP 700.00.01.

7.11.a. If the engineer requests it, the contractor, at any time before acceptance of the work, shall remove or uncover such portions of the finished work as may be directed. After examination, the contractor shall restore said portions of the work to the standard required by the specifications. Should the work thus exposed or examined prove acceptable, the uncovering, or removing, and the replacing of the covering or making good of the parts removed will be paid for as extra work; but should the work so exposed or examined prove unacceptable, the uncovering, or removing, and the replacing of the covering or making good of the parts removed shall be at the contractor's expense.

7.11.b. Any work done or materials used without supervision or inspection by an authorized division representative may be ordered removed and replaced at the contractor's expense. Failure to reject any defective material or work shall not in any way prevent later rejection when such defects are discovered, nor obligate the division to final acceptance.

7.11.c. When any unit of government or political subdivision or any railroad corporation is to pay a portion of the cost of the work covered by this contract, its respective representatives shall have the right to inspect the work. Such inspection shall in no sense make any unit of government or political subdivision or any railroad corporation a party to this contract, and shall in no way interfere with the rights of either party hereunder.

7.11.d. No work shall be done at night, Saturdays, Sundays or Holidays without documented prior approval of the engineer.

7.12. Removal of Unacceptable and Unauthorized Work. Except as provided in subsection 7.3 of this rule, all work which does not conform to the requirements of the contract is unacceptable work.

7.12.a. Unacceptable work, whether the result of poor workmanship, use of defective materials, damage through carelessness or any other cause, found to exist prior to the final acceptance of the work, shall be removed immediately and replaced in an acceptable manner.

7.12.b. Unacceptable material shall be removed from the job site. No work shall be done without lines and grades having been given or approved by the engineer. Work done contrary to the instructions of the engineer, work done beyond the lines shown on the plans, or as given, except as herein specified, or any extra work done without authority, will be considered as unauthorized and will not be paid for under the provisions of the contract. Work so done may be ordered removed or replaced at the contractor's expense.

7.12.c. Upon failure on the part of the contractor to comply promptly with any order of the engineer, made under the provisions of this subsection, the engineer will have authority to cause unacceptable work to be remedied or removed and replaced and unauthorized work to be removed, and to deduct the costs from any monies due or to become due the contractor.

7.13. Load Restrictions. The contractor shall comply with all legal load restrictions in the hauling of materials on public roads. A special permit will not relieve the contractor of liability for damage which may result from the moving of equipment.

7.13.a. The operation of equipment of such weight or so loaded as to cause damage to structures or the roadway or to any other type of construction will not be permitted. Hauling of materials over the base course or surface course under construction shall be limited as directed. No loads will be permitted on a concrete pavement, base or structure before the expiration of the curing period. In no case shall legal load limits be exceeded unless permitted in writing. The contractor shall be responsible for all damage done by their own equipment.

7.14. Maintenance During Construction. The contractor shall maintain the work during construction and until the project is accepted except as otherwise provided in subdivision 7.16.a. This maintenance shall constitute continuous and effective work prosecuted day by day, with adequate equipment and forces to the end that the roadway and structures are kept in satisfactory condition at all times.

7.14.a. In the case of a contract for the placing of a course upon a course or sub-grade previously constructed, the contractor shall maintain the previous course or sub-grade during all construction operations.

7.14.b. All cost of maintenance work during construction and before the project is accepted shall be included in the unit prices bid on the various pay items, and the contractor will not be paid an additional amount for such work except as otherwise provided in subsection 6.5 of this rule.

7.15. Failure to Maintain Roadway or Structure. If the contractor, at any time, fails to comply with the provisions of subsection 7.14 of this rule, the engineer will immediately notify the contractor of such non-compliance. If the contractor fails to remedy unsatisfactory maintenance within 24 hours after receipt of such notice, the engineer may immediately proceed to maintain the project, and the entire cost of maintenance will be deducted from monies due or to become due the contractor on their contract.

7.16. Acceptance.

7.16.a. Partial Acceptance. If at any time during the prosecution of the project, the contractor completes a unit or portion of the project, such as a structure, an interchange, or a section of road or pavement, he or she may request the engineer to make final inspection of that unit. If the engineer finds upon inspection that the unit has been completed in compliance with the contract, he or she may accept that unit as being completed and the contractor may be relieved of further responsibility for that unit. Such partial acceptance shall in no way void or alter any of the terms of the contract.

7.16.b. Final Acceptance. Upon due notice from the contractor of presumptive completion of the entire project, the engineer will make an inspection. If all construction provided for and contemplated by the contract is found completed to his or her satisfaction, that inspection will constitute the final inspection. The engineer will make the final acceptance and notify the contractor in writing of this acceptance. Final acceptance will be the date the Contract Completion Report is fully executed by the division.

7.16.b.1. If, however, the inspection disclosed any work, in whole or in part, as being unsatisfactory, the engineer will give the contractor the necessary instruction for correction of same in writing, and the contractor shall immediately comply with and execute such instructions. Upon correction of the work, another inspection will be made which will constitute the final inspection provided the work has been satisfactorily completed. In such event, the engineer will make the final acceptance and notify the contractor in writing of this acceptance. Final acceptance will be the date the Contract Completion Report is fully executed by the division.

7.17. Claims for Adjustment and Disputes. If additional compensation is considered due for work or material not covered in the contract, written notification of the intent to make a claim under subsection 6.9 shall be given to the engineer before beginning or continuing the affected work.

7.17.a. The Engineer will respond as described under subsection 6.9 following notification. The contractor shall provide necessary cooperation and information to the engineer during the period of notification, review, and evaluation to provide possible resolution of the contract question and avoid, if possible, further claim process actions.

7.17.b. If notification is not given, or the contractor does not afford the engineer proper facilities for keeping strict account of actual costs, the contractor waives any claim for additional compensation. Notice by the contractor, and the fact that the engineer has kept account of the costs shall not be construed as substantiating the validity of the claim. An equitable adjustment will be made to the contract if the claim is found to have merit.

7.17.c. Claim submittals shall be in sufficient detail to enable the engineer to determine the basis for entitlement and the resulting costs. The following information if available, should accompany each claim submitted:

7.17.c.1. Detailed factual statement of the claim providing all necessary dates locations, and items of work affected by the claim.

7.17.c.2. The date actions resulting in the claim occurred or conditions resulting in the claim became evident.

7.17.c.3. A copy of the "Notice of Potential Claim" form (available from the division), filed by the contractor for the specific claim.

7.17.c.4. The name, title, and activity of each department employee knowledgeable for the specific claim.

7.17.c.5. The name, title, and activity of each contractor employee knowledgeable about the facts that gave rise to such claim.

7.17.c.6. The specific provisions of the contract that support the claim, and a statement why the provisions support the claim.

7.17.c.7. The identification of any pertinent documents, and the substance of any material communications relating to the claim.

7.17.c.8. A statement whether the additional compensation or extension of time is based on the provisions of the contract or an alleged breach of contract.

7.17.c.9. If an extension of time is also sought, the specific days for which it is sought and the basis for such claim as determined by an analysis of the construction schedule.

7.17.c.10. The amount of additional compensation sought and a breakdown of that amount.

7.17.d. Required Certification of Claims. The claim submittal shall include the contractor's written certification, under oath, attesting to the following:

7.17.d.1. The claim is made in good faith.

7.17.d.2. Supportive data is accurate and complete to the contractor's best knowledge and belief.

7.17.d.3. The amount of the claim accurately reflects the contractor's actual cost incurred.

7.17.e. In complying with this requirement, the contractor shall use the following certification:

Under penalty of law for perjury or falsification, the undersigned ___________________ (Company), hereby certifies that the claim for extra compensation and time, if any, made herein for work on this Contract is a true statement of the actual costs incurred and time sought, and is fully documented and supported under the Contract between the parties this ________ day of __________, _______. _______________________(Company)

By_____________________________ Its_____________________________ ATTEST:

By_____________________________ Its_____________________________

7.17.f. Review of Claims. All claims filed will be subject to review by the division at any time following the claim filing, whether or not the claim is part of a suit pending in the courts of this state. The review may begin upon submission. The contractor, subcontractor(s), or supplier(s) shall cooperate with the division and shall, at a minimum, provide access to the following documents of the contractor, subcontractor(s), its/their subsidiaries, separate divisions, and affiliates if said documents are available:

7.17.f.1. Daily time sheets and foreman's daily reports.

7.17.f.2. Union agreements if any.

7.17.f.3. Insurance, welfare, and benefits records.

7.17.f.4. Payroll register.

7.17.f.5. Earnings records.

7.17.f.6. Payroll tax returns.

7.17.f.7. Material invoices, purchases orders, and all material and supply Acquisition Contracts.

7.17.f.8. Material cost distribution worksheets.

7.17.f.9. Equipment records (list of company equipment, rates, etc.).

7.17.f.10. Vendor rental agreements and subcontractor invoices.

7.17.f.11. Subcontractor payment certificates.

7.17.f.12. Canceled checks (payroll and vendors).

7.17.f.13. Job cost report.

7.17.f.14. Job payroll ledger.

7.17.f.15. General ledger, general journal, (if used) and all subsidiary ledgers and journals together with all supporting documentation pertinent to entries made in these ledgers and journals.

7.17.f.16. Cash disbursements journal.

7.17.f.17. Depreciation records on all company equipment.

7.17.f.18. All other documents used to develop costs for the contractor's internal purposes in establishing the actual cost of owning and operating equipment.

7.17.f.19. All documents related to the preparation of the contractor's bid including the final calculations on which the bid was based.

7.17.f.20. Worksheets used to prepare the claim, establishing the cost components for items of the claim including, but not limited to, labor, benefits and insurance, materials, equipment, subcontractors, and all documents that establish the time periods, individuals involved, the hours and the rates for the individuals.

W. Va. Code R. § 157-3-8 Control of Material

8.1. Source of Supply and Quality Requirements. The material used on the work shall meet all quality requirements of the contract. To expedite the inspection and testing of materials, the contractor shall notify the engineer of his or her proposed sources of material as required in subsection 5.10 of this rule. At the option of the engineer, materials may be approved at the source of supply before delivery is started. If it is found after trial that sources of supply for previously approved materials do not produce specified products, the contractor shall furnish materials from other sources at no increase in cost to the division.

8.1.a. The contractor shall provide and maintain a quality control system. This quality control system shall conform to all requirements of the specifications.

8.1.b. The contractor shall maintain equipment and qualified personnel to perform all sampling and testing to determine the magnitude of the various properties of the materials during manufacturing and placement as governed by the specifications and shall maintain those properties within the limits of the specifications.

8.1.c. The contractor shall design a quality control plan detailing the methods by which the quality program will be conducted.

8.1.d. The quality control plan shall be in accordance with the applicable specifications and material procedure(s) for the specified item. The plan should clearly describe the methods by which the quality control program will be conducted. The quality control plan shall be submitted to the engineer at the pre-construction conference. The work shall not begin on the applicable item(s) until the plan has been reviewed and found to be in conformance with the contract documents and accepted by the engineer. Items that require testing by the contractor, but stipulate that acceptance shall be based upon written certification, do not require quality control plans.

8.1.e. Domestic Aluminum, Glass, Steel and Iron in Public Works Project.

8.1.f. Definitions. Unless the context in which used clearly requires a different meaning, as used in this section:

8.1.f.1. "Public Works" includes roads, highways, streets, bridges, sidewalks, sewage systems, buildings, engineering and architectural works, and any other structure, facility or improvement constructed or undertaken by the division. "Aluminum, glass, steel and iron products" means products rolled, formed, shaped, drawn, extruded, forged, cast, fabricated, or otherwise similarly processed from aluminum, glass, steel, and iron. "Domestic aluminum, glass, steel and iron products" means aluminum, glass, steel, and iron products made in the United States.

8.1.f.2. Buy America requirements apply to coating. Coating is considered a manufacturing process and is interpreted to mean all processes that protect or enhance the value of a material or product to which it is applied such as epoxy coatings, galvanizing or painting.

8.1.g. Preference For Domestic Aluminum and Glass Products. The division shall require that all aluminum or glass products to be supplied to purchase order or state and federal projects shall be domestic aluminum or glass products in compliance with Chapter 5, Article 19 of the West Virginia Code, unless the offered or bid price of the domestic aluminum or glass products is unreasonable or that the domestic aluminum or glass products are not produced in sufficient quantities to meet the project requirements. The offered or bid price of domestic aluminum or glass products is not unreasonable unless it is more than 20 percent higher than the offered bid price of foreign made aluminum or glass products (including any applicable duty). If the aluminum or glass products to be supplied are produced in a "substantial labor surplus area" as determined by the United States Department of Labor, the offered or bid price of domestic aluminum or glass products is not unreasonable unless it is more than 30% higher than the offered or bid price of foreign-made aluminum or glass products (including any applicable duty). A listing of the "substantial labor surplus areas" can be obtained from the division's contract administration division. This Section does not apply to any state or federal project in an amount less than $50,000.00.

8.1.h. Contract Payments; Recovery in Case of Violation of Section. The division may not authorize or make any payments to a contractor under a contract which contains or should contain the provision required by section 8.1.g. unless such contractor has fully complied with such section. Prior to such payment, the division will require the contractor to furnish a certificate of compliance from each subcontractor and supplier. Payments made by the division to any who did not comply with this section may be recovered by the division.

8.1.i. Procedures For Use of Foreign-Made Materials. If foreign-made aluminum, glass or steel (iron) products are supplied in compliance with this Section, the Contractor shall be responsible for providing procedures acceptable to the Division for determining that specification requirements are met, including all inspections at no additional cost to the Division. The use of foreign-made products will not be reason for granting an extension of time.

8.1.j. Use of Domestic Steel Products. When steel or iron is used it shall be in compliance with Section 165 of the Surface Transportation Assistance Act of 1982, the applicable provisions of Title 23 CFR, Section 635.410, as amended, entitled "Buy America Requirements," and W. Va. Code §§5A-3-56 and 5-19.

8.1.j.1. Pig Iron and processed, pelletized, and reduced iron ore manufactured outside of the United States may be used in the domestic manufacturing process for steel and/or iron materials used in Federal-aid highway construction projects.

8.1.j.2. Division shall require that all steel products to be supplied to purchase order or state and federal projects shall be domestic steel products in compliance with W. Va. Code §5A-3-56.

8.1.j.3. These provisions may not prevent the minimal use of foreign steel provided the proper approval is obtained in writing per W. Va. Code §5A-3-56(b)(1).

8.1.k. Domestic Steel Products. To be a Domestic Steel product all manufacturing processes, including application of a coating, for these materials must occur in the United States including all of its territories, continental, or insular, subject to the jurisdiction of the United States. Steel manufacturing processes shall include rolled, formed, shaped, drawn, cast, fabricated or otherwise similarly processed, or processed by a combination of two or more such operations, from steel made by the open hearth, basic oxygen, electric furnace, bessemer, or other steel making process. Coating includes all processes that protect or enhance the value of the material to which the coating is applied.

8.2. Local Material Sources.

8.2.a. Designated Sources. Possible sources of local materials may be designated in the contract documents. The quality of material in such deposits will be acceptable in general, but the contractor shall determine for himself or herself the amount of equipment and work required to produce a material meeting the specifications. It shall be understood that it is not feasible to ascertain from samples the limits for an entire deposit, and that variations shall be considered as usual and are to be expected. The engineer may order procurement of material from any portion of a deposit and may reject portions of the deposit as unacceptable.

8.2.a.1. The division may acquire and make available to the contractor the right to take materials from the sources designated in the contract documents together with the right to use such property as may be specified, for plant site, stockpiles, and haul roads.

8.2.b. Contractor Furnished Sources. If the contractor desires to use material from sources other than those designated, he or she shall acquire the necessary rights to take materials from the sources and shall pay all costs related thereto, including any which may result from an increase in length of haul. All costs of exploring and developing such other sources shall be borne by the contractor. The use of material from other than designated sources will not be permitted until representative samples taken by the engineer have been approved and written authority is issued for the use thereof.

8.2.b.1. When material deposits are not designated in the contract, the contractor shall provide sources of material acceptable to the engineer.

8.2.b.2. When sources of material or material deposits are provided by the division, the division will assume the cost of processing samples to determine the suitability of the material unless otherwise specified.

8.2.b.3. Sites from which material has been removed shall, upon completion of the work, be left in a neat and presentable condition and shall be properly drained. Unless otherwise directed by the engineer, they shall be seeded and mulched as provided in Section 652 of the current edition of the Highways Standard Specifications, Roads, and Bridges, without additional compensation. Where practicable, borrow pits, gravel pits, and quarry sites shall be located so they will not be visible from the highway.

8.2.b.4. In accordance with the agreement between the Division of Highways and the Division of Environmental Protection, the contractor cannot furnish material from borrow areas outside the right of way for any other public or private use.

8.3. Samples, Tests, Cited Specifications. All materials will be inspected, tested, and approved prior to incorporation into the work. Any work which incorporates materials prior to the above evaluation shall be performed at the contractor's risk, and may subsequently be considered unacceptable. Unless otherwise specified, the materials shall meet the applicable Standard or Interim Specifications of the American Association of State Highway and Transportation Officials, the Standard or Tentative Specifications of the American Society for Testing and Materials, or Standards adopted by other specifying agencies, with preference given in the same order in which the above agencies are listed. The specification which is current at the time of advertisement for bids shall govern, except that, with the approval of the engineer, subsequent revisions or adoptions may govern. Applicable tests of materials shall be made in accordance with the methods prescribed by the American Society for Testing and Materials. All materials being used are subject to inspection, testing or rejection at any time prior to final acceptance of the completed work.

8.3.a. The contractor shall be responsible for the quality of construction and materials incorporated therein. When called for in the specifications, the contractor shall perform all necessary process control inspection, sampling, and testing. All materials will be approved for acceptance through the division's acceptance procedures. The division has the exclusive right and responsibility for determining the acceptability of the construction and materials incorporated therein. The division may use the results of the contractor's inspection, sampling and testing for acceptance purposes.

8.3.b. Lot or sub-lot sizes will normally be designated. In the event that operational conditions cause work to be interrupted, or only partially completed before the lot size designated has been achieved, the lot or sub-lot may be redefined by the engineer as being either the amount of work accomplished within the day or that work partially completed combined with the next lot or sub-lot of work. It is the intent of these specifications that the number of samples required to evaluate each lot or sub-lot will be unchanged even when the lot or sub-lot is redefined.

8.3.c. When an acceptance plan is cited, it shall be in accordance with paragraph 8.3.c.1.

8.3.c.1. Acceptance Plans.

8.3.c.1.A. Percent Within Tolerance: The percentage of each lot or sublot of material, product, item of construction, or completed construction within the specified tolerances will be determined by the procedures as referenced by the specification requirements. When West Virginia AP-A is referenced, it will consist of Tables 106-1 to 106-5 inclusive, published in MP 106.00.20.

8.3.c.1.B. Sampling of Reworked Lots or Sub-lots: It is the intent of these specifications that lots or sub-lots of materials, products, items of construction or completed construction meet specification requirements at the time of submission. Lots or sub-lots generally will not be resampled unless reworked before submission. Sampling after reworking will be at the expense of the contractor.

8.4. Plant Inspection. The engineer may undertake the inspection of materials at the source. In the event plant inspection is undertaken, the following conditions shall be met:

8.4.a. The engineer shall have the cooperation and assistance of the contractor and the producer with whom he or she has contracted for materials.

8.4.b. The engineer shall have full entry at all times to such parts of the plant as may concern the manufacture of production of the materials being furnished.

8.4.c. Adequate safety measures are to be provided and maintained.

8.4.d. The division reserves the right to retest all materials, which have been tested and accepted at the source of supply, after the materials have been delivered to the project and prior to incorporation into the work and to reject all materials which, when retested, do not meet the requirements of the specifications or those established for the specific project.

8.5. Storage of Materials. Materials shall be stored so as to assure the preservation of their quality and fitness for the work. Stored materials, even though approved before storage, may again be inspected prior to their use in the work. Stored materials shall be located so as to facilitate their prompt inspection. Approved portions of the right-of-way may be used for storage purposes and for the placing of the contractor's plant and equipment, but any additional space required therefore must be provided by the contractor at his or her expense. Private property shall not be used for storage purposes without written permission of the owner or lessee, and if requested by the engineer, copies of such written permission shall be furnished him or her. All storage sites shall be restored to their original condition by the contractor at his or her expense, except for the stripping and storing of topsoil, or to other materials salvaged from the work.

8.5.a. Care shall be exercised to protect finished concrete surfaces from being stained from storing or placing materials, including but not limited to reinforcing bars or mesh or unpainted structural steel, on same. Any such material so stored shall be adequately protected from weather. Any stains resulting from storage of materials on finished concrete surfaces shall be removed by the contractor at his or her expense.

8.5.b. Aggregate stockpiles may be made on ground that is denuded of vegetation, hard, and well drained. If necessary, the ground shall be covered with two inch plank. Different kinds and sizes of aggregates shall be kept separate during transportation, handling, and storage until batched. If necessary, partitions of suitable height and strength shall be constructed between stockpiles to prevent different materials from becoming mixed. Care must be taken to prevent segregation of the coarse and fine particles of aggregates from taking place during handling or hauling. The inclusion of foreign materials will not be permitted. Aggregates placed directly on the ground shall not be removed from the stockpiles within one foot of the ground until the final cleaning up on the work, and then only the clean aggregate will be permitted to be used.

8.6. Handling Materials. All materials shall be handled in such manner as to preserve their quality and fitness for the work. Aggregates shall be transported from the storage site to the work in tight vehicles, so constructed as to prevent loss or segregation of materials after loading and measuring, in order that there may be no inconsistencies in the quantities of materials intended for incorporation in the work as loaded and the quantities as actually received at the place of operations.

8.7. Unacceptable Materials.

8.7.a. Acceptance or Rejection. Following the application of the appropriate acceptance plan, the decision of the engineer will be final as to the acceptance, rejection, or acceptance at an adjusted price of sampled lots or sub-lots.

8.7.b. Disposition of Lots or Sub-lots. Lots or sub-lots not conforming to specification requirements may be reworked or removed and replaced and resubmitted for acceptance. All nonconforming lots or sub-lots evaluated as unsatisfactory for the use intended shall be reworked or removed and replaced and resubmitted for acceptance. When the evaluation indicates the lots or sub-lots may satisfactorily remain in place, acceptance will be at an adjusted price as stated in the specifications or as directed by the engineer.

8.8. Division-Furnished Material. The contractor shall furnish all materials required to complete the work, except those specified to be furnished by the division.

8.8.a. Materials furnished by the division will be delivered or made available to the contractor at the points specified in the contract.

8.8.b. The cost of handling and placing all materials after they are furnished to the contractor shall be considered as included in the contract price for the item in connection with which they are used.

8.8.c. The contractor will be held responsible for all material delivered to him or her, and deductions will be made from any monies due the contractor to make good any shortages and deficiencies, from any cause whatsoever, and for any damage which may occur after such delivery, and for any demurrage charges.

8.9. Silence of Specifications. The apparent silence of the specifications, supplemental specifications, plans, and special provisions as to any detail, or the apparent omission from them of a detailed description concerning any point shall be regarded as meaning that only material and workmanship of acceptable quality are to be used.

W. Va. Code R. § 157-3-9 Legal Relations and Responsibility to Public

9.1. Laws to be Observed. The contractor shall keep fully informed of all federal and state laws, all local laws, ordinances, and regulations and all orders and decrees of bodies or tribunals having any jurisdiction or authority, which in any manner affect those engaged or employed on the work, or which in any way affect the conduct of the work. The contractor shall at all times observe and comply with all such laws, ordinances, regulations, orders, and decrees; and shall protect and indemnify, defend and hold DOH harmless from any and all claims, liabilities and causes of action for any fines or penalties imposed on DOH by any state or federal agency because of violation by contractor or any of its subcontractors and/or consultants of any state or federal law or regulation.

9.2. Permits, Licenses and Taxes. The contractor shall procure all permits and licenses, pay all charges, fees, and taxes, and give all notices necessary and incidental to the due and lawful prosecution of the work.

9.2.a. The contractor shall provide the division with sufficient documentation that all applicable taxes have been paid within 120 days of the project acceptance as provided for in subsection 7.16 of this rule. The division shall have the right to revoke the contractor’s prequalification until the contractor provides sufficient documentation that all taxes have been paid or are the subject of a timely filed dispute currently pending in a court or other body having legal authority and jurisdiction to hear the dispute.

9.3. Patented Devices, Materials, and Processes. If the contractor employs any design, device, material, or process covered by letters of patent or copyright, he or she shall provide for such use by suitable legal agreement with the patentee or owner. The contractor and the surety shall indemnify and save harmless the division, any affected third party, or political subdivision from any claims for infringement by reasons of the use of any such patented design, device, material or process, or any trademark or copyright, and shall indemnify the division for any costs, expenses, and damages which it may be obligated to pay by reason of any infringement, at any time during the prosecution or after the completion of the work.

9.4. Restoration of Surfaces Opened by Permit. The right to construct or reconstruct any utility service in the highway or street or to grant permits for same, at any time, is hereby expressly reserved by the division for the proper authorities of the municipality in which the work is done, and the contractor shall not be entitled to any damages either for the digging up of the street or for any delay occasioned thereby.

9.4.a. Any individual, firm, or corporation wishing to make an opening in the highway must secure a permit from the division. The contractor shall allow parties bearing such permits, and only those parties, to make openings in the highway. The contractor shall, when ordered by the engineer, make in an acceptable manner all necessary repairs due to such openings and such necessary work will be paid for as "Extra Work", or as provided in these specifications, and will be subject to the same conditions as original work performed.

9.5. Federal-Aid Provisions. When the United States government pays any portion of the cost of a project, the federal laws and the rules and regulations made pursuant to such laws must be observed by the contractor, and the work shall be subject to the inspection of the appropriate federal agency.

9.5.a. Such inspection shall in no sense make the federal government a party to the contract and will in no way interfere with the rights of either party hereunder.

9.6. Sanitary Provisions. The contractor shall provide and maintain in a neat, sanitary condition such accommodations for the use of his or her employees as may be necessary to comply with the requirements of the state and local boards of health, or of other bodies or tribunals having jurisdiction. The contractor shall not create, commit, or maintain a public nuisance.

9.7. Public Convenience and Safety. The contractor shall at all times conduct his or her work as to assure the least possible obstruction to traffic. The safety and convenience of the general public and the residents along the highway and the protection of persons and property shall be provided for by the contractor as specified under subsection 6.5 of this rule.

9.7.a. The contractor shall comply with all applicable federal, state, and local laws governing safety, health and sanitation. The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions, on his or her own responsibility, or as the engineer may determine, reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract.

9.7.b. The contractor and any subcontractor shall not require any laborer or mechanic employed in performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his or her health or safety, as determined under construction safety and health standards (Title 29, Code of Federal Regulations, Part 1926, formerly Part 1518, as revised from time to time), promulgated by the United States Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (83 Stat. 96).

9.7.c. Safety Plan. The contractor shall comply with this subdivision if the total contract bid amount exceeds $2,000,000 or is otherwise noted on the plans. The contractor will provide a copy of the company comprehensive safety and health program and the name of the company safety officer at the preconstruction conference or prior to start of work. A copy of the comprehensive safety and health program for each subcontractor and the name of the company safety officer must be submitted with the request for subcontract approval. The company comprehensive safety and health program should be in accordance with ANSI A10.38-1991, “Basic Elements of an Employer Program to Provide a Safe and Healthful Work Environment” or equivalent.

9.7.c.1. A site specific safety plan covering the work of the prime contractor and all known subcontractors must be prepared and submitted at the preconstruction conference or prior to the start of work. The site specific plan must include the name of the competent person(s) responsible for safety at the project site. As additional subcontracts are negotiated, the site specific safety plan for that work can be submitted with the subcontract request.

9.7.c.2. Contractor employees shall be provided hazard recognition and avoidance training. Further, newly employed workers shall be provided safety orientation training prior to being assigned any task. This training can be provided by the contractor or the contractor’s representative. Likewise, training provided by other sources based on an employee’s initiative or his or her affiliation with the other groups is permissible. All training should be current and up to date with appropriate refresher courses provided if previous training was not within the last three years.

9.7.c.3. All contractor safety training shall be administered or monitored by the contractor’s qualified representative, known as the company safety officer. “Qualified” means one who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training, and experience, has successfully demonstrated his or her ability to solve or resolve problems relating to the subject matter, the work or the project. Acceptable training for this individual to be considered qualified includes, but is not limited to, completion of the 30-hour OSHA 500 Trainer Course in Occupational Safety and Health Standards for the Construction Industry or its equivalent.

9.7.c.4. The contractor or Subcontractor working on the project will conduct weekly safety “toolbox” talks to discuss relevant safety issues and this meeting will be open to attendance and active participation by the on-site Division of Highways staff.

9.8. Railway-Highway Provisions. The contractor shall comply with the following provisions when performing any operations within the existing right of way of the railroad or when railroad protective insurance is required by the contract documents. Railroad protective insurance shall include all of the work set forth in subsection 9.8 of this rule with exception of the provisions of subdivisions 9.8.g and 9.8.h.

9.8.a. Notice of Starting Work. The Contractor shall not start any work on railroad right-of-way until he has complied with the following conditions:

9.8.a.1. Give the railroad's chief engineer written notice at least ten days in advance of the date he proposes to begin work on or adjacent to the railroad right of way.

9.8.a.2. Obtain written approval from the railroad of the railroad protective insurance coverage as required herein: Provided that the railroad shall not unreasonably withhold its approval.

9.8.a.3. Unless an Order made by a court pursuant to W.Va. Code §54-1-9 or §54-2-14a otherwise expressly authorizes, the contractor shall obtain written authorization from the railroad to begin work on railroad right of way. This authorization can be expected within two weeks after insurance has been approved.

9.8.b. Insurance. The Contractor shall secure and provide, until all work under the terms of the project is satisfactorily completed and accepted, insurance requirements set forth in the project plans.

9.8.c. Use of Grade Crossings. If the Contractor desires a temporary grade crossing of the Railroad's tracks other than that shown in the project plans; to use an existing private grade crossing; or to use an existing public grade crossing with unlicensed construction equipment unless an Order made pursuant to W.Va. Code §54-1-9 or §54-2-14a expressly authorizes, the contractor shall make arrangements in writing with the railroad and will be required to bear all costs, including railroad protective services incidental to such crossings.

9.8.d. Interference with Railroad Operations. All work to be performed by the contractor shall be performed in a manner which does not impede rail operations or pose undue safety risks and otherwise provides that works are planned to be so constructed as not to impede the passage or transportation of persons, property, or commodities. Generally, this shall be accomplished by means of strict adherence to the agreements with the railroad. The contractor shall use reasonable care and diligence and cooperate with officials of the railroad in order to avoid accidents, damages, or unnecessary delay to, or interference with train movement of the railroad.

9.8.d.1. When work within railroad right of way is of a nature that it impedes railroad operations such as, but not limited to, use of runaround tracks or the necessity for reduced speed, the contractor shall schedule and conduct his operations so that such impediment is reduced to the absolute minimum.

9.8.d.2. Any cost incurred by the railroad for repairing damages to its property or to property of its tenants, caused by or resulting from the operations of the contractor, shall be paid directly to the railroad by the contractor.

9.8.d.3. The contractor shall assume all liability for any and all damages to his work, employees, subcontractor, equipment, and materials caused by railroad traffic.

9.8.d.4. No charge or claim of the Contractor against either the Division or the Railroad will be allowed for hindrance or delay on account of train traffic, work done by railroad, delay incident to or necessary for safe operation and maintenance of the railroad or any delays due to compliance with these special provisions.

9.8.e. Construction Procedures. It shall be the contractor's responsibility to arrange a schedule with the railroad for accomplishing his work and the railroad’s or its tenants’ work. The contractor in arranging a schedule shall ascertain, from the railroad, the lead time required for assembling crews and materials and shall make allowance therefor.

9.8.e.1. The contractor shall submit to the railroad's chief engineer, with a copy to the Division of Highways, work schedule and information regarding methods and procedures for performing work, e.g., plans and specifications for shoring and sheeting, and for protective shields covering all railroad facilities. Unless an Order made pursuant to W.Va. Code §54-1-9 or §54-2-14a authorizes, the work, the contractor shall obtain railroad approval before commencing said work.

9.8.e.2. The contractor shall take special precaution and care when excavating for shoring pits and footers adjacent to tracks and in driving piles to always provide adequate lateral support for the tracks and the loads which they carry, so as not to disturb the track alignment and surface and to avoid obstructing track clearances with working equipment, tools, or materials.

9.8.e.3. A copy of the contractor's blasting sequence will be provided to the railroad for their information prior to any blasting. The contractor shall obtain specific approval of the railroad's chief engineer for use of explosives on railroad property.

9.8.e.4. All construction equipment that is parked near the track shall be effectively immobilized so that it cannot be moved by unauthorized persons.

9.8.e.5. Materials and equipment shall not be stored where they will interfere with railroad operations, nor on the right of way of the railroad without first having obtained written permission from the railroad's chief engineer or unless authorized by an Order made pursuant to W.Va. Code §54-1-9 or §54-2-14a.

9.8.e.6. The contractor will be required to maintain all ditches and drainage structures and keep them free of silt or other obstructions, to promptly repair eroded areas within railroad right of way and to repair any other damage to the property of the railroad or its tenants which may be the results of their operations.

9.8.e.7. Upon completion of the work, the contractor shall remove from within the limits of the railroad's right of way, all machinery, equipment, surplus materials, falsework, rubbish, or temporary buildings which belong to the contractor and leave said right of way in a condition satisfactory to the railroad's chief engineer.

9.8.f. Track Clearances. The minimum track clearances to be adhered to by the contractor during construction will be 15 feet (3 m) from centerline of the track or as approved by the railroad’s chief engineer. However, before undertaking any work within railroad right of way or before placing any obstruction over any track, the contractor shall:

9.8.f.1. Notify the railroad's chief engineer at least 72 hours in advance of work.

9.8.f.2. Receive assurance from the railroad's chief engineer that arrangements have been made for any railroad protective services necessary unless authorized by an Order made pursuant to W.Va. Code §54-1-9 or §54-2-14a.

9.8.f.3. Receive permission from the railroad's chief engineer to proceed with the work, unless authorized by an Order made pursuant to W.Va. Code §54-1-9 or §54-2-14a.

9.8.g. Railroad Protective Services (Flagging). Under the terms of the agreement between the division and the railroad, the railroad has sole authority to determine the need for railroad protective services required to protect its operations. In the event an Order made pursuant to W.Va. Code §54-1-9 or §54-2-14a, permits work to commence and work is to proceed in accordance with the plans, the contractor shall notify the railroad of the date work shall start and provide it an opportunity to provide railroad protective services should it wish. The railroad shall not be permitted to create delay or increase costs to Highways by simply refusing to provide railroad protective services. In such event it will nonetheless be the responsibility of the contractor to determine whether the work can proceed in the absence of such and to make suitable adequate substitute arrangements. The requirements and specifications related to obtaining railroad protective services from the railroad or its authorized consultant will be detailed in the project plans and documents for each of Highway’s projects.

9.8.h. Failure To Comply. In the event the contractor violates or fails to comply with any of the requirements of these provisions:

9.8.h.1. The railroad's chief engineer may require that the contractor vacate railroad property unless work is proceeding pursuant to Order made pursuant to W.Va. Code §54-1-9 or §54-2-14a.

9.8.h.2. The Division may stop all work adjacent to the railroad.

9.8.h.3. Any such orders shall remain in effect until the contractor has remedied the situation to the satisfaction of the railroad's chief engineer and the Division, unless work is proceeding pursuant to Order made pursuant to W.Va. Code §54-1-9 or §54-2-14a,

9.8.h.4. All costs incurred resulting from compliance with these provisions shall be incidental to the items in the contract and no separate payment shall be made.

9.9. Bridges Over Navigable Waters. All work on navigable waters shall be so conducted that free navigation of the waterways will not be interfered with and that the existing navigable depths will not be impaired except as allowed by permit issued by the U. S. Army Corps of Engineers.

9.10. Barricades and Warning Signs. The contractor shall provide, erect, and maintain all necessary barricades, suitable and sufficient lights, danger signals, signs, and other traffic control devices, except as provided by subsection 6.5 of this rule, and he or she shall take all necessary precautions for the protection of the work and safety of the public. Highways closed to traffic shall be protected by effective barricades, and obstructions shall be illuminated during hours of darkness. Suitable warning signs shall be provided to properly control and direct traffic.

9.10.a. The contractor shall erect warning signs in advance of any place on the project where operations may interfere with the use of the road by traffic and at all intermediate points where the new work crosses or coincides with an existing road. Such warning signs shall be erected in accordance with the plans furnished.

9.10.b. All barricades, warning signs, lights, temporary signals, and other protective devices must conform with the latest edition of the manual "Traffic Control for Street and Highway Construction and Maintenance Operations," published by the West Virginia Division of Highways, and the provisions of subsection 715.9, of the current edition of the Standard Specifications, Roads and Bridges.”

9.11. Use of Explosives. When the use of explosives is necessary for the prosecution of the work, the contractor shall exercise the utmost care not to endanger life or property, including new work. The contractor shall be responsible for any and all damage resulting from the use of explosives.

9.11.a. All explosives shall be stored in a secure manner, in compliance with all laws and ordinances, and all such storage places shall be clearly marked. Where no local laws or ordinances apply, storage shall be provided satisfactory to the engineer and in general not closer than 1,000 ft. from the road or from any building or camping area or place of human occupancy.

9.11.b. The contractor shall notify each public utility company, having structures in proximity to the site of work, of his or her intention to use explosives and such notice shall be given sufficiently in advance to enable the companies to take such steps as they may deem necessary to protect their property from injury.

9.12. Protection and Restoration of Property and Landscape. The contractor shall be responsible for the preservation of all public and private property and shall protect carefully from disturbance or damage all land monuments and property marks until the engineer has witnessed or otherwise referenced their location and shall not move them until directed.

9.12.a. The contractor shall be responsible for all damage or injury to property of any character, during the prosecution of the work, resulting from any act, omission, neglect, or misconduct in his or her manner or method of executing the work, or at any time due to defective work or materials, and this responsibility will not be released until the project shall have been completed and accepted.

9.12.b. When or where any direct or indirect damage or injury is done to public or private property by or on account of any act, omission, neglect, or misconduct in the execution of the work, or in consequence of the non-execution thereof by the contractor, he or she shall restore, at his or her own expense, such property to a condition similar or equal to that existing before such damage or injury was done, by repairing, rebuilding or otherwise restoring as may be directed, or he or she shall make good such damage or injury in an acceptable manner.

