CHAPTER 58a
PREQUALIFICATION AND EVALUATION OF CONTRACTORS

Table of Contents

Sec. 4a-100. Prequalification of contractors and substantial subcontractors. Fees. Application. Regulations. Renewal. Revocation. Notice to state agencies re state contractors or substantial subcontractors. Appeal.
Sec. 4a-101. Standard contractor evaluation form. Public agency to submit completed evaluation form. Contractor response. Definitions. Preliminary evaluation. Exemption from liability. Failure to submit form.

      Sec. 4a-100. Prequalification of contractors and substantial subcontractors. Fees. Application. Regulations. Renewal. Revocation. Notice to state agencies re state contractors or substantial subcontractors. Appeal. (a) As used in this section: (1) "Prequalification" means prequalification issued by the Commissioner of Administrative Services to bid on a contract or perform work pursuant to a contract for the construction, reconstruction, alteration, remodeling, repair or demolition of any public building or any other public work by the state or a municipality, except a public highway or bridge project or any other construction project administered by the Department of Transportation, or to perform work under such a contract as a substantial subcontractor; (2) "subcontractor" means a person who performs work with a value in excess of twenty-five thousand dollars for a contractor pursuant to a contract for work for the state or a municipality which is estimated to cost more than five hundred thousand dollars; (3) "principals and key personnel" includes officers, directors, shareholders, members, partners and managerial employees; (4) "aggregate work capacity rating" means the maximum amount of work an applicant is capable of undertaking for any and all projects; (5) "single project limit" means the highest estimated cost of a single project that an applicant is capable of undertaking; (6) "contract" means an agreement for work for the state or a municipality that is estimated to cost more than five hundred thousand dollars and is funded, in whole or in part, by state funds; and (7) "substantial subcontractor" means a person who performs work with a value in excess of five hundred thousand dollars for a contractor pursuant to a contract for work for the state or a municipality which is estimated to cost more than five hundred thousand dollars.

      (b) (1) Any person may apply for prequalification to the Department of Administrative Services. Such application shall be made on such form as the Commissioner of Administrative Services prescribes and shall be accompanied by a nonrefundable application fee as set forth in subdivision (2) of this subsection. The application shall be signed under penalty of false statement.

      (2) The application fee shall be as follows:

Aggregate Work Capacity RatingFee
$5,000,000.00 or less$600.00
$5,000,000.01 - $8,000,000.00$750.00
$8,000,000.01 - $10,000,000.00$850.00
$10,000,000.01 - $15,000,000.00$1,000.00
$15,000,000.01 - $20,000,000.00$1,500.00
$20,000,000.01 - $40,000,000.00$2,000.00
$40,000,000.01 or more$2,500.00

      (c) The application form shall, at a minimum, require the applicant to supply information concerning:

      (1) The applicant's form of organization;

      (2) The applicant's principals and key personnel and any names under which the applicant, principals or key personnel conducted business during the past five years;

      (3) Any legal or administrative proceedings pending or concluded adversely against the applicant or any of the applicant's principals or key personnel within the past five years which relate to the procurement or performance of any public or private construction contract and whether the applicant is aware of any investigation pending against the applicant or any principal or key personnel;

      (4) The nature of any financial, personal or familial relationship between the applicant and any public or private construction project owner listed on the application as constituting construction experience;

      (5) A statement of whether (A) the applicant has been disqualified pursuant to section 4b-95, this section or section 31-57c or 31-57d, (B) the applicant is on the list distributed by the Labor Commissioner pursuant to section 31-57a, (C) the applicant is disqualified or prohibited from being awarded a contract pursuant to section 31-57b, (D) the applicant has been disqualified by another state, (E) the applicant has been disqualified by a federal agency or pursuant to federal law, (F) the applicant's registration has been suspended or revoked by the Department of Consumer Protection pursuant to section 20-341gg, (G) the applicant has been disqualified by a municipality, and (H) the matters that gave rise to any such disqualification, suspension or revocation have been eliminated or remedied; and

      (6) Other information as the commissioner deems relevant to the determination of the applicant's qualifications and responsibilities.

