Section 401

401.01.  The LEA shall not sign a Contract with a Contractor until Performance Bond and Payment Bond information is received via the project A/E, however, the Contractor, as a condition of obtaining Performance and Payment Bonds, must receive a projected date of contract execution.  The LEA shall work with the Project and Construction team to provide this information.  

401.02.  Upon the successful selection of the bidding Prime Contractor, the LEA shall enter into an agreement with the Prime Contractor(s) using the standard AIA A201-2017 General Conditions of the Contract for Construction and the SBA Supplementary Conditions to AIA A201-2017 (SBA Form 401). 

401.03.  On SBA-funded projects that exceed $500,000 that do not include federal monies, there are additional West Virginia Jobs Act reporting requirements are applicable. The LEA shall require all Contractors and Subcontractors to submit certified payroll documents on a weekly basis to the West Virginia Division of Labor.

401.04.  Non-Conformance and Non-Compliance Reporting

401.041.  Notice of Defective or Non-Conforming Work (SBA Form 406-A) – Upon discovery or notice of Work by the Contractor that is defective, non-compliant, or non-conformant with the Contract Documents, the A/E, with reasonable expediency, shall submit a Notice of Defective or Non-Conforming Work to the Contractor, copying all parties.  This notice demands conformity to the Contract Documents within a given time frame or empowers the LEA to deduct the associated cost of remediation to the Contractor.

401.042.   Resolution of Defective or Non-Conforming Work (SBA Form 406-B) – This is a formal notice that memorializes to all parties that the Notice of Defective or Non-Conforming work has been resolved.

401.043.  Notice of Non-Compliance (SBA Form 407-A) – Upon discovery or notice of non-compliance by the Contractor with the requirements of the Contract Documents, the A/E, with reasonable expediency, shall submit a Notice of Non-Compliance to the Contractor, copying all parties.  This notice demands conformity to the Contract Documents within a given time frame or empowers the LEA to deduct the associated cost of remediation to the Contractor.

401.044.  Resolution of Non-Compliance (SBA Form 407-B) – This is a formal notice that memorializes to all parties that the Notice of Non-Compliance has been resolved.

401.045.  Notice of Breach of Contract (SBA Form 408) – This is a formal notice states that conditions outlined in a non-compliance or non-conformance letter have not been remedied.  Unless a correction of the conditions of the breach are remedied, measures will be taken to protect the LEA’s rights under the Contract and applicable law.  All rights are reserved under this notice.

401.05.  SBA Staff Intervention – The SBA staff may call a meeting with any A/E, Contractor, or Construction Manager responsible for performance-related deficiencies with respect to the project’s contract requirements.  If the cited firm’s performance trends toward a negative post-project evaluation and a possible subsequent suspension, the cited firm may meet with the SBA Executive Director for a discussion on the project’s current deficiencies, potential for suspension of the right to bid, and the desire of all parties to get the project back on the proper track.  

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