9.13. Forest Protection. In carrying out work within or adjacent to state or national forests, the contractor shall comply with all regulations of the State Fire Marshal, Division of Natural Resources, or any other authority having jurisdiction, governing the protection of forests and the carrying out of work within forests, and shall observe all sanitary laws and regulations with respect to the performance of work in forest areas. The contractor shall keep the areas in an orderly condition, dispose of all refuse, obtain permits for the construction and maintenance of all construction camps, stores, warehouses, residences, latrines, cesspools, septic tanks, and other structures in accordance with the requirements of the Forest Supervisor.

9.13.a. The contractor shall take all reasonable precaution to prevent and suppress forest fires and shall require his or her employees and subcontractors, both independently and at the request of forest officials, to do all reasonably within their power to prevent and suppress and to assist in preventing and suppressing forest fires and to make every possible effort to notify a forest official at the earliest possible moment of the location and extent of any fire seen by them.

9.14. Responsibility for Damage Claims. The contractor shall indemnify and save harmless the division, its officers and employees, from all suits, actions, or claims of any character brought because of any injuries or damage received or sustained by any person, persons, or property on account of the operations of the contractor, its subcontractors and/or consultants; or on account of or in consequence of any neglect in safeguarding the work; or through use of unacceptable materials in constructing the work; or because of any act or omission, neglect, or misconduct of the contractor its subcontractors and/or consultants; or because of any claims or amounts recovered from any infringements of patent, trademark, or copyright; or from any claims or amounts arising or recovered under the "Worker's Compensation Act," or any other law, ordinance, order, or decree; and so much of the money due the contractor under and by virtue of their contract as may be considered necessary by the division for such purpose may be retained for the use of the division or, in case no money is due, their surety may be held until such suit or suits, action or actions, claim or claims for injuries or damages as aforesaid shall have been settled and suitable evidence to that effect furnished to the division; except that money due the contractor will not be withheld when the contractor produces satisfactory evidence that the contractor is adequately protected by public liability and property damage insurance.

9.15. Opening Sections of Project to Traffic. At the option of the engineer, certain sections of the work may be opened for traffic. Such opening will not constitute acceptance of the work, or any part thereof, or a waiver of any provisions of the contract; provided however, that on such portions of the project as are accepted for use of traffic, the contractor shall not be required to assume any expense entailed in maintaining the roadway for traffic. Such expense will be borne by the division or will be compensated for in the manner provided hereinafter in subsection 11.4 of this rule. Any damage to the highway not attributable to traffic which might occur on such section, except slides, shall be repaired by the contractor at his or her expense. The removal of slides shall be performed by the contractor and payment will be in accordance with subsection 6.3 of this rule.

9.15.a. If the contractor is dilatory in completing shoulders, drainage structures, or other features of the work, the engineer may order all or a portion of the project open to traffic, but in such event the contractor shall not be relieved of his or her liability and responsibility during the period the work is so opened prior to final acceptance. The contractor shall conduct the remainder of his or her construction operations so as to cause the least obstruction to traffic.

9.16. Contractor's Responsibility for Work. Until final written acceptance of the project by the engineer, the contractor shall have the charge and care thereof and shall take every precaution against injury or damage to any part thereof by the action of the elements, or from any other cause, whether arising from the execution or from the nonexecution of the work. The contractor shall rebuild, repair, restore, and make good all injuries or damages to any portion of the work occasioned by any of the above causes before final acceptance and shall bear the expense thereof except damage to the work due to unforeseeable causes beyond the control of and without the fault of or negligence of the contractor, including but not restricted to acts of God, of the public enemy or governmental authorities.

9.16.a. In case of suspension of work from any cause whatever, the contractor shall be responsible for the project and shall take such precautions as may be necessary to prevent damage to the project, provide for normal drainage and to erect any necessary temporary structures, signs, or other facilities at his or her expense. During such period of suspension of work, the contractor shall properly and continuously maintain in an acceptable growing condition all living material in newly established plantings, seedings, and soddings furnished under his or her contract, and shall take adequate precautions to protect new tree growth and other important vegetative growth against injury.

9.17. Contractor's Responsibility for Utility Property and Services. At points where the contractor's operations are adjacent to properties of railway, telegraph, telephone, and power companies, or are adjacent to other property, damage to which might result in considerable expense, loss, or inconvenience, work shall not be commenced until all arrangements necessary for the protection thereof have been made.

9.17.a. The contractor shall cooperate with the owners of any underground or overhead utility lines in their removal and rearrangement operations in order that these operations may progress in a reasonable manner, that duplication of rearrangement work may be reduced to a minimum, and that services rendered by those parties will not be unnecessarily interrupted.

9.17.b. In the event of interruption to water or utility services as a result of accidental breakage, or as a result of being exposed or unsupported, the contractor shall promptly notify the proper authority and shall cooperate with such authority in the restoration of service. If water service is interrupted, repair work shall be continuous until the service is restored. No work shall be undertaken around fire hydrants until provisions for continued service have been approved by the local fire authority.

9.18. Furnishing Right-Of-Way. The division will be responsible for securing all necessary rights-of-way in advance of construction. Any exceptions will be indicated in the contract.

9.19. Personal Liability of Public Officials. In carrying out any of the provisions of these specifications, or in exercising any power or authority granted to them by or within the scope of the contract, there shall be no liability upon the commissioner, engineer, or their authorized representatives, either personally or as officials of the state, it being understood that in all such matters they act solely as agents and representatives of the division.

9.20. No Waiver of Legal Rights. The division shall not be precluded or estopped by any measurement, estimate, or certificate made either before or after the completion and acceptance of the work and payment therefore, from showing the true amount and character of the work performed and materials furnished by the contractor, nor from showing that any such measurement, estimate or certificate is untrue or is incorrectly made, nor that the work or materials do not in fact conform to the contract. The division shall not be precluded or estopped, notwithstanding any such measurement, estimate, or certificate and payment in accordance therewith, from recovering from the contractor or his or her sureties, or both, such damage as it may sustain by reason of his or her failure to comply with the terms of the contract. Neither the acceptance by the division or any representative of the division, nor any payment for or acceptance of the whole or any part of the work, nor any extension of time, nor any possession taken by the division, shall operate as a waiver of any portion of the contract or of any power herein reserved or of any right to damages. A waiver of any breach of the contract shall not be held to be a waiver of any other or subsequent breach.

9.21. Protection of Rivers, Streams, and Impoundments, Pollution Control Quality.

9.21.a. Erosion and Siltation Control.

The contractor shall be responsible for water quality throughout the duration of construction in accordance with the National Pollutant Discharge Elimination System (NPDES) permit registration with the West Virginia Department of Environmental Protection Agency (WVDEP). The contractor will responsible for the following:

9.21.a.1. Developing and implementing an effective erosion and sediment control plan.

9.21.a.2. Directing the construction, operation, maintenance and dismantling of temporary erosion and sediment control features.

9.21.a.3. Implementing remedial action to correct and/or repair failing erosion and sediment control features.

9.21.a.4. Implementing storm and winter shutdown procedures.

9.21.a.5. Shaping the earthwork prior to the suspension of grading operations each day in a manner that will permit storm runoff with minimum erosion.

9.21.a.6. Installing, operating, and maintaining erosion and sediment control features in an acceptable condition.

9.21.a.7. Cleaning out and restoring to original conditions any erosion or sediment control feature that has reached half of its capacity. For sediment basins, one half of its capacity is considered as wet volume storage.

9.21.a.8. The contractor shall prepare a spill prevention, control, and countermeasures (SPCC) plan that itemizes specific measures that will be implemented to prevent and clean up chemical and petroleum product spills that may occur during all phases of construction. Fuel storage and refueling activities, equipment maintenance activities and equipment washing will be kept at least 500 feet away from any watercourse or wetland.

9.21.a.9. Any details not shown in the plans shall be in accordance with the latest version of the West Virginia Division of Highways Erosion and Sediment Control Manual. In the event that temporary erosion and sediment control measures are necessary due to the contractor’s negligence, carelessness or failure to install permanent controls as part of the work as scheduled, such work shall be performed by the contractor at his own expense.

9.21.a.10. In addition to the above, the contractor shall make themselves familiar with all requirements contained within the WVDEP’s General Water Pollution Control Permit, Stormwater Associated with Construction Activities Permit Number WV0115924. A copy of this permit can be found at the following internet address: http://www.dep.wv.gov/WWE/Programs/stormwater.

9.21.a.11. Noncompliance with permit conditions constitutes a violation of the Clean Water Act and State Code and is subject to enforcement action by the WVDEP.

9.21.a.12. At the project’s pre-construction conference, the contractor shall submit to the department in addition to the appropriate number of erosion and sediment control plans, the co-applicant #1 signature page (Exhibit 1 as defined in paragraph 9.21.a.25. of this rule ) and the contractor’s E&S manager contact.

9.21.a.13. The contractor’s E&S contact shall contain the following information: the name, title, mailing address and telephone number of the person who will be responsible for the erosion and sediment control plans, implementation, maintenance, etc., for the life of the NPDES registration.

9.21.a.14. Upon completion of the pre-construction conference, the department will modify the existing NPDES registration for this project to make the contractor the number one co-applicant to the permit. Once this has been completed, the contractor shall be responsible for any and all fees, violations and fines assessed against the project that is a result of the contractor’s negligence, carelessness, or failure to install permanent controls as part of the work as scheduled.

9.21.a.15. Once the project is complete, the contractor will still bear responsibility for the NPDES registration until either a Notice of Termination (NOT) is received from the WVDEP or the contractor has received final payment for the project. If a NOT has not been received by the time the final payment is made, the department will modify the NPDES registration to remove the contractor’s name from the registration.

9.21.b. Pollution. The contractor shall exercise every reasonable precaution throughout the life of the project to prevent pollution of rivers, streams, or impoundments. Pollutants such as chemicals, fuels, lubricants, bitumens, raw sewage, products associated with bridge cleaning and painting, and other harmful waste shall not be discharged into or alongside of rivers, streams, impoundments or into natural or man-made channels leading thereto. The quality of the surface waters affected by construction shall meet the requirements of the Water Pollution Control Act, W. Va. Code §22-11-1 et seq.

9.21.c. Basis of Payment. Except when pay items are specifically described and furnished as pay items in Section 642, Temporary Pollution Control, of the current edition of the Standard Specifications Road and Bridge, the water pollution and erosion and siltation control requirements set forth herein shall be at the expense of the contractor.

9.22. Plant Pest Regulations. The indiscriminate movement of nursery stock, hay or straw mulch, equipment, and soil samples into and out of West Virginia constitutes a potential hazard to state and national agriculture. Therefore, it shall be the responsibility of the prime contractor to comply with all applicable state and federal Plant Pest Regulations in the fulfillment of this contract.

9.22.a. Information regarding these regulations may be obtained from Plant Pest Control Division, West Virginia Department of Agriculture, Charleston, West Virginia 25305, or United States Department of Agriculture, Agriculture Research Service, Plant Pest Control Division, P. O. Box 1257, Roanoke, Virginia, 24001.

9.23. Air Pollution Control. The contractor shall exercise every reasonable precaution throughout the life of the project to keep air pollution to a minimum. The contractor shall also comply with the applicable regulations of the West Virginia Air Pollution Control Commission. During times of limited dispersion, construction operations may be suspended.

9.23.a. All plants in West Virginia producing bituminous concrete for the division shall obtain a permit or certification from the West Virginia Air Pollution Control Commission.

9.24. Clean Water Act/Wetlands. The contractor will comply with all aspects of 33 USC 1344 (Section 404 of the Clean Water Act) including any and all regards to wetlands on all work associated with the project. A wetland will not be filled or disturbed on the project or any work related to the project such as a haulroad, waste area, borrow pit or any other activity without a permit.

9.25. Lead Exposure In Construction. The contractor will comply with all aspects of 29 CFR Part 1296, Lead Exposure in Construction, by the United States Department of Labor, Occupational Safety and Health Administration.

9.26. Notification of Abatement, Demolition or Renovation.

9.26.a. The notification for projects involving abatement, demolition, or renovation will conform to this section. The project engineer will have a copy of all asbestos inspection reports available at the field office. The contractor shall provide copies of all notifications and correspondence to the project engineer.

9.26.b. Abatement. Abatement activities shall conform to Section 681 of the current edition of the Standard Specifications Roads and Bridges.

9.26.c. Demolition.

9.26.c.1. Asbestos Containing Materials Reported. Notifications will be in accordance with paragraph 9.26.d.3. of this rule.

9.26.c.2. No Asbestos Containing Materials Reported. For buildings or bridges that do not contain asbestos, only the notification form must be submitted to the West Virginia Division of Environmental Protection (DEP) and the United States Environmental Protection Agency (EPA) at the address given in paragraph 9.26.d.3. of this rule.

9.26.c.2.A. If an asbestos inspection report indicates that there is no asbestos present on a bridge scheduled for demolition or renovation, the need for a trained individual to be on site during either process is waived. However, the contractor shall have an individual trained in accordance with the provisions as set forth in 40 CFR Part 61, Subpart M on site to observe building demolition and file a report with the project engineer indicating if any suspect (asbestos containing) material was encountered during demolition. A copy of the individual's current training certification must be attached to this report.

9.26.d. Renovation.

9.26.d.1. Asbestos Containing Materials Reported. For projects involving the renovation of a bridge or building that has asbestos containing materials, the contractor shall submit a “Notification of Abatement, Demolition or Renovation” in accordance with paragraph 9.26.d.3. of this rule.

9.26.d.2. No Asbestos Containing Materials Reported. Structures that are being renovated and are free of asbestos, per the inspection report, do not require submittal of the “Notification of Abatement, Demolition or Renovation”.

9.26.d.3. Notifications. In accordance with state and federal regulations, the contractor shall submit a “Notification of Abatement, Demolition or Renovation” to the address shown below prior to the commencement of demolition of any building or bridge (regardless of the presence of asbestos). All notifications must be made a minimum of 10 working days prior to the commencement of demolition or renovation operations. Particular attention is to be made to the “schedule” section of the form. If for any reason, demolition or renovation cannot begin on the date as submitted, the DEP, Office of Air Quality must be notified at the address below:

West Virginia Division of Environmental Protection Office of Air Quality 601 57th Street S.E.

Charleston, West Virginia 25304 Attn: Asbestos Coordinator Telephone: (304) 926-0499 Fax: (304) 926-0478 United States Environmental Protection Agency Rich Ponak, Asbestos Program Coordinator U.S. EPA Region 3 Pesticides/Asbestos Program and Enforcement Branch 3LC62 1650 Arch Street Philadelphia, PA 19103-2029 Phone: (215) 814-2029 Email: Ponak.Rich@epa.gov

9.26.d.4. If a building or bridge contains asbestos, the notification process as outlined in Section 681 of the current edition of the Standard Specifications Roads and Bridges, shall be followed.

9.27. Construction Access and Environmental Permits. The division has obtained permits for activities shown in the contract documents. The anticipated Temporary Construction Access (TCA) methods are included, if a TCA is not shown in the plans, or the permit, it has been determined that at least one TCA method exists that does not require a permit. A copy of these permits is in the contract documents.

9.27.a. The contractor must comply with the approved permits and exercise best environmental management practices at no additional cost to the division.

9.27.b. The permits do not cover waste or borrow sites, haul roads, storage sites, staging areas or activity not shown in the contract documents or permits. These permits are to be handled in accordance with subsection 9.2 of this rule.

9.27.c. Temporary Construction Accesses. A temporary construction access is any road, cofferdam, causeway and/or stream crossing, access fill, dike, channel retaining structure, etc. that may be required to access the work. This work shall consist of the construction of all temporary construction access required for the project and shall include, but is not limited to, all culverts, structures, excavation, rock borrow and incidental construction as required to construct the access. This work shall also include all necessary work required to maintain and remove the temporary construction access and to restore the area to its original condition. All of the work shall be in accordance with these specifications and in reasonably close conformity with the contract documents, approved permits, or as established by the engineer.

9.27.c.1. No payments shall be made for the temporary construction access unless otherwise stated in the plans.

9.27.d. Changing Temporary Construction Accesses. The contractor may elect to utilize alternate temporary construction access methods from those shown in the contract documents. If the contractor proposes alternate temporary construction access methods, he shall obtain written approval from all affected landowners and shall provide to the engineer all of the permit documents required to obtain additional or revised permits. The division will submit the permit documents to the appropriate agencies for approval. Acceptance of the permit documents by the engineer or forwarding them to the permitting agency does not guarantee or constitute approval of the permit. No work shall be performed on a permittable activity until a copy of all the appropriate approvals and permits are received by the engineer. No time extensions or additional payments will be made for the contractor to obtain additional approvals or permits or for changes to the design of the temporary construction access.

9.27.e. Excavated Material. The excavated material, unless otherwise directed by the engineer, shall be utilized for backfill or embankments. Surplus material shall be disposed in accordance with Section 207.6 of the current edition of the Standard Specifications Roads and Bridges, and in such a manner that the efficiency or appearance of the structure shall not be impaired, and the stream shall not be obstructed or excess sediment introduced into the stream.

9.27.f. Corps of Engineers Permit. If this project has been determined to involve activities, which are regulated by the Department of the Army, Corps of Engineers a permit has been included in the contract documents. These activities involve the discharge of dredge or fill materials into the waters of the United States as regulated by Section 404 of the Clean Water Act or the obstruction or alteration of navigable waters of the United States regulated by Section 10 of the River and Harbor Act of 1899.

9.27.f.1. The engineer will decide all questions that may arise as to the interpretation or violation of these conditions. The contractor shall comply with the conditions of the permits and the following.

9.27.f.1.A. Material will not be stockpiled in the watercourse.

9.27.f.1.B. Bilge, ballast, or wash water pumped from barges or out of cofferdams will not be discharged into the watercourse without acceptable removal of solids, oils and/or toxic compounds.

9.27.f.1.C. Discharges shall be avoided during fish spawning seasons to the maximum extent practicable unless a note prohibiting such discharge is included in the construction plans.

W. Va. Code R. § 157-3-10 Prosecution and Progress

10.1. Subletting of Contract. The contractor shall not sublet, sell, transfer, assign, or otherwise dispose of the contract or contracts or any portion thereof, or of his or her right, title, or interest therein, without written approval of the engineer prior to any of the subject work being performed. The contractor will be permitted to sublet a portion thereof but shall perform, with his or her own organization, work amounting to not less than 30 percent of the total contract cost, except that any items designated in the contract as specialty items may be performed by subcontract and the cost of any such specialty items so performed by subcontract may be deducted from the total cost before computing the amount of work required to be performed by the contractor with his or her own organization. No subcontracts, or transfer of contract, shall in any case release the contractor of his or her liability under the contract and bonds.

10.1.a. The contractor shall request the approval of each subcontractor, including lower-tier subcontractors. No work shall be performed by a subcontractor until the subcontractor has been approved. Each subcontract, including lower-tier subcontracts, shall be in writing and shall physically contain all the applicable provisions, requirements, and specifications. The contractor may certify that a copy of all the applicable provisions, requirements, specifications, and safety plans has been provided and is physically incorporated in each subcontract including lower-tier subcontracts. Requests for approval of Disadvantaged Business Enterprise (DBE) subcontractors, however, shall also be accompanied by a copy of the proposed subcontract without the required attachments.

10.1.b. The contractor shall maintain a complete subcontract file including lower-tier subcontractors at the home office, which shall be available to authorized personnel for review without notice, or at any other appropriate location as determined by the division after a five day notice. Such file may contain a single copy of all the applicable provisions, requirements and specifications in lieu of individual subcontract files containing the applicable attachments.

10.1.c. Subletting Of Contract Materials. Roadside production of materials is construed to be the production of crushed stone, gravel, or other materials with portable or semi-portable crushing, screening, or washing plants established or re-opened in the vicinity of the work for the purpose of supplying materials to be incorporated into the work on a designated project or projects, and in all cases, unless performed by the contractor, shall be considered as subcontracting.

10.1.c.1. The purchase of sand, gravel, crushed stone, crushed slag, batched concrete aggregates, ready mixed concrete, or any other materials produced at and furnished from established and recognized commercial plants, together with the delivery of such materials to the site of work by means of vehicles owned or operated by such plants or by recognized commercial hauling companies, shall not be considered as subcontracting under these provisions. Except as stated, all hauling of materials from roadside production sources or from railroad or water delivery points to batching plants, mixing plants, or directly to their place of use in the road, and all hauling of materials from batching plants and mixing plants to their place of use in the road, unless done by the contractor's own equipment or by recognized hauling companies, shall be considered as subcontracting under these provisions. If batching plants or mixing plants are set up at rail or water delivery points and materials in part supplied to such plants by rail or water transportation companies, the remaining materials required at such batching or mixing plants may be hauled to such plants without such hauling being considered as subcontracting.

10.2. Notice to Proceed. The "Notice to Proceed" will stipulate the date on which it is expected the contractor shall begin the construction and from which date contract time will be charged. In the event a “Notice to Proceed” cannot be issued, a “Conditional Notice to Proceed” may be issued upon the mutual agreement of the division and the contractor. The “Conditional Notice to Proceed” will be used to allow the contractor to begin work on a portion of the project not impacted by the issue that created the need for the “Conditional Notice to Proceed”.

10.3. Prosecution Of The Work.

10.3.a. General. The contractor shall provide sufficient materials, equipment, and labor, etc. to guarantee the completion of the project in accordance with the Plans and Specifications within the time set forth in the Proposal.

10.3.a.1. The contractor shall submit a “Detailed Construction Schedule” and any subsequent schedules, as required by this specification, in the form of a “Critical Path Method” (CPM) schedule with all graphic and tabular supporting documentation, hereinafter referred to as "schedule.”

10.3.a.2. Schedules will not be required for projects on which the major portion of the work is resurfacing, landscaping, signing, lighting, installing signals, guardrail or bridge painting, or on which the contract bid amount is $2,000,000 or less. However, on any project that contains an Incentive/Disincentive clause, and all Design Build, Alternative Project Delivery, and Public Private Partnership projects shall require a schedule.

10.3.a.3. The submitted schedule shall include a written certification on the face of the schedule, as well as on any diagrams and drawings, stating that the schedule is within the contractual limits and that the submitted schedule is the only schedule the contractor will use for all critical work activities, interdependent work activities, phase construction, stage construction, resource needs, transmittals for contractor designs, drawings and other submissions, activities for subcontractors, vendors, and suppliers, and all other controlling and subsequent activities. This same written certification shall be included on all schedule updates and revisions.

10.3.a.4. The schedule shall show the interdependent and logical sequence of construction activities. The schedule shall reflect that all contract time requirements are essential conditions of the contract and shall also include allowances for seasonal weather conditions, the influence of high or low ambient temperatures, as well as any extra shifts, overtime, or additional manpower and equipment necessary to complete the critical and non-critical activities within the allotted contract time without additional cost to the division.

10.3.a.5. The contractor shall provide an activity or milestone that designates the substantial completion date of the project. Except as noted below, the substantial completion date shall equal the contract completion date. Additional activities that do not impact the project’s substantial completion may be included in the schedule subsequent to the contract completion date. However, these additional activities shall not impact the float of any preceding portion of the schedule.

10.3.a.6. The contractor may submit a schedule with a substantial completion date earlier than the contract completion date set forth in the proposal. However, the Division is not and under no circumstances will it be liable for the Contractor’s failure to complete the Project prior to the specified contract completion date. Should the schedule indicate an earlier completion than the time for completion set forth in the contract, the schedule will define any positive float developed between an early completion point and the contract completion date as part of the overall project float. It is understood by the Contractor and Division that positive float is a shared commodity, not for the exclusive use or benefit of either party.

10.3.a.7. The division's review of the schedule does not represent approval of the contractor's estimate of resources (labor, material, and equipment), method of operation, or production rates.

10.3.a.8. Submission of Construction Schedules. The contractor shall designate a competent representative, hereinafter referred to as construction coordinator, who shall have the decision-making authority for the contractor to control the work in accordance with the schedule(s) for the duration of the contract.

10.3.a.9. With the exception of the following preliminary items: establishing the field office, setting up traffic control, and mobilizing equipment, no item of work under the contract may be pursued following the notice to proceed or the conditional notice to proceed until a preliminary construction schedule or detailed construction schedule has been submitted by the contractor and reviewed by the engineer. The engineer may withhold estimates until such time as a schedule has been received and reviewed.

10.3.a.10. Preliminary Construction Schedule. Within 30 calendar days of the contract award date, the contractor may submit a 60 calendar day preliminary construction schedule for review by the engineer. The preliminary schedule shall include a generalized project schedule for the balance of the work in summary form indicating the contract completion date. The contractor shall maintain and submit monthly a 60 calendar day preliminary construction schedule until the detailed construction schedule is submitted by the contractor and reviewed by the engineer.

10.3.a.11. Detailed Construction Schedule. The detailed construction schedule shall include a report system that is maintained throughout the life of the project to measure all factors that affect the completion date. Within 60 calendar days of the contract award date, the contractor shall submit a detailed construction schedule indicating the contract completion date for review by the engineer.

10.3.a.11.A. The engineer will review the detailed construction schedule and supporting documentation for compliance with the contract within 14 calendar days after receipt in accordance with subdivision 10.6.e. The contractor shall provide the engineer with a revised detailed construction schedule incorporating any compliance recommendations made in the engineer's review. This schedule shall become the official schedule and shall be used by the contractor. The official schedule must be completed within ninety (90) calendar days of the contract award date. The engineer may withhold estimate payments for any item of work under the contract after 90 calendar days until the contractor's detailed construction schedule has been reviewed and all comments have been addressed.

10.3.a.12. Construction Schedule Requirements. The preliminary schedule and the official detailed construction schedule shall be submitted in both an electronic format (.XER file) and in hard copy which shall include a legend for symbols and abbreviations used. Activities with duration times in excess of 15 working days, except for non-construction activities, shall be kept to a minimum and be subject to review by the engineer. The schedule shall provide a minimum of ten activities or categories, hereafter referred to as "Activities," per million dollar value of the contract and a maximum of three hundred activities or as directed by the engineer.

10.3.a.12.A. The schedule shall indicate the interdependence of activities (how the start of a given activity depends on the completion of preceding activities) and the sequence of work (how failure to complete a given activity may restrain the start of successive activities).

10.3.a.12.B. The schedule shall include the contract completion date and any interim completion dates contained in the contract, as well as any coordination and cooperation requirements, construction restrictions, or other requirements of the contract.

10.3.a.12.C. The schedule shall include activities for all work required by the contract, including activities for subcontractors, vendors, and suppliers. In addition to construction activities, the schedule shall include as a minimum the procurement, fabrication, and delivery of critical or special materials and equipment, as well as submission and review of all shop / work drawings, contractor designs, and all other submissions required by the contract.

10.3.a.12.D. The activities are to be described by contract item number, location, phase, and sequence so that the work is readily identifiable and the progress of each activity can be measured. For schedules requiring resource loading the contractor shall provide the labor and equipment involved with each activity. For all schedules, each activity will have an associated dollar amount documented on the schedule. This activity dollar amount will be in direct relation to the bid items and quantity of work included in the activity. Activity duration shall be logical and consistent with the contract documents and shall be based on realistic and available resources of the contractor. The above requirements are applicable for all schedules, including the official detailed construction schedules, required updates, and any revised Schedules.

10.3.a.12.E. Requiring the contractor to submit schedules allocating resources to project activities does not imply acceptance, approval, or agreement by the division that the contractor's scheduled allocation of resources is sufficient to complete either the project or a scheduled activity in a scheduled time.

10.3.b. The schedules shall be prepared using scheduling software Primavera Project Manager P6 and submitted on standard D size sheets (24" x 36"). The critical path shall be distinguished from other paths on the schedule. All back-up data used to generate the Schedule shall be submitted in digital form on acceptable media that is compatible with the computer system.

10.3.b.1. The submitted print out of the schedule shall include the following data for each activity in the initial submittal and in all updates and revisions:

1. Activity number, as well as preceding and following activity numbers;

2. Activity description;

3. Duration of activity, in working days;

4. All quantities in accordance with pay items;

5. Dollar value of activity;

6. Remaining duration of activity, in working days;

7. Earliest start date, by calendar date;

8. Earliest finish date, by calendar date;

9. Actual start date, by calendar date;

10. Actual finish date, by calendar date;

11. Latest start date, by calendar date;

12. Latest finish date, by calendar date;

13. Total float for activity;

14. Free float for activity;

10.3.b.2. In addition to the above, the following information and data shall be included with the submission of the digital form to the division:

1. Number of shifts per work day, hours per shift for activity;

2. Number of work days per week for activity;

3. Major equipment and corresponding hours for activity;

4. Manpower by Trade or entity and corresponding hours for activity;

5. Activity Usage Profile Cost of Contractor’s Income.

10.3.c. Scheule Resource Loading Criteria. For projects where the Contract Bid Amount is between $2,000,000 and $7,500,000, the schedule shall meet the requirements of the schedule as provided above with the exception of 3. Major equipment and corresponding hours for activity and 4. Manpower by Trade or entity and corresponding hours for activity. Schedule resource loading will be required on all projects on which the Contract Bid Amount is equal to or exceeding $7,500,000.

10.3.d. Progress Reporting and Schedule Updating. The contractor shall submit weekly a summary of work force by trade including all workmen and subcontractors together with a weekly summary of all equipment used on the project. The division shall maintain the contractor's resource information in a confidential manner. The contractor’s certified payrolls may be a substitute for the work force summary. A project control meeting shall be held monthly by the engineer with the contractor's construction coordinator to review actual progress, planned progress for the next period, and any changes since the previous update(s). Non-resource loaded projects that require schedules may hold project control meetings less frequently if deemed appropriate by the Regional Engineer, but not less than quarterly.

10.3.d.1. For projects where the Contract Bid Amount is greater than or equal to $7,500,000 that require a schedule at least five (5) working days before the meeting, the construction coordinator shall provide the engineer with a complete update of all schedule activity information included in subdivision 10.3.d. The engineer may withhold estimate payments until the contractor submits a schedule update five (5) working days prior to the next project control meeting.

10.3.d.2. For projects that require non-resource loaded schedules, the construction coordinator shall provide the engineer with a complete update of all schedule activity information included in subdivision 10.3.b. within five (5) working days after the end of the month. The engineer may withhold estimate payments until the contractor submits a schedule update within five (5) working days after the end of the month.

10.3.d.3. The contractor shall submit with the monthly update a narrative report which shall include, but not be limited to, a description of progress along the critical path in terms of days ahead or behind the schedule dates, any problem areas (current and anticipated), any delaying factors and their impact, and an explanation of any corrective actions taken or proposed. The narrative report shall state any and all changes made in the schedule since the previous update(s) and detail all activities or portions of activities, including dollar value, completed during the update period.

10.3.d.4. Prior to submittal, the contractor shall compare the updated progress schedule to the most current estimate payment. The total activity cost to date shown on the schedule shall match the total paid to date on the estimate. To achieve this match the contractor is required to account for all ancillary costs by altering activity dollar amounts due to overruns and under-runs. Change orders, value engineering and other required project modifications shall be incorporated into the schedule as necessary to reflect the actual cost and scope of work being performed.

10.3.d.5. The method for accurately incorporating the project costs into the schedule will be determined by the contractor. The method for incorporating the project cost into the schedule will be subject to review and comment by the engineer. In any case, the intent is to create updated schedules that accurately reflect the progress of the project. Inclusive of the progress shall be the tracking of project costs in such a way that future project expenditures can be determined with relative accuracy.

10.3.d.6. Extension of interim completion dates, the contract completion date, or the revised contract completion date will be governed by the provisions of subsection 10.6.

10.3.d.7. If the division revises work which would affect the sequence of operations or duration of time on work activities, the contractor shall submit to the engineer, within seven (7) calendar days after receipt of the revision, a written report in accordance with subsection 10.6 outlining the effect on work time and cost that the revision is expected to have on the schedule.

10.3.e. Submission of Revised Construction Schedule. The engineer shall request the contractor to submit a revised schedule when any one of the following conditions is reflected by the latest Schedule:

1. A delay greater than 10 calendar days in the completion of any critical activity;

2. The performance of any work in a sequence or manner which varies from that represented on the schedule;

3. The addition, deletion, or revision of activities required by contract modification.

10.3.e.1. The revised schedule shall indicate all additional resources (labor, material, and equipment) and modification(s) of operations necessary to meet the contract time requirements.

10.3.e.2. The engineer will review the revised schedule and supporting documentation for compliance with the contract. The contractor shall incorporate any compliance recommendations made in the Engineer's review. Should the contractor fail to submit a revised schedule within seven (7) calendar days of the engineer's written request, the engineer may withhold estimate payments for any item of work under the contract until such schedule is submitted.

10.4. Limitation of Operations. The contractor shall conduct the work at all times in such manner and in such sequence as will assure the least interference with traffic. The contractor shall have due regard to the location of detours and to the provisions for handling traffic. The contractor shall not open up work to the prejudice or detriment of work already started, and the engineer may require the contractor to finish a section on which work is in progress before work is started on any additional sections if the opening of such section is essential to public convenience.

10.5. Character of Workers; Methods and Equipment. The contractor shall at all times employ sufficient labor and equipment for prosecuting the several classes of work to full completion in the manner and time required by these specifications.

10.5.a. All employees shall have sufficient skill and experience to perform properly the work assigned to them. Employees engaged in special work or skilled work shall have sufficient experience in such work and in the operation of the equipment required to perform all work properly and satisfactorily.

10.5.b. Any person who, in the opinion of the engineer, does not perform his or her work in a proper and skillful manner or is intemperate or disorderly shall, at the request of the Engineer, be removed forthwith. Any contractor or his or her subcontractor employing such person shall not reemploy such person on the project without the written approval of the engineer.

10.5.c. Should a contractor fail to remove such person or persons as required above, or fail to furnish suitable and sufficient personnel for the proper prosecution of the work, the engineer may suspend the work by written notice until such order is complied with.

10.5.d. All equipment which is proposed to be used on the work shall be of sufficient size and in such mechanical condition as to meet requirements of the work and to produce a satisfactory quality of work. Equipment used on any portion of the project shall be such that no injury to the roadway, adjacent property, or other highways will result from its use.

10.5.e. When the methods and equipment to be used by the contractor in accomplishing the construction are not prescribed in the contract, the contractor is free to use any methods or equipment that the contractor demonstrates to the satisfaction of the engineer will accomplish the contract work in conformity with the requirements of the contract.

10.5.f. When the contract specifies that the construction be performed by the use of certain methods and equipment, such methods and equipment shall be used unless others are authorized by the engineer. Should the contractor desire to use a method or type of equipment other than specified in the contract, the contractor shall request authority from the engineer to do so. The request shall be in writing and shall include a full description of the methods and equipment proposed to be used and an explanation of the reasons for desiring to make the change. If approval is given, it will be on the condition that the contractor shall be fully responsible for producing construction work in conformity with contract requirements. If, after trial use of the substituted methods or equipment, the engineer determines that the work produced does not meet contract requirements, the contractor shall discontinue the use of the substitute methods or equipment and shall complete the remaining construction with the specified methods or equipment. The contractor shall remove the deficient work and replace it with work of specified quality, or take such other corrective action as the engineer may direct. No change will be made in basis of payment for the construction items involved nor in contract time as result of authorizing a change in method or equipment under these provisions.

10.6. Determination and Extension of Contract Time. The division shall determine and specify in the contract the number of working days and/or a fixed calendar date allowed for completion of the work, hereinafter called contract time.

10.6.a. A potential working day is every day on the calendar except Saturday, Sunday and holidays as set forth in subsection 2.43.

10.6.b. When the contract time is specified on a working day basis, the engineer will inform the contractor weekly, by written statement, of the number of working days charged for the preceding week, the accumulated number of working days charged against the contract, and the number of working days remaining for completion of the contract. The contractor shall submit in writing to the engineer any protest concerning the weekly statement within seven (7) calendar days after receipt of the statement. The written protest shall set forth what the contractor considered incorrect, along with supporting information; otherwise, the statement shall be deemed to have been accepted by the contractor as correct. The engineer shall review any such protest and supporting information and shall render a decision either affirming or correcting the number of working days previously reported for the contested week, within 14 calendar days after receipt of the written protest.

10.6.c. When the contract time is specified on a fixed calendar date basis, it will consist of the number of calendar days counting from the effective date of the engineer’s issuance of the notice to proceed or conditional notice to proceed to the calendar date specified for completion of the project, including all Saturdays, Sundays, holidays, and non-working days. All calendar days elapsing between the effective dates of any orders of the engineer to suspend work and to resume work for suspensions not the fault of the contractor shall be excluded.

10.6.d. The work on the contract will be considered substantially complete when the project could be opened continuously for the safe, convenient, and unimpeded use of the traveling public, or the project has met the intention of the plans, as reasonably determined by the engineer. When the project is considered substantially complete, the contract time charges shall be discontinued prior to final acceptance being made by the engineer as prescribed in subsection 7.16.

10.6.e. Extension Of Contract Time. The contractor shall be responsible for any delays caused by failing to start a work activity on the earliest date any activity can begin after its predecessors have been completed, unless the activity has float. The contractor shall also be responsible for any delays caused by lack of continuous effort, inadequate allocation and scheduling of resources and coordination of the work, inadequate or insufficient application of resources, or inability to meet interim completion dates due to contractor's approach to the work. Such delays shall not be considered for an extension of interim completion dates, contract completion date, or the revised contract completion date.

10.6.e.1. If the contractor finds it impossible for reasons beyond his control to complete an activity or the work within the contract time as specified or as extended according to the provisions of this section, the contractor shall notify the engineer, in writing, within seven (7) calendar days of the contractor becoming aware of the following:

1. a problem that develops requiring direction to the contractor by the engineer;

2. the occurrence of any delay including delays in critical path activities;

3. in the absence of a CPM or ASC schedule, delays in the controlling operation during the prosecution of work that the contractor believes may warrant revision of an interim completion date or the contract completion date.

10.6.e.2. The notification shall set forth the reasons that shall justify the granting of the request, and as a minimum, identify the cause(s) for the delay, the particular critical path activity(s) or controlling operation(s) affected, the effect of any division act or omission on each activity or operation delayed, and the significant dates that encompass the periods of delay. On projects with schedules, the contractor shall submit a schedule update within seven (7) calendar days of becoming aware of the delay and another schedule update when the contractor indicates or the engineer believes the delay has been resolved. In instances where controlling or critical path activities are claimed by the contractor or determined by the division to be delayed, the notification and schedule update shall be considered by the division as a request by the contractor for a contract time extension. If the schedule updates relating to the delays, are not received as mentioned above, the contractor forfeits his rights to any claims or time extensions.