      (d) Each applicant shall include a statement of financial condition prepared by a certified public accountant that includes information concerning the applicant's assets and liabilities, except if the applicant has been accepted into the bonding program of a certified community development financial institution, the applicant need only provide the financial documents required by such institution for the applicant to qualify for such program. Each applicant shall provide a bonding company letter stating the aggregate work capacity and single project limit bonding capacity of the applicant, and other information as the commissioner deems relevant to an evaluation of the applicant's financial capacity and responsibility. For purposes of this subsection, "certified community development financial institution" means a community development bank, credit union or loan or venture capital fund that provides financial products and services in economically distressed markets and that is certified by the Certified Development Financial Institution Fund of the United States Department of the Treasury.

      (e) Information contained in the application shall be current as of the time of filing except that the statement of financial condition shall pertain to the applicant's most recently-completed fiscal year.

      (f) The commissioner shall determine whether to prequalify an applicant on the basis of the application and on relevant past performance according to procedures and criteria set forth in regulations which the commissioner shall adopt on or before October 1, 2005, in accordance with chapter 54. Such criteria shall include, at a minimum, the record of the applicant's performance, including, but not limited to, written evaluations of the applicant's performance on public or private projects, the applicant's past experience on projects of various size and type, the skill, ability and integrity of the applicant and any subcontractors used by the applicant, the experience and qualifications of supervisory personnel employed by the applicant, the maximum amount of work the applicant is capable of undertaking as demonstrated by the applicant's financial condition, bonding capacity, size of past projects and present and anticipated work commitments, and any other relevant criteria that the commissioner prescribes. Such regulations shall also (1) provide that the criteria considered shall be assigned separate designated numerical values and weights and that the applicant shall be assigned an overall numerical rating on the basis of all criteria, and (2) establish prequalification classifications, aggregate work capacity ratings and single project limits. Such prequalification classifications shall be used to establish the types of work a contractor or substantial subcontractor is qualified to perform and the aggregate work capacity ratings shall be used to establish the maximum amount of work a contractor or substantial subcontractor is capable of undertaking.

      (g) (1) The applicant shall indicate the prequalification classifications, aggregate work capacity ratings and single project limits that are sought. The commissioner may issue a certificate of prequalification to any applicant who meets the requirements of this section. Such certificate shall be effective for one year from the date issued and shall indicate the contractor's or substantial subcontractor's prequalification classifications, aggregate work capacity ratings and single project limits. The commissioner may cause the initial certificate of prequalification to be effective for a period not to exceed two years and may require the applicant to remit payment of the application fee, as set forth in subsection (b) of this section, for the first twelve months of certification as well as a prorated application fee, as described in subdivision (3) of this subsection, for any additional period of certification beyond the first twelve months.

      (2) A prequalified contractor or substantial subcontractor may apply at any time for additional prequalification classifications, aggregate work capacity ratings or single project limits by submitting the applicable increase in fee, a completed update statement and other information the commissioner requires.

      (3) The commissioner may renew a prequalification certificate upon receipt of a completed update statement, any other material the commissioner requires and a nonrefundable fee in an amount not less than one-half of the application fee for the applicable aggregate work capacity rating as set forth in subsection (b) of this section.

      (h) Not later than sixty days after receiving a completed application, the commissioner shall mail or send by electronic mail a notice to the applicant concerning the commissioner's preliminary determination regarding the conditions of the prequalification certification, a denial of certification, a reduction in the level of certification sought or nonrenewal of certification. Any applicant aggrieved by the commissioner's preliminary determination may request copies of the information upon which the commissioner relied in making the preliminary determination, provided such request is made not later than ten days after the date the notice was mailed or