10.6.e.3. In the absence of a CPM schedule, the controlling item will be determined from the division’s records. The engineer will inform the contractor weekly, by written statement, of controlling items identified for the previous week. The contractor shall submit in writing to the engineer any protest concerning the weekly statement within seven (7) calendar days after receipt of the statement. The written protest shall set forth what the contractor considered incorrect, along with supporting information; otherwise, the statement shall be deemed to have been accepted by the contractor as correct. The engineer shall review any such protest and supporting information and shall render a decision either affirming or correcting the controlling items reported for the contested week.

10.6.e.4. If notification is not given by the contractor within the prescribed time of the contractor becoming aware of any delay, or if, having given notification as provided herein, the contractor does not afford the engineer proper facilities for keeping strict account of actual costs and loss of time, the contractor waives any claim for additional compensation and contract time extension. Delay costs allegedly incurred more than the allowable seven (7) days before the contractor notifies the engineer in accordance with this provision shall not be allowed.

10.6.e.5. If the engineer determines that the work was delayed because of conditions beyond the control of and without the fault or negligence of the contractor, the engineer may extend the time for project completion as the conditions justify.

10.6.e.6. Only delays in the activities on the critical path, or in the absence of scheduling requirements, delays in the controlling operation will be considered for a contract time extension, provided when required, the contractor has submitted proper notification and supporting documentation justifying the request. For projects with schedule requirements, time extension reviews will be evaluated along the critical path, as determined by the project’s longest path. Time extension reviews will consider the free float and total float of all relevant activities in determining the actual delay periods. The engineer shall within 14 calendar days advise the contractor in writing of the approval or rejection of the time extension request. If approved, the extended time for completion shall then be in full force and effect the same as though it were the original time for completion.

10.6.f. Excusable Noncompensable Delays. An excusable noncompensable delay is a delay in the critical path activity, or in the absence of a project schedule, a delay in the controlling operation that was beyond the contractor's control and not caused by the contractor's fault or negligence. Consideration may be given to an adjustment in contract time, but no consideration shall be given for additional monetary compensation. Excusable non-compensable delays include, but are not limited to:

1. Delay of notice to proceed or conditional notice to proceed of more than 30 calendar days after the contract award date for reasons beyond the control of and without the fault or negligence of the contractor. Consideration for an adjustment of contract time will be limited to the number of calendar days in excess of 30 calendar days, counting from the contract award date to the effective date of the engineer's issuance of the notice to proceed.

2. Delay of the notice to proceed more than seven (7) calendar days after the contract award date for contracts with incentive or disincentive clauses, as long as the reasons are beyond the control of and without the fault or negligence of the contractor. Consideration for an adjustment of contract time will be limited to the number of calendar days in excess of seven (7) calendar days on contracts with incentive or disincentive clauses, counting from the contract award date to the effective date of the engineer's issuance of the notice to proceed.

3. Delays due to acts of God, labor strikes (not within the contractor's power to settle) freight embargoes, states of national emergency, or other reasons beyond the control of the contractor. Consideration for an adjustment of contract time shall be limited to the number of potential working days lost as determined by the engineer.

4. Delays in obtaining materials due to extraordinary market conditions caused by industry-wide strike, natural disaster, area-wide shortage, official federal declaration that a material is critical due to national defense efforts, or for other reasons beyond the control of the contractor. Consideration for an adjustment of contract time shall be limited to the number of potential working days lost as determined by the engineer.

5. Delays due to adverse weather. Lost days due to adverse weather may include:

a. Days with inclement weather or conditions beyond the Contractor’s control that prevent the involvement of their normal working forces engaged in performing critical or controlling item(s) of work for at least 60 percent of the total scheduled daily hours, and b. Days when weather conditions prevent work from beginning at the regular time and the crew is dismissed, regardless of whether or not conditions improve for the rest of the day.

10.6.f.1. An adjustment of contract time shall not be considered for loss of time due to adverse weather:

1. Before the start of construction operations;

2. During periods when no on-sitework on a controlling operation or critical path activity occurs;

3. After the contract completion date or the revised contract completion date.

4. Consideration for an adjustment of contract time shall be limited to the number of potential working days lost each month, as determined by the engineer. Notification by the contractor of weather related delays may be consolidated into a single request that shall be included in the narrative letter transmitting the monthly schedule update. On projects that do not require schedules, the request shall be received within seven (7) calendar days of the end of the month in which the weather delays occurred. If a schedule is not required for the project, any time extensions granted by the engineer shall be on the basis of an additional working day for each potential working day lost.

10.6.f.2. The allowable time required for the division to take action on properly prepared submissions shall be 14 calendar days after receipt unless otherwise specified in the contract documents.

10.6.g. Excusable Compensable Delays. An excusable compensable delay is a delay in the critical path activity, or in the absence of a project schedule, a delay in the controlling operation that was caused solely by the department. An adjustment in contract time may be considered along with additional monetary compensation, if entitled. Excusable compensable delays include:

1. Delays in a critical path activity, or in the absence of a project schedule, a delay in the controlling operation due to contract modifications resulting in the performance of added work, revised work, or work in greater quantities than those set forth in the proposal except as provided in subsection 6.11. The division reserves the right to negotiate unit prices that include the cost for additional resources (labor, material, and equipment) required to complete added work, revised work, or work in greater quantities within the originally scheduled dates, thereby negating the need for a contract time adjustment.

2. Loss of time due to differing site conditions. Consideration for adjustment of Contract time shall be according to subsection 6.9.

3. Loss of time due to any written orders of the engineer suspending work or delaying critical path activities on the project not the fault of the contractor. Consideration for adjustment of contract time shall be according to subsection 6.10.

4. Loss of time due solely to acts or omissions by the division and not caused by the contractor’s fault or negligence.

10.6.g.1. Should a substantial delay be anticipated, the department may request the contractor to submit his/her costs and conditions for demobilization and remobilization. The department may pay the contractor for demobilization or remobilization expenses in lieu of further idle equipment costs.

10.6.g.2. Consideration for adjustment of contract time for added or revised work shall be limited to the extra time allowances as agreed on and specified in the change order that covers the added or revised work. Mark-up for the added or revised work will be negotiated and specified in the change order. The adjustment of contract time and the allowable mark-up will be full and just compensation for any and all claims that the contractor may have regarding the added or revised work. No additional consideration will be given for home office overhead and/or field office overhead.

10.6.g.3. Any adjustment of contract time for work authorized in accordance with subsection 6.11 that requires the performance of work in greater quantities than those specified in the contract shall be made at the discretion of the engineer in accordance with one of the two options below:

1. The extra time allowances as agreed on and specified in the change order that covers the additional or increased work; or 2. The same ratio that the total cost of the added or increased work shall bear to the total contract bid amount, provided the added or increased work is judged to be a critical path activity or, in the absence of a project Schedule, a controlling operation.

10.6.g.4. The allowable time required for the division to take action on properly prepared submissions shall be fourteen (14) calendar days after receipt unless otherwise specified in the contract documents.

10.6.g.5. Consideration for an adjustment of contract time shall be limited to the number of potential working days lost as determined by the engineer.

10.7. Completion.

10.7.a. Failure to Complete On Time and Liquidated Damages. Time is an essential element of the contract, and it is important that the work be completed within the time specified. The cost to the division for the administration of the contract, including engineering, inspection, and supervision, will increase as the time required to complete the work is increased.

10.7.a.1. Therefore, for each calendar day the project is deemed not to be substantially complete after the contract time specified for completion of the work, subject to such extensions of contract time required or permitted in subsection 10.6, the division will assess liquidated damages against the contractor. Daily charges will be deducted for each calendar day, as defined in subsection 2.10. The total amount of daily charges will be deducted from any monies due the contractor, not as a penalty but as liquidated damages. Unless specified elsewhere in the contract, the amount of the daily charge will be calculated from the table in the Standard Specifications Roads and Bridges, current edition.

10.7.a.2. Interim Completion Date. When an interim completion date has been specified in the contract documents for the contractor to complete a specific amount of work, pay item, or structure, and if the contractor fails to meet the interim date, the division will assess a per calendar day charge as liquidated damages, as specified elsewhere in the contract documents until such amount of work, pay item, or structure has been completed. Extension of interim completion dates will be governed by the provisions of subsection 10.6. The liquidated damages provided for in this subsection are in addition to those provided for elsewhere in this section.

10.7.a.3. Incentive/Disincentive for Early Completion. When an incentive/disincentive (I/D) provision has been included in the contract documents, subdivision 10.7.a. relating to liquidated damages remains in effect and is applicable to the total contract time; however, there will be concurrent assessment of liquidated damages with disincentive assessments. Extension of the date(s) established for completion of work stages covered by the I/D provision and/or the contract completion date will be governed by the provisions of subsection 10.6.

10.8. Default and Termination of Contract. If the contractor:

10.8.a. fails to begin the work under the contract within the time specified in the "Notice to Proceed", or

10.8.b. fails to perform the work with sufficient employees and equipment or with sufficient materials to assure the prompt completion of the work, or

10.8.c. performs the work unsuitably or neglects or refuses to remove materials or to perform anew such work as may be rejected as unacceptable and unsuitable, or

10.8.d. discontinues the prosecution of the work, or

10.8.e. fails to resume work, which has been discontinued, within a reasonable time after notice to do so, or

10.8.f. becomes insolvent or is declared bankrupt, or commits any act of bankruptcy or insolvency, or

10.8.g. allows any final judgment to stand against him or her unsatisfied for a period of ten (10) days, or

10.8.h. makes an assignment for the benefit of creditors, or

10.8.i. for any other cause whatsoever, fails to carry out the contract terms in an acceptable manner,

10.8.j. The engineer will give notice in writing to the contractor and his or her surety of such delay, neglect or default. If the contractor or surety, within a period of 10 days after such notice, shall not proceed in accordance therewith, then the division will, upon written notification from the engineer of the fact of such delay, neglect or default and the contractor's failure to comply with such notice, have full power and authority, without violating the contract, to take the performance of the work out of the hands of the contractor. The division may appropriate or use any or all materials and equipment on the ground as may be suitable and acceptable and may enter into an agreement for the completion of the contract according to the terms and provisions thereof, or use such other methods as in the opinion of the engineer will be required for the completion of the contract in an acceptable manner.

10.8.k. All cost charges incurred by the division, together with the cost of completing the work under contract, will be deducted for any monies due or which may become due the contractor. If such expense exceeds the sum which would have been payable under the contract, then the contractor and the surety shall be liable and shall pay to the division the amount of such excess.

10.9. Termination of Contract for Convenience of the State.

10.9.a. The division may terminate the entire contract or any portion thereof, if the engineer determines that a termination is in the division’s interest. The engineer will deliver to the contractor a notice of termination specifying the extent of termination and the effective date.

10.9.b. Submittals and Procedures. After receipt of a notice of termination, the contractor shall immediately proceed with the following obligations:

10.9.b.1. Stop work as specified in the notice.

10.9.b.2. Place no further subcontracts or orders for materials, services, or facilities, except as necessary to complete the continued portion of the contract.

10.9.b.3. Terminate all subcontracts to the extent they relate to the work terminated.

10.9.b.4. Settle all outstanding liabilities and termination settlement proposals arising from the termination of the contract or portion thereof.

10.9.b.5. Transfer title and deliver to the division (1) fabricated, partially fabricated, or unfabricated parts, work in process, completed work, supplies, and other material produced or acquired for the work terminated, and (2) the completed or partially completed plans, drawings, information, and other property that, if the contract had been completed, would be required to be furnished to the division.

10.9.b.6. Complete performance of the work not terminated.

10.9.b.7. Acceptable materials obtained by the contractor for the project that have not been incorporated in the work shall be inventoried in conjunction with the engineer at a date identified by the engineer.

10.9.b.8. Take any action necessary, or that the engineer may direct, for the protection and preservation of the property related to the contract that is in the possession of the contractor and in which the division has or may acquire an interest.

10.9.c. Settlement Provisions. When the division orders termination of all or a part of the contract effective on a certain date, completed items of work as of that date will be paid for at the contract bid price. Payment for partially completed work will be made either at agreed prices or under the provisions below. Items that are eliminated in their entirety by such termination shall be paid for as provided in subsection 11.5.

10.9.c.1. Additional Costs. Within sixty working days of the effective termination date, the contractor shall submit a claim for additional damages or costs not covered above or elsewhere in the contract. Such claim may include such cost items as reasonable idle equipment time, mobilization efforts, bidding and project investigative costs, overhead expenses attributable to the project terminated, legal and accounting charges involved in claim preparation, subcontractor costs not otherwise paid for, actual idle labor cost if work is stopped in advance of termination date, guaranteed payments for private land usage as part of the original contract, and any other cost or damage for which the contractor feels reimbursement should be made.

10.9.c.1.A. The contractor and the division may agree upon the whole or any part of the amount to be paid because of the termination. The amount may include a reasonable allowance for profit on work done. The agreed amount may not exceed the total contract price as reduced by the amount of payments previously made, and the contract price of work not terminated. The contract shall be amended, and the contractor paid the agreed amount.

10.9.c.2. Additional Cost Review. If the contractor and the division fail to agree on the whole amount to be paid the contractor because of the termination of work, the division will pay the amounts determined as follows, but without duplication of any amounts agreed upon above:

10.9.c.2.A. For contract work performed before the effective date of termination, the total (without duplication of any items) of:

10.9.c.2.A.1. The cost of work performed;

10.9.c.2.A.2. The cost of settling and paying termination settlement proposals under terminated subcontracts that are properly chargeable to the termination portion of the contract if not included in subparagraph 1 above; and

10.9.c.2.A.3. A sum, as profit on part 10.9.c.2.A.1. above determined by the division to be fair and reasonable. The division shall allow no profit under this subdivision if the contractor’s costs incurred on work performed exceed the bid item payments made.

10.9.c.2.B. The reasonable costs of settlement of the work terminated, including:

10.9.c.2.B.1. Accounting, legal, clerical, and other expenses reasonably necessary for the preparation of termination settlement proposals and support data;

10.9.c.2.B.2. The termination and settlement of subcontracts (excluding the amounts of such settlements); and

10.9.c.2.B.3. Storage, transportation, and other costs incurred, reasonably necessary for the preservation, protection, or disposition of the termination inventory.

10.9.c.2.C. Except for normal spoilage, and to the extent that the division expressly accepts the risk of loss, division will exclude from the fair value, as that is destroyed, lost, stolen, or damaged so as to become undeliverable to the division or to the buyer.

10.9.c.2.D. In arriving at the amount due the contractor under this clause, there will be deducted:

10.9.c.2.D.1. All unliquidated advances or other payments to the contractor under the terminated portion of the contract;

10.9.c.2.D.2. Any claim that the division has against the contractor under the contract; and

10.9.c.2.D.3. The agreed price for, or the proceeds from the sale of materials, supplies, or other things acquired and sold by the contractor not recovered by or credited to the division.

10.9.c.2.E. If termination is partial, the contractor may file a proposal with the division for an equitable adjustment of the price(s) of the continued portion of the contract. The division will make any equitable adjustment agreed upon. Any proposal for an equitable adjustment under this clause shall be requested within sixty working days from the effective date of termination unless extended in writing by the engineer.

10.9.c.2.F. The division may, under the terms and conditions it prescribes, make partial payments and payments against costs incurred by the contractor for the termination portion of the contract, if these payments will not exceed the amount to which the Contractor is entitled.

10.9.c.2.G. The contractor shall maintain and make available all project cost records to the division for audit to the extent necessary to determine the validity and amount of each item claimed. This includes all books and other evidence bearing on the contractor’s costs and expenses under the contract. These records and documents shall be made available to the division at the contractor’s office, at all reasonable times, without any direct charge. If approved by the division, photographs, microphotographs, or other authentic reproductions may be maintained instead of original records and documents.

10.9.c.2.H. Termination of the contract or portion thereof shall not relieve the contractor of contractual responsibilities of the work completed, nor shall it relieve the Surety of its obligation for and concerning any just claim arising out the work performed.

10.10. Field Office Overhead. The division may consider compensating the contractor for field office overhead costs as long as the contractor can provide documentation that the field office overhead costs are not covered by the project bid items.

10.11. Home Office Overhead. The department shall consider payment to the contractor for any unabsorbed or extended home office overhead costs for which payment is not previously provided for if all of the following criteria are met:

10.11.a. The contractor has incurred an excusable, compensable delay that delays the work at least forty five (45) calendar days beyond the scheduled contract completion date or the revised completion date. These days are cumulative throughout the project.

10.11.b. The delay for which payment of home office overhead is sought is only due to delays defined in subdivision 10.6.g.

10.11.c. Payment will be considered for every eligible day beyond the scheduled or revised contract completion date at the rate determined below up to substantial completion, as determined by the engineer.

10.11.d. Home office overhead daily rate shall be calculated using the following formula:

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Where:

A Contract billing amount B Contractor’s total billings for Contract period C Contractor’s total overhead for contract period D overhead allocable to Contract E days of performance F daily contract overhead G number of days of delay

10.11.d.1. Contract duration term, E, includes every calendar day from the execution of the contract, unless otherwise specified by the engineer, to the scheduled contract completion date or revised contract completion date.

10.11.d.2. When the contractor requests home office overhead compensation for a subcontractor, use the above formula to calculate the subcontractor’s daily home office overhead rate; however, in the subcontractor calculation, A is equal to the subcontractor’s portion of the original contract amount as determined by the sum of all approved subcontracts issued for each individual subcontractor.

10.11.d.3. Formula items B and C are subject to verification by audit at the election of the engineer. Any and all costs associated with the audit will be the sole responsibility of the contractor. Information obtained through any such audit shall, if requested by the contractor, be treated as a trade secret for purposes of exemption from disclosure under the West Virginia Freedom of Information Act.

W. Va. Code R. § 157-3-11 Measurement and Payment

11.1. Measurement of Quantities. All work completed under the contract will be measured by the engineer according to United States standard measure.

11.1.a. The method of measurement and computations to be used in determination of quantities of materials furnished and of work performed under the contract will be those methods generally recognized as conforming to good engineering practice.

11.1.b. Unless otherwise indicated, the requirements prescribed hereinafter shall govern.

11.1.c. Earthwork will be computed by the average end area method, using the horizontal length measured along the centerline as the distance between sections, applying corrections for curvature where the apparent error exceeds 25 percent of the volume in any one cut. Other acceptable methods may be used.

11.1.d. Unless otherwise specified, longitudinal measurements for area computations will be made horizontally and no deductions will be made for individual fixtures having an area of nine square feet or less. Unless otherwise specified, transverse measurements for area computations will be the neat dimensions shown on the plans or ordered in writing by the engineer.

11.1.e. Structures will be measured according to neat lines shown on the plans or as altered to fit field conditions.

11.1.f. All items which are measured by the linear foot, such as pipe culverts, guardrail, underdrains, etc., will be measured parallel to the base or foundations upon which such structures are placed. The term "gage," when used in connection with the measurements of plates, will mean the U. S. Standard Gage.

11.1.g. The galvanized sheet thicknesses to be used in the manufacture of metal cribbing, corrugated iron or steel culvert pipe, underdrain pipe, plate pipe, pipe arches, plate pipe arches and plate arches shall be as specified in AASHTO M 36 or AASHTO M 167.

11.1.h. The sheet thicknesses to be used in the manufacture of corrugated aluminum alloy culvert pipe, underdrain pipe, plate pipe, pipe arches, plate pipe arches and plate arches shall be as specified in AASHTO M 196 or AASHTO M 219.

11.1.i. The "size number" used in the measurement of wire will be as specified in AASHTO M 32 or AASHTO M 225.

11.1.j. The term ton will mean the short ton consisting of 2,000 lb. All materials which are measured or proportioned by weight shall be weighed on approved scales by competent, qualified personnel. Scales for weighing shall be of either the beam type, springless-dial type or digital recorder type.

11.1.k. All plant and truck scales and metering devices shall be inspected, approved and sealed in accordance with the requirements of the West Virginia Division of Labor, Bureau of Weights and Measures, or other appropriate agencies of the state or its political subdivisions. Poises shall be designed to be locked in any position to prevent unauthorized changes. When the beam type scales are used, provisions for a "telltale" dial shall be made for indicating to the operator that the required load in the weighing hopper is being approached. A device on the weighing beams shall clearly indicate the critical position.

11.1.l. Truck scales shall be provided by the producer or contractor, except that truck scales are not required where the material is weighed at properly calibrated automatic batching plant facilities which are equipped with digital print-out equipment. The scales shall be of sufficient size and capacity to weigh the heaviest loaded trucks that are used for delivery of the material. All truck scales shall be mounted on solid foundations which will ensure their remaining plumb and level.

11.1.m. A weigh person shall be provided by the producer. The weigh person shall certify that the weight of the material, as determined either by the truck scales or from the digital print-out of the weights, is correct. To signify the certification of weight the weigh person must either sign their full name on each ticket, or if the ticket printer prints the weigh person’s full name, they must at least initial each ticket.

11.1.n. Each truck shall be weighed empty prior to each load, except at automatic batch plants approved to operate without truck scales. A digital recorder shall be required on all truck scales. The digital recorder shall produce a printed record of the gross, tare and net weights, and the time, date, truck identification and project number. Provision shall be made for constant zero compensation and further provision shall be made so that the scales may not be manually manipulated during the printing process. The system shall be interlocked so as to allow printing only when the scale has come to rest.

11.1.o. In case of a breakdown of the automatic equipment, the engineer may permit manual operation for a reasonable time, normally not to exceed 48 hours, while the equipment is being repaired.

11.1.p. If material is shipped by rail, the car weight may be accepted provided the actual weight of material only will be paid for. However, car weights will not be acceptable for material to be passed through mixing plants.

11.1.q. Devices used to meter or measure component or other materials in a simultaneous manner shall be located so as to be readily accessible and visible to a single inspector, unless otherwise directed by the engineer.

11.1.r. Materials to be measured by volume in the hauling vehicle shall be hauled in approved vehicles and measured at the point of delivery. Vehicles for this purpose may be of any size or type acceptable to the engineer, provided that the body is of such shape that the actual contents may be readily and accurately determined. All vehicles shall be loaded to at least their water level capacity, and all loads shall be leveled when the vehicles arrive at the point of delivery.

11.1.s. When approved by the engineer, material specified to be measured by the cubic yard (meter) may be weighed and these weights converted to cubic yard (meter)s for payment purposes. Further, when it is impractical to measure the material by weighing, or in its original position, the material will be measured in its final position and adjusted by a volume change factor. These conversion factors will be determined by the engineer and shall be agreed to by the contractor before these methods of measurement are used.

11.1.t. When bituminous material is measured by volume, the measured volume at loading temperature shall be converted to volume at 60° F (15° C) using the temperature correction factors in 705 for asphaltic materials and 706 for tar materials, except that when volume is measured by an approved temperature compensated metering device, no further volume correction for temperature shall be required. When bituminous material is measured by weight, the actual specific gravity, API gravity, or weight per gallon (liter) of the material shall be used to convert the measured weight to volume at 60° F (15° C). The contractor shall furnish all information necessary as determined solely by the division to determine the amount of bituminous material actually incorporated into the project.

11.1.u. Net certified scale weights or weights based on certified volumes in the case of rail shipments will be used as a basis of measurement, subject to correction when bituminous material has been lost from the car or the distributor, wasted, or otherwise not incorporated in the work.

11.1.v. When bituminous materials are shipped by truck or transport, net certified weights or volume, subject to correction for loss or foaming may be used for computing quantities.

11.1.w. Cement will be measured by the cwt (hundredweight = 100 lb) (kilogram). For the purpose of determining the total amount used in the mixture, one bag of cement shall be considered as weighing 0.94 cwt (42.64 kg), and one barrel of cement shall be considered as weighing 3.76 cwt (175.55 kg).

11.1.x. Timber will be measured by the thousand feet board measure (mfbm) (cubic meters) actually incorporated in the structure. Measurement will be based on nominal widths and thicknesses and the extreme length of each piece.

11.1.y. The term "lump sum" when used as an item of payment will mean complete payment for the work described in the contract.

11.1.z. When a complete structure or structural unit (in effect, "lump sum" work) is specified as the unit of measurement, the unit will be construed to include all necessary fittings and accessories.

11.1.aa. When standard manufactured items are specified such as fence, wire, plates, rolled shapes, pipe conduit, etc., and these items are identified by gage, unit weight, section dimensions, etc., such identification will be considered to be nominal weights or dimensions. Unless more stringently controlled by tolerances in cited specifications, manufacturing tolerances established by the industries involved will be accepted.

11.2. Scope of Payment. The contractor shall receive and accept compensation provided for in the Contract as full payment for furnishing all materials and for performing all work under the contract in a complete and acceptable manner and for all risk, loss, damage, or expense of whatever character arising out of the nature of the work or the prosecution thereof, subject to the provisions of subsection 9.20 of this rule.

11.2.a. If the "Basis of Payment" clause in the specifications relating to any unit price in the bid schedule requires that the unit price cover and be considered compensation for certain work or material essential to the item, this work or material will not also be measured or paid for under any other pay item which may appear elsewhere in the specifications, except as provided in subsection 6.6 of this rule.

11.2.b. When the contract specifies payment of an item or of a portion of an item on a plan quantity basis, the quantities for payment will be those shown on the Plans with deductions from or additions to such quantities resulting from authorized deviations from the plans.

11.2.c. If the contractor believes that a quantity which is specified for payment on a plan quantity basis is incorrect, he or she may request the division in writing to check the questionable quantity. The request shall be accompanied by calculations, drawings, or other evidence indicating why the plan quantity is believed to be in error. If the plan quantity is found to be in error, payment will be made in accordance with the corrected plan quantity.

11.2.d. The division reserves the right to check the quantity of an item which is specified for payment on a plan quantity basis if there is reason to believe that it is inaccurate. If the quantity is found to be in error, payment will be made in accordance with the corrected plan quantity.

11.2.e. Should the division determine during construction that conditions have varied from those anticipated in design to the extent that actual measurement of a plan quantity item is warranted, the Division will make such measurement, and payment will be based thereon in lieu of the plan quantity.

11.2.e.1. General Basis of Adjusted Payment.

11.2.e.1.A. Single Deficiency: In the case of the single characteristic deficiency, the resulting deficiency shall be used directly to determine an adjusted price.

11.2.e.1.B. Multiple Deficiency: In the case of a multiple deficiency, the related adjusted percentage of contract price as determined by the acceptance plan for each characteristic shall be determined and the resulting percent of contract price to be paid shall be the product of these related adjusted percentages.

11.2.e.2. Basis of Charges for Additional Testing. When additional acceptance testing is performed by the division for reworked lots or sub-lots in accordance with subparagraph 8.3.c.1.B of this rule the cost of such testing will be deducted on current estimates from the amount due the contractor by the division. The cost of such testing will be determined in accordance with the unit costs per test as shown in Table 9-1, published in MP 109.00.20.

11.3. Compensation for Altered Quantities. 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. No allowance except as provided in subsection 6.2 of this rule will be made 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 therefore or from any other cause.

11.3.a. 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.

11.4. Force Account Work. If directed by the division, as provided for in subsection 6.3 of this rule, the contractor shall perform extra or unforeseen work on a force account basis and shall be compensated in the following manner:

11.4.a. Labor. For all labor and for foremen and superintendence in direct charge of the specific force account operations, the contractor or subcontractor shall receive the actual current local rate of wage, agreed to in writing before beginning work, paid for each and every hour that the labor and foremen are actually engaged in the work.

11.4.a.1. The contractor or subcontractor shall also receive the actual costs paid to, or in behalf of, workmen by reason of subsistence and travel allowances, Worker's Compensation insurance premiums, unemployment insurance contributions, Social Security and Medicare taxes, health and welfare benefits, and pension fund benefits when such amounts are required by employment contract generally applicable to the classes of labor employed on the work. The contractor or subcontractor shall furnish satisfactory evidence of the rate or rates and the amount paid for insurance premiums and taxes.

11.4.a.2. For overhead and profit, an amount equal to sixteen percent of the sum of the above labor costs shall also be paid to the contractor or subcontractor.

11.4.b. Materials For all materials used in the specific force account operation and incorporated into the project, the contractor or subcontractor shall receive the actual cost of materials delivered including labor charges for employees of the material supplier who are required to perform an incidental amount of work in conjunction with the material furnished and freight charges paid exclusive of equipment rentals as hereinafter set forth. The contractor or subcontractor shall furnish invoices to document actual materials costs; however, if materials used on the force account work are not specifically purchased for such work but are taken from the contractor's or subcontractor's inventory, then in lieu of the invoices the contractor or subcontractor shall furnish an affidavit certifying that such materials were taken from inventory, that the quantity claimed was actually used, and that the price and freight claimed represent the contractor's or subcontractor's actual cost.

11.4.b.1. For overhead and profit, an amount equal to sixteen percent of the sum of the above materials costs shall also be paid to the contractor or subcontractor. All materials paid for will become the property of the division.

11.4.c. Equipment. The movement of equipment to and from the specified force account operation shall be as directed by the engineer. All equipment must be in good operating condition to qualify for rental payment. For all contractor or subcontractor equipment either rented or owned, the rental rates and operating costs include full compensation for major repairs, repairs due to normal wear and tear, labor and parts needed for routine daily servicing of the equipment, operating expendables such as fuel, lubricants, tires and ground engaging components, and the percentage of mechanic's wages and related maintenance vehicles chargeable to preventive and field maintenance.

11.4.c.1. Payable time periods shall not include time elapsed before the engineer has advised the contractor or subcontractor that the equipment is required for use in the force account or time elapsed after the engineer has advised the contractor or subcontractor that the equipment is no longer needed exclusive of costs for transportation, assembly and disassembly set forth in paragraph 11.4.c.6 of this rule, time elapsed while equipment is broken down or time spent repairing equipment. No separate payment will be made for any type of repairs to equipment.

11.4.c.2. When equipment is rented from a rental agency which the contractor or subcontractor owns or is part owner, the equipment shall be treated as owned equipment and rental rates determined accordingly.

11.4.c.3. Rented Equipment. For required equipment which is not owned and must be obtained by rental, the contractor or subcontractor shall be paid the actual rental cost for the equipment for the time that the equipment is required solely for use in the force account work. The contractor or subcontractor shall furnish invoices to document actual equipment rental costs. Estimated operating costs shall also be paid for each hour the rented equipment is actually operated in the force account work, not to exceed the estimated operating cost per hour set forth for the equipment in the current Rental Rate Blue Book for Construction Equipment published by Dataquest, Inc.

11.4.c.3.A. For overhead and profit, an amount equal to sixteen percent of the sum of the above costs for rented equipment shall also be paid to the contractor or subcontractor.

11.4.c.4. Owned Equipment. For owned equipment, other than small tools costing less than $500 each, the contractor or subcontractor shall be paid a rental rate determined from the current Rental Rate Blue Book for Construction Equipment published by Dataquest, Inc. The hourly rate shall be determined by dividing the monthly rate set forth in the Rental Rate Blue Book by 176 with appropriate adjustments made for age and region. The hourly rate for overtime work shall be determined by dividing the monthly rate set forth in the Rental Rate Blue Book by 176 with appropriate adjustments made for age and region. The estimated operating cost per hour set forth in the Rental Rate Blue Book shall also be paid for each hour the equipment is actually operated in the force account work.

11.4.c.4.A. If the owned equipment is not referred to in the current Rental Rate Blue Book, the hourly rental rate will be an agreed amount not to exceed the hourly rate computed as follows: A monthly rental rate equivalent to six percent of the contractor's or subcontractor's original acquisition cost of the equipment shall be established. The hourly rental rate shall then be determined by dividing this monthly rental rate by 176. Operating costs in such cases shall be a reasonable agreed-upon amount for each hour the equipment is actually operated in the force account work.

11.4.c.4.B. For overhead and profit, an amount equal to sixteen percent of the sum of the above costs for owned equipment shall also be paid to the contractor or subcontractor.

11.4.c.5. Idle Equipment. For required equipment held on the site of force account work on an idle basis at the request of the engineer, the contractor or subcontractor shall be paid for such idle time at an adjusted hourly rental rate exclusive of estimated operating costs. For owned equipment, such payment shall be made at one-half the hourly rate determined by dividing the monthly rate set forth in the Rental Rate Blue Book by 176 with appropriate adjustments made for age and region.

11.4.c.5.A. Payment of idle time for owned equipment on force account work shall not exceed 8 hours each day less the hours the equipment operates that day. Payment for idle time shall not be made on Saturday, Sunday, holidays set forth in subsection 2.51 of this rule, when equipment is operated more than 8 hours per day or 40 hours per week, when equipment is idle due to the contractor's or subcontractor's decision not to work on potential working days or when equipment is idle due to weather.

11.4.c.5.B. For overhead and profit, an amount equal to sixteen percent of the sum of the above costs for idle owned equipment shall also be paid to the contractor or subcontractor.

11.4.c.6. Miscellaneous. Transportation charges for owned or rented equipment to and from the site of the force account work shall be paid provided the equipment is obtained from the nearest approved source, the return charges do not exceed the delivery charges, haul rates do not exceed the established rates of licensed haulers, and charges are restricted to those units of equipment not already available and not on or near the project. In the case of owned equipment, the contractor or subcontractor shall be paid idle time rates for the equipment being hauled in addition to the applicable rental rates for the hauling equipment. All costs associated with the assembly and disassembly of the equipment for transport shall also be paid. All charges by persons or firms other than the contractor or subcontractor shall be supported by satisfactory invoices.

11.4.d. Taxes. When the work is done by the contractor, the amount of state and municipal taxes related to the force account work required to be paid by the contractor will be reimbursed to the contractor. For work performed by a subcontractor, the amount of extra cost paid by both the contractor and the subcontractor for corporate and business taxes levied by the state and municipalities due to the force account work shall be paid to the contractor.

11.4.d.1. For overhead and profit, an amount equal to sixteen percent of the sum of the above costs for state and municipal taxes shall also be paid to the contractor or subcontractor.

11.4.d.2. For work performed by a subcontractor, the amount of extra cost incurred by the contractor for increased business and corporate taxes shall be computed on the gross amount of the force account work, exclusive of the increased corporate and business taxes incurred by the subcontractor.

11.4.e. Contract Bond. The cost of premiums for contract bond required by subsection 5.5 which is extra cost and related to the force account work will be paid to the contractor.

11.4.e.1. For overhead and profit, an amount equal to sixteen percent of the sum of the above costs for contract bond shall also be paid to the contractor or subcontractor.

11.4.f. Insurance. The cost of premiums for Contractor's Public Liability and Property Damage Liability Insurance required by paragraph 5.6.a.1. and Contractor's Protective Public Liability and Property Damage Liability Insurance required by 5.6.b of this rule which is extra cost and related to the force account work will be paid to the Contractor.

11.4.f.1. For overhead and profit, an amount equal to sixteen percent of the sum of the above costs for insurance shall also be paid to the contractor or subcontractor.

11.4.f.2. When the force account work involves a railroad and the contractor is required to carry Railroad's Protective Public Liability Insurance or Railroad's Protective Property Damage Liability Insurance, or both, the cost of premiums for this insurance which is extra cost and related to the force account work will be paid to the contractor.

11.4.f.3. For overhead and profit, an amount equal to sixteen percent of the sum of the above costs for railroad insurance shall also be paid to the contractor or subcontractor.

11.4.g. Administrative. Allowance for force account work performed by an approved subcontractor, the contractor shall be paid an administrative allowance equal to sixteen percent of the total amount paid for all work performed by the subcontractor on the specific force account operation exclusive of additives paid for overhead and profit.

11.4.h. Records. The contractor's representative and the Engineer shall compare records daily of the cost of work done as ordered on a force account basis, and shall indicate agreement by signature on such records.

11.4.h.1. No payment will be made for work performed on a force account basis until the contractor has furnished the engineer an itemized statement of the cost of such force account work detailed as follows:

11.4.h.1.A. Name, classification, date, daily hours, total hours, wage rate, fringe benefit rate and extended amounts for each laborer and foreman.

11.4.h.1.B. Quantities of materials, unit prices and extended amounts.

11.4.h.1.C. Transportation of materials.

11.4.h.1.D. Designation, dates, daily hours, total hours, rental rate/hour, operating cost/hour, and extended amount for each unit of equipment.

11.4.h.1.E. Transportation of equipment.

11.4.h.1.F. Rates for property damage insurance, liability insurance, bond, municipal tax, subsistence and travel allowance, Worker's Compensation insurance, unemployment insurance, Social Security and Medicare taxes.

11.4.h.2. The contractor must also furnish satisfactory evidence of the actual cost for each of the charges listed on the itemized statement (excluding those charges for owned equipment determined from the Rental Rate Blue Book).

11.4.i. Basis of Payment. The compensation provided in subdivision 11.4.a to 11.4.g of this rule, inclusive, shall be received by the contractor as payment in full for extra work done on a force account basis, including all labor, materials, equipment, fuel, lubricants, maintenance of equipment, administration, overhead, use of small tools and equipment for which no rental is allowed, profit, taxes, bond costs, insurance premiums, unemployment contributions and any other expense arising from the performance of the force account work.

11.5. Eliminated Item. Should any items contained in the proposal be found unnecessary for the proper completion of the work, the engineer may, upon written order to the contractor, eliminate such items from the contract, and such action will in no way invalidate the contract. When a contractor is notified of the elimination of items, he or she will be reimbursed for actual work done and all costs incurred, including mobilization of materials prior to the notification.

11.6. Partial Payments. The engineer will make current estimates in writing, once each month on or before the date set by the engineer at the time of starting the work, or from time to time as the work progresses, of the materials complete in place and the amount of work performed in accordance with the contract, during the preceding month or period and the value thereof figured at the unit prices contracted. Current estimates may be prepared for payment on a semi-monthly basis at the discretion of the engineer when the amount due the contractor for work during the semi-monthly period exceeds $10,000. Should there be any doubt by the engineer as to the integrity of any part of the completed work, the estimates for that portion will not be allowed until the cause for such doubt has been removed.

11.7. Payment for Material on Hand. Partial payment may be made to the extent of the delivered costs of material to be incorporated into the work, provided the material meets the requirements of the plans and specifications when delivered in the vicinity of the project or at approved off-site locations. In any event, partial payment for material on hand will not exceed the bid price. Such material shall be stored in acceptable storage places, and the contractor shall furnish evidence of payment for the delivered cost of the material within 90 days of the cut-off date of the estimate on which this material was paid.

11.8. Acceptance and Final Payment. When the project has been accepted, as provided in subsection 7.16 of this rule, the engineer will prepare the final estimate of the quantities of the various classes of work performed. Before final payment is made, the contractor shall execute the statement of acceptance on the back of the final estimate. After the contractor executes such final estimate or if the contractor fails or declines to execute the final estimate within 30 days after receipt, the division will consider the estimate approved and accepted and he or she will be paid the entire sum found to be due after deducting all previous payments and all amounts to be retained or deducted under the provisions of the contract. Upon written request from the contractor received within 30 days of his or her receipt of the final estimate, the time for review and execution of the final estimate will be extended up to 60 additional calendar days. No time beyond the original 30 days allowed for this review will be considered for interest payment under the provisions in the following paragraphs. Should the contractor desire to reserve the right to file a claim with the state court of claims for any sum or compensation not included in the final estimate, growing out of the contract, then a reservation of right stipulating the nature, each item and the amount claimed shall be added at the end of the acceptance statement. This claim must be filed with the state court of claims within 120 days of execution of the final estimate.

11.8.a. All prior partial estimates and payments will be subject to correction in the final estimate payment.

11.9. Price Adjustment Of Fuels. Because of the uncertainty in estimating the costs of fuels that will be used during the life of this contract, adjustment in certain contract items is provided for as follows:

11.9.a. Product price quotations for fuel oil No. 2 (diesel fuel), as published by the Oil Price Information Service (OPIS) will be utilized to establish the contract base price as well as the monthly base price thereafter. These prices will be the average of the individual prices for the following locations:

Charleston, West Virginia Ashland, Kentucky Pittsburgh, Pennsylvania Roanoke, Virginia Marietta, Ohio as published on the Wednesday prior to the date of the first letting of the month.

11.9.b. If the Wednesday prior to the first letting date of the month falls on a holiday or the price is otherwise not published for that date, the index prices will be based on the next earliest date published by OPIS.

11.9.c. The contract base price (Cbp) and the monthly base price (Mbp) may be found posted on contract administration’s website for fuel and asphalt prices at the following link: https://transportation.wv.gov/highways/contractadmin/Lettings/Pages/FuelandAsphaltPrices.aspx

11.9.d. Any dispute concerning the (Cbp) shall be resolved during the first voucher estimate review.

11.9.e. The portion of the contract unit price which reflects the cost of the specified material will be adjusted for the change in accordance with the following formulae:

Pa = [(Mbp ÷Cbp) – 1.00] x Cbp x C x Q Where:

Pa Price Adjustment Mbp Monthly base price at time of placement Cbp Contract Base Price at time of bidding C Cost Adjustment Factors per Unit of Contract Item Bid as outlined in chart below Q ‘As Constructed’ Quantity

11.9.f. Adjustments in compensation for any period may be either plus or minus. If (Mbp) is greater than (Cbp), the adjustment will be plus. If (Cbp) is greater than (Mbp), the adjustment will be minus.

11.9.g. The adjustment in compensation for diesel fuel used for the listed items will be made on the separate items on the basis of the average diesel fuel requirements for processing a unit of the item as shown in the table below.

11.9.h. The gallons (liters) of diesel fuel for price adjustment will be determined by multiplying the usage factors listed in the table below by the amount of acceptable work performed on the separate adjustable items during an estimate period.

11.9.i. All adjustments will be made based on the gallons (liters) of diesel fuel indicated in the table below and no changes will be made for variations between these usage factors and the actual factors.

COST ADJUSTMENT FACTORS FOR FUEL USAGE

Class Units Factor Excavations under sections 207 and 211 of the Standard Specifications Roads and Bridges Gallons per cubic yard 0.25 Crushed aggregate under sections 307, 311, and 405 of the Standard Specifications Roads and Bridges Gallons per ton* 0.62 Bituminous Concrete under sections 401 and 402 of the Standard Specifications Roads and Bridges Gallons per ton 1.06 Rigid concrete pavement under sections 501 and 502 of the Standard Specifications Roads and Bridges Gallons per cubic yard 0.76 * Where the pay item for aggregate is in cubic yards, conversion to tons for the purpose of fuel price adjustment will be made on the basis that one cubic yard equals 1.75 tons.

11.9.j. Any difference between the checked final quantity and the sum of quantities shown on the monthly estimates for any item will be adjusted by the following formula:

FA = (FCQ PRQ) x EA where:

FA = Final Adjustment (dollars)

FCQ = Final Checked Quantity PRQ = Total Quantity Previously Reported on Monthly Estimates EA = Total Adjustment Shown on Monthly Estimates (dollars)

11.9.k. The monthly base price for determining price adjustments for all work performed after the contract completion date, as revised by approved time extensions, will be the monthly base price (Mbp) at the time of the contract completion date (as extended) or at the time the work was performed, whichever is less.

11.9.l. The final adjustment will consider any error(s) that may have been made in the computation of monthly adjustments.

11.10. Price Adjustment of Asphalt Binder. Because of the uncertainty in estimating the cost of petroleum products that will be used during the life of this contract, adjustment in compensation for certain contract items is provided for as follows:

11.10.a. The contract items listed in the table of materials to be adjusted for price of asphalt at the time of placement will be adjusted in accordance with the division’s indices for asphalt binder. The bidding index (Ib) for asphalt binder will be equal to the placement index for the month immediately prior to the month in which the project is bid. The placement index (Ip) will be the price in effect for the month in which the specified adjustable material was actually placed. Both the bidding index (Ib) and the placement index (Ip) will be based on the average of the posted prices of PG 64-22 asphalt binder per ton/megagram as reported from the following sources for the first day of each calendar month:

Marathon Petroleum Company, LLC, Catlettsburg, Kentucky Marathon Petroleum Company, LLC, Floreffe, Pennsylvania Asphalt Materials, Inc., Marietta, Ohio NuStar Asphalt Refining Company, Baltimore, Maryland Associated Asphalt, Martinsburg, West Virginia

11.10.b. The bidding index (lb) and the placement index (Ip) may be found posted on contract administration’s website for fuel And asphalt prices at the following link: https://transportation.wv.gov/highways/contractadmin/Lettings/Pages/FuelandAsphaltPrices.aspx

11.10.c. If one of the sources listed above changes ownership and/or name the posted price for that terminal will continue in use as though the ownership and/or name change had not occurred.

11.10.d. If one of the sources used for determining either the bidding index or the placement index goes out of business, any future index will be based on the average of the remaining sources. Thus, the bidding index (Ib) could be based on the average of five sources and the placement index (Ip) on the average of four sources or vice-versa. If a source that goes out of business reopens at a later date, the placement index would once again be based on the average of five sources as indicated above.

11.10.e. The posted price for each source will be compared to the average of all sources. If the difference between the average and the individual price is greater than 25 % of the average, that individual source will be excluded from the calculation of the average price (Ib) or (Ip) and a new average will be calculated using the remaining sources.

11.10.f. Sources chosen for the index are required to report their posting to the division no later than the Wednesday prior to the first day of each month. Failure to report in a timely manner may impact source approval.

11.10.g. The portion of the contract unit price which reflects the cost of the specified material will be adjusted for the change in accordance with the following formulae:

Pa = [(Ip ÷ Ib) – 1.00] x Q x Applicable “C” Factor (C1 or C2)

Where:

Pa Price Adjustment Ip Price Index at time of placement Ib Price Index for Bidding C1, C2 Adjustable Material Cost per Unit of Contract Item Bid Q ”As Constructed” Quantity

11.10.h. The price index for determining price adjustments for all work performed after the contract completion date, as revised by approved time extensions, will be determined as follows: The price index (Ip) shall be for the month in which the contract completion date (as extended) alls, or the price index for the month in which the work was performed, whichever is less.

11.10.i. Table of Materials to Be Adjusted for Price of Asphalt at the Time Of Placement:

TABLE OF MATERIALS TO BE ADJUSTED FOR

PRICE OF ASPHALT AT THE TIME OF PLACEMENT

(English & Metric)

Adjustable Material Bidding Index (Ib)

Adjustable Material Cost (C), (C1) or (C2) Dollars Per Unit of Asphalt Mixture or Per Gallon (Liter) or Liquid Asphalt Material Asphalt Binder under Sections 401 and 402 * (C1)

Asphalt Binder under Section 311 * (C2) *The bidding Indexes (Ib) and the placement indexes (Ip) may be found posted on Contract Administrations website for Fuel And Asphalt Prices at the following link: https://transportation.wv.gov/highways/contractadmin/Lettings/Pages/FuelandAsphaltPrices.aspx

11.10.j. The bidding index for asphalt binder will be the price in effect for the month prior to the month in which this contract is let.

11.10.k. Any dispute concerning the bidding index shall be resolved during the first voucher estimate review.

11.10.l. In order to determine the applicable adjustable material cost (“C”) factor for asphalt material under sections 405 and 636, multiply the bidding index (Ib) by 0.0027 for English or 0.001 for metric.

11.10.m. The “C” values given per gallon of liquid asphalt material is based on the use of an emulsion which is assumed to contain 65% asphalt material and a gallon of emulsion weighs 8.43 pounds of a liter of emulsion weights 1.00 kg. If a cut-back asphalt is used “C” as given in the above table must be multiplied by 1.54 to arrive at a modified “C” factor for use in the formula. No change will be made in the adjustable material cost (C) for variations between these assumptions and actual factors.

11.10.n. The adjustable materials costs (C1) and (C2) are based on the approved job mix formula for the specific asphalt mixture being placed in accordance with the following formulae:

(C1) = Ib x Ac x 1 ton or [ (C1) = Ib x Ac x 1 megagram ] where Ac equals the approved asphalt content expressed in decimals, i.e. 5.8% asphalt content equals 0.058. When reclaimed asphalt pavement (RAP) is used in the mix, Ac is the % virgin or new asphalt added to the mix.

(C2) = Ib x Ac x 1.6 tons/cy or [ (C2) = Ib x Ac x 1.9 mg/m3 x 1 meter ] where Ac equals approved asphalt content expressed in decimals and it is assumed that a cubic yard of asphalt treated open-graded free draining base weights 1.6 tons or 1.9 Mg. No change will be made in C2 for variations between this assumption and the actual factor.

11.11. Load Limit Violations and Weigh Tickets. The allowable gross weight for any vehicle being used to haul materials on publicly maintained highways under the terms of this contract shall be as follows.

11.11.a. Title 23 Code of Federal Regulations, Section 658.17, establishes maximum allowable gross weight on the Interstate System. The maximum allowable gross weight on WV and US Routes will be as established in W. Va. Code §17C- 17-1 et seq. and §17C-17A-1 et seq. The public service commission, weight enforcement section is responsible for the enforcement of these provisions.

11.11.b. A weigh ticket shall be required with each load of material from a commercial source which would normally have truck scales. This includes, but is not limited to, all asphalt paving materials and all aggregates regardless of the contract pay unit. The weigh ticket shall include gross, tare, and net weights, time and date of loading, item number or description of materials, contract number or project number, number of axles on haul unit, license number of haul unit, and signature of the weigher certifying that all information on the ticket is correct. If the weigher’s name is printed by the computer on the ticket, then it only needs to be initialed by the weigher.

11.11.c. For material from a commercial source or a batch plant, which would not normally have truck scales, a weigh ticket documenting the tare weight, number of axles on the haul unit, license number of haul unit, date weighed, location of scales, and signature of the weigher certifying that all information on the ticket is correct, may be supplied for each haul unit as an alternate to the ticket required in the previous paragraph. The tare weight ticket shall be supplied for each contract on a yearly basis and when modifications are made to the vehicle or combination of vehicles. The weight of the material delivered shall be calculated and furnished by the vendor/supplier shipping the material to the project site or DOH facility. This includes, but is not limited to, concrete, structural steel, piling, reinforcing steel and all prepackaged material of known weight, such as cement, grout, fertilizer, lime, abrasives, etc.

11.11.d. If the haul unit is a combination of vehicles, the license number shall be supplied for each component. The tare weight shall be for the complete haul unit.

11.11.e. All weighing shall be done on scales approved and sealed by the West Virginia Division of Labor, Bureau of Weights and Measures. If the scales are moved or upon the request of the engineer, the scales shall be reapproved and sealed. The engineer shall be notified of any scale malfunctions. The division may, at its option, accept inspection and sealing by out of state agencies when the material is being loaded outside West Virginia.

11.11.f. Any material covered by this provision which is delivered without the proper weigh ticket shall not be accepted by the division.

11.11.g. Nothing in this provision relieves any party from compliance with the State Law on load limits or any fines which may be assessed for violation of said law.

11.11.h. In addition, for asphalt, precast concrete products, pipe, reinforcing steel, aggregate, and concrete, electronic ticket delivery (e-tickets) shall be required with the standard information provided as on the paper ticket. The e-ticketing system must interface with the WVDOH e-ticketing portal. A digital signature of the weigh person on an e-ticket shall be considered the equivalent as a hand-signed/initialed, printed ticket.

W. Va. Code R. § 157-3-12 Miscellaneous Provisions

12.1. Common Carrier Rates. The common carrier rates and taxes thereon which are current on the date of opening the bids shall be considered applicable to all items subject to transportation charges there under.

12.1.a. If such rates or taxes are thereafter increased by public authority on any materials entering into and forming a part of the contract, an amount equal to the sum of all such increases, when evidenced by receipted common carrier bills, will be paid to the contractor by the division. All claims for such payments shall be made within 60 days after final acceptance of the work.

12.1.b. If such rates or taxes thereafter reduced by public authority on any materials entering into and forming a part of the contract, an amount equal to the sum of all such decreases, when evidenced by receipted common carrier bills, will be deducted by the division from the monies due the contractor on the work performed under the contract.

12.1.c. When deliveries of materials are performed by means other than common carriers, an increase or decrease in price will not be allowed or charged for changes in rates or methods of delivery.

12.2. Minimum Wage Determinations. The contractor shall comply with the requirements of the Davis-Bacon Act on all Federal-Aid construction projects, as applicable. https://www.dol.gov/agencies/whd/government-contracts/construction#:~:text=Davis-Bacon%20Act%20and%20Related%20Act%20contractors%20and%20subcontractors,Labor%20to%20determine%20such%20locally%20prevailing%20wage%20rates.

12.3. Nondiscrimination of Employees (Governor's Executive Order). During the performance of this contract for public work or for goods or services, the contractor agrees as follows:

12.3.a. The contractor and subcontractors shall provide equal employment opportunity for all qualified persons and shall not discriminate against any employee or applicant for employment because of race, creed, color or national origin.

12.3.b. Contractors and subcontractors are required to give written notice to any labor union with which they have a collective bargaining or other agreement, that they have complied with the requirements of the executive orders by the Governor of the State of West Virginia, dated October 16, 1963, and December 15, 1965. These provisions shall be fully and effectively enforced and any breach of them will be regarded as a material breach of the Contract.

12.4. Provisions for West Virginia State Funds Contracts.

In addition to the forgoing requirements, contractors on a project funded with state funds must comply with the West Virginia Jobs Act, West Virginia Code | §21-1c (wvlegislature.gov)

W. Va. Code R. § 157-3-13 Disqualification Suspension, and Revocation of Pre-qualified Contractors

13.1. General Purposes. This section provides procedures regarding the Division of Highways' disqualification, suspension, and revocation of pre-qualified contractors in instances where there is cause to believe that a pre-qualified contractor is not complying with laws or regulations that pertain to the competition for or the performance of contract work awarded by the Division of Highways.

13.2. Disqualification. The Commissioner may, in his or her sole discretion, disqualify a pre-qualified contractor or its affiliates from bidding on division contracts for any of the following causes:

13.2.a. Conviction, judgment or admission of a bidding crime. This paragraph includes any admission in the presentation of testimony of an unindicted co-conspirator or any admission in testimony protected by a grant of immunity to the contractor in any jurisdiction.

13.2.b. Conviction, judgment or admission of any other crime for an illegal act(s) that pertains to competition for or performance of contract work for the division.

13.2.c. Debarment by the Federal Highway Administration.

13.2.d. Deliberate and repeated violation of regulations promulgated by the Commissioner in accordance with the West Virginia Code.

13.2.e. That a vendor who has been debarred pursuant to the provisions of W. Va. Code §5A-3-33d, may not bid on or be awarded a contract.

13.2.f. Any other cause affecting the performance of contract work for the division that is of a serious and compelling nature.

13.3. Suspension.

13.3.a. The Commissioner may, in his or her sole discretion, suspend the Certificate of Qualification of a pre-qualified contractor where there is reasonable belief that any of the reasons set forth in subsection 13.3 of this rule for disqualification is present. If the Commissioner determines a suspension is proper, he or she shall furnish written notice by registered mail to the contractor and any named affiliates stating:

13.3.a.1. that a suspension has been imposed;

13.3.a.2. the effective date of the suspension;

13.3.a.3. the cause or causes giving rise to the suspension;

13.3.a.4. that the suspension is for a temporary period pending the completion of an investigation and any ensuing legal or disqualification proceedings;

13.3.a.5. that the pre-qualified contractor may within l0 days of receipt of the notice, request in writing an informal hearing, which will be held at a mutually agreeable date, but no later than 60 days subsequent to the receipt of the pre-qualified contractor’s request for an informal hearing.

13.3.b. A suspension shall be for a temporary period pending the completion of investigation or any ensuing legal or disqualification proceeding unless terminated by the Commissioner. A suspension shall not continue for more than six (6) months from its effective date, unless civil or criminal action regarding the alleged violation has been initiated within that period, or unless disqualification proceedings have been initiated. The suspension may continue until the legal or disqualification proceedings are completed.

13.4. Disqualification Procedures.

13.4.a. After determining that cause exists under subsection 13.3 of this rule to disqualify a pre-qualified contractor, the Commissioner or his or her duly authorized representative shall furnish written notice of a hearing to the pre-qualified contractor and any named affiliates. The notice shall state:

13.4.a.1. that disqualification is being considered;

13.4.a.2. the facts or allegations giving rise to the proposed disqualification;

13.4.a.3. the cause or causes under subsection 13.3 of this rule relied upon for proposing disqualification;

13.4.a.4. the time, place and date of the hearing;

13.4.a.5. the name and mailing address of the hearing examiner;

13.4.a.6. if a suspension is not in effect before the notice is sent, that contracts may not be awarded to the contractor by the division pending the decision of the hearing examiner.

13.4.b. The hearing will be conducted in accordance with 157CSR1-3 of the West Virginia Division of Highways' Rules. The hearing examiner may extend the date of any hearing upon request of the contractor, but the hearing shall not be extended to later than sixty (60) days from the date the notice was sent. A transcribed record of the hearing shall be made unless the Commissioner and the contractor waive that requirement. At the conclusion of the hearing, the hearing examiner shall issue to the Commissioner and the contractor and all named affiliates written findings of fact and the recommended administrative action.

13.4.c. The Commissioner, after receiving the record, findings of fact and recommendations of the hearing official shall determine the administrative action to be taken. The Commissioner shall notify the named contractor or contractors of his or her determination in writing. If the determination is to impose disqualification, the determination shall set forth the period of time for which disqualification is imposed.

13.4.d. The determination made by the Commissioner may include all named affiliates of the contractor, provided that each decision to include an affiliate is made only after allowing the affiliate to participate in the hearing with the same procedural rights afforded the contractor.

13.5. Period of Disqualification.

13.5.a. The Commissioner may disqualify a pre-qualified contractor for a period of three months to three years.

13.5.b. At the sole discretion of the Commissioner the disqualification may be reduced, lifted or suspended at any time, if it is in the public interest to do so. Any mitigating circumstances may be considered in the decision to impose, reduce, lift or suspend disqualification and may include, but shall not be limited to:

13.5.b.1. the degree of culpability of the disqualified contractor;

13.5.b.2. restitution by the disqualified contractor to the Division for any overcharges or other damages;

13.5.b.3. cooperation by the disqualified contractor with any investigation undertaken by appropriate State agencies or other sovereign bodies;

13.5.b.4. elimination of the causes for which the disqualification was imposed.

13.6. Revocation. Revocation occurs when a contractor’s prequalification status is revoked for a period of 12 months for failure to follow the rules set forth in the Special Provision for Disadvantaged Business Enterprises.

13.7. Revocation Procedures.

The following procedures shall be followed when a contractor’s prequalification status is revoked for failure to follow the rules set forth in the Special Provision for Disadvantaged Business Enterprises:

13.8. The Division shall promptly notify the contractor in writing and provide them with an opportunity to appeal the decision. The Division shall follow the hearing procedures set forth in W. Va. Code St. R. § 157-1-3. Furthermore, pursuant to this rule the contractor’s pre-qualification status will be suspended during an investigation to determine if revocation is applicable or an ensuing legal challenge to the revocation.

13.8.a. Within 30 days of the notice that the contractor’s pre-qualification status has been revoked, the contractor may send a written request for an informal appeal to Contract Administration Division at DOHContractProcure@wv.gov or to West Virginia Department of Transportation, Commissioner of Highways (c/o Contract Administration Division), Building Five, Room 840, 1900 Kanawha Boulevard, East, Charleston, West Virginia 25305.

13.8.b. Within 30 days of receipt of the request for an informal appeal, the Director of Contract Administration Division, or his or her designee, will review the request and make a determination.

13.8.c. The Director of Contract Administration, or his or her designee, will present the determination and any associated terms to the Chief Engineer of Construction for approval.

13.8.d. Within 30 days of receipt of the informal appeal, the Contractor shall be notified in writing by the Contract Administration Division Director, or his or her designee, of the determination, and any other terms set forth.

13.8.e. Should the contractor not agree with the determination and/or terms set forth by the Contract Administration Division Director, the contractor may request in writing a formal hearing to be presided over by the Commissioner, or his or her designee.

13.8.f. The Commissioner, or his or her designee, shall give all parties involved not less than 10 days’ notice of the time and place of hearing, in writing.

13.9. Effect of Disqualification, Suspension, or Revocation by Other Jurisdictions. The Commissioner shall not be bound by the disqualification, suspension, or revocation of a contractor by other jurisdictions, but may consider any and all information available from whatever source to determine if a contractor lacks the qualities of moral and/or ethical integrity so long as there is compliance with the procedures set forth in these regulations.

13.10. List of Disqualified, Suspended, or Revoked Contractors. The Commissioner shall maintain a list of all contractors and affiliates who have been disqualified, suspended, or revoked in accordance with these rules.

13.11. Notice to Contractors. A copy of this rule shall be mailed to each pre-qualified contractor.

157CSR3

157CSR3

157CSR3

157CSR3

Series 04 Purchase and Disposal of Materials, Equipment and Supplies

W. Va. Code R. § 157-4-1 General

1.1. Scope. -- This procedural rule relates to the purchase and disposal of materials, equipment and supplies of the division of Highways. It provides the process of disposing of materials, equipment and supplies through sale, auction, trade, and exchange.

1.2. Authority. -- W. Va. Code §17-2A-24.

1.3. Filing Date. -- January 30, 2025.

1.4. Effective Date. -- March 1, 2025.

W. Va. Code R. § 157-4-2 Purchase of Materials, Equipment and Supplies; Registration of Vendors

2.1. General. The purchase of materials, equipment and supplies required for the state road program and system is governed by statute. (See §17-4-19, §5A-3-1 et seq., §17-2A-8, §17-2A-13, §17-2A-15, and §17-2A-17). Handbook of Purchasing Procedures, compiled by the Purchasing Division of Department of Finance and Administration, as it applies to the Department of Highways. The requirements as to registration of vendors are specified by statute. (See §5A-3-12, and §17-2A-16).

W. Va. Code R. § 157-4-3 Disposition of Materials, Equipment and Supplies

3.1. Manner of Disposition. Obsolete and unusable equipment, surplus supplies and other unneeded materials may be disposed of either by transfer to other governmental agencies or institutions, including the State Agency for Surplus Property by exchange or trade, or by sale as junk or otherwise. (§17-2A-8(35), §17-2A-14, §5A-3-44, and §5A-3-45).

3.2. Obsolete Equipment, Surplus Supplies, Unneeded Materials. Prior to the disposition of obsolete and unusable equipment, surplus supplies, and other unneeded materials, the Highways Commissioner or his designee shall make a finding that the equipment is obsolete or unusable, or that such supplies and materials are surplus and not needed for road purposes.

3.3. Inventory Report. The Commissioner shall inventory all disposable materials, equipment and supplies from time to time as quantity and stocks may warrant, but shall make a complete semi-annual inventory thereof as of the 31st day of March and the 30th day of September of each year.

(1) The inventory shall briefly describe the disposable items, the purchase price paid therefore, and a brief statement of the reasons the items are no longer needed or can no longer be used by the Division.

(2) All inventories shall be kept as public records open to public inspection.

3.4. Notice to State Agencies, Counties, Municipalities; Priority. Prior to offering the transfer, sale, exchange or trade of obsolete or unusable equipment, supplies or material to the general public, notice shall be given to all state agencies and state institutions, and counties and municipalities in the area where the sale is to be made, of the equipment, supplies, and materials. First priority to purchase such materials will be given to state agencies and institutions and thereafter to the counties and municipalities, respectively. In lieu of offering obsolete or unusable equipment, supplies or material to governmental entities or the public, it may be transferred to the State Agency for Surplus Property for disposal.

3.5. Sale to Other Public Body; Price. The sale, transfer, exchange or trade of equipment, supplies and materials to state agencies or institutions, counties and municipalities may be made without public advertisement and shall be based on the lowest possible market price therefore taking into consideration the purchase price paid for the equipment, supplies and materials, less the depreciation thereon, the average price of auction sales and other prior sales of the same or similar product. The Director of the Equipment Division, or designee, must approve all sales before they become final.

3.6. Public Sale; Notice. If any obsolete or unusable equipment, or surplus or unneeded materials or supplies cannot be sold or otherwise transferred to another governmental agency, within a reasonable time, as provided for in this rule, the equipment, materials or supplies shall be offered for sale at public auction. The public auction may be conducted at a physical location, specified by the Director of the Equipment Division, electronically over the Internet or by telephone, or by any combination of these means. Notice of the time and place of the physical auction, the Internet address of the electronic auction, or other means of sale shall be published once each week for at least two successive weeks prior to the date of the proposed sale. In the case of an auction conducted in whole or in part at a physical location, notice shall be published in a newspaper of general circulation in the county where the sale is to be held. In the case of an auction conducted in whole or in part electronically or telephonically, notice shall be published on the Internet and in a newspaper of statewide circulation. Auctions may also be advertised in other newspapers and other news media, or in such other manner, as circumstances dictate or may be deemed necessary and desirable.

(1) Mailing List the Commissioner or his or her representative shall maintain a mailing list of all persons interested in bidding at any such sale and shall mail a written or electronic notice of the time and place or Internet address of such sale to all such persons at least two weeks prior to the date of the sale. Any person interested in such notice may request that his or her name and address be placed on the mailing list, and all notices will be sent to him or her in the future.

3.7. Bidders; Prequalifications. All persons who wish to become bidders on any of the equipment, materials or supplies provided for in this section shall first complete an application form and deposit it with the Commissioner or duly authorized representative. The form and bidder registration processing may also be offered on the Internet Auction website.

3.8. Payment for and Removal of Equipment, Materials and Supplies; Passage of Title; Forfeiture of Deposit. Title shall pass to the high bidder on any equipment, materials or supplies offered for sale at public auction, as provided herein, upon payment in full of the amount of the high bid for a single item, or in the case of more than one item, upon payment in full of the high bid for all items, within 10 days from the date of the public auction, and upon removal of all items purchased, within 10 days from the date of the public auction. In the event the high bidder fails to pay the purchase price in full for all items purchased and remove them within 10 days from the date of the public auction, the executory contract of sale entered into shall be void. Any bidder who fails to pay for or remove equipment as required by this section shall be placed on a restricted bidder’s list for future auctions. A restricted bidder shall be required to provide a $5,000 deposit to participate in future auctions. Provided, however, that the Commissioner may in his or her discretion extend the time for payment or removal of the item or items, where written request is made for an extension, and in the judgment of the Commissioner good and sufficient cause exists for granting an extension.

3.9. Exchange or Trade of Equipment, Materials or Supplies. In the event obsolete or unusable equipment or surplus or unneeded materials or supplies are exchanged or traded, the Commissioner shall have the item or items owned by the Division appraised by a competent person; the appraisal shall serve as a guide in the negotiation of the trade or exchange.

157CSR4

157CSR4

Series 06 Use of State Road Rights of Way and Adjacent Areas

W. Va. Code R. § 157-6-1 General

1.1. Scope. -- This legislative rule establishes general rules pertaining to the use of state road rights of way and adjacent areas.

1.2. Authority. -- W. Va. Code §17-1-1 et seq.; §17-3-9; §§17-4-1, 2, 39, 40, and 45; §17-16-1 et seq.; §17-20-1 et seq.; §17-22-1 et seq.; §17-23-1et seq.; §17-23-1 et seq.; and §17-24-1 et seq.

1.3. Filing Date. – March 21, 2025.

1.4. Effective Date. – March 21, 2025

1.5. Sunset Provision – This rule Shall terminate and have no further force and effect August 1,2030.

W. Va. Code R. § 157-6-2 Definitions

2.1. "Abandoned salvage yard" means any unlicensed salvage yard or any salvage yard that was previously licensed but upon which the license has not been renewed for more than one year.

2.2. "Authorization number" means the unique, seven-character number assigned for cost accounting purposes to a specific highway project. This number is only assigned upon review and acceptance of the project by Division of Highways management.

2.3. "Back to back sign" means any sign constructed on a single set of supports with two sign facings in opposite directions each of which may have up to two sign faces visible.

2.4. "Changeable message signs (CMS)" means an outdoor advertising sign, display, or device which changes the message or copy on the sign by means of electronic rotation of panels or slats, or by LED, OLED or other illuminated message center. CMSs are considered outdoor advertising signs and must comply with all requirements applicable to outdoor advertising signs.

2.4.a. An off-premises CMS may not include, moving video or scrolling messages. Off-premises CMS must comply with all requirements for off-premises signs generally.

2.4.b. An on-premises CMS may scroll or change message content but may not contain flashing images. On-premises CMS must comply with all requirements for on-premises signs generally.

2.4.c. No CMS sign, display or device, whether on-premises or off-premises, may be illuminated by any rapid flashing intermittent light or lights.

2.5. "Commissioner" means the Commissioner of the West Virginia Department of Transportation, Division of Highways.

2.6. "Contiguous" means lots, parcels, municipal boundaries, or county boundaries that are next to, abutting and having a boundary, or portion thereof, that is coterminous. Streets, highways, roads or other traffic or utility easements, streams, rivers, and other natural topography are not to be used to determine lots, parcels, municipal boundaries, or county boundaries as contiguous.

2.7. "Control area" means that area within 660 feet of the nearest edge of the right of way of interstate or federal-aid primary highways and visible from the main-traveled way of the interstate or federal-aid primary highway. The distance is measured from the outer edge of the right of way in a straight line.

2.8. "Controlled-access highway" means any state highway or portion thereof which, for purposes of federal-aid funding, has been designated a federal-aid primary highway and further has been designated a controlled-access highway pursuant to the authority vested in the Commissioner in W. Va. Code §§17-4-39, 40 and 41.

2.9. "Cutouts and extensions" mean structural additions or deletions to a sign face area.

2.10. "Defense highway" means those highway routes, designated by the Division of Highways, which might reasonably be used for important defense shipments, movements of troops or military hardware and/or supplies, or for the evacuation of the general public from disaster areas.

2.11. "Destroyed" or "Damaged" means fifty percent (50%) or more of the sign structure and sign face have been visibly separated, broken, or apart from the remaining sign structure.

2.12. "Device" means any card, cloth, paper, metal or wooden advertising emblem or sign of any kind or character, which is posted, stuck, glued, tacked, nailed, painted, or otherwise fastened or affixed to or upon any fence, post, tree or thing other than an advertising sign or structure.

2.13. "Division" means the West Virginia Department of Transportation, Division of Highways.

2.14. "Display" means any poster, bill, printing, writing, drawing, painting, or advertising material of any kind or character whatsoever, designed and intended to draw the attention of the public to any goods, merchandise, property, real or personal, business service, entertainment or amusement, produced, bought, sold, conducted, furnished, or dealt in by any person, which is placed, posted, painted, tacked, nailed, glued or otherwise affixed or fastened to any advertising sign or structure, or otherwise displayed outdoors.

2.15. "Expressway" means any road serving major intrastate and interstate travel, including federal interstate routes.

2.16. "Farm" means a tract or contiguous tracts of land used for agriculture, horticulture, or grazing.

2.17. "Federal-aid primary highway" means any highway which, for federal-aid funding purposes, has been designated or classified or redesignated or reclassified as a federal-aid primary highway.

2.18. "Feeder" means any road serving community-to-community travel and/or any road which collects and feeds traffic to one of the higher road systems (expressway and trunkline).

2.19. "Fence" means an enclosure, barrier or screen constructed of materials or consisting of plantings, natural objects or other appropriate means approved by the Commissioner and located, placed, or maintained so as to effectively screen at all times salvage yards and the salvage therein contained from the view of persons passing upon the public roads of this State.

2.20. "Focal Point" means the location from which an LED, OLED or other illuminated message center, display or sign appears brightest.

2.21. "Interchange" means a system of interconnecting roadways in conjunction with one or more grade separations that provides for the movement of traffic between two or more roadways or highways on different levels.

2.22. "Interstate highway" means that portion of the system of highways in West Virginia which, for federal-aid funding purposes, has been designated or classified or redesignated or reclassified as interstate highway and which is classified as an expressway under the provisions of W. Va. Code §17-4-2.

2.23. "Intervening building, structure or roadway" means a building, overhead structure, or roadway which is located in such a manner that from any point along the highway, it obscures all signs, displays and devices on the same side of the highway within the minimum spacing distances set forth in subsection 7.8 of this rule. Only roads, streets, and highways that enter directly into the main traveled way of the highway system being considered will be regarded as intervening roadways.

2.24. "Legible" means capable of being read or understood without visual aid by a person of normal visual acuity while traveling in an ordinary passenger car on any public road at the applicable speed limit.

2.25. "Main traveled way" means the traveled way of a highway on which through traffic is carried. In the case of a divided highway, the traveled way of each of the separate roadways for traffic in opposite directions is a main-traveled way. It does not include such facilities as frontage roads, turning roadways, or parking areas.

2.26. "Nonconforming sign" means a sign which was lawfully erected but which does not comply with the current provisions of state law or which fails to comply with state law or rules because of changed conditions at the site.

2.27. "Occupied private residence" means a private residence which is occupied for at least six months each year.

2.28. "On-premises sign" means those signs that advertise the sale or lease of, or activities being conducted upon, the real property where the signs are located.

2.29. "Outdoor advertising sign" means any sign structure or combination of sign structure or message in the form of outdoor sign, display, device, figure, painting, drawing, message, plaque, poster, billboard, advertising structure, advertisement, logo, symbol or other form which is designed, intended or used to advertise or inform, any part of the message or informative contents of which is visible from the main traveled way. The term does not include official traffic control signs, official markers, or specific information panels erected, caused to be erected, or approved by the Division.

2.30. "Owner or operator" means an individual, firm, partnership, association or corporation or the plural thereof who owns land, a business, an advertising sign, an overhead structure, a roadway obstruction, a roadside memorial marker, etc., as it may relate to the provisions of this rule.

2.31. "Permanent memorials" means items such as plaques, stone monuments and etc., which are typically self-supported, intended to last many years and require a more significant installation or mounting process.

2.32. "Person" means an individual, partnership, association, or corporation.

2.33. "Removed" means the dismantling and complete removal from the view of the motoring public of all parts and materials of a sign or sign structure to include but not be limited to faces, and beams, poles, braces, stringers, guys, and struts which are used or intended to be used to support or display a sign.

2.34. "Residential community" means an area wherein five or more occupied private residences are located within any one thousand feet radius.

2.35. "Road; public road; highway" as defined in W. Va. Code §17-1-3 means but is not limited to, the right of way, roadbed and all necessary culverts, sluices, drains, ditches, waterways, embankments, slopes, retaining walls, bridges, tunnels, and viaducts necessary for the maintenance of travel, dispatch of freight and communication between individuals and communities; and these public roads or highways include any road to which the public has access and which it is not denied the right to use, or any road or way leading from any other public road over the land of another person, and which shall have been established pursuant to law.

2.36. "Roadside memorials" means any of the various kinds of tributes, typically ornamental, placed alongside the roadway to memorialize people who have died as a result of vehicular accidents. Roadside memorials include and are limited to temporary memorials, permanent memorials, and roadside memorial signs.

2.37. “Roadside memorial signs” means official signs, provided and placed by the Division of Highways, installed at or near the site where a fatal motor vehicle accident occurred considering available space and other constraints, and of a design approved by the Commissioner.

2.38. "Salvage" means old or scrap copper, brass, rope, rags, batteries, paper, rubber, trash, waste, junked, dismantled, or wrecked machinery, machines or motor vehicles, or any parts of any junked, dismantled or wrecked machinery, machines or motor vehicles, iron, steel and other old or scrap ferrous or non-ferrous materials.

2.39. "Salvage yard" means any place which is maintained, operated, or used for the storing, keeping, buying, selling, or processing of salvage, or for the operation and maintenance of a motor vehicle graveyard. Any collection of three or more automobile hulks, or combination of ferrous or non-ferrous materials together with one or more automobile hulks, or a collection of any salvage contained in an area more than one-quarter acre in size is a salvage yard.

2.40. "Save harmless" means an agreement by any person, firm, corporation, or other entity to whom a permit is issued or with whom the Division enters into an agreement or contract not to hold the State, the Commissioner, or any officers, agents, and employees of the Division responsible or liable for any damages to persons or property arising or resulting from work performed under the permit, contract or agreement.

2.41. "Scenic byways and backways" mean road segments that have been officially designated by the Secretary of the West Virginia Department of Transportation under the West Virginia Byway and Backway Program.

2.42. "Sham activity" means any activity located or created to qualify an area as an unzoned location for outdoor advertising.

2.43. "Sign" means any structure erected for advertising purposes upon which any poster, bill, printing, writing, drawing, painting, or advertising material of any kind or character whatsoever, may be placed, posted, painted, tacked, nailed, glued, or otherwise fastened, affixed, or displayed.

2.44. "Sign face" means the part of the sign, including stringers, cutouts, and extensions, which contains the message or informative contents and is distinguished from other parts of the sign and other sign faces by borders or decorative trim. It does not include lighting fixtures, aprons, and catwalks unless part of the message or informative contents of the sign is displayed thereon.

2.45. "Sign structure" means all the interrelated parts and material, such as beams, poles, and braces, which are used or designed to be used or are intended to be used to support or display a sign but does not include sign face.

2.46. "Small parcels or narrow strips" means any configuration of land which cannot be put to ordinary commercial or industrial use without being aggregated with abutting properties.

2.47. "Transient or temporary businesses" means businesses that fail to meet any of the following requirements:

2.47.a. Continuous business operations at the proposed sign location for one (1) year prior to the submission of an outdoor advertising permit application;

2.47.b. Electricity, published telephone number and telephone answered at the business, running water, indoor restroom, permanent flooring other than dirt, gravel, sand, etc., adequate heating;

2.47.c. The business activity, or a major portion of it, conducted from a permanent building constructed principally of brick, concrete block, stone, concrete, metal, or wood or some combination of these materials or from a mobile home or trailer meeting the requirements stated in subdivision 2.4 of this rule;

2.47.d. Transient or temporary businesses include commercial or industrial businesses that do not conduct significant business activities at the site.

2.48. "Temporary memorials" means the various types of decorations, flags, flowers (cut and artificial) and other lightweight objects or ornamentation commonly used at funerals or at gravesides as a tribute to the dead.

2.49. "Trunkline" means any road serving major city-to-city travel needs.

2.50. "Unzoned commercial or industrial areas," means those areas in a political subdivision which are not zoned on which there is located one or more separate businesses, each with a permanent building structure, devoted to a commercial or industrial activity, a portion of which activity is located within the control area. The unzoned commercial or industrial area is that area within 800 feet of the nearest edge of the area of business activity within the control area regularly used for the business activity.

2.50.a. With regard to sign permits for which the application was received prior to January 1, 2004, the term "unzoned commercial or industrial area" means an area not zoned by State or local law, regulation or ordinances on which there is located one or more viable commercial or industrial activities and the area along the highway extending outward 800 feet from and beyond the edge of such activity.

2.50.b. Unzoned commercial or industrial areas do not include the land on the opposite side of the highway from the unzoned commercial or industrial business activities except that on two-lane non-controlled access highways, the unzoned commercial or industrial area may be located on the opposite side of the highway from the commercial or industrial activity if, in the opinion of the Commissioner, the topographical conditions on the same side of the highway as the activity are such that it is not reasonably usable; provided that the land on the opposite side of the highway has not been designated scenic by the Commissioner.

2.50.c. In no instance may the unzoned commercial or industrial area established by a single activity include land on both sides of the highway.

2.50.d. With regard to sign permits, for which the application was received after December 31, 2003, a location must meet the following requirements to qualify as an unzoned commercial or industrial area:

2.50.d.1. One (1) or more businesses must have been opened to the public for more than one (1) year prior to submission of an outdoor advertising permit application;

2.50.d.2. The business must be visible from the main traveled way of Federal-Aid Interstate Highways or Controlled Routes from which the outdoor advertising sign is visible;

2.50.d.3. Each business must be directly accessible to an ordinary passenger vehicle year-round under normal weather conditions by a road, driveway, or entranceway;

2.50.d.4. Each business must have a building designed with a permanent foundation, built or modified for its current commercial or industrial use, and the building must be located within 660 feet from the nearest edge of the main traveled way. Where a mobile home or recreational vehicle is used as a business or office, the following conditions and requirements also apply:

2.50.d.4.A. The mobile home unit or recreational vehicle must meet all applicable Building Codes for commercial or business use;

2.50.d.4.B. All wheels, axles, and springs must be removed;

2.50.d.4.C. The vehicle must be permanently secured on piers, pad or foundation;

2.50.d.4.D. The vehicle must be tied down in accordance with local, state, or county requirements.

2.50.d.4.E. A self-propelled vehicle will not qualify for use as a business or office.

2.50.d.5. Each business must be operated a minimum of 25 hours per week and open to the public during times that are normal and customary for that type of activity in the same or similar communities a minimum of 24 hours per week;

2.50.d.6. One or more employees must be available to serve customers whenever the business is open to the public;

2.50.d.7. Each business must be visible and recognizable as commercial or industrial from the main traveled way. A business is visible when that portion on which the permanent building designed, built, or modified for its current commercial use can be clearly seen year-round during normal weather by a person of normal visual acuity while traveling at the posted speed on the main traveled way adjacent to the business.

2.50.e. Each business must have a current business registration certificate issued by the West Virginia Department of Tax and Revenue;

2.50.f. With regard to sign permits for which the application was received prior to January 1, 2004, the business must have had a public access road and the following in order to have qualified for a sign permit:

2.50.f.1. An identification sign for the business which conforms to the provisions of this rule concerning an on premises sign;

2.50.f.2. A posting of the business operating hours;

2.50.f.3. A capacity to provide ample parking for all customers;

2.50.f.4. A separately metered electrical service provided by the local power company that cannot be an extension from any other building;

2.50.g. With regard to sign permits for which the application was received prior to January 1, 2004, the business used to qualify the permit location must have operated for six (6) months prior to the date of the permit application.

2.50.h. None of the following qualify as a commercial or industrial activity:

2.50.h.1. Outdoor advertising structures.

2.50.h.2. Agricultural, forestry, grazing, farming, or other related activities, including, but not limited to wayside produce stands.

2.50.h.3. Activities conducted in a building or structure principally used as a residence.

2.50.h.4. Railroad tracks or minor sidings.

2.50.h.5. Activities more than 660 feet from the main traveled way.

2.50.h.6. Activities of transient or temporary businesses.

2.50.h.7. Any commercial or industrial activity upon which the permit application is based which is operated primarily to serve as the basis for an outdoor advertising permit.

2.50.h.8. Any other commercial or industrial activity which the Commissioner finds is not meaningful commercial or industrial activity.

2.50.i. With regard to sign permits for which the application was received prior to January 1, 2004, “part time commercial or industrial activity” means any commercial or industrial activity operated for less than twenty-five (25) hours per week and open to the general public less than twenty-four (24) hours per week.

2.50.j. With regard to sign permits, for which the application was received after December 31, 2003, none of the following qualify as commercial or industrial activity:

2.50.j.1. Recreational facilities such as campgrounds, golf courses (not including driving ranges) or par-three courses, tennis courts, baseball or football fields or stadiums, or racetracks, except for any portions of those facilities occupied by offices, clubhouses, etc. which meet the minimum standards to keep the business from being considered transient or temporary.

2.50.j.2. Quarries, borrow pits, or nursery lands, except for any portions of those facilities which are occupied by a permanent office located at the site which meets the minimum standards to keep the activity from being considered a transient or temporary activity.

2.50.j.3. Business not visible and recognizable as commercial or industrial from the traffic lanes of the main traveled way. A business is not visible and recognizable as commercial or industrial if the on premise or on property sign is the only part of the commercial or industrial activity that is visible from the main traveled way.

2.51. For purposes of section 8 of this rule an "unzoned industrial area" means an area within a municipality not zoned by State or local law, regulation, or ordinance.

2.51.a. A salvage yard is in an unzoned industrial area within a municipality when it is located within a radius of 1000 feet of at least one industrial activity, which is in continuing operation for at least three (3) months of the year.

2.51.b. None of the following are considered industrial activities:

2.51.b.1. Outdoor advertising structures.

2.51.b.2. Agricultural, forestry, ranching, grazing, farming, and related activities, including, but not limited to, wayside fresh produce stands.

2.51.b.3. Activities normally and regularly in operation less than three (3) months of the year.

2.51.b.4. Activities of transient or temporary businesses.

2.51.b.5. Activities not visible from the traffic lanes of the main traveled way.

2.51.b.6. Activities more than 300 feet from the nearest edge of the main traveled way.

2.51.b.7. Activities conducted in a building principally used as a residence.

2.51.b.8. Railroad tracks, minor sidings, and passenger depots.

2.51.b.9. Junkyards, as defined in Section 136, Title 23, United States Code.

2.52. "Urban area" means an area including and adjacent to a municipality or other urban place having a population of 5,000 or more, as determined by the latest available federal census within boundaries to be fixed by the Division subject to the approval of the Secretary of the U.S. Department of Transportation, or his or her authorized representative.

2.53. "Visible" means capable of being seen (whether or not legible) and readily recognized as a sign or commercial or industrial activity by a person of normal visual acuity. The presence of a sign, whether attached to the building or free-standing, is not considered in determining whether a commercial or industrial activity is visible.

2.54. " Zoned" means subject to a substantial system of land use, including the regulation of size, lighting, and spacing of signs, for tracts of land within a political subdivision established and actively enforced by duly constituted zoning authorities. The mere labeling of land as zoned commercial or industrial does not mean the area is zoned for purposes of signing; rather there must be the establishment and enforcement of a substantial set of regulations to govern land use within the portion of the political subdivision which is zoned. Unrestricted land is considered unzoned.

2.55. "Zoned industrial or commercial areas" means those areas inside the control area within a political subdivision which are zoned for commercial or industrial use. Zoned industrial or commercial areas do not include any areas in which limited commercial or industrial activities are permitted as an incident to other primary land uses or areas the Division determines were so designated for the principal purpose of creating locations for outdoor advertising signs adjacent to or near interstate or federal-aid primary highways. Zoned industrial or commercial areas do not include areas which are unrestricted. No small parcels or narrow strips of land designated for a use classification different from and less restrictive than that of the surrounding area and which is made without consideration of the neighborhood land use character may be considered a zoned industrial or commercial area.

2.56. With regard to sign permits for which the application was received prior to January 1, 2004, the term "zoned commercial or industrial area" means an area zoned for business, trade, industry, or commerce, pursuant to state, county, municipal or local law, ordinance or regulation.

2.57. “Immediate family members” include father, mother, son, daughter, siblings, parents, spouse, parents-in-law, children-in-law, grandparent, grandchildren, step-parents, step-brothers, step-sisters, step-children, foster children, and individuals in a legal guardianship relationship.

W. Va. Code R. § 157-6-3 Use of Right of Way; Permits

3.1. Purpose. The purpose of this section is to establish rules governing the making of openings or placing of structures, in, along, over, under or across state roads and highways and the issuance of permits for these purposes.

3.2. Entrances from Residential Properties, Industrial or Business Establishments. All entrances to any state road, whether from a residence, or an industrial or business property, shall be constructed in accordance with the Division's "Manual on Rules and Regulations for Constructing Driveways on State Highway Right of Way." This manual may be obtained by contacting the Division's central headquarters in Charleston or any of the Division's district headquarters. All entrances shall be adequately drained and properly stabilized.

3.3. School Bus Shelters. All school bus shelters must be constructed in accordance with plans approved by the Commissioner, and when so constructed, these shelters may be constructed within the right of way limits as directed by the Commissioner. All affected shoulder areas shall be properly stabilized.

3.4. Overhead Structures.

3.4.a. Expressway, Trunkline and Feeder Roads. All structures constructed over expressway, trunkline and feeder roads, such as grade separations, wire structures, coal tipples, conveyors, etc., must be constructed so as to provide a minimum vertical clearance of 18 feet over the entire width of the roadway, including shoulders, and a minimum horizontal clearance of 10 feet on either side of the pavement edges. The total horizontal clearance must be no less than 40 feet at right angles to the centerline of the highway. In cases where proposed construction or reconstruction plans require greater horizontal clearances, the required clearances must be provided by the owner of the overhead structure.

3.4.b. State Local Service Roads. The minimum vertical clearances over state local service roads must be 18 feet for the entire width of the roadway, including shoulders, and the minimum horizontal clearance must be 8 feet on either side of the pavement edges. The total horizontal clearance must be no less than 30 feet at right angles to the centerline of the road. In cases where proposed construction or reconstruction plans require greater horizontal clearances, the required clearances must be provided by the owner of the overhead structure.

3.4.c. In the event of conflict between the provisions of subdivisions 4.a. and 4.b. of this section, and the terms of deeds conveying real estate to the Division, the terms of the deeds shall control.

3.4.d. Coal Tipples, Conveyors, etc. All coal tipples or conveyors carrying or transporting loose material must be adequately encased within the limits of the highway right of way and a sufficient distance on either side of the highway right of way to properly protect the traveling public or other highway users.

3.4.e. Construction Plans Submitted with Application. All applications for permits covering the construction of overhead structures must be accompanied by a plan in sufficient detail that a complete structural analysis may be made by the Commissioner.

3.5. Underpass Structures. All underpass structures, such as tunnels, coal mine haulways, airways, etc., constructed under state highways, must be constructed so as to properly support and otherwise protect the highway.

3.5.a. Length. All underpass structures constructed at or near the grade of an existing highway must be of sufficient length to conform to the existing width of the roadway or any existing proposed roadway construction or reconstruction plans.

3.5.b. Pedestrians. If necessary, underpass structures will include sidewalks to properly accommodate pedestrian traffic along the highway.

3.5.c. Construction Plans Submitted with Application. All applications for permits covering underpass construction must be accompanied with a plan in sufficient detail that a complete structural analysis may be made by the Commissioner of the Division.

3.6. Subsurface Mining. A permit must be obtained from the Division for all subsurface mining being carried on or to be carried on under any state highway.

3.6.a. Conditions. The individual or company doing the mining must carry on the operation so as to properly protect the highway from damage. In the event damage to the highway does occur, the individual or company doing the mining must either restore the highway at his, her or its own expense in a manner satisfactory to the Division or reimburse the Division for the actual expense to restore the highway.

3.6.b. Maps. All applications for permits covering subsurface mining must be accompanied by a map showing the position of the coal seam or other mineral or minerals proposed to be mined, horizontally and vertically with relation to the highway.

3.7. Seismic Surveys. A permit must be obtained to conduct seismic surveys, for the location of oil or gas deposits, on state roadways upon compliance with the following conditions:

The work shall be performed when the ground is dry. Test holes shall not be larger than six inches in diameter. Shot points shall be located at a safe distance from culverts, bridges, and pavements, so as not to cause damage thereto. Shots shall not be in proximity to public or private buildings and shall be so placed as to avoid disturbance to domestic water supplies. Upon completion of the work, ditches shall be restored and shoulders reshaped to the satisfaction of the District Engineer. Drill holes shall be plugged with concrete at a depth of 30 inches below ground level.

3.8. Utility Installations. All individually, publicly, and privately owned utilities, including but not limited to, electric, communication, gas, oil, petroleum products, chemical, water, steam, sewage, drainage, and similar facilities that are to be accommodated, adjusted, or relocated within state highway right of way, shall be in accordance with the Division's manual, "Accommodation of Utilities on Highway Right of Way and Adjustment and Relocation of Utility Facilities on Highway Projects", as amended. This manual may be obtained by contacting the Division's central headquarters in Charleston or any of the Division's district headquarters or at the following link: http://transportation.wv.gov/highways/engineering/files/ACCOMMODATION_OF_UTILITIES.pdf.

3.8.a. Eligibility for reimbursement of public utilities by the Division, for relocation costs due to the Division's projects shall be determined in accordance with W. Va. Code §17-4-1, et. seq.

3.8.b. Reimbursable relocation costs include the entire amount paid by the public utility, exclusive of any right of way costs, required to perform the relocation after deducting any increase in value and any salvage value.

3.8.c. Reimbursement of Publicly Owned Public Utilities.

3.8.c.1. In accordance with W. Va. Code §17-4-17d, the Commissioner shall reimburse all publicly owned public utilities for the cost of relocation due to a highway project.

3.8.c.2. This subdivision applies to all eligible projects on which the publicly owned public utility incurs reimbursable costs after June 1, 2007.

3.8.d. Reimbursement of Privately Owned Public Utilities. The Commissioner shall use the following criteria when establishing eligibility for reimbursement.

3.8.d.1. Privately owned public utilities located within state highway right of way by permit are not eligible for reimbursement of relocation costs which are required due to a Division construction, improvement, or maintenance project.

3.8.d.2. In cases where utility facilities are relocated in accordance with an approved plan and subsequent Division of Highways plan or construction changes for that project cause a utility conflict, the utility will be reimbursed for the costs of the subsequent relocation.

3.8.d.3. Notice requesting removal or relocation and utility liability. In accordance with the Division’s manual, "Accommodation of Utilities on Highway Right of Way and Adjustment and Relocation of Utility Facilities on Highway Projects", as amended, the Division will provide notice to affected utilities when relocations of existing facilities is required for highway projects, Should the utility fail to comply with the notice as provided in W. Va. Code §17-4-17b(d), the utility will be liable for all costs, fees, penalties or other charges incurred by the Division as a result of the utility’s failure to timely relocate unless a written extension is granted by the Division.

3.8.d.4. Applicability. This subdivision applies to all eligible projects on which the privately-owned public utility incurs reimbursable costs after July 1, 2007.

3.9. Railway Grade Crossings. All railway grade crossings of any state highway shall be constructed and maintained in accordance with the following requirements:

3.9.a. Conformity to Grade. All railway grade crossings must be constructed so as to conform to the grade of the highway involved. If necessary, in order to obtain proper conforming grades and alignment, the railway company shall be required at its own expense to relocate and reconstruct the section of the road affected in accordance with existing standards.

3.9.b. Spur Tracks. Spur tracks may not be super-elevated across the highway.

3.9.c. High-Speed Tracks. High-speed tracks shall be so located as to cross the highway on a track tangent or slight curve in order to eliminate or cause minimum track superelevation.

3.9.d. Crossing at Right Angles. All tracks shall cross the highway as near to a right angle as feasible.

3.9.e. Rail Elevation. The top of rail elevation shall conform to the highway surface elevation or, highway approach grades conforming to current standards shall be provided. After the track is placed, the railway company may not alter the top of rail elevation without prior approval of the change in elevation by the Commissioner.

3.9.f. Type of Pavement. The type of pavement on crossings shall be of a high-type surface or other semi permanent material as specified by the Commissioner based on the type and volume of highway and rail traffic.

3.9.g. Width of Surface. The width of the crossing surface shall be in accordance with the American Association of State Highway and Transportation Official's, "A Policy on Geometric Design of Highways and Streets."

3.9.h. Maintenance. The railway company will maintain the roadbed and crossing in a condition acceptable to the Commissioner.

3.9.i. Traffic Control Devices. At a minimum, the railway company shall install and maintain crossbuck signs in accordance with the Federal Highway Administration's, "Manual on Uniform Traffic Control Devices for Streets and Highways." This manual may be obtained by contacting the Division's central headquarters in Charleston or any of the Division's district headquarters.

3.9.j. Where a track is being constructed across any state highway, the Commissioner may require the railway company to install and maintain, at its own expense, active traffic control devices conforming to the Federal Highway Administration's, "Manual on Uniform Traffic Control Devices for Streets and Highways," and existing standards.

3.9.k. Abandoned Tracks and Appurtenances. When any railway track crossing a state highway is abandoned, the railway company must promptly remove the tracks, ties, etc., and any appurtenances to the crossing such as crossbuck signs, active traffic control devices or other equipment. The highway shall be repaired with a pavement and shoulders of the same type and width as the adjacent pavement and shoulders, and in a manner satisfactory to the Commissioner.

W. Va. Code R. § 157-6-4 Rules for Issuance of Permits for Making Openings or Placing Structures; In, Upon, Along, Over, Under and Across State Roads

4.1. General Regulations for Issuance of Permits.

4.1.a. Form of Application. Applications for permission to perform work within highway right of way as provided in W. Va. Code §17-16-6, must be made on the Division's standard permit form. The applicant must provide full information concerning the work to be done and must include a sketch.

4.1.b. Signature Required. Applications must be signed by the applicant or his or her duly authorized representative.

4.1.c. Security. The applicant must deposit security with the Division in the form of a certified check, money order, or executed bond, with surety satisfactory to the Division, to cover any damage the Division may sustain due to granting the permit, including any expense incurred in restoring the highway to its original condition, or the proper repair of any and all damages that may result within one year from the date of the completion of the permitted work.

4.1.d. Completion Date. The application must state the date the proposed work is to be completed.

4.1.e. Approval of Application. Applicants for permits must file the original and four copies of the application with the District Engineer in whose district the work is proposed. Before any work can be started, the application must be approved by the District Engineer or the Director of the Maintenance Division.

4.1.f. Inspection. The permitted work must be done under the supervision and to the satisfaction of the Division. The applicant must agree to reimburse the Division for any inspection costs incurred under the permit as provided in W. Va. Code §17-16-6.

4.1.g. Notification. The applicant must notify the Division at least 48 hours in advance of the date on which work will begin.

4.1.h. Control of Traffic. The traveling public must be protected at all times in accordance with the Division's manual, "Traffic Control for Streets and Highway Construction and Maintenance Operations." This manual may be obtained by contacting the Division's central headquarters in Charleston or any of the Division's district headquarters.

4.1.i. The applicant will repair, at his or her expense, damage to the road, resulting at any time, from work authorized under the permit. Unsatisfactory repairs may be corrected by the Division or its authorized agent and the cost thereof billed to and paid by the applicant.

4.1.j. Save Harmless. The person, firm or corporation to whom a permit is issued must agree to save harmless the State, the Commissioner, and any and all officers, agents and employees of the Division from any damages to persons or property arising or resulting from work authorized or done under the permit.

4.1.k. Liability. The Division assumes no liability for damage to the proposed installation by reason of construction or maintenance work on the road.

4.1.l. Removal. All permits granted shall be subject to the removal of the installation by the permittee at no cost to the Division when required for improvement of the road, and subject to all rules now or hereinafter adopted by the Commissioner.

4.1.m. Cancellation. The Commissioner reserves the right at any time to cancel any permit in the event the applicant or the person by whom the work is being done thereunder fails to comply with the terms and conditions under which it is granted.

4.1.n. Violation of the terms of a permit or failure to perform permitted work in accordance with the approved plans may, at the discretion of the Commissioner, result in the denial of subsequent permit applications and may require the removal of non-conforming facilities constructed or installed in state road system right-of-way. Applicant may appeal the Commissioner’s denial as provided in 157CSR1.3.

W. Va. Code R. § 157-6-5 Removal of Obstructions From Roadway

5.1. Procedure for Effecting Removal of Obstructions. The procedure for effecting the removal of any obstruction, as defined in W. Va. Code, §17-16-1, from the right of way limits of any state highway, shall be as follows:

5.1.a. Notice. The County Maintenance Superintendent or District Utility Supervisor, as appropriate, shall notify the owner or the person responsible for the obstruction that he or she is violating the law in placing, or causing to be placed, the obstruction within the highway right of way limits, and that immediate steps must be taken not only to remove the obstruction, but also to make any necessary repairs resulting from the existence of the obstruction.

5.1.b. Additional Notice. In the event of failure or undue delay on the part of the owner or the person responsible for the obstruction to remove immediately the obstruction, the County Maintenance Supervisor or District Utility Supervisor, as appropriate, shall notify the District Engineer of the circumstances relating thereto. The District Engineer shall notify the responsible party by letter to remove the obstruction. If the obstruction is not removed within 10 days, the Commissioner, or his duly authorized representative, shall then cause a written notice to be served upon the owner or person responsible for the obstruction in the manner provided by law for service of notice or process, notifying the owner or responsible person to remove said obstruction within 10 days from the date of service of the notice. If, following service of the notice, the obstruction is not removed within ten days the Division will remove the obstruction. The costs and applicable penalties for the obstruction removal will be the responsibility of the owner or responsible person of the obstruction. The assessment and collection of costs will be pursued in accordance with W. Va. Code §17-16-3, 4 and 5.

W. Va. Code R. § 157-6-6 Constructing Driveways on State Highway Right of Way

Any person desiring to construct or reconstruct one or more driveways or other connections to or within the right of way of any state system street or highway, must do so in accordance with the requirements specified in the Division's manual, "Rules and Regulations for Constructing Driveways on State Highway Rights of Way." This manual may be obtained by contacting the Division's central headquarters in Charleston or any of the Division's district headquarters.

W. Va. Code R. § 157-6-7 Requirements for Outdoor Advertising on the State Highway System. 7.1

7.1.a. Purpose. This section’s purpose is to regulate and control the erection and maintenance of outdoor advertising signs, displays and devices along the total highway system and further to set up specific limitations relating to size, spacing, and lighting of those signs, displays and devices, located along those highways in West Virginia designated for federal-aid funding purposes as interstate and primary highways in accordance with Title 23, United States Code.

7.1.b. This section is correlated to and applies along with that certain agreement dated the 6th day of January 1969, between the United States of America, represented by the Secretary of Transportation, acting through the Federal Highway Administrator, and that agreement dated the 19th day of June 1961, between the United States Secretary of Commerce and the State Road Commissioner and the "National Standards" of 23CFR, Chapter 1, §750.105 et.seq. as prepared and promulgated by the Bureau of Public Roads in relation to the National System of Interstate and Defense Highways.

7.2. Licenses Required, Applications. No person may engage in the business of outdoor advertising in this state without first obtaining a license from the Commissioner. No person may construct, erect, operate, use, maintain, lease, or sell any advertising sign, display, or device in this State without first obtaining a license from the Commissioner. A license fee in the amount of one hundred and twenty-five dollars per year, payable in advance, will be charged licensees who obtain up to 20 permits. Licensees, including subsidiaries and affiliates, who obtain 21 or more permits will be charged a fee of one-thousand dollars per annum.

7.2.a. Applications for licenses or renewal of licenses must be made on forms furnished by the Commissioner and must be accompanied by the annual fee.

7.2.b. Licenses expire on the thirtieth day of June of each year and will not be prorated. Application for renewal of licenses must be made at least 30 days prior to the date of expiration.

7.3. Revocation of License. Whenever the Commissioner finds that any material information given on the application for license is knowingly false or misleading or that the licensee has violated any of the provisions of W. Va. Code §17-22-1, et.seq., or this rule, he or she has the authority, after 30 days' notice, in writing, to a licensee, to enter an order revoking any license granted. Upon revoking a license, the Commissioner will repay a proportionate part of the license fee unless the licensee shall, before the expiration of 30 days, correct all false or misleading information and comply with the provisions of W. Va. Code §17-22,1, et. seq., and this section.

7.3.a. Orders. A Commissioner's order revoking a license shall be accompanied by the findings of fact and conclusions of law upon which the order was entered.

7.3.b. Judicial Review. Any person adversely affected by an order entered by the Commissioner in conjunction with this section is entitled to a judicial review as set out in W. Va. Code §17-22-13.

7.4. Permits Required. No person may construct, erect, operate, use, maintain, or cause or permit to be constructed, erected, operated, used, or maintained any outdoor advertising sign, display, or device without first obtaining a permit from the Commissioner, and paying the permit application fee or annual permit renewal fee. In the case of new permits, an inspection fee will be charged by the Commissioner as provided in W. Va. Code §17-22-15.

7.4.a. If a check submitted to the Division for a permit or license fee is returned for any reason, the permit or license shall be void from date of issuance. The applicant may be required to submit a new application and may thereafter be required to submit cash or a certified check with any application or renewal.

7.4.b. License Required. Permits will not be issued to any person who has not obtained the license provided for in subsection 7.2 of this rule.

7.4.c. Application. A separate application for a permit must be made for each separate advertising sign, display, or device, on the form furnished by the Commissioner. Applications must be typed, signed by the applicant or the applicant’s duly authorized representative, describe the size, shape, and nature of the sign and its actual or proposed location with sufficient accuracy to enable the Commissioner to locate it, and include any other information relevant to the particular sign as the Commissioner may reasonably require. With regard to sign permits for which the application was received after December 31, 2003, the following shall apply:

7.4.c.1. Where local government regulation exists, no permit may be issued unless the applicant submits along with the application either (1) a copy of the permit issued for the site by the local government or (2) a statement from the appropriate official indicating that the sign complies with all local zoning and other applicable requirements and that they will issue a permit to that applicant upon issuance of the state permit by the Division. With the prior written approval of the Commissioner of Highways, a county commission may enact and enforce outdoor advertising ordinances which place limitations or restrictions on outdoor advertising signs, displays or devices which are in addition to or more restrictive than the limitations or restrictions provided by the Commissioner of Highways.

7.4.c.2. If requested by the Division, any application that is on the same real property of the qualifying business shall be accompanied by documentation confirming that the qualifying business has been in continuous significant operation at the location for one year prior to submission of the application. Transient, temporary, or sham businesses will not qualify.

7.4.c.3. The proposed location for a new sign shall be clearly identified on the ground by a stake with no less than two feet of the stake clearly visible above the ground line. Staking of the site is considered part of the application. The stake shall not be moved or removed by the applicant until the application is disapproved or, if it is approved, until the sign has been erected.

7.4.c.4. No sign may be permitted or erected within 800 feet of areas from which vegetation has been removed unlawfully or areas within right of way limits from which vegetation has been unlawfully removed without prior written approval of the WVDOT.

7.4.c.5. Permit applications will be considered in the order submitted. If applications are submitted for the same or conflicting sites, each will be dealt with in turn. An application which is not approved may be resubmitted if the Division is notified in writing within three business days from certified receipt of denial and the application is resubmitted within 10 business days.

7.4.c.6. The applicant is responsible for providing access to and entry upon all real property if entry is determined by the Division to be necessary for review of the application.

7.4.c.7. Upon receipt of the permit application, the District Inspector will inspect the site in order to ascertain if the location qualifies. The Division reserves the right to consider any application for a sign permit for a period of up to ninety (90) days from the date the application is submitted. On or before the expiration of the 90 day period, the Division shall either: (1) accept the application and issue the sign permit; (2) reject the application in writing stating the ground or grounds for the rejection; or (3) notify the applicant in writing that the Division requires additional time to review the application, not to exceed 60 days, and stating the issues or matters requiring inquiry by the Division, including any request to the applicant for the submission of any additional information or documentation in support of the application. If within the 90 day period the Division has not responded in writing indicating acceptance or rejection of the application, or specifying the need for further information, the applicant may deem the application rejected and proceed with the applicant’s rights of appeal by judicial review in accordance with W. Va. Code §17-22-15.

7.4.c.8. For the purpose of permitting additional outdoor advertising along roads which have been designated scenic byways or backways, the Secretary of Transportation may segment a portion of the roads from designation as a scenic byway or backway only in accordance with federal regulations.

7.4.c.9. The Division may issue a permit for a sign, which could otherwise be permitted even though it is located within the acquired right of way for a highway or interchange for which construction has not yet begun. However, the sign owner and the landowner must agree to remove the sign without cost to the Division and without compensation within 30 days after written notice from the Division to the addresses provided in the application.

7.4.c.10. Regardless of the date of application, if a permit is disapproved or an existing permit is revoked, appeals shall be pursued in accordance with W. Va. Code §17-22-15. The applicant bears the burden of showing that the Division should issue the permit or, in the case of the revocation of a permit, that the revocation was not warranted under the applicable law or rule. A decision regarding any other applications for the same or conflicting sites submitted subsequent to the initial submission of the disapproved application or revoked permit may be held in abeyance pending the resolution of the appeal. If the Division's disapproval is sustained, the other applications will be considered in turn.

7.4.c.11. No new application may be submitted by the same applicant or its assignee or successor for a site which has been disapproved unless there has been a significant change in the geometry or designation of a highway, the removal of an existing, conflicting sign, etc. This prohibition extends to any sites which depend for approval on the same facts which led to the disapproval of the first application.

7.4.d. With regard to signs for which the permit application was received prior to January 1, 2004, a separate application for a permit must be made for each separate advertising sign, display, or device, on the form furnished by the Commissioner. The applicant or his duly authorized representative must sign the application. Authorization to represent the applicant must be submitted to the Commissioner in writing.

7.4.e. Bond of Out-of-State Licensee. Non-residents of this State, or any person having his or her principal place of business outside the state, or which is incorporated outside the state, must first furnish and file with the Commissioner a bond payable to the State of West Virginia, with approved surety in the sum of two thousand five hundred dollars before being eligible for an outdoor advertising license. Granting a license to a non-resident is also conditioned upon the licensee fulfilling all the requirements of law and observing and obeying all regulations relating to the business of outdoor advertising in the State of West Virginia. All money received from the forfeiture of any bond or bonds shall be deposited in the special fund created in W. Va. Code §17-22-10.

7.4.f. Payment. Every application shall be accompanied by a permit application fee of twenty dollars for each advertising sign, display or device as provided in W. Va. Code §17-22-15. The fee shall be retained if the permit is issued. The Commissioner will also charge an inspection fee, which will be retained whether the permit is issued or not as provided in W. Va. Code §17-22-15(b).

7.4.g. Refusal of Permit. In the event that a permit application is denied, the Commissioner shall enter an order for the denial and shall send a copy of the order to the applicant by certified mail, return receipt requested. The order shall be accompanied by the findings of fact and conclusions of law upon which the order was entered.

7.4.h. Change of Advertising Copy. The holder of a valid permit may change the advertising copy on the permitted structure or sign without payment of any additional fee.

7.4.i. Expiration. Permits expire on the thirtieth day of June of each year and will not be prorated.

7.4.j. Renewal. Permits may be renewed upon the payment of the $1.00 fee until June 30, 2005. Thereafter, the annual renewal fee shall be as follows: July 1, 2005 to June 30, 2006, $5.00; July 1, 2006 to June 30, 2007, $10.00; July 1, 2007 to June 30, 2008, $15.00; July 1, 2008 to June 30, 2009, $20.00; July 1, 2009 and beyond, $25.00 per outdoor advertising permit. No application is required for the renewal of a permit.

7.4.k. Construction of the sign structure and a sign face must be completed within one year from the date of the permit's issuance. The Division may cancel permits and forfeit fees if construction is not completed within one year as provided in W. Va. Code §17-22-15(e).

7.4.l. With regards to signs for which the permit application was received prior to January 1, 2004, construction of the permitted sign or signs shall be initiated no later than one year from the date of issuance of the permit and shall be completed within a reasonable time thereafter. In the event of noncompliance with this provision, the permit may be cancelled at the discretion of the Commissioner.

7.5. Revocation of Permits. Whenever the Commissioner finds that any material information given on the application for permit is knowingly false or misleading or that the permitee has violated any of the provisions of W. Va. Code §17-22-1, et. seq. or this rule, he or she has the authority, after 30 days notice in writing to the permitee, to enter an order revoking any permit issued. Upon revoking a permit, the Commissioner will repay a proportionate part of the fee unless the permitee shall, before the expiration of 30 days, correct all false or misleading information and comply with the provisions of W. Va. Code, §17-22-1, et. seq. and this rule.

7.5.a. Findings of Fact. A Commissioner's order revoking a permit shall be accompanied by the findings of fact and conclusions of law upon which the order was entered.

7.5.b. Zoning Boards, Commissions or Other Public Agencies. The Commissioner may revoke a permit and return the permit fee if it is found that the construction, erection, operation, use or maintenance of any advertising sign, display, or device for which a permit was issued is prevented by any zoning board, municipal building ordinance, commission or public agency with jurisdiction over these matters. However, the Commissioner will only return one half the fee if the advertising sign was erected or the inspection by the Commissioner or his representatives was performed as provided in W. Va. Code §17-22-15(b). Also, any inspection fees charged will not be refunded as provided in W. Va. Code §17-22-15(b).

7.5.c. Judicial Review. Any person adversely affected by an order made and entered under this section refusing to grant or revoking a permit is entitled to judicial review as set out in W. Va. Code §17-22-1, et. seq.

7.6. Territorial Application. The territory under the jurisdiction of the Commissioner for the purposes of this rule includes all of the State. Authorized representatives of the Commissioner may enter into and upon any land which has outdoor advertising signs, displays or devices in the performance of their functions and duties under the provisions of W. Va. Code, §17-22-1, et. seq., and this rule.

7.7. Prohibition of Certain Outdoor Advertising.

7.7.a. No outdoor advertising sign, display or device may be erected or maintained within 660 feet of the nearest edge of and visible as to informative content from the right of way of any road within the state road system designated and classified for purposes of allocation of federal-aid highway funds as federal-aid interstate or federal-aid primary highways, except as provided in section 7.8 of this rule.

7.7.b. No outdoor advertising sign, display, or device may be erected or maintained along the state road system designated and classified for purposes of allocation of federal-aid highway funds as federal-aid interstate or federal-aid primary highway outside of urban areas which are more than 660 feet off the nearest edge of the right of way visible from the main traveled way of the system and erected with the purpose of a message being read from that main traveled way except as otherwise provided in this rule.

7.8. Exempted Areas. Outdoor advertising signs, displays and devices whose size, spacing and lighting are in conformance with this subsection may be erected within 660 feet of the nearest edge of the right of way of those roads designated for federal-aid funding purposes as federal-aid interstate or federal-aid primary highways within zoned and unzoned commercial or industrial areas except as provided in subsection 15 of this section.

7.8.a. Licensees must submit a written request for a variance with the permit application if he or she wants to place a sign, display, or device within 660 feet of a two-lane non-controlled access highway in an unzoned commercial or industrial area on the opposite side of the highway from the activity establishing the zoning. The written request for a variance must specify the reasons. The Commissioner will base his or her decision to accept the variance on the conditions in the area and the documentation of the licensee. Once it is determined which side of the highway the unzoned commercial, industrial area or the single activity establishing the zone is located, this determination will not be changed.

7.8.b. Size.

7.8.b.1. A sign may contain one or two advertisements per side, within the maximum allowed area.

7.8.b.2. Advertising signs composed of stacked sign faces, one on top of the other, on the same structure and facing the same direction are limited to three hundred square feet per sign face.

7.8.b.3. Advertising devices composed of separate sign faces in a side by side formation, on the same structure, facing the same direction are limited to three hundred square feet per sign face.

7.8.b.4. Advertising devices composed of a single sign, facing a single direction may not exceed six hundred seventy-two square feet: Provided, that cutouts and extensions which expand the area may be allowed to the extent the area is expanded by no more than thirty percent of its original permitted configuration.

7.8.b.5. No more than one sign structure is permitted at a location.

7.8.b.6. Signs for which the permit application was received prior to January 1, 2004, shall adhere to the following:

7.8.b.6.A. The maximum allowed area of any sign is 1200 square feet with a maximum height of 25 feet and a maximum length of 60 feet, inclusive of cutouts and extensions, but excluding decorative bases, and structural supports.

7.8.b.6.B. A sign may contain one or two advertisements per facing, within the maximum allowed area.

7.8.b.6.C. Back-to-back or V-type signs are permissible and will be treated as one structure with an area of 1200 square feet permitted for each facing.

7.8.c. Spacing.

7.8.c.1. The following spacing applies to signs along Federal-Aid Interstate Highways and Controlled-Access Facilities Within Zoned and Unzoned Commercial or Industrial Areas.

7.8.c.1.A. Signs must be spaced at least 1,000 feet apart on the same side of the highway.

7.8.c.1.B. No sign may be located within 1,000 feet of an interchange. This requirement does not apply within the boundaries of any municipality.

7.8.c.2. The following spacing applies to signs along Federal-Aid Interstate Highways and Controlled-Access Facilities Within Zoned and Unzoned Commercial or Industrial Areas for which the permit application was received prior to January 1, 2004.

7.8.c.2.A. Signs must be spaced at least 500 feet apart on the same side of the highway.

7.8.c.2.B. No sign may be located within 500 feet of an interchange. This requirement does not apply within the boundaries of any municipality.

7.8.c.3. The following spacing applies to signs along other Federal-Aid Primaries.

7.8.c.3.A. Outside a municipality, signs must be spaced at least 500 feet apart on the same side of the highway.

7.8.c.3.B. Inside municipalities, signs must be spaced at least 500 feet apart on the same side of the highway.

7.8.c.4. The following spacing applies to signs along other Federal-Aid Primaries for which the permit application was received prior to January 1, 2004.

7.8.c.4.A. Outside a municipality, signs must be spaced at least 300 feet apart on the same side of the highway.

7.8.c.4.B. Inside municipalities, signs must be spaced at least 100 feet apart on the same side of the highway.

7.8.c.5. Signs that are double decked, side-by-side, back-to-back, or V-type will be permitted, with regards to spacing, if they meet the requirements of this subdivision.

7.8.c.6. The foregoing spacing requirements do not apply to signs which in the opinion of the licensee are separated by an intervening building, structure, or roadway. In order to receive a permit in variance to the spacing requirements of this subdivision licensees must submit written documentation along with the permit application explaining that a situation exists where an intervening building, structure or roadway would justify a variance from the spacing requirements. The Commissioner will review the permit application and the written documentation and may grant a variance based upon the sight distances in the area and the documentation submitted by the licensee.

7.8.d. Lighting. Signs may be illuminated, subject to the following restrictions:

7.8.d.1. No outdoor advertising may contain lighting that is not shielded, and any lighting must be of sufficiently low intensity as not to cause glare or impair the vision of an operator of any motor vehicle.

7.8.d.2. No off-premises sign may be illuminated by any rapid flashing intermittent light or lights that change in a time sequence faster than 12 cycles or revolutions per minute without a written acceptance of the variance from the Commissioner.

7.8.d.3. No sign may be illuminated so as to obstruct the view of any connecting road or intersection or to obscure an official traffic device or signal.

7.8.d.4. No off-premises sign may contain numerical displays in the form of LED's or other lights that change more than once in eight seconds.

7.8.e. Off-premises Changeable Message Signs (CMS).

7.8.e.1. Off-premises CMS may not contain or display flashing, intermittent or moving lights. For purposes of this section, the illumination of an advertising device containing a message center display does not constitute the use of a flashing, intermittent or moving light. No message center display may include an illumination that is in motion or appears to be in motion or that changes in intensity or exposes its message for less than eight (8) seconds or that has an interval between messages of two seconds or less. No off-premises LED, OLED, illuminated message center display or similar device may exceed the following brightness limits measured as candelas per square feet at any focal point on any roadway or berm or any vehicular approach to any roadway:

Day Night Red 300 100 Green 600 200 Amber 450 150 Blue 800 350 White 550 50 All color 650 250

7.8.e.2. Off-premises CMS must conform with size requirements described in paragraph 7.8.b.4.

7.8.e.3. Off-premises CMS must be spaced a minimum of 1500 feet apart on the same side of the highway and 500 feet apart from another off-premises CMS structure located on the opposite side of the highway.

7.8.e.4. Only conforming sign structures may be modified to an off-premises CMS upon compliance with off-premises CMS standards and approval of the WVDOT. Nonconforming sign structures may not be modified to an off-premises CMS.

7.8.e.5. Each message displayed shall remain fixed for at least eight seconds.

7.8.e.6. When a message is changed, it must be accomplished within an interval of two seconds or less.

7.8.e.7. Off-premises CMS must contain a default design that will freeze the sign in one position if a malfunction occurs.

7.8.e.8. Off-premises CMS may only be constructed as a single face, back to back or two-faced, V-shaped structures. Only one face may be visible in each direction of the main traveled way. Off-premises CMS may not be side by side or stacked.

7.8.e.9. No cutouts or extensions are allowed on off-premises CMS structures.

7.8.e.10. If a conforming sign is to be revised to an off-premises CMS, an application shall be submitted to the Commissioner noting the sign is to become an off-premises CMS and requesting approval for this change. No off-premises CMS may be erected or permitted unless the applicant first cancels any previous permits for that location.

7.8.e.11. No off-premises CMS sign may exceed 672 square feet.

7.9. Exceptions.

7.9.a. In lieu of exercising control over size, spacing and lighting of outdoor advertising signs, displays or devices in zoned commercial or industrial areas as set forth in subsection 7.8 of this rule, the Commissioner may certify to the Federal Highway Administrator that a state, regional, county, municipal or local zoning law, regulations, or ordinance or building ordinance has established effective control of size, spacing and lighting of outdoor advertising signs, displays and devices.

7.9.b. The Commissioner will advise all licensees in the affected area of the action. The Commissioner's certification that a state, regional, county, municipal or local zoning law, regulations, or ordinance or building ordinance has established effective control of size, spacing and lighting of outdoor advertising signs, displays and devices will be effective as long as the control exercised is consistent with W. Va. Code §17-22-1, et. seq. and this rule.

7.9.c. The following signs are excepted from the license and permit requirements of this rule:

7.9.c.1. Directional or other official signs and notices required or authorized by law.

7.9.c.2. Signs, displays and devices advertising the sale or lease of property on which they are located.

7.9.c.3. Signs advertising activities conducted upon the property which they are located and markers of underground utility facilities.

7.9.c.4. To fall within the purview of paragraphs c.2 and c.3 of this subsection, the sign, display, or device must meet the following requirements:

7.9.c.4.A. For Sale or Lease Signs. One sign advertising the sale or lease of the property which is visible to traffic proceeding in any one direction may be erected.

7.9.c.4.B. Business or Activity Sign. One double-faced sign or two signs, one visible in each direction may be erected not more than 500 feet from the center of the activity. The sign or signs may not exceed 150 square feet including border and trim but excluding structural supports. Center of activity is determined by the location of the cash register or the main business activity.

7.9.c.4.C. Agriculture or Horticulture sign. Signs on real property, including parcels that are contiguous, occupied and cultivated and assessed for real property taxes as a farm, advertising agricultural or horticultural activities conducted on the real property, including without limitation non-traditional agriculture. Such signs must meet the requirements of Subsection 7.15 of this rule.

7.9.c.5. No on-premises sign may be located if it is separated from the activity by an intervening parcel of land or building.

7.9.d. Signs advertising activities, products or services offered or performed on the property upon which they are located are considered on-premises provided they meet the following requirements:

7.9.d.1. The sign is physically located on the same property as the activity advertised.

7.9.d.2. The purpose of the sign is the identification of the activity, product or service offered at the location.

7.9.d.3. In the event a sign site is located on a narrow strip of land contiguous to the advertised activity or on land connected to the advertised activity by a narrow strip of land, the sign site is not considered part of the premises on which the activity being advertised is conducted. A narrow strip shall include any configuration of land which cannot be put to any reasonable use related to the activity other than for signing purposes.

7.9.d.4. Two or more activities which share a common property line may share a single on-premises sign so long as the sign is located on the common property line and meets all other requirements for on-premises signs.

7.9.d.5. The sale of land between the main building and the advertising device or the diversion of the land to uses other than commercial or industrial by lease, rental agreement, easement, or license, etc., is prima facie evidence that the sign is no longer an on-premises sign. The diversion of land to other uses includes, but is not limited to, cultivation to raise crops or forest, even though land may be of a single ownership, or land which is separated from the activity by a public highway.

7.9.d.6. If a business vacates a premise which is not thereafter occupied by another business within one year, the owner of the property must, without cost to the Division, dismantle and remove any free-standing on-premises sign. Any on-premises sign which is not so removed is unlawful.

7.9.d.7. An on-premises sign may not be erected on the opposite side of the highway from the activity unless topographical conditions make it impossible to locate on the same side of the highway. The sight distance required to qualify for this variance is less than 250 feet.

7.9.d.8. For the purpose of this rule, an on-premises advertising display that is located within the boundaries of a development project, that identifies the name of the development project, its business logo, or the name or logo of the retail business located within the development project, shall continue to be deemed an on-premises advertising display regardless of any of the following occurrences.

7.9.d.8.A. The creation or construction, in or about the project, of a common parking area, driveway, thruway, alley, passway, public or private street, roadway, overpass, divider, connector, or easement intended for ingress or egress, regardless of where or when created or constructed, and whether or not created or constructed by the project developer or its successor, or by reason of government regulation or condition.

7.9.d.8.B. The sale, transfer, or conveyance of an individual lot, parcel, or parcels less than the whole, within the development project.

7.9.d.8.C. The sale, transfer, conveyance, or change of name or identification of a business within the development project.

7.9.d.8.D. The subdivision of the parcel that includes the development project in accordance with the Subdivision Map. This subdivision shall not be applicable in any case in which its application would result in a loss of federal highway funds by the State of West Virginia. This subdivision applies to all counties and municipalities.

7.10. Purchase or Condemnation. The Commissioner may acquire all of the property rights and interests specified in W. Va. Code, §17-22-5, when any sign, display or device is required to be removed by reason of the provisions of W. Va. Code, §17-22-1, et. seq. or of this rule, by purchase at private sale, or in the event he or she is unable to do so, by proceeding in eminent domain. Just and full compensation shall be paid upon the removal of any outdoor advertising sign, display or device that is:

7.10.a. lawfully in existence;

7.10.b. adjacent to any highway designated or redesignated as part of the federal-aid interstate or primary systems;

7.11. Permit Identification Number. Every permit issued in accordance with this rule will be assigned a separate identification number and tag. Upon issuance of the permit, the permitee must fasten or affix the identification tag on the support or lower corner of the sign nearest the main traveled way so as to be readable from the edge of the highway and as directed by the Division. The tag will be issued for and may be attached only to the sign described in the permit application. Under no circumstances may the tag be moved from one sign to another nor may the sign to which it is attached be relocated to another location. The tag will contain a number, the expiration date of the permit and the name of the permittee. Construction, erection, operation, use or maintenance of an outdoor advertising sign, display, or device without having the permit number tag affixed thereto shall be prima facie evidence that it is in violation of the provisions of W. Va. Code, §17-22-1, et. seq. and this rule.

7.11.a. Replacement tags for those which are lost or vandalized must be obtained from the Division by submitting a copy of the application or the renewal permit list and replacement tag fee.

7.11.b. Every permit issued in accordance with this rule will be assigned a separate identification number. It is the duty of each permittee to fasten the permit identification number tag to the sign for which it was furnished. The tag will contain a number, the expiration date of the permit and the name of the permittee. Construction, erection, operation, use or maintenance of an outdoor advertising sign, display, or device without having the permit number tag affixed thereto shall be prima facie evidence that it is in violation of the provisions of W. Va. Code §17-22-1, et. seq. and this rule.

7.12. Removal After Expiration or Revocation of Permit. All outdoor advertising signs, displays and devices shall be removed by the permittee within 30 days after the date of the expiration or revocation of the permit for the same.

7.13. Measurements.

7.13.a. In determining unzoned commercial or industrial areas, measurements shall be made from the farthest or outer most edge of the used area of the commercial or industrial activity, structures, or other areas constituting an integral part of the commercial or industrial activity.

7.13.b. With regard to signs for which the permit application was received prior to January 1, 2004, in determining unzoned commercial or industrial areas, measurements shall be made from the farthest or outer most edge of the used area of the commercial or industrial activity, structures, driveways, parking lots, storage areas, or other areas constituting an integral part of the commercial or industrial activity.

7.13.c. When measuring the distance between signs, measurements shall be taken along the edge of the traveled way between lines perpendicular to the edge of the traveled way which intersect the face of the sign nearest the traveled way.

7.13.d. When measuring unzoned commercial or industrial areas, measurements shall be taken within the control area from the outermost edge of the regularly used buildings and areas regularly used and required for storage and processing. Only those portions of the activity which are within the control area and which are visible from the main traveled way shall be considered.

7.13.e. When measuring interchanges, where there is insufficient space to end an entrance ramp before beginning an exit ramp, the ramp shall be regarded as continuous and no signs may be permitted between the interchanges in areas which are not within the boundaries of an incorporated municipality.

7.13.f. The distance requirement set forth in subdivision 8.c of this section shall be measured along the interstate or controlled access facility, from the nearest point of the beginning or ending of the pavement widening at the exit from or entrance to the main traveled way.

7.13.g. Official and on premise signs as set out in subsection 8.c of this section shall not be counted nor shall measurements be made from them for the purposes of determining compliance of spacing regulations.

7.14. General Restrictions.

7.14.a. No advertising sign may be erected or maintained which involves rapid motion or rotation of the structure or any part thereof. Provided, that an advertising sign that does involve motion or rotation which is not rapid to effect changeable messages may be permitted in accordance with the provisions of W. Va. Code, §17-22-4 and this rule.

7.14.b. The Division shall have sole discretion to determine if a sign creates a traffic or safety hazard, by any means, without limitation to location, construction, orientation, or lighting or illumination. If the Division determines the sign to be a traffic or safety hazard, a notice will be given by certified mail to the sign-owner and landowner to correct any sign which does not conform to these standards within 60 days of the date of mailing. If this determination is made, the sign shall be removed at the expense of the sign owner. A one-time extension of 45 days may be granted if the sign owner can show just cause for the delay because of unusual weather conditions or other reasons beyond the sign-owner's control. If the correction is not completed within the specified time, the sign must be removed at the sign-owner or landowner's expense.

7.14.c. No outdoor advertising sign, display or device may use the words "stop" or "danger", or present or imply the need of requirement of stopping, or the existence of danger.

7.14.d. No outdoor advertising sign, display or device may be a copy or imitate a traffic sign or other official signal.

7.14.e. No outdoor advertising sign, display or device may attempt or purport to direct traffic.

7.14.f. No outdoor advertising sign may contain lighting which is not shielded, and any lighting shall be of sufficiently low intensity as not to cause glare or impair the vision of the operator of any motor vehicle.

7.14.g. No outdoor advertising display or device may be illuminated by any rapid flashing, intermittent light, or lights.

7.14.h. No outdoor advertising sign, display or device may be painted, affixed, or attached to any natural feature, including, but not limited to; rocks, cliffs, trees, and shrubbery.

7.14.i. No outdoor advertising sign, display or device may hinder the clear, unobstructed view of approaching or merging traffic, or obscure from view any traffic sign or other official signs.

7.14.j. No outdoor advertising sign, display or device may be located as to obscure the view of any connecting road or intersection.

7.14.k. No outdoor advertising sign, display or device may be erected, outside of any municipality, within five hundred feet of any church, school, cemetery, public park, public reservation, public playground, or State or national forest, except markers for underground utility facilities.

7.14.l. No person may construct, operate or maintain an outdoor advertising sign, display or device without permission of the owner or other person in lawful possession or control of the land on which it is located.

7.15. Control of Outdoor Advertising Along Federal-Aid Interstate and Defense Highways. This subsection is construed and applied in conformity with the "National Standards" contained in 23CFR, §750.105 et.seq. on the effective date of this rule. This subsection applies to all outdoor advertising along interstate and defense highways except in those situations where the provisions of Subsections 7.2 to 7.14 of this rule are stricter.

7.15.a. All signs must be structurally safe and maintained in a good state of repair, which includes but is not limited to the following:

7.15.a.1. The sign face must be maintained free of peeling, chipping, rusting, wearing, and fading so as to be fully legible at all times.

7.15.a.2. All parts of the sign, including the cutouts, extensions, border, trim, and sign structure must be maintained in a safe manner, free from rusting, rotting, breaking and other deterioration.

7.15.a.3. The sign face must not have any vegetation growing upon it or touching or clinging to it.

7.15.a.4. Any sign which does not conform to the maintenance standards is in violation of this subdivision. A notice will be given by certified mail to the sign owner and landowner to repair any sign which does not conform to these standards within 60 days of the date of mailing. If this determination is made, the sign must be repaired or removed at the expense of the sign owner. A one-time extension of 45 days may be granted if the sign-owner can show just cause for the delay because of unusual weather conditions or other reasons beyond the sign-owner's control. If the repairs are not completed within the specified time, the sign must be removed at the sign-owner or landowner's expense.

7.15.b. Nonconforming signs must be maintained subject to the following restrictions:

7.15.b.1. No improvements, other than painting of the structure, may occur which will lengthen the life of the device.

7.15.b.2. The right to maintain a nonconforming sign is confined to the permitted sign owner or his transferee.

7.15.b.3. If a nonconforming sign is partially damaged by wind, rain, earthquake, or other natural forces including flood, tornado, or hurricane, by other catastrophic occurrences or casualties, it shall only be repaired as follows:

7.15.b.3.A. The sign owner shall notify the Division in writing of the extent of the damage and the cause of the damage, shall provide clear, color, on-site photographs of the damaged sign, and provide a description of the repair work to be undertaken including the cost of the same.

7.15.b.3.B. Within 30 days of receipt of the written notification, the Division shall determine in writing by notice to the sign owner of the percent of damage to the nonconforming sign. If the Division determines that the damage is less than 50 percent of the replacement cost as of the time of the damage, the Division shall authorize the sign owner in writing to perform the requested repairs which shall be promptly completed by the sign owner. If the Division determines that the damage is greater than 50 percent of the replacement cost as of the time of the damage, the Division shall so notify the sign owner in writing and the sign shall not be rebuilt or repaired but shall be dismantled at the cost of the sign owner or landowner and shall not be erected thereafter. Any nonconforming sign which is repaired without Division authorization becomes illegal.

7.15.b.3.C. Any person aggrieved of a decision by the Division hereon shall have the right of appeal by judicial review in accordance with W. Va. Code §17-22-15.

7.15.b.4. A nonconforming sign which is destroyed by Act of God, catastrophic occurrence, vandalism, or tortuous act, cannot be rebuilt, and the debris from the destroyed sign shall be removed by the sign owner, or by the Division at the sign owner's expense and the permit cancelled.

7.15.b.5. A nonconforming sign when relocated or moved to a conforming location may no longer be considered a nonconforming sign and thereafter will be subject to all the provisions of law and of this rule. Reasonable repair and maintenance of a nonconforming sign is not a change which would terminate nonconforming use. Extension, enlargement, rebuilding, changing the materials of the sign structure, changing the size of the sign structure materials, adding guys or struts for stabilization of the sign or structure, adding lights to a non-illuminated sign, changing the height of the sign above ground or re-erection of the sign will make the sign illegal. Any changes to a nonconforming sign, such as the addition of catwalks, must be reviewed on a case-by-case basis and must be agreed to by the Federal Highway Administration prior to construction.

7.15.b.6. A nonconforming sign owner may change the advertising message, including changing faces, as long as similar materials are used and the sign face is not enlarged. If the sign face or faces are reduced, they may never be increased.

7.15.b.7. It is a violation of this rule for signs to be maintained from or across the right of way of Interstate or Federal-aid highways or across controlled access lines of Federal-aid primary routes.

7.15.c. Territory Involved.

7.15.c.1. General Area Protected. This section applies to all areas adjacent to interstate and defense highways, the entire right of way of which was acquired subsequent to July 1, 1956, and which areas are within 660 feet of the nearest edge of right of way limits within and without municipalities.

7.15.c.2. Excepted Areas. The following areas are excepted areas within the meaning of this section.

7.15.c.2.A. Any area wherein a line drawn perpendicular to the centerline of the median and extended to both edges of the width of the normal right of way, intersects any right of way acquired for right of way purposes prior to July 2, 1956.

7.15.c.2.B. Areas within a county that are zoned as commercial or industrial or the land use as of September 21, 1959, was clearly established by state law as commercial or industrial.

7.15.c.2.C. Areas within the corporate boundaries of municipalities that are designated as commercial or industrial areas, as the corporate boundaries existed on September 21, 1959.

7.15.d. On Premise Signs Within Protected Areas Outside of Information Sites. All on premise signs within protected areas outside of informational sites must comply with the Federal Standards of 23CFR, Chapter 1, §750.105 et.seq. for Class 2 signs, and with the following:

7.15.d.1. For Sale or For Lease Signs. One sign advertising the sale or lease of the property upon which it is located and which is visible to traffic proceeding in any one direction may be erected. This may be one double-faced sign, one face being visible to traffic, proceeding in one direction, or two signs with the face of each visible only to traffic proceeding in one direction.

7.15.d.2. Business or Activity Sign. One double-faced sign or two signs, one visible in each direction, and more than 50 feet from the center of activity, advertising the activity being conducted on premises is permissible.

7.15.d.2.A. A business or activity sign may not exceed 20 feet in any one dimension or 150 square feet in area, including border and trim, but excluding supports.

7.15.d.2.B. "Center of activity" is determined by the location of the cash register or main business activity, i.e., motel office.

7.15.d.3. Signs Within 50 Feet of Advertised Activity. Within 50 feet of the advertised activity any number of signs of any size may be erected.

7.15.d.4. General Restrictions. Other than size and distance the following restrictions shall be applicable to on premise signs:

7.15.d.4.A. The signs may not attempt to direct traffic.

7.15.d.4.B. The signs may not imitate a traffic sign.

7.15.d.4.C. Lighting, if any, must be shielded.

7.15.d.4.D. The signs may not contain or include or be illuminated by any rapid flashing light or lights.

7.15.d.4.E. The signs may not be on or attached to any natural feature.

7.15.d.4.F. The signs may not hinder clear, unobstructed view of official signs and approaching or merging traffic.

7.15.d.4.G. Signs greater than 50 feet from the business or activity may not have any letters, trade-marks, etc., advertising a product that are larger or more conspicuous than those advertising the activity.

7.15.e. Signs Within 12 Air Miles of an Advertised Activity. All signs within 12 air miles of an advertised activity shall comply with the Federal Standards of 23CFR, Chapter 1, §750.105 & §750.107 et. seq. for Class 3 signs and with the following regulations:

7.15.e.1. The signs may advertise only activities being conducted within 12 air miles of the sign and shall be visible only to interstate traffic not served by an information site within 12 air miles of the advertised activity.

7.15.e.2. The signs shall not be nearer than two miles in advance of an intersection of the main traveled way and an exit roadway. This distance shall be measured from the edge of the exit roadway nearest to approaching traffic.

7.15.e.3. The signs shall also be 1000 feet beyond the intersection of an entrance roadway and the main traveled highway. This distance shall be measured from the edge of the entrance roadway, including acceleration lanes, nearest to traffic which has passed the entrance roadway.

7.15.e.4. Within the area located between two and five miles approaching an intersection, as above measured, not more than six signs may be located, provided that there are not more than two signs within any mile measured from any point and the signs shall not be less than 1000 feet apart.

7.15.e.5. Beyond five air miles from the advertised activity, an average of one sign per mile is permitted.

7.15.e.6. Other than distance, the following restrictions shall be applicable to all signs erected within 12 air miles of an advertised activity.

7.15.e.6.A. Not more than one sign, advertising the same activity or attraction, visible to traffic moving in any one direction, will be permitted on any one interstate highway. The text must be visible to traffic.

7.15.e.6.B. No sign may exceed 20 feet in any dimension or 150 square feet in area, including border and trim.

7.15.e.6.C. The signs may not be erected in scenic areas.

7.15.e.6.D. The provisions of subparagraph d.4.G of this subsection shall also apply to signs within 12 air miles of an advertised activity.

7.15.f. Signs in the Specific Interest of the Traveling Public Permitted. All signs in the specific interest of the traveling public referring to public places operated by the federal, state, or local government are permitted within a protected area.

7.15.f.1. The following types of specific interest areas, when so designated by the Division, may have signs erected giving information concerning the area.

7.15.f.1.A. Natural phenomena (Man-made lakes not included).

7.15.f.1.B. Historical sites.

7.15.f.1.C. Areas of natural scenic beauty.

7.15.f.1.D. Areas naturally suited for outdoor recreation.

7.15.f.1.E. Places for camping, lodging, eating, and vehicle service repair. Trade names (as defined in 23CFR, Chapter 1, §750.105 et.seq.) if any, on Class 4 signs, per Federal Standards of 23CFR, Chapter 1, §750.105 et.seq., are permitted only if they identify or characterize such a place or service. If a Class 2 or 3 sign also qualifies as a Class 4 sign, per Federal Standards of 23CFR, Chapter 1, §750.105 et.seq., the trade name is not required to be of equal prominence.

7.15.f.1.F. Farm Wineries as provided by W. Va. Code, §17-22-7.

7.15.f.2. All signs designated in paragraph f.1. of this subsection shall comply with the Federal Standards of 23CFR, Chapter 1, §750.105 et.seq. for Class 4 signs and with the following restrictions:

7.15.f.2.A. The signs must be more than 12 miles from the nearest sign within an informational site serving interstate highway traffic to which the sign is visible. A sign qualifying both as a Class 3 and 4, per Federal Standards of 23CFR, Chapter 1, §750.107 et. seq., may be permitted under this subparagraph or under subdivisions 15.e or 15.f of this section.

7.15.f.2.B. The provisions of subparagraph d.4.G of this subsection shall also be applicable to signs under subdivisions d, e, and f of this section.

7.15.g. Informational Sites, Signs Permitted. Signs relating to informational sites are permitted within protected areas. The signs shall comply with the Federal Standards of 23CFR, Chapter 1, §750.105 et. seq. for Class 3 and 4 signs and the following regulations:

7.15.g.1. The sign shall be placed upon a panel that may not exceed 13 feet in height or 25 feet in length, including border and trim, but excluding supports.

7.15.g.2. The sign may not exceed 12 square feet.

7.15.g.3. The text may not be legible from the main traveled way or turning roadway.

7.15.g.4. Only one sign concerning one activity or place is permitted within any one site.

7.15.g.5. Signs concerning a single activity or place may be permitted within more than one informational site, but no Class 3 sign, as defined by Federal Standards of 23CFR, Chapter 1, §750.105 et. seq., which does not also qualify as a Class 4 sign, by Federal Standards of 23CFR, Chapter 1, §750.105 et.seq., may be permitted if the informational site is within 12 air miles of the advertised activity.

7.15.g.6. No moving signs or any animated or moving parts are permitted.

7.15.g.7. Illumination of panels may be by white lights only.

7.15.g.8. No sign on a panel may contain, include, or be illuminated by any other lights, or any flashing, intermittent, or moving lights.

7.15.g.9. Lighting must be so effectively shielded as to prevent beams or rays of light from being directed at the highway.

7.15.g.10. Lighting must be of sufficiently low intensity or brilliance as not to cause glare or to impair the vision of the driver of any motor vehicle, or to otherwise interfere with any driver's operation of a motor vehicle.

W. Va. Code R. § 157-6-8 Salvage Yards

8.1. Application for License. No person may establish, operate, or maintain a salvage yard without first obtaining a license from the Commissioner. Application for a salvage yard license must be made in writing on the form prescribed by the Commissioner and must be signed by the applicant or his authorized agent. A license fee in the amount of $200, payable by certified or cashier's check or money order, must accompany the application. The license will expire on the first day of January following the date of issuance. The license may be renewed from year to year upon submitting the prescribed form and the $200.00.

8.1.a. Each application must include, but is not limited to the following: name, address, and business capacity of the applicant, i.e., whether the business is conducted by an individual, partnership, corporation, society or association; the date the business was established; the date of the last salvage yard license (if any issued) and the number thereof, and the location of the salvage yard, including the number of the nearest State highway in accordance with W. Va. Code §17-23-3.

8.1.b. Prior to establishing a salvage yard, the owner or operator must first obtain a permit from the County Planning Commission. If the County does not have a planning commission, then the owner/operator must obtain a permit from any agency so designated by the County Commission in which the salvage yard is to be located.

8.1.c. In accordance with the provisions of W. Va. Code §17-23-3, the owner or operator of a salvage yard may have no more than one hundred waste tires which are not mounted on wheels on vehicles or machines unless the salvage yard has received a license, permit or approval from the Department of Environmental Protection.

8.2. Areas in Which No Salvage Yard Permitted.

8.2.a. A license will not be issued to establish, operate, or maintain a salvage yard, or any part thereof, within 1000 feet of the nearest edge of the right of way of any road within the state road system, designated and classified as either expressway, trunkline, or feeder. A license will not be issued to establish, operate or maintain a salvage yard, or any part thereof, within 500 feet of the nearest edge of the right of way of any state local service road, unless the view thereof from said road shall be effectively screened and obscured by a fence or fences.

8.2.b. A license will not be issued to establish, operate or maintain a salvage yard, or any part thereof within one thousand feet of the nearest occupied private residence or within five thousand feet of the nearest occupied private residence, which is part of a residential community, unless waived by the owner of the residence. A copy of the waiver must accompany the salvage yard application.

8.3. Existing Salvage Yards. Any license, issued prior to July 1, 1967, of any salvage yard that is located within 1000 feet of the nearest edge of the right of way of a road designated as either expressway, trunkline, or feeder, or is located within 300 feet of the nearest edge of a state local service road, may be renewed only if the view of the salvage yard, and all parts thereof, is effectively screened from view of the traveling public.

8.3.a. Any salvage yard which on July 1, 1967, was duly licensed may continue to be operated and maintained without screening by fences so long as the yard is not located within 1000 feet of any road designated as either expressway, trunkline or feeder, or is not located within 300 feet of the nearest edge of the right of way of any state local service road.

8.3.b. Any salvage yard which was licensed prior to June 12, 1988, may continue to be operated and maintained in accordance with the statutes, and rules in effect at the time the yard was initially licensed.

8.3.c. The licensing of salvage yards situated within municipalities shall be in accordance with the terms and provisions of W. Va. Code §17-23-7.

8.4. Fences. Fences shall be kept in good order and repair. No advertisement is permitted on the fences other than the name of the licensee and the nature of the business conducted on the premises. The fence shall be of sufficient height as to effectively screen the salvage yard and salvage contained therein, and shall be constructed of wood, metal or other material as may be approved by the Commissioner. Fences shall be maintained in a manner satisfactory to the Commissioner.

8.4.a. Fences must be located where they will not be hazardous to the traveling public.

8.4.b. The construction of fences shall be uniform; no patchwork type of construction is permitted.

8.4.c. Fences shall be painted where the composition is such that painting is required. The paint used shall be a color that blends into the surrounding neighborhood.

8.4.d. Where a fence consisting of plantings or other natural materials is constructed, the operator must secure the consent and permission of the Commissioner as to the location and type of plant or natural material which may be used, in order to effectively screen the view of the salvage yard from the traveling public.

8.4.e. Gates shall be of the same height as the component fence and shall be opened only for the purpose of permitting ingress and egress to and from the enclosure.

8.4.f. The Commissioner has the right to determine whether a salvage yard is effectively screened by the fencing employed.

8.5. Payment of Costs of Fencing. The cost of the erection of fences is the responsibility of the salvage yard operator. However, if the Commissioner believes that effective screening cannot be accomplished by the usual and ordinary methods, the Commissioner may determine and pay any additional costs necessary to provide effective screening.

8.6. Removal, Purchase or Condemnation of Salvage Yard. Whenever a salvage yard is so situated that in the opinion of the Commissioner it cannot be effectively screened by fencing, the Commissioner may:

8.6.a. Pay the cost to move all salvage and equipment from the salvage yard to another location where a salvage yard business may lawfully be conducted as long as the owner or operator provides his or her consent.

8.6.b. Purchase at private sale, or acquire by eminent domain, in accordance with the provisions of W. Va. Code §17-4-5, all property rights and interests, other than title to real property, as are necessary and required to affect a lawful termination of the salvage yard business.

8.7. Distance Measurements.

8.7.a. All measurements determinative of the location of salvage yards in relation to State highways shall be made in a line drawn perpendicular from the nearest edge of the right of way.

8.7.b. All applications submitted for a new salvage yard license must be accompanied by a certified survey showing that the distance to the nearest occupied residence is greater than 1,000 ft., or a written waiver must be obtained from all residents within the 1,000 ft. distance.

8.7.c. The certified survey must also show the distance to the nearest residential community. No salvage yard is permitted within 5,000 ft. of a residential community. All measurements shall be made in a straight line from the outer most boundary of the salvage yard to the occupied private residence or the nearest residence in a residential community.

8.8. Yard Maintenance. Salvage in yards not required by law to be fenced, and all salvage exposed to view from the public highway, shall be neatly aligned, and all wrecked or used automobiles shall have doors, hoods and trunk lids closed.

W. Va. Code R. § 157-6-9 Roadside Memorials

9.1. Purpose. This section provides requirements for the placement of roadside memorials within the rights of way of the State's highways by or on behalf of family members or friends for the sole purpose of memorializing persons who have died as a result of vehicle related accidents.

9.2. General Requirements. All roadside memorials must be placed at or near the location of a fatal vehicular accident in compliance with the following rules:

9.2.a. Within the highway right of way, as far from the travel lanes as reasonably possible and not on private property nor in front of or alongside private property or residences unless express permission has been obtained from the property owner.

9.2.b. Clear of ditches, culvert pipes, bridges and other highway features that require access for maintenance.

9.2.c. Behind the guardrail, if one is present, except that temporary memorials may be tied to a guardrail post with lightweight string, wire or tape and must be easily removable for maintenance purposes.

9.2.d. Roadside memorials may not be placed in any median, nor may they be affixed to any bridge, tree, fence, sign or lighting pole, utility pole, traffic signal pole, signs, etc.

9.2.e. Roadside memorials may not interfere with any traffic control device or be a hazard to the motoring public in any way including, but not limited to, restricting drivers’ or other road users’ sight distance; having any light-reflecting parts or materials, or any means of illumination; or mimicking or imitating any official traffic control device.

9.2.f. Persons placing or visiting roadside memorials or roadside memorial signs are responsible for their own safety and must act in a responsible, safe manner including parking completely clear of the travel lanes, even if it means walking some distance.

9.2.g. Removal of roadside memorials. Division of Highways personnel will normally not remove roadside memorials that meet the requirements of this rule. However, the Commissioner has the authority to direct or cause the removal of any roadside memorial, without notice, within a state highway right of way upon determining that removal is necessary for construction, maintenance, safety, or other purpose.

9.2.h. If more than one person applies for a roadside memorial sign for the same victim or for multiple victims of the same accident, the applications will be consolidated and treated as one.

9.3. Temporary Memorials. Temporary memorials must be installed in accordance with the following rules:

9.3.a. Temporary memorials may not exceed surface dimensions of four feet in length by four feet in width and should be self supporting. Any structural or support members of the memorial are limited to a diameter no greater than three inches if wooden or one-quarter inch if metal.

9.3.b. Before placing a temporary memorial, a person must contact the nearest Division of Highways office. The person will be asked questions concerning the intended placement and construction of the temporary memorial so that appropriate guidance may be provided. Also, the Division employee will record the person’s name, address, and phone number for future contact, if required.

9.4. Permanent Memorials. Permanent memorials are items such as plaques, stone monuments and etc., which are typically self-supported, intended to last many years and require a more significant installation and mounting process. These memorials are allowed only if a permit has been obtained from the Division. Application for the permit may be made through the District Office having jurisdiction, on Division of Highways Form MM-109, which may be found on the Department of Transportation’s Web site, http://www.wvdot.com, or any district office.

9.5. Roadside Memorial Signs. Roadside memorial signs are official signs provided and placed by the Division of Highways. Roadside memorial signs must be installed in accordance with the following rules:

9.5.a. Roadside memorial signs may be installed at or near the site where a fatal motor vehicle accident occurred, at a location considering available space and other constraints. The signs shall be of a design approved by the Commissioner.

9.5.b. The provision and placement of a roadside memorial sign is a service by the Division of Highways and does not create any right or privilege.

9.5.c. Within three years following the date of a fatal motor vehicle accident, a member, or members of the immediate family of the victim may make a written request to the Commissioner of Highways, on an application form specified by the Division of Highways, for the placement of a roadside memorial sign at or near the site of the accident. Blank application forms are available for downloading at the West Virginia Department of Transportation’s Web site, http://www.wvdot.com, or at any district office.

9.5.d. The applicant shall, upon request, provide the Commissioner with sufficient documentation to verify the relationship between the applicant and the victim.

9.5.e. Upon receipt of the application and any additional required documentation, the Division will review the information submitted and any other available official records or reports to establish the location and circumstances of the accident.

9.5.f. Permanent memorials or roadside memorial signs will not be permitted or erected to recognize persons whose wrongful conduct was the proximate cause of the accident. If the Division’s review discloses clear and convincing evidence that the accident resulted from the commission of a serious traffic offense as defined in the W. Va. Code §17C-5-1 et seq., or from the use of a vehicle in the commission of a felony, or from flight from a police officer, the Commissioner shall deny the application and shall inform the applicant(s) in writing, specifying the reason for the denial. The written decision of the Commissioner is final.

9.5.g. Only one sign will be permitted per victim and the sign may memorialize more than one victim.

9.5.h. If an application for a roadside memorial sign is granted, the Commissioner shall so inform the applicant in writing. Upon the receipt of a non-refundable payment of $200, the Division shall procure and install the sign and shall notify the applicant in writing when the sign has been installed.

9.5.i. The initial payment of $200 shall compensate the Division for its review of the application, the installation of the roadside memorial sign and its maintenance for a period of three years from the date of installation. The applicant may make a second, optional payment of $200 to extend the display and maintenance of the sign for one additional three-year period. The Division will repair or replace the sign at its election, once during each three year period if damaged or destroyed. At the end of the initial or renewal period, whichever come later, the sign will be removed and offered to the applicant(s).

9.5.j. If at any time during the application and fabrication process another member of the victim’s immediate family objects to the sign, the process shall be halted and the application, the $200 fee, and the related documentation shall be returned to the applicant. If the sign has been installed, the Division shall remove it and furnish it to the applicant, and the Division shall retain the $200 fee.

9.5.k. On or before the 20th day of January of each year the Commissioner shall prepare and submit to the Joint Standing Committee on Government Organization, the Senate Committee on Transportation and Infrastructure and the House Committee on Roads and Transportation, a report that describes the activities of the program during the previous year, including, the number of applications received for roadside memorial signs, the number of applications granted or denied, the number of objections received to roadside memorial signs, the amount of fees received by the Division for the procurement, installation and maintenance of roadside memorial signs, the cost of procurement, installation and maintenance of roadside memorial signs, and any other information the Commissioner considers appropriate.

W. Va. Code R. § 157-6-10 Promulgation of interpretive rule and legislative rule on fees

10.1. The Division shall promulgate an interpretive rule in accordance with W. Va. Code 25 §29A-3-1 et seq. setting forth the requirements for accommodating utilities on highway right-of way and the adjustment and relocation of utility facilities on highway projects. The interpretive rule may not contain any type of fee.

10.2. The Division shall promulgate any fees levied on a utility or telecommunications provider by legislative rule in accordance with W. Va. Code §29A-3-1 et seq.

157CSR6

157CSR6

Series 07 Transportation of Hazardous Wastes Upon the Roads and Highways

W. Va. Code R. § 157-7-1 General

1.1. Scope. -- This legislative rule applies to all persons offering and/or transporting hazardous waste by vehicle upon the roads and highways of this State if the transportation requires a manifest under The United States Environmental Protection Agency (EPA), Hazardous Waste Manifest System (See link, pages 8 and 9).This rule should be read in conjunction with the West Virginia Department of Environmental Protection Agency (DEP) rule, 33CSR20, Hazardous Waste Management System (See link, pages 8 and 9).

1.2. Authority. -- W. Va. Code §22-18-7(a).

1.3. Filing Date. -- May 1, 2025

1.4. Effective Date. -- May 1, 2025

1.5. Sunset Provision. This rule shall terminate and have no further effect August 1, 2030

1.6. Enforcement. Commissioner of Highways delegates the enforcement authority granted to him in the Hazardous Waste Management Act to Highways' State Safety Officer and may delegate enforcement authority to the Public Service Commission.

W. Va. Code R. § 157-7-2 Definitions

2.1. Terms. The terms used in this rule are defined as follows.

2.1.1. "Authorized" means any person and/or transport vehicle who has received an EPA Identification Number from the U.S. Environmental Protection Agency which enables that person to transport or offer hazardous waste for transportation by highway vehicle upon the roads and highways of the state of West Virginia.

2.1.2. "C.F.R." means Code of Federal Regulations.

2.1.3. "Hazardous Waste Management" means the systematic control of the collection, source separation, storage, transportation, processing, treatment, recovery and disposal of hazardous wastes.

2.1.4. "Highway Transporter" means a person engaged or authorized to engage in off-site transportation of hazardous waste by road and highway.

2.1.5. "Offer" means that moment when the shipper (generator) certifies the uniform hazardous waste manifest.

2.1.6. "Person" means any individual, trust, firm, joint stock company, public, private or government corporation, partnership, association, state or federal agency, the United States government, this State or any other state, municipality, county commission or any other political subdivision of a state or any interstate body.

2.1.7. "Shipper" means any person transporting, and/or offering hazardous waste for off-site management by highway transporter.

2.1.8. "Transport Vehicle" means an automobile, van, tractor, trailer or semitrailer, portable tank, cargo tank, or any combination thereof, propelled or drawn by mechanical power and used upon the roads and highways for the transportation of hazardous waste or authorized to transport hazardous waste.

2.1.9. "Transporter" means any person accepting hazardous waste for transportation on the roads and highways of this state.

2.1.10. "Uniform Hazardous Waste Manifest" means the shipping document required by the EPA for all persons who transport, offer for transport, treat, recycle, store or dispose of hazardous waste.

2.1.11. "Vehicle Inspection" means inspection by a Division of Highways or Public Service Commission representative working in his official capacity, including inspection of the uniform hazardous waste manifest, driver requirements, vehicle safety requirements, and/or cargo packaging requirements.

W. Va. Code R. § 157-7-3 Uniform Hazardous Waste Manifest System

3.1. General Requirements.

3.1.1. Any person who offers or transports hazardous waste for off-site treatment, storage, or disposal must prepare a Uniform Hazardous Waste Manifest in accordance with the EPA’s Hazardous Waste System.

3.1.2. Before transporting the hazardous waste, the highway transporter must sign and date the manifest acknowledging acceptance of the hazardous waste from the shipper (generator). The highway transporter must return a signed copy to the generator before leaving the generator's property.

3.1.3. The highway transporter must ensure that the manifest accompanies the hazardous waste.

3.1.4. Before accepting hazardous waste from a rail transporter, a highway transporter must sign and date the manifest and provide a copy to the rail transporter.

3.2. Number and Delivery of Copies. A highway transporter who delivers hazardous waste to another transporter or to the designated facility must:

3.2.1. Obtain the date of delivery and the handwritten signature of that transporter or of the owner or operator of the designated facility on the manifest; and,

3.2.2. Retain one copy of the manifest in accordance with Section 4; and,

3.2.3. Give the remaining copies of the manifest to the accepting transporter or designated facility.

3.3. Transporting Waste from Small Quantity Generators. A transporter transporting hazardous waste from a generator who generates greater that 100 kilograms but less than 1000 kilograms of hazardous waste in a calendar month need not comply with the requirements of this section or those required by the EPA, provided that:

3.3.1. The waste is being transported pursuant to a reclamation agreement as required by the EPA;

3.3.2. The transporter records, on a log or shipping paper, the following information for each shipment;

3.3.3. The name, address, and EPA Identification Number of the generator of the waste;

3.3.4. The quantity of waste accepted;

3.3.5. All United States Department of Transportation (US DOT) required shipping information;

3.3.6. The date the waste is accepted; and

3.3.7. The transporter carries this record when transporting waste to the reclamation facility; and

3.3.8. The transporter retains these records for a period of at least three (3) years after termination or expiration of the agreement.

3.4. Transfers to Foreign Consignees -- Required Information. Transporters who transport hazardous wastes out of the United States must:

3.4.1. Indicate on the manifest the date the hazardous waste left the United States, and;

3.4.2. Sign the manifest and retain one copy in accordance with Section 4 of these rules, and;

3.4.3. Return a signed copy of the manifest to the generator; and,

3.4.4. Give a copy of the manifest to a U.S. Customs official at the point of departure from the United States.

3.4.5. In the case of exports other than those subject to subpart H of 40 C.F.R. part 262, a transporter may not accept such waste from a primary exporter or other person if he knows the shipment does not conform to the EPA Acknowledgment of Consent; unless the generator signs the manifest and attaches the EPA Acknowledgment of Consent. For exports of hazardous waste subject to the requirements of subpart H of 40 C.F.R. part 262, a transporter may not accept hazardous waste without a tracking document that includes all information required by the EPA and DEP.

3.5. Destination.

3.5.1. The highway transporter must deliver the entire quantity of hazardous waste which he has accepted from a generator or a transporter to:

3.5.1.a. The designated facility listed on the manifest;

3.5.1.b. The alternate designated facility, if the hazardous waste cannot be delivered to the designated facility because an emergency prevents delivery;

3.5.1.c. The next designated transporter; or,

3.5.1.d. The place outside the United States designated by the generator.

3.5.2. If the hazardous waste cannot be delivered in accordance with paragraph (a) of this section, the highway transporter must contact the generator for further direction and must revise the manifest according to the generator's instructions.

3.5.3. If hazardous waste is rejected by the designated facility while the transporter is on the facility's premises, then the transporter must obtain the following:

3.5.3.a. For a partial load rejection or for regulated quantities of container residues, a copy of the original manifest that includes the facility's date and signature, and the Manifest Tracking Number of the new manifest that will accompany the shipment, and a description of the partial rejection or container residue in the discrepancy block of the original manifest. The transporter must retain a copy of this manifest in accordance with section four, and give the remaining copies of the original manifest to the rejecting designated facility. If the transporter is forwarding the rejected part of the shipment or a regulated container residue to an alternate facility or returning it to the generator, the transporter must obtain a new manifest from the rejecting facility to accompany the shipment, and the new manifest must include all of the information required by the EPA and DEP.

3.5.3.b. For a full load rejection that will be taken back by the transporter, a copy of the original manifest that includes the rejecting facility's signature and date attesting to the rejection, the description of the rejection in the discrepancy block of the manifest, and the name, address, phone number, and Identification Number for the alternate facility or generator to whom the shipment must be delivered. The transporter must retain a copy of the manifest in accordance with, and give a copy of the manifest containing this information to the rejecting designated facility. If the original manifest is not used, then the transporter must obtain a new manifest for the shipment and comply with the EPA regulations and the DEP rules.

W. Va. Code R. § 157-7-4 Recordkeeping

4.1. Record Retention General Requirements. A highway transporter of hazardous waste must keep a copy of the manifest signed by the generator, himself, and the next designated transporter or the owner or the operator of the designated facility for a period of three (3) years from the date the hazardous waste was accepted by the initial transporter.

4.2. Record Retention Foreign Shipments Requirements. A transporter who transports hazardous waste out of the United States must keep a copy of the manifest indicating that the hazardous waste left the United States for a period of three (3) years from the date the hazardous waste was accepted by the initial transporter.

4.3. Automatic Periods of Retention. The periods of retention referred to in this Section are extended automatically during the course of any unresolved enforcement action regarding the regulated activity or as requested by the Administrator of the U.S. Environmental Protection Agency and/or the West Virginia Division of Highways.

W. Va. Code R. § 157-7-5 Transportation Requirements

5.1. Requirements. No person will transport or offer to transport and no transporter will accept hazardous waste in this state except in accordance with: a.) the requirements of this rule; b.) 33 CSR 20 of the Department of Environmental Protection implementing the Hazardous Waste Management Act; c.) 40 C.F.R. 262, 263, 266 Subpart M, 273, “Universal Waste”, and 279, “Used Oil” of the U.S. Environmental Protection Agency; and d.) 49 C.F.R. Parts 171 through 173, 177 through 179, 49 C.F.R. 387 - Minimum levels of financial responsibilities for motor carriers, and 49 C.F.R. 390 through 397 of the Federal Highway Administration, Department of Transportation as amended. (See link, pages 8 and 9).

5.2. Out of Service. Every hazardous waste transporter or authorized hazardous waste transporter operating upon the roads and highways of West Virginia must be in compliance with all applicable rules and regulations enforced by the West Virginia Division of Highways and the Public Service Commission. If any of these rules and regulations are violated by a highway transporter, the Division of Highways or Public Service Commission representative conducting vehicle inspections may deem the driver, vehicle and cargo out-of-service. All said violations must be corrected and the driver, vehicle and/or cargo found to be in compliance before the vehicle is allowed to continue its journey.

5.3. U.S. EPA Identification Number Required. A transporter must not transport hazardous wastes without having received an Environmental Protection Agency Identification Number from the Administrator of the U.S. Environmental Protection Agency, as required by the West Virginia Department of Environmental Protection.

5.4. U.S. EPA Identification Number Application. A transporter who has not received an Environmental Protection Agency Identification Number may obtain one by applying to the Administrator of the U.S. Environmental Protection Agency (See link, pages 8 and 9). Upon receiving the request, the Administrator of the U.S. Environmental Protection Agency will assign an EPA Identification Number to the transporter.

W. Va. Code R. § 157-7-6 Discharges. 6.l. Immediate Procedures. In the event of a discharge of hazardous waste during transportation, the highway transporter must immediately take appropriate action to protect human health and the environment (e.g., notify local authorities, dike the discharge area)

6.2. Emergency Measures for Removal of Waste. If a discharge of hazardous waste occurs during transportation and a government official, acting within the scope of his authority, determines that immediate removal of the waste is necessary to protect human health or the environment, that official may authorize the removal of the waste by transporters who do not have EPA Identification Numbers and without the preparation of a manifest.

6.3. Required Notices. A highway transporter who has discharged hazardous waste must give notice to: 6.3.1 The WV Division of Highways 1900 Kanawha Boulevard, East, Room 110 Charleston, WV 25305 Telephone: (304) 558-3028 twenty-four hours a day;

6.3.2. The WV Department of Environmental Protection Division of Water and Waste Management 601 57th Street, SE Charleston, WV 25304 Telephone: 800-642-3074 FAX: (304) 926-0463

6.3.3. The National Response Center Telephone: 1-800-424-8802 or (202) 426-2675, but only if:

6.3.3.a. A person is killed; or,

6.3.3.b. A person receives injuries requiring hospitalization; or,

6.3.3.c. Total property damage from the spill exceeds $50,000; or,

6.3.3.d. The discharge involves radioactive waste and/or materials; or,

6.3.3.e. The discharge involves shipment of etiologic agents; or,

6.3.3.f. The situation, in the judgment of the carrier, should be reported.

6.3.4. The notice shall contain the following information:

6.3.4.a. Name of reporter;

6.3.4.b. Name and address of carrier;

6.3.4.c. Phone number where reporter can be reached;

6.3.4.d. Date, time and location of spill;

6.3.4.e. Extent of injuries, if any;

6.3.4.f. Type and quantity of hazardous waste involved, if any;

6.3.4.g. Description of incident and whether a continuing danger to life exists at the scene.

6.4. Written Report.

6.4.1. Within fifteen (15) calendar days of the date of discovery of the discharge of any quantity of hazardous waste, the highway transporter shall file a written report, as specified in 49 C.F.R. 171.16, (See link pages 8 and 9) as amended, with the West Virginia Division of Highways, the West Virginia Department of Environmental Protection, and the United States Department of Transportation.

6.4.2. The report shall contain the following information:

6.4.2.a. All information required by subdivision 6.3.d;

6.4.2.b. The location of the discharge in relation to surface water, public water supplies, groundwater, wildlife inhabitants, and agricultural production;

6.4.2.c. The quantity and description of the hazardous waste removed and the disposition of that material;

6.4.2.d. The disposition, quantity and description of the unremoved hazardous waste;

6.4.2.e. A copy of the hazardous waste manifest shall be attached to the report.

6.5. Clean Up. A highway transporter shall clean up any hazardous waste discharge that occurs during transportation or take such action as may be required or approved by Federal, State or local officials in consultation with the West Virginia Division of Highways or West Virginia Department of Environmental Protection charged with implementation of the West Virginia Hazardous Waste Management Act so that the hazardous waste discharge no longer presents a hazard to human health or the environment prior to releasing the transporter.

6.6. Obligation. Nothing in this section shall relieve a highway transporter of the obligation of complying with applicable sections of the DEP, Division of Water and Waste Management, 47CSR11, Special Rules. (See link pages 8 and 9).

LINKS TO FEDERAL CODE AND STATE RULES FOR SERIES 7

40 C.F.R. 262 https://ecfr.io/Title-40/pt40.28.262 40 C.F.R. 262 Subpart H https://www.ecfr.gov/cgi-bin/text-idx?SID=2147b65da15c7162008baf964f4e3e8a&mc=true&node=sp40.28.262.h&rgn=div6 EPA Hazardous Waste Manifest System https://www.epa.gov/hwgenerators/hazardous-waste-manifest-system 40 C.F.R. Part 261 https://ecfr.io/Title-40/cfr261_main 40 C.F.R. Part 266 https://ecfr.io/Title-40/sp40.29.266.m 40 C.F.R. Part 279 https://ecfr.io/Title-40/pt40.29.279 40 C.F.R. 171 through 180 https://www.ecfr.gov/cgi-bin/text-idx?SID=028795e5b4a0b194cc473338c7237c13&mc=true&tpl=/ecfrbrowse/Title49/49CIsubchapC.tpl 49 C.F.R. Part 387 https://ecfr.io/Title-49/pt49.5.387 49 C.F.R. Part 390 https://ecfr.io/Title-49/pt49.5.390 49 C.F.R. Part 391 https://ecfr.io/Title-49/pt49.5.391 49 C.F.R. Part 392 https://ecfr.io/Title-49/pt49.5.392 49 C.F.R. Part 393 https://ecfr.io/Title-49/pt49.5.393 49 C.F.R. Part 395 https://ecfr.io/Title-49/pt49.5.395 49 C.F.R. Part 396 https://ecfr.io/Title-49/pt49.5.396 49 C.F.R. Part 397 https://ecfr.io/Title-49/pt49.5.397 EPA Form 8700-12 https://www.epa.gov/hwgenerators/instructions-and-form-hazardous-waste-generators-transporters-and-treatment-storage-and 49 C.F.R. 171.16 https://ecfr.io/Title-49/se49.2.171_116 WV DEP Rule Hazardous Waste Management System http://www.wvsos.com/csr/verify.asp?TitleSeries=33-20 WV DEP Special Rules http://apps.sos.wv.gov/adlaw/csr/ruleview.aspx?document=8298&KeyWord= 157CSR7 157CSR7

Series 09 Special Crossing Permits

W. Va. Code R. § 157-9-1 General

1.1. Scope. -- This legislative rule establishes the procedures and standards for issuance of special crossing permits authorizing certain vehicles to operate or move a vehicle or combination of vehicles which exceed the maximum weight allowance specified in W. Va. Code §17C-17A-3 (120,000 pounds) on limited sections of public highways. Special crossing permits may be issued only for vehicles hauling coal or coal by-products in the Coal Resource Transportation Road System.

1.2. Authority. -- This rule is issued pursuant to the provisions of W. Va. Code §17C-17A-3.

1.3. Filing Date. -- April 14, 2006.

1.4. Effective Date. -- April 14, 2006.

W. Va. Code R. § 157-9-2 Application for Permit

2.1. An applicant for a special crossing permit must complete an application form developed by the Division of Highways and submit it to a Highways District Permit Clerk within the district wherein the road that will be crossed or traveled is located or where it originates if the route lies within two districts.

2.2. The application must be accompanied by:

2.2.a. A $500 application fee;

2.2.b. A list of all vehicles or combinations of vehicles, including axle weights and spacings and gross vehicle weights, that will be moving on or crossing the highway for which the permit is requested. If a vehicle will be hauling various tonnages of loads, the maximum weights will be listed; and

2.2.c. An estimate of the number of times per day that each listed vehicle or combination of vehicles will cross or travel the route.

2.3. Prior to the issuance of the permit, the applicant must:

2.3.a. Agree, in writing, to pay the actual costs for any necessary upgrading or repair of the public highway, including any necessary traffic control, which the applicant seeks the permit to cross;

2.3.b. Agree to post a bond in an amount of no less than $50,000, as recommended to and approved by the Commissioner of Highways;

2.3.c. Furnish evidence of having at least the minimum amounts of insurance required of "West Virginia Division of Highways, Standard Specifications, Roads and Bridges, Adopted 2000", and supplements thereto;

2.3.d. Agree, in writing, to pay for the restoration of the public highway to its original condition after the permit has expired. The original condition of the highway may be documented by the applicant and/or the Division of Highways by photography, video recording, or any other means acceptable to both parties.

W. Va. Code R. § 157-9-3 Vehicles

3.1. No listed vehicle or combination of vehicles is permitted to haul more than the manufacturer's weight rating.

3.2. Except as provided in the permit, all listed vehicles or combinations of vehicles must be in compliance with all other specifications given in W. Va. Code §17C.

3.3. All listed vehicles must be identified by vehicle identification number or, if a vehicle identification number is not available, by serial number.

3.4. If any vehicle is replaced during the course of a three year permit period, the applicant must submit supplemental information on each vehicle to the District Permit Clerk. The District Maintenance Engineer and/or Bridge Engineer shall review the supplemental information and may require additional route analysis, route upgrading, an increase in the bond amount, or any other consideration deemed necessary.

W. Va. Code R. § 157-9-4 Evaluation of Permit Application

4.1. Prior to the issuance of any Special Crossing Permit:

4.1.a. The District Maintenance Engineer(s) in the district(s) in which the proposed route is located will initiate a route analysis to determine the feasibility and potential costs associated with the applicant being permitted to cross or travel the route with any of the listed vehicles or combinations of vehicles. Considerations will include the road surface and any existing height or width restrictions, bridges, culverts, and potential traffic or safety problems;

4.1.b. If there are bridges or culverts on the route, the District Bridge Engineer(s) in the district(s) in which the route is located will initiate a bridge analysis to determine whether these structures can safely bear the weight of the listed vehicles or combinations of vehicles, or whether any will require reinforcement or replacement; and

4.1.c. The District Traffic Engineer(s) in the district(s) in which the route is located will perform an analysis to evaluate potential traffic and safety problems and recommend appropriate traffic control actions and/or devices.

4.2. The Commissioner of Highways may require additional evaluations or analyses in his or her discretion.

4.3. Once all of the necessary analyses have been performed by the appropriate party(ies), all necessary conditions and addendums required have been identified, and a proposed bond amount has been agreed upon, the District Maintenance Engineer will submit the application to the Commissioner of Highways for approval.

W. Va. Code R. § 157-9-5 Approval or Denial of Permit Application

5.1. The Commissioner of Highways may deny the application if there is an existing alternate off-road route available, if the road or any bridge thereon is unsuitable for the load, or if it is determined that the permit cannot be granted without jeopardizing public safety.

5.1.a. The Commissioner of Highways may not approve an application which, in combination with another permit or permit application, would authorize a vehicle or combination of vehicles to operate in excess of the maximum weight allowance specified in W. Va. Code §17C-17A-3 on sections of public highways longer than one-half mile.

5.1.b. In the event the application is denied, the Commissioner of Highways may (at his or her discretion) refund any unexpended portion of the application fee to the applicant.

5.2. The Commissioner of Highways may require additional evaluations or agreements prior to approving any special crossing permit application.

5.3. If the application for a special crossing permit is approved by the Commissioner of Highways, the District Maintenance Engineer(s) shall assure that all necessary conditions and addendums are satisfied before delivering the permit to the applicant.

W. Va. Code R. § 157-9-6 Duration, Suspension, Revocation or Renewal of Permit

6.1. A special crossing permit is valid for three years from the date of issuance.

6.2. While a special crossing permit is in effect, the permit holder shall maintain the road in a condition that is passable to the traveling public. The District Maintenance Engineer(s), accompanied by a representative of the permit holder, shall review the conditions of the approved route at least quarterly, or more frequently, if deemed appropriate by the District Maintenance Engineer(s), to assure the integrity of the roadway and any structures adjacent thereto.

6.3. A special crossing permit may be suspended or revoked by the Commissioner of Highways at any time if the permit holder is found to be in violation of any of the conditions, requirements, addendums or provisions of the permit or to have maintained the roadway or crossing as required by the permit or this rule.

6.4. At the end of three years, a permit holder may apply to the Commissioner of Highways to renew the permit in the same manner as an application for an initial permit. The renewal application fee is $500. The Commissioner of Highways may require the same stipulations, conditions and requirements, including the posting of a bond in excess of $50,000, attendant to the issuance of the original permit or may impose additional stipulations, conditions or requirements as a condition of renewal. The Commissioner of Highways may also, in his or her discretion, require any or all of the route and safety evaluations described in this rule as required for issuance of an initial permit or require additional evaluations, analyses or requirements before renewing the permit.

6.5. The Commissioner may deny renewal of the permit for any of the reasons for which an initial application for a permit may be denied, if the permit holder failed to comply with any of the conditions or requirements of the previous permit or if the permit holder failed to satisfactorily maintain the highway or protect public safety.

157CSR9

157CSR9

Series 10 Community Empowerment Transportation Act Program

W. Va. Code R. § 157-10-1 General

1.1. Scope. -- This legislative rule applies general rules to govern special highway financing programs.

1.2. Authority. -- W. Va. Code §17-28-4.

1.3. Filing Date. -- April 6, 2011.

1.4. Effective Date. -- April 6, 2011.

W. Va. Code R. § 157-10-2 Definitions

2.1. Terms. The terms used in this rule are defined as follows:

2.1.a. "Affected local jurisdiction" means any county or incorporated municipality of this state in which all or any part of a transportation facility is or will be located, or any other local public entity, including, but not limited to, a public service district or highway authority or highway association that is directly affected by a transportation project.

2.1.b. "Commissioner" means the Commissioner of Highways who is the chief executive officer of the Division of Highways.

2.1.c. "Department" means the West Virginia Department of Transportation.

2.1.d. "Division" refers to the Division of Highways, a division within the West Virginia Department of Transportation.

2.1.e. "Governmental entity" means any county, municipality, or other governmental unit or political subdivision of the State.

2.1.f. "Highway authority" or "highway association" means any entity created by the Legislature for the advancement and improvement of the state road and highway system, or, if an authority is abolished, any entity succeeding to the principal functions of the highway authority or to whom the powers given to the highway authority are given by law.

2.1.g. "Private entity" means any natural person, corporation, general partnership, limited liability company, limited partnership, joint venture, business trust, public benefit corporation, nonprofit entity or other business entity.

2.1.h. "Project costs" means capital costs, costs of financing, planning, designing, constructing, expanding, improving, maintaining or controlling a transportation facility, the cost of land, equipment, machinery, installation of utilities and other similar expenditures and all other charges or expenses necessary, appurtenant or incidental to a transportation facility.

2.1.i. "Sponsor" or "project sponsor" means a governmental entity proposing a transportation project.

2.1.j. "Public-private partnership" means a consortium that includes the Division of Highways, a governmental entity, a highway authority or any combination thereof, together with a private entity or entities, which proposes to finance, acquire, plan, design, construct, expand, improve, maintain or control a transportation facility.

2.1.k. "Public service district" means a public corporation or political subdivision of this state created pursuant to section two, article thirteen-a, chapter sixteen of this code.

2.1.l. "Revenue" means all revenue, income, earnings, user fees, lease payments or other service payments arising out of or in connection with supporting the development or operation of a transportation facility, including, without limitation, money received as grants or otherwise from the United States of America, from any public entity or from any agency or instrumentality of the foregoing in aid of such transportation project, moneys generated by way of contract, pledge, donation, bequest or bonds and moneys generated by taxes which are authorized to be assessed and levied by the Legislature or another governmental entity.

2.1.m. "Secretary" means the Cabinet Secretary of the West Virginia Department of Transportation.

2.1.n. "Transportation facility" means a public highway, road, bridge, tunnel, overpass, building, structure, airport, vehicle parking facility, riverport facility, rail facility, or intermodal facility used for the transportation of persons or goods.

2.1.o. "Transportation project" means any project to acquire, design, construct, expand, renovate, extend, enlarge, increase, equip, improve, maintain or operate a transportation facility in this state for which a governmental entity is permitted by law to expend public funds but does not include any project that would otherwise be under the authority of the Public Port Authority, the Aeronautics Commission or the Parkways Authority.

2.1.p. "User fee" means a rate, toll, or fee imposed by an operator for use of all or a part of a transportation facility authorized in section five of this article.

2.1.q. "Utility" means a privately, publicly or cooperatively owned line, facility or system for producing, transmitting or distributing communications, cable television, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not connected with highway drainage, or any other similar commodity, including fire or police signal system or street lighting system, which directly or indirectly serves the public.

W. Va. Code R. § 157-10-3 Coordination and Development of Transportation Projects with Other Infrastructure; Exemption from Public Service Commission Approval

3.1. The Commissioner will encourage the joint and concurrent development and construction of transportation projects with other infrastructure including, without limitation, water and sewer infrastructure.

3.2. To coordinate and integrate the planning of transportation projects among local jurisdictions, all governing bodies, units of government, municipal utilities and public service districts within the affected local jurisdiction must cooperate, participate, share information and give input when a project sponsor prepares a transportation project plan.

3.3. Municipal utilities and public service districts may enter into agreements with any project sponsor for the purpose of constructing new infrastructure facilities or substantially improving or expanding infrastructure facilities in conjunction with a transportation project and dedicating revenue or contributing moneys to transportation project costs. Each agreement must contain, at a minimum, engineering and construction standards, terms regarding the revenue sources, allocation of project costs and confirmation that the agreement does not violate any existing bond covenants. Each agreement shall also comply and be consistent with the comprehensive agreement applicable to the transportation project. No infrastructure facilities may be located or relocated within a right-of-way in, or to be included within, the state road system except in accordance with transportation project plans approved by the Commissioner.

3.4. The rates charged by a municipal utility or public service district to customers in an affected local jurisdiction may include the additional cost borne by the municipal utility or public service district as a result of entering into an agreement with a project sponsor to contribute moneys or dedicate revenue to transportation project costs.

3.5. This rule does not affect the authority of the Department of Environmental Protection nor the authority of the Department of Health and Human Resources as provided by law.

3.6. The Public Service Commission does not have authority to regulate or intervene in the approval and construction of any transportation project or any agreement between a project sponsor and a municipal utility or public service district under this rule.

W. Va. Code R. § 157-10-4 Submission and Consideration of Project Proposals; Bonds

4.1. A sponsor seeking state funds for a transportation project must submit to the Division for review a transportation plan project proposal for the project. The project proposal must include:

4.1.a. A completed application in a form approved by the Division;

4.1.b. A map in a scale approved by the Division depicting the location of the transportation project and the affected local jurisdictions;

4.1.c. The estimated total project cost;

4.1.d. An estimate of any state or federal funds requested from the Division;

4.1.e. Other sources of funding available for the transportation project;

4.1.f. Information demonstrating the need for the transportation project and documentation that the proposed funding of the project is the most economically feasible alternative to completing the transportation project;

4.1.g. A timeline for activities to be performed by the project sponsors;

4.1.h. A statement setting forth the financing of the project costs, including the sources of the funds and identification of any dedicated revenues, proposed debt, tax increment financing plans, issuance of bonds or notes, in-kind services or equity investment of project sponsors;

4.1.i. A list of utilities that can be constructed in coordination with the transportation project and a statement of the plans to accommodate those utilities;

4.1.j. Project sponsor contact information;

4.1.k. A statement of the projected availability and use of dedicated revenues from user fees, lease payments, taxes, and other service payments over time; and

4.1.l. Such other information as the Commissioner considers necessary to enable the review of the transportation project.

4.1.m. If requested by the Commissioner, geographic information system mapping of the transportation project and electronic filing of the preliminary proposal.

4.2. If a preliminary proposal is approved by the Commissioner for detailed review, the Division will advise the project sponsors of the estimated cost of a detailed review. The project sponsor must deposit with the commissioner a bond, irrevocable letter of credit or other acceptable instrument guaranteeing payment by the project sponsors of the actual costs incurred by the Division to perform a detailed transportation project plan review, to the maximum of the estimated costs, before a detailed review may begin.

4.3. The Commissioner and the sponsor shall encourage other affected public and private entities to collaborate on the project and to provide funding.

4.4. After a detailed review, the Commissioner may recommend to the Governor those transportation projects which are a prudent and resourceful expenditure of public funds. No proposal may be recommended or approved which is inconsistent with the division's twenty-year long range plans or other transportation plans.

W. Va. Code R. § 157-10-5 Comprehensive Agreement

5.1. Prior to acquiring, constructing or improving a transportation facility, the project sponsors must enter into a comprehensive agreement with the Division. The comprehensive agreement must provide for:

5.1.a. Delivery of performance or payment bonds in connection with the construction of or improvements to the transportation facility, in the forms and amounts satisfactory to the Division;

5.1.b. Review and approval of the final plans and specifications for the transportation facility by the Division;

5.1.c. Inspection of the construction of or improvements to the transportation facility to ensure that they conform to the engineering standards acceptable to the Division;

5.1.d. Maintenance of a policy or policies of public liability insurance or self-insurance, in a form and amount satisfactory to the Division and reasonably sufficient to insure coverage of tort liability to the public and employees and to enable the continued operation of the transportation facility. However, in no event may the insurance impose any pecuniary liability on the State, its agencies or any political subdivision of the state. Copies of the policies must be filed with the Division accompanied by proofs of coverage;

5.1.e. Monitoring of the maintenance and operating practices of the sponsoring governmental entity by the Division and the taking of any actions the Division finds appropriate to ensure that the transportation facility is properly maintained and operated;

5.1.f. Itemization and reimbursement to be paid to the Division for the review and any services provided by the Division;

5.1.g. Filing of semi-annual financial statements in a level of detail approved by the Division;

5.1.h. The date of termination of the sponsoring governmental entity's duties and dedication to the Division; and,

5.1.i. That a transportation facility must accommodate all public utilities on a reasonable, nondiscriminatory and completely neutral basis and in compliance with W. Va. Code §17-4-17b, as amended.

5.2. In the comprehensive agreement, the Division may agree to accept grants or loans from the sponsoring governmental entity, from time to time, from amounts received from the state or federal government or any agency or instrumentality of the state or federal government.

5.3. The comprehensive agreement must incorporate the duties of the sponsoring governmental entity and may contain any other terms and conditions that the Division determines serve the public purpose of the West Virginia Community Empowerment Transportation Act. Without limitation, the comprehensive agreement may contain provisions under which the Division agrees to provide notice of default and cure rights for the benefit of the sponsoring governmental entity and the persons specified in the comprehensive agreement as providing financing for the qualifying transportation facility. The comprehensive agreement may contain any other lawful terms and conditions to which the sponsoring governmental entity and the Division mutually agree.

5.4. Changes in the terms of the comprehensive agreement must be mutually agreed to in writing.

W. Va. Code R. § 157-10-6 Funding of Project

6.1. The sponsor and the Division may use alternative funding sources to conduct the project, including Transportation Infrastructure Finance and Innovation Act, general obligation bonds, special revenue bonds, anticipatory bonds, multi-entity bonds, and dedicated user fees.

6.2. Upon completion of the project, any monies excess to the monies defined in the funding section of the project agreement shall be deposited in to a separate account for either the earlier retirement of the debt or to fund the operation or maintenance of the project.

6.3. No fees may be terminated until the bonding for the project is retired.

W. Va. Code R. § 157-10-7 Commissioner’s Authority over Transportation Projects Accepted into the State Road System; Use of State Road Funds

7.1. The Commissioner has final approval of any transportation project. No state road funds may be used, singly or together with funds from any other source, for any purpose or in any manner contrary to or prohibited by the constitution and laws of this state or the federal government or where such use, in the sole discretion of the commissioner, would jeopardize receipt of federal funds.

7.2. All transportation projects that are accepted as part of the state road system, and all real property interests and appurtenances, will be under the exclusive jurisdiction and control of the Commissioner, who may exercise the same rights and authority as he or she has over other transportation facilities in the state road system. As a condition of acceptance of a transportation project into the state road system, the Commissioner may require that the project sponsor provide a dedicated revenue source for the continued operation and maintenance of the transportation project.

7.3. No state road funds may be used to finance a transportation project without the written approval of the Commissioner.

W. Va. Code R. § 157-10-8 Transportation Project is a Public Improvement

All transportation projects governed by this rule are public improvements and are subject to the provisions of W. Va. Code §§21-5A-1, et. seq. and 5-22-1, et. seq. All construction, reconstruction, repair or improvement of transportation projects must be awarded by competitive bidding. Competitive bids must be solicited by the governmental entity sponsoring a transportation project for each construction contract in excess of $25,000 in total cost through publication of a Class II legal advertisement, as required by W. Va. Code §59-3-1, et.seq. The publication area is the county or municipality where the transportation facility is to be located. The advertisement must also be published as a Class II advertisement in a newspaper of general circulation published in the City of Charleston. The advertisement must include the solicitations of sealed proposals for the construction of the transportation project, stating the time and place for the opening of bids. All bids must be publicly opened and read aloud. Construction contracts must be awarded to the lowest qualified responsible bidder who furnishes a sufficient performance and payment bond. The sponsoring governmental entity may reject all bids and solicit new bids for the construction contract. W. Va. Code §21-1C-1, et.seq. applies to the construction of all transportation projects approved under this Rule.

W. Va. Code R. § 157-10-9 Reporting

The Division shall prepare and publish an annual report detailing the activities and accomplishments regarding the community empowerment transportation act and also outlining alternative road funding modes and incentive packages. The report shall be provided to the Governor and Joint Committee on Government and Finance no later than December 15 of each year.

157CSR10

157CSR10

Series 11 State Transportation Infrastructure Fund Program

W. Va. Code R. § 157-11-1 General

1.1. Scope -- This legislative rule establishes general rules pertaining to the West Virginia Division of Highways entering into a cooperative agreement with the United States Secretary of Transportation to establish an infrastructure revolving fund to be known as the State Transportation Infrastructure Fund.

1.2. Authority. -- W. Va. Code §17-17B-5.

1.3. Filing Date. -- April 14, 2016.

1.4. Effective Date. -- April 14, 2016.

W. Va. Code R. § 157-11-2 Definitions

2.1. “Board" means State Transportation Infrastructure Fund Advisory Board.

2.2. "Capitalized" means depositing funds as initial capital into the fund.

2.3. "Commissioner" means the West Virginia Commissioner of Highways.

2.4. "Cooperative agreement" means written consent between the state and the United States Department of Transportation Secretary pursuant to Title 23, Chapter 6 of the United States Code.

2.5. "Department" means the West Virginia Department of Transportation.

2.6. "Division" means the West Virginia Division of Highways, a division within the West Virginia Department of Transportation. 2.7 "Eligible borrower" means any government unit which is authorized to develop or construct an eligible project.

2.8. "Eligible cost" means as applied to an eligible project to be financed from the federal accounts, the costs that are permitted under applicable federal laws, requirements, procedures, and guidelines in regard to establishing, operating, and providing assistance from the fund. As applied to an eligible project to be financed from the state accounts, these costs include the costs of preliminary engineering, traffic and revenue studies, environmental studies, right-of-way acquisition, legal and financial services associated with the development of the eligible project, construction, construction management, facilities, and other costs necessary for the eligible project.

2.9. "Eligible project" means a project of a government unit that meets the eligibility criteria of the National Highway System Designation Act of 1995, Public Law 104-59, Section 350, which provides public benefits by enhancing mobility and safety, promoting economic development, or increasing the quality of life and general welfare of the public. The eligible project may be done by a private entity provided that it is an eligible project of a government unit.

2.10. "Federal accounts" means, collectively, the separate accounts for federal highway funds.

2.11. "Financing agreement" means any agreement entered into by an eligible borrower pertaining to a loan or other financial assistance. This agreement may contain, in addition to financial terms, provisions relating to the regulation and supervision of eligible project, or other provisions as the Commissioner in consultation with the board may determine. The term "financing agreement" includes, without limitation, a loan agreement, trust indenture, security agreement, reimbursement agreement, guarantee agreement, bond or note, ordinance or resolution, or similar instrument.

2.12. "Fund" means the State Transportation Infrastructure Fund that is in the West Virginia Treasury. The fund shall be a revolving fund to be administered by the Commissioner of the Division to enter loan obligations or make loans to or for the benefit of an eligible borrower for the undertaking of an eligible project by a project sponsor.

2.13. "Government unit" means municipalities, counties, state agencies, and quasi-state government agencies.

2.14. "Initial assistance" means the first round of funds that are loaned or used for credit enhancement from the fund for eligible projects. The initial assistance shall not be made in the form of a grant.

"Loan" means any form of direct financial assistance from the fund that is required to be repaid over a period of time and that is provided to a project sponsor for all or part of the eligible costs of an eligible project. A loan may be disbursed in anticipation of reimbursement for or direct payment of eligible costs of a eligible project.

2.15. "Loan obligation" means a bond, note, or other evidence of an obligation.

2.16. "Private entity" means a private person or entity, that has entered into an approved contract with a government unit to undertake an eligible project.

2.17. "Project revenues" means all rates, rents, fees, assessments, charges, and other receipts derived or to be derived by an eligible borrower from a eligible project or made available from a special source, and, as provided in the applicable financing agreement, derived from any system of which the eligible project is a part of, from any other revenue producing facility under the ownership or control of the eligible borrower including, without limitation, proceeds of grants, gifts, appropriations and loans, including the proceeds of loans made from the fund, investment earnings, reserves for capital and current expenses, proceeds of insurance or condemnation and proceeds from the sale or other disposition of property and from any other special source as may be provided by the eligible borrower.

2.18. "Project sponsor" may be a government unit to undertake completion of construction of an eligible project.

2.19. "Revenues" means, when used with respect to the fund, any receipts, fees, income, or other payments received or to be received by the fund including, without limitation, receipts and other payments deposited in the fund and investment earnings on its funds and accounts.

2.20. "State accounts" means, collectively, the separate accounts for state highway funds.

W. Va. Code R. § 157-11-3 State Transportation Infrastructure Fund Advisory Board

3.1. The State Transportation Infrastructure Fund Advisory Board is hereby created to make recommendations and offer counsel to the Commissioner or the Commissioner's designee. The Board may offer recommendations and counsel to the Commissioner regarding all aspects of the fund, including, but not limited to, identifying and determining eligible borrowers, eligible projects, financing agreements, loans, and loan obligations as well as the manner in which the fund is capitalized and the manner in which obligations to the fund are enforced.

3.2. The Commissioner shall be an ex officio member and the chairperson of the Board. The Board shall consist of five persons as follows:

3.2.a. The assistant commissioner of the Division;

3.2.b. The business manager of the Division;

3.2.c. A member of the Division's program planning and administration division;

3.2.d. The Division's state highway engineer; and

3.2.e. The director of the Division's legal division.

3.3. Members of the Board shall receive no compensation for their work on the Board other than compensation for their regular employment by the Division; provided, however, members of the Board shall be reimbursed from the fund for actual and necessary expenses incurred for the discharge of their official duties as members of the Board in a manner consistent with the guidelines of the department of administration.

W. Va. Code R. § 157-11-4 Powers and Duties of the Commissioner

4.1. The Commissioner, in consultation with the Board, shall adopt policies and procedures consistent with W.Va. Code §17-17-B-1 et seq., for the administration of the fund’s affairs and the implementation of the fund’s functions, including, but not limited to, the identification and selection of eligible borrowers, eligible costs, and eligible projects as well as the determination of the amount of initial assistance and the manner in which the fund shall be capitalized.

4.2. The Commissioner shall have the following powers:

4.2.a. Make loans to eligible borrowers to finance the eligible costs of eligible projects and to acquire, hold, and subordinate loan obligations in a manner as the Board determines advisable;

4.2.b. Provide eligible borrowers with other financial assistance to defray eligible costs of an eligible project;

4.2.c. Enter into contracts, arrangements, and agreements with eligible borrowers and other persons and execute and deliver all financing agreements and other instruments necessary or convenient to the exercise of the powers granted by W.Va. Code §17-17B-1 et seq.;

4.2.d. Enter into agreements with a government unit, private entity, department, agency, or instrumentality of the United States or of this State or another state for the purpose of planning and providing for the financing of eligible projects;

4.2.e. Establish policies and procedures for the making and administering of loans and other financial assistance and fiscal controls and accounting procedures to ensure proper accounting and reporting of the fund, government units, eligible borrowers, and private entities;

4.2.f. Collect or authorize the trustee under any trust indenture securing any bonds to collect amounts due under any loan obligations owned by it, including taking the action required to obtain payment of any sums in default;

4.2.g. Consent to any modification with respect to the rate of interest, time and payment of any installment of principal or interest, or any other term of any loan obligations owned by it;

4.2.h. Expend funds to obtain accounting, management, legal, financial consulting, and other professional services necessary to the operations of the fund;

4.2.i. Expend funds credited to the fund as the Board determines necessary for the costs of administering the operations of the fund;

4.2.j. Procure insurance against losses in connection with its property, assets, or activities including insurance against liability for its acts or the acts of its employees or agents or to establish cash reserves to enable it to act as a self-insurer against any and all such losses;

4.2.k. Collect fees and charges in connection with it loans or other financial losses;

4.2.l. Apply for, receive and accept from any source, aid, grants, and contributions of money, property, labor, or other things of value to be used to carry out the purposes of the fund;

4.2.m. Enter into contracts or agreements for the servicing and processing of financial agreements;

4.2.n. Enter into loan obligations and loans that may be secured or unsecured;

4.2.o. Accept notes and other forms of obligation to evidence any indebtedness as well as mortgages, liens, pledges, assignments or other security interests to secure such indebtedness;

4.2.p. Take all actions that are appropriate to protect security interests, ensure repayment of any indebtedness, and safeguard against losses of the fund, including, but not limited to, initiating foreclosures, default proceedings, and all other forms of redress, whether legal or equitable in nature;

4.2.q. Determine future capital needs of the fund. The future capital needs of the fund may be determined each year based on an actuarial valuation that reflects, among other things, anticipated revenues, project revenues, amounts in federal accounts and state accounts, fund costs, loan defaults and related risk exposure to the extent such valuation is consistent with the Actuarial Standards of Practice published by the Actuarial Standards Board.

4.2.r. Do all other things necessary or convenient to exercise powers granted or reasonably implied by West Virginia Code §17-17B-1 et seq.

157CSR11

157CSR11

Series 13 Small Wireless Facilities on Division of Highways Rights-of-Way

W. Va. Code R. § 157-13-1 General

1.1. Scope. – This legislative rule implements the Small Wireless Facilities Deployment Act, enacted March 5, 2019. It provides for a permit process and specifies the information that must be provided in connection with a permit application.

1.2. Authority. – West Virginia Code §31H-2-3.

1.3. Filing Date. – March 21, 2025.

1.4. Effective Date. – March 21, 2025.

1.5. Sunset Provision – This rule shall terminate and have no further force and effect on August 1, 2030.

W. Va. Code R. § 157-13-2 Definitions. (See W. Va. Code §31H-1-2)

2.1. “Antenna” means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.

2.2. “Affidavit” means a properly executed sworn statement averring that the applicant has contacted the utility pole owner for permission to locate a small wireless facility on the pole.

2.3. “Applicable codes” means uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or local amendments to those codes, including the National Electrical Safety Code.

2.4. “Applicant” means any person who submits an application and is a wireless provider.

2.5. “Application” means a request submitted by an applicant to the Division for a permit to collocate small wireless facilities or to approve the installation, modification, or replacement of a utility pole or wireless support structure.

2.6. “Authority” means the State of West Virginia or a political subdivision that has jurisdiction and control for use of public rights-of-way as provided by this code for placements within public rights-of-way or has zoning or land use control for placements not within public rights-of-way.

2.7. “Authority utility pole” means a utility pole owned or operated by an authority in a public right-of-way.

2.8. “Collocate” or “collocation” means to install, mount, maintain, modify, operate, or replace wireless facilities on or adjacent to a wireless support structure or utility pole.

2.9. “Commissioner” means the Commissioner of the West Virginia Division of Highways.

2.10. “Communications facilities” means the set of equipment and network components, including wires, cables, antennas, and associated facilities, used by a communications service provider to provide communications service.

2.11. “Communications service” means cable service, as defined in 47 U.S.C. 522(6), as amended; information service, as defined in 47 U.S.C. 153(24), as amended; telecommunications service, as defined in 47 U.S.C. 153(53), as amended; mobile service, as defined in 47 U.S.C. 153(33), as amended; or wireless service other than mobile service.

2.12. “Communications service provider” means any entity that provides communications service.

2.13. “Decorative pole” means an Division utility pole that is specially designed and placed for aesthetic purposes and on which no appurtenances or attachments, other than a small wireless facility, or specially designed informational, or directional signage, or temporary holiday or special event attachments have been placed, or are permitted to be placed, according to nondiscriminatory municipal rules or codes.

2.14. “District” means one of the management areas of the state, which include one or more counties, established by the Division of Highways, with each district headed by a separate district engineer or manager. A list of the Division of Highways’ Districts and contact information for each is available on the Division’s website at https://transportation.wv.gov/highways/districts/Pages/default.aspx.

2.15. “Division” means the West Virginia Division of Highways.

2.16. “Existing Utility Status Report” means a written document that identifies and locates all private and public utility companies, owning facilities located within the area of influence of the proposed activity. The report must certify that those utility companies were consulted, and that each utility's location, bearing, grade, depth, and diameter is accurately represented on the plans and profiles.

2.17. “FCC” means the Federal Communications Commission of the United States.

2.18. “Fee” means a one-time, nonrecurring charge.

2.19. “Law” means a federal or state statute, common law, code, rule, regulation, order, or a local ordinance or resolution.

2.20. “Micro wireless facility” means a small wireless facility that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height and any exterior antenna 11 inches or less.

2.21. “Permit” means an encroachment permit, MM-109, that provides the written authorization required by the Division to perform an action or initiate, continue, or complete a project on the Division’s right-of-way.

2.22. “Right-of-way” means the area on, below, or above a Division public roadway, highway, street, sidewalk, alley, utility easement, or similar property, but not including interstate highway.

2.23. “Small wireless facility” means a wireless facility that meets both of the following qualifications:

2.23.1. Each antenna could fit within an imaginary enclosure of no more than 6 cubic feet; and

2.23.2. All other wireless equipment associated with the facility is cumulatively no more than 28 cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: Electric meter, concealment elements, telecommunications demarcation box, ground-based enclosures, grounding equipment, power transfer switch, cut-off switch, and vertical cable runs for the connection of power and communications services.

2.24. “Utility pole” means a pole or similar structure that is or may be used, in whole or in part, by a communication services provider or for electric distribution, lighting, traffic control, signage (if the pole is 15 feet or taller), or a similar function, or for the collocation of small wireless facilities. However, “utility pole” does not include wireless support structures or electric transmission structures.

2.25. “Wi-Fi” means the standard wireless local area network (WLAN) technology for connecting computers and myriad electronic devices to each other and to the internet. It is the wireless version of a wired Ethernet network, and is commonly deployed alongside it.

2.26. “Wireless facility” means equipment at a fixed location that enables wireless communications between user equipment and a communications network, including:

2.26.1. Equipment associated with wireless communications; and

2.26.2. Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration. “Wireless facility” includes small wireless facilities. “Wireless facility” does not include:

2.26.2.a. The structure or improvements on, under, or within which the equipment is collocated; or

2.26.2.b. Wireline backhaul facilities, coaxial or fiber-optic cable that is between wireless support structures or utility poles, or coaxial or fiber-optic cable that is otherwise not immediately adjacent to, or directly associated with, an antenna.

2.27. “Wireless infrastructure provider” means any person or entity, including a person authorized to provide telecommunications service in the state, that builds or installs wireless communication transmission equipment, wireless facilities, wireless support structures, or utility poles, but that is not a wireless provider.

2.28. “Wireless provider” means a wireless infrastructure provider or a wireless service provider.

2.29. “Wireless services” means any services, using licensed or unlicensed spectrum, including the use of Wi-Fi, whether at a fixed location or mobile location, provided to the public using wireless facilities.

2.30. “Wireless service provider” means a person who provides wireless services.

2.31. “Wireless support structure” means a structure, such as a monopole; tower, either guyed or self-supporting; billboard; or other existing or proposed structure designed to support or capable of supporting wireless facilities. “Wireless support structure” does not include a utility pole.

2.32. “Wireline backhaul facility” is a facility used for the transport of communications service or any other electronic communications by coaxial, fiber-optic cable, or any other wire.

W. Va. Code R. § 157-13-3 Application for permit. (See W. Va. Code §31H-2-1(f) through §31H-2-1(j) and W. Va. Code §31H-2-2)

3.1. A wireless infrastructure provider, or wireless provider, herein after “Provider”, that plans to install, extend, expand, or upgrade wireless facilities within a Division right-of-way shall submit a permit application to the Division.

3.2. At a minimum, the following information is required as part of a permit application:

3.2.1. A complete application form, MM-109. The MM-109 may be electronically through the Division’s website https://transportation.wv.gov/highways/engineering/files/MM-109.pdf; or by mailing the application to the Division at 1900 Kanawha Blvd. E., Building 5, Room 109, Charleston W.Va. 25305.

3.2.2. A plan view submitted in *.pdf, *.kmz, or *.dgn formats, with coordinates which indicate the proposed location of the small wireless facilities. Providers seeking to collocate small wireless facilities on Division utility poles must enter into an Agreement with the Division.

3.2.3. Details, including but not limited to:

3.2.3.a. Size of any transmitter or receiver.

3.2.3.b. Height of installation which must comply with W. Va. Code §31H-2-1.

3.2.3.c. Attachment details.

3.2.3.d. Point of electrical service and meter number.

3.2.3.e. Fiber optic connections.

3.2.3.f. Location on map and coordinates.

3.2.3.g. Temporary traffic control plan to be utilized during installation and during maintenance.

3.2.4. Proof of insurance and any applicable bond as provided in section five of this rule.

3.2.5. Completed Submission Checklist. (See Appendix A)

3.2.6. Notarized affidavit. (See Appendix B)

W. Va. Code R. § 157-13-4 Permit requirements, approvals, denials and fees. (See §31H-2-2 and §31H-2-3)

4.1. A small wireless provider has the right to collocate a small wireless facility and install, maintain, modify, operate and replace its own utility pole, or with the permission of the owner, a third party’s utility pole that exceeds these height limits along, across, upon, and under the right-of-way. Such facilities shall be installed and maintained in a manner that will not obstruct or hinder usual travel, public safety, or the function or operation of the Division’s utility poles, equipment or communications devices on the right-of-way or to obstruct the legal use of the right-of-way by other utilities or the Division.

4.2. The Division may require the placement of small wireless facilities on any specific utility pole or category of poles or require multiple antenna systems on a single utility pole or the underground placement of small wireless facilities.

4.3. The Division may limit placement of small wireless facilities by minimum separation distances.

4.4. The Division will assign a tracking number to each application and promptly send the application to the appropriate District or Districts with the deadlines for acting on the application. When determining the time in which an application must be acted upon, if the final day to act falls on a federal or state holiday, the date to act upon the application shall be the next weekday that is not a federal or state holiday.

4.5. The District shall review the application for completeness and accuracy within 10 days of receipt of the application by the Division. If the application is incomplete the District shall send the applicant a letter detailing the deficiencies of the application.

4.5.1. The District must approve or deny a completed application for collocation of a small or micro wireless facility within 60 days.

4.5.2. The District must approve or deny a completed application for installation, modification or replacement of a utility pole in the right-of-way within 90 days.

4.5.3. Applications not acted upon within the processing deadlines are deemed approved. The processing deadlines may be extended by written agreement of the Provider and the District.

4.6. The Provider may correct the deficiencies and return the application to the District. The deadlines are stopped pending receipt of the requested information. Once the supplemental information is received, the District has 10 days to review the supplemental information for completeness and notify the Provider of any deficiency in the supplemental information.

4.7. If the application meets all statutory and regulatory requirements, the District shall issue a permit granting access to the right of way as specified in the permit.

4.8. Denial of an application at any stage of the process must be in writing and provide the basis for the denial including the specific federal or state law, code, regulation, or rule, policy, guideline or standard provisions on which the denial was based.

4.9. An application for collocation of a small wireless facility or installation, modification, or replacement of a utility pole that meets the requirements of this rule and the Small Wireless Facilities Act may be denied only if the proposed application:

4.9.1. Materially interferes with the safe operation of traffic control equipment;

4.9.2. Materially interferes with sight lines or clear zones for transportation or pedestrians;

4.9.3. Materially interferes with compliance with the Americans with Disabilities Act, Public Rights-0f-Way Accessibility or similar federal or state standards regarding pedestrian access or movement;

4.9.4. Fails to comply with reasonable and nondiscriminatory spacing requirements of general application adopted by legislative rule or standards that concern the location of ground-mounted equipment and new utility poles. Such The spacing requirements may not prevent a wireless provider from serving any location;

4.9.5. Fails to comply with applicable codes, legislative rule, policy, guidance, and generally applicable standards that are consistent with the Small Wireless Facilities Act adopted by the Division for construction and public safety in the rights-of-way, including reasonable and nondiscriminatory wiring and cabling requirements, grounding requirements, and abandonment and removal provisions;

4.9.6. Fails to attest that a small wireless facility will comply with relevant Federal Communications Commission (FCC) regulations concerning:

4.9.6.a. Radio frequency emissions from radio transmitters; and

4.9.6.b. Unacceptable interference with the public safety spectrum and CII spectrum, including compliance with the abatement and resolution procedures for interference with the public safety spectrum and CII spectrum established by the FCC set forth in 47 C.F.R. 22.970 through 47 C.F.R. 22.973 and 47 C.F.R. 90.672 through 47 C.F.R. 90.675;

4.10. The denial is effective the day the Division mails the denial to the applicant.

4.11. The applicant may cure the deficiencies listed in the denial and resubmit the application within 30 business days without paying an additional application fee.

4.11.1. Review of the resubmitted application is limited to the specific deficiencies listed in the denial.

4.11.2. If the resubmittal is deficient, the Division must submit a second denial in writing to the applicant and provide the basis for the denial including the specific federal or state code, regulation, or rule provisions on which the denial was based.

4.11.3. The applicant may cure the deficiencies listed in the second denial and resubmit the application within 30 business days without paying an additional application fee.

4.12. A provider seeking to collocate small wireless facilities at multiple locations within the Division’s rights-of-way may file a consolidated application in the District specifying the Districts in which the provider seeks to collocate with the Division. If approved, the applicant will receive one permit covering all approved locations. Denial of one or more collocations in a consolidated application may not delay processing the remaining location requests in the same permit request. Upon approval of the consolidated application, the Provider shall notify the Division and the affected Districts of the order in which it will undertake the collocations and a proposed timeline for the work.

4.13. All permits for small wireless facilities are valid for a period of 10 years and may be renewed for additional 10-year periods if the provider and the utility pole continue to meet all applicable federal and state laws, codes, regulations, and rules, policies, guidelines and standards.

4.14. If the provider fails to comply with the terms and conditions of its permit, the Division may revoke the permit until such time as the deficiencies are corrected. Prior to revoking a permit, the Division will notify the provider of the deficiencies in writing and allow the provider 30 business days to correct the deficiencies.

4.15. An application fee of $250 shall accompany each application for a MM-109 permit for the installation, modification, or replacement of a utility pole and the collocation of an associated small wireless facility on a Division right-of-way. The fee shall be reviewed and may be adjusted 10 percent every five years, rounded to the nearest $5.00.

4.16. Applications for collocation of small wireless facilities to be located on existing utility poles may contain multiple locations in a district. An application fee of $200 shall accompany the application for a MM-109 permit for each of the first five small wireless facilities contained in an application and $100 for each additional small wireless facility in that same application. These fees shall be reviewed and may be adjusted 10 percent every five years, rounded to the nearest $5.00.

4.17. A provider seeking a permit for collocation of multiple small wireless facilities in more than one district shall submit the applications the Commissioner for processing.

4.18. An application fee of $1,000 shall accompany each application for the installation, modification, or replacement of a utility pole and the collocation of an associated small wireless facility that is not a permitted use in accordance with the specifications of the Small Wireless Facilities Act. The fee shall be reviewed and may be adjusted 10 percent every five years, rounded to the nearest $5.00.

4.19. The Division shall assess an annual recurring fee of $65 per year per utility pole for access to a Division owned utility pole. (See W. Va. Code §31H-2-3 for fee authorization)

4.20. The Division will not charge an additional fee or require an additional permit for a provider to:

4.20.1. Conduct routine maintenance;

4.20.2. Replace wireless facilities with wireless facilities that are substantially similar, the same size or smaller; or

4.20.3. To install, place, maintain, operate, or replace micro wireless facilities that are suspended on existing cables that are strung between existing utility poles in compliance with applicable safety codes and the pole owner’s construction standards and engineering practices.

4.21. All providers must notify and coordinate with the District where the work will be conducted a minimum of 48 hours prior to commencing work in a Division right-of-way to assure that the Provider’s access will not conflict with work conducted by the Division or another utility. Failure to notify and coordinate with the District may result in delay or stoppage of the Provider’s work to allow previously scheduled road or utility work to proceed. In the event of an emergency the Provider shall notify the district where the work will be conducted as soon as practicable prior to commencing work in a Division right-ot-way.

4.22. The Division may revoke a permit at any time if the conditions of the permit are no longer being met. Any denial or revocation of a permit may be appealed pursuant to the provisions of 157CSR1, Rules Relating Generally to Various Functions of the Commissioner of Highways which is available on the West Virginia Secretary of State’s website.

W. Va. Code R. § 157-13-5 Make ready work. (See W. Va. Code §31H-2-3)

5.1. The Division shall provide a good faith estimate for any make-ready work necessary to enable a Division owned utility pole to support the requested collocation of small wireless facilities within 60 days after the receipt of a complete application for a permit.

5.2. Upon acceptance by the provider of the Division’s good faith estimate for make-ready work, the provider has 60 days to complete the work.

5.3. Replacement of a utility pole may only be required if the Division demonstrates that the collocation would make the utility pole structurally unsound. The Division may not require more make-ready work than required to meet applicable codes or industry standards.

5.4. Make-ready work may not include work related to preexisting conditions.

5.5. Costs for make-ready work including any utility pole replacement may not exceed the actual costs or the amount charged to other communications service providers for similar work and may not include any consultant fees or expenses.

W. Va. Code R. § 157-13-6 Requirements for insurance, bonding and other protections. (See W. Va. Code §31H-2-4)

6.1. A wireless provider who owns or operates small wireless facilities or utility poles in a Division right-of-way shall indemnify, protect, defend, and hold the Division and its officers, employees, agents, and volunteers harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees to include reasonable attorney fees and costs of defense, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including personal or bodily injury or death, property damage or other harm for which recovery of damages is sought, to the extent that it is caused by the negligence of the wireless provider who owns or operates small wireless facilities or utility poles in the right-of-way, any agent, officer, director, representative, employee, affiliate, or subcontractor of the wireless provider, or their respective officers, agents, employees, directors, or representatives while installing, repairing, or maintaining facilities in rights-of-way.

6.2. Except for a wireless provider with an existing franchise to occupy and operate in the rights-of-way, during the period in which the wireless provider’s facilities are located on the Division’s rights-of-way, the Division may require the wireless provider to carry, at the wireless provider’s own cost and expense, the following insurance:

6.2.1. Property insurance for its property’s replacement cost against all risks;

6.2.2. Workers’ compensation insurance, as required by law; or

6.2.3. Commercial general liability insurance with respect to its activities on the Division’s rights-of-way to afford minimum protection limits consistent with its requirements of other users of Division’s rights-of-way, including coverage for bodily injury and property damage. The Division may require a wireless provider to include the Division as an additional insured on the commercial general liability policy and provide certification and documentation of inclusion of the Division in a commercial general liability policy as reasonably required by the Division.

6.3. A wireless provider may self-insure all or a portion of the insurance coverage and limit requirements required by the Division. A wireless provider that self-insures is not required, to the extent of the self-insurance, to comply with the requirement for the naming of additional insureds under this section. A wireless provider that elects to self-insure shall provide to the Division evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage and limits required by the Division.

6.4. The Division may impose reasonable and nondiscriminatory requirements for bonds, escrow deposits, letters of credit, or any other type of financial surety to ensure removal of abandoned or unused wireless facilities or damage to the right-of-way or Division property caused by the wireless provider or its agent.

Series 14 Contract Administration Purchasing Process

W. Va. Code R. § 157-14-1 General

1.1. Scope. -- This rule details procedures and requirements for submitting contract bids for highway construction projects.

1.2. Authority. -- W. Va. Code §17-2A-15 and §17-4-19.

1.3. Filing Date. -- April 6, 2021

1.4. Effective Date. -- May 6, 2021

W. Va. Code R. § 157-14-2 Advertisement

2.1. The Commissioner of the Division of Highways is required by W. Va. Code §17-4-19 to publish proposals for projects as a Class II legal advertisement in the area of the project and in a newspaper of general circulation in Charleston, West Virginia. Proposals are also advertised on the Department of Transportation, Division of Highways, Contract Administration Division website; electronic bids are authorized and accepted through the Bid Express® site www.bidx.com.

2.2. All prospective bidders interested in submitting bids for WVDOT projects, must establish a subscription to the Bid Express website at www.bidx.com. In addition, a contractor can view the fee schedule, install the bid component AASHTOWare Project Bids™, and create a Digital ID (electronic signature). The AASHTOWare Project Bids™ Bid Component detailed instructions for set up and installation are available at AASHTOWare Project Bids™ Set up instructions. A comprehensive training video is also available for viewing the installation and use of the AASHTOWare Project Bids™ Bid Component.

2.3. During the period of advertisement, the contractor may have questions regarding the contents of the proposal and may submit those questions to the Department using the Bid Express® platform.

W. Va. Code R. § 157-14-3 Contractor Prequalification

3.1. Contractors must be prequalified to submit a bid. To become prequalified, a contractor must submit a Contractor’s Prequalification Statement. The Division uses the prequalification process to ensure bidding firms have the experience, equipment, and resources to deliver the contract work. A contractor will be issued a Certificate of Qualification, the amount of incomplete work they may have under contract at any one time, and the type of work for which they are qualified to perform. The Contractor’s Prequalification Statement is available on the Department’s website.

3.2. The Department will only accept bids from contractors who are prequalified and eligible to bid. A contractor may request approval to bid in excess of the allotted amount as noted by the Certificate of Qualification. The Department has the discretion to make decisions on the bidder’s requests which it deems are in the best interest of the State of West Virginia.

W. Va. Code R. § 157-14-4 Pre-bid meeting

4.1. The Contract Administration Division may elect to hold a pre-bid meeting during the advertisement period. The meeting may be mandatory or optional for prime contractors. If the meeting is mandatory, a representative for the prime contractor must attend, otherwise their bid will be rejected.

4.2. The pre-bid meeting must be held sufficiently in advance of the letting to allow the contractors and the Department time to react to the questions and post any responses or amendments to the proposal.

W. Va. Code R. § 157-14-5 Bidder’s responsibility

5.1. The submitting contractor must carefully examine the plans, specifications, special provisions, contract forms and the work site. When the contractor submits a bid, they are asserting they have made such examinations and agree with the character, quality, and quantity of work to be performed.

5.2. The contractor acknowledges the quantities shown on the plans and the schedule of items are only estimates, and that increases or decreases to the quantities are possible. The contractor further agrees to accept the unit prices for the work performed and accepted, unless otherwise provided for in the contract. The Division will make every effort to provide sufficient information to the bidders. The contractor must carefully follow and comply with all instructions for submitting a bid or they risk having their bid rejected.

W. Va. Code R. § 157-14-6 Bid opening

6.1. State and Federal law, rules and regulations require the bid letting to be open to the public, and the submitted bids must be read aloud. They also require the work to be awarded through competitive bidding, which is achieved by having all contractors submit confidential bids no later than the letting date and time.

6.2. The electronic bidding system prevents bids from being submitted after the letting time has expired. The bids which are received prior to the deadline are downloaded and securely decrypted from the Bid Express® website. The Division representative at the bid opening announces the project name and number, the goals for the project and the type of work. The bids are then announced from the lowest price to the highest, including the contractor’s name and the total dollar amount of their bid.

W. Va. Code R. § 157-14-7 Evaluation of Proposals

7.1. Immediately following the bid opening, the Division begins to assess all the bids to determine which should be accepted. The review process will examine if the bid is considered responsive and if the bid analysis confirms the bid is valid. The Division always reserves the right to reject all bids if it is deemed to be in the best interest of the State of West Virginia.

7.2. The conditions for disqualifying bidders are:

7.2.a. A bidder may only submit one proposal for the work, and submitting more than one proposal by an individual, firm or corporation may result in disqualification.

7.2.b. The bidder is required to provide an affidavit attesting their bid was prepared and submitted without collusion with other bidders. Any evidence of collusion among bidders will likely result in both bidders being ineligible to bid future Department work until reinstated.

7.3. During the bid review process, the Division will confirm if the contractor is on the debarment list by checking the System for Award Management and the West Virginia Debarred and Suspended Vendor List. Contractors that are currently debarred are not allowed to submit a bid.

The State may not award or renew contracts with vendors which are not in good standing. The Division will confirm with the Tax Department if outstanding debts are owed to the State. 7.4 The law requires a proposal guaranty or bidder’s bond to accompany and be submitted with each bid. The proposal guaranty is set at an amount equal to no more than 5% of the bid, and not less than $500.00.

7.4.a. Failure to submit a proposal guaranty is cause for rejection of a bid. Electronic bonds are preferred; the Department will accept a cashier’s or certified check up until 4:00 PM the day prior to the bid opening.

7.4.b. The contractor will forfeit their proposal guaranty if they are determined to be the low bidder, and they fail to execute the contract or agreement.

7.4.c. The other bidders’ proposal guaranties are released once the Division has secured a fully executed contract or agreement. A contractor may withdraw their bid prior to bid opening without fear of forfeiture.

W. Va. Code R. § 157-14-8 Lowest responsible bidder

8.1. The Division is required to accept the lowest responsible bidder. The bids are opened and compared based on the total price, which reflects the sum of the contractor’s unit price per item and the estimated quantities. The contractor submitting the lowest overall cost is declared the low bidder.

8.2. A responsible bidder is defined as a contractor that is ready, able and willing to furnish the labor and materials required to complete the contract, complies with all the applicable laws of West Virginia, and has supplied a valid bid bond or proposal guaranty (W. Va. Code §5-22-1). It is not enough to just submit the lowest price - the bidder must also be considered responsible as defined by these statutes.

W. Va. Code R. § 157-14-9 Tied bids

9.1. In the event there is a tie between the low bidders, where the total price submitted is identical for two or more bidders, the low bidder will be decided by lot, which is described as follows. The Division will place the names of the contractors in a container and have the State Highway Engineer draw a name. The drawing will be witnessed by at least three persons, and if time permits, the contractors should be given an opportunity to attend the drawing.

9.2. The Division may consider whether each tied bidder is responsive and has complied with all other State and Federal requirements, including labor laws and business concerns, before drawing lots. The Division may remove a bidder from the lot if the bidder is determined unresponsive or out of compliance.

W. Va. Code R. § 157-14-10 Disadvantaged business enterprises (DBE)

10.1. When a proposal contains the requirement for participation by DBEs, the participation goal the contractor submits will be compared to the project goals contained in the proposal. If the contractor’s goal meets or exceeds the stated goals in the proposal, the bid is considered responsive (with respect to the DBE special provision) and may be accepted. If the contractor’s goals do not meet the stated goals in the proposal, the contractor may be asked to demonstrate that a good faith effort was made to subcontract work to DBE firms, but the efforts were unsuccessful. If the contractor’s goals do not meet expectations and the contractor cannot demonstrate a good faith effort, the bid may be rejected and awarded to the next lowest bidder.

10.2. The Division considers the DBE goals for a project to be an essential component of the work and contractors who fail to make a reasonably good faith effort risk having their bids rejected.

W. Va. Code R. § 157-14-11 Bid analysis

11.1. The evaluation of the proposals must also include a bid analysis. This requires a thorough and comprehensive bid analysis, and the Division must examine the unit bid prices for reasonable conformance with the Engineer’s estimate. If extreme variations exist, the bid must be thoroughly evaluated. Where obvious unbalancing exists, the Division must provide written justification to accept or reject the bid. The bid analysis is the tool to detect whether collusion or bid rigging is occurring, whether the Division has received a fair price for the work, and if any unbalancing of the bids may result in a windfall for the contractor and corresponding disadvantage to the Division.

11.2. The Division may scale the level of scrutiny provided by the bid analysis to be commensurate with the complexity and value of the project. The Division is more likely to expend more effort on the bid analysis for projects of significant value or risk, complex projects, and projects with limited competition.

11.3. A mathematically unbalanced bid means the bid contains unit prices for items of work that do not reflect reasonable actual costs plus a reasonable proportionate share of profit, overhead and other indirect costs. The contractor may still be the lowest bidder, with the lowest total cost, but how they distributed the costs to the pay items is mathematically incorrect. For example, a contractor that bids one penny as unit price for an item of work has placed the cost for that work in other items. A mathematically unbalanced bid is an acceptable bid provided the result of the unbalancing does not result in a windfall for the contractor and a corresponding increase in cost to the Division.

11.4. A materially unbalanced bid means a bid which generates a reasonable doubt that award to the bidder submitting a mathematically unbalanced bid will result in the lowest ultimate cost to the Division. The contractor has shifted the costs between items of work anticipating a potential windfall from doing so. For example, a contractor believes the quantity of a specific item of work is likely to overrun, so they add money to the unit price above the true cost of performing the work. The overrun in actual work performed and corresponding inflation of the price, result in a windfall for the contractor. In some situations, the increased cost to the project is large enough it would change who the low bidder is, if the proposal included the correct quantity of work. In this situation, the bid may be declared materially unbalanced and rejected.

11.5. The Federal Highway Administration (FHWA) provides guidance on bid analysis in their publication “Guidelines on Preparing Engineer’s Estimate, Bid Reviews and Evaluation” (Guidelines). The guidelines provide direction regarding the factors the Division will use during the bid analysis. These factors include:

11.5.a. Comparison of the bids against the Engineer’s estimate.

11.5.b. The number of bids submitted.

11.5.c. The distribution or range in price of bids received.

11.5.d. The identity and geographic location of the bidders.

11.5.e. The potential for savings if the project is re-advertised.

11.5.f. The bid prices for the project under review versus bid prices for similar projects in the same letting.

11.5.g. The urgency of the project.

11.5.h. The current market conditions and workload.

11.5.i. If there is evidence of any unbalancing of bids.

11.5.j. Any large variances in bid prices compared with the Engineer’s estimate and the other bids.

11.5.k. Is there justification for the variance in pricing?

11.5.l. Any other factor the Department deems important.

11.6. The bid analysis begins by tabulating the bid item detail for at least the three lowest responsive bids and includes the total bid amount for all remaining bidders. The bid item detail reflects the unit price bid for each pay item, extended by the estimate of quantities, for a line item total and project total. The tabulation is generated from the contractor’s electronic bid.

11.7. The Division uses proprietary software and expert knowledge to perform the bid analysis. This is investigative work where answers to the bid analysis factors described above, are only indicators of potential problems, and that professional judgement must be applied when processing the findings. Any single finding on its own may not raise a concern, but collectively, several indicators may indicate a trend, or a need for more in-depth analysis. The opposite is also true, such that one indicator does not prove there is a problem with the bid, and the analyst must be able to reason why the contractor priced the work the way they did, or if there is a potential risk for the Division.

11.8. The results of the bid analysis are presented to the Award Committee at the Award Meeting.

W. Va. Code R. § 157-14-12 Clarification

Seeking clarifications from the contractor is an acceptable tool to use when appropriate and may provide the Department with valuable insight. However, negotiating with the contractor during the period following the opening of the bids and before the award is expressly prohibited by federal law. There can be no change to the terms or pricing of the contract at this time.

W. Va. Code R. § 157-14-13 Award

13.1. The Division holds an Award Meeting to consider the information from the bid analysis, to confirm the bid is responsive, that the contactor is eligible to bid and that the contractor is in good standing. The award meeting results in a recommendation to the State Highway Engineer, or designee, to accept or reject the bid. The State Highway Engineer, or designee, carefully considers all information and reaches the final decision.

13.2. The Award Committee is led by the State Highway Engineer (or designee), and comprised of the Deputy State Highway Engineer – Construction, the Contract Administration Division Director, the Contract Administration Division Assistant Director(s), the Contract Administration Division Contract Analytics Coordinator, the Contract Administration Division Procurement Section Manager (or designee), the Engineering Division Director (or designee), the Traffic Engineering Division Director (or designee) and the Programming Division Director (or designee). The majority of these members must be present in order for the meeting to be held. Other interested parties or invited guests may also attend the meeting.

13.3. The award meeting is the venue for the decision makers to consider all the information and determine the most appropriate course of action. The options include, perform additional analysis of the bid documents and supporting information, seek clarifications from the contractor regarding their pricing or information contained in the supporting bid documents, to accept the bid as submitted, or to reject the bid. The committee documents the decision and when the decision is to reject the bid, senior management and the FHWA (for a full oversight project according to the Stewardship and Oversight Agreement) will be briefed prior to taking formal action. The decision to reject a bid is not taken lightly and senior management should always be consulted during the process.

13.4. If the committee decides to reject a bid, the bid process may repeat itself with the next bidder until an award is made, or until all bidders are exhausted. Should the Division decide to reject all bids for a Federal-aid project, the FHWA should be consulted for concurrence.

13.5. The Division may choose to accept a bid which is both mathematically and materially unbalanced but may risk federal participation in the project and therefore must consult FHWA as part of the decision to award such a bid.

13.6. The Division retains the right to cancel the award of any contract at any time before the contract is executed by all parties without assuming any liability.

13.7. The successful bidder will be notified within 30 calendar days from the bid letting, that their bid has been accepted. The Division is limited to 30 days unless they reach an agreement with the contractor to extend the award period; any extension should be agreed to in writing. The contractor is provided the contract documents package to sign and return.

13.8. The contractor has 20 days from the date of award to execute the contract and furnish a performance bond. Failure to execute the contract and supply the bond is just cause for annulment of the award and forfeiture of the proposal guaranty .

13.9. The contractor provides the Division with a fully executed contract, a certificate of insurance and the performance bond. The documents are carefully reviewed by the Division and if acceptable, the contract is presented to the Commissioner for signature.

13.10. The Division provides notification of the fully executed contract to the contractor, and appropriate staff. The notification triggers the District to issue a notice to proceed allowing the contractor to begin work on the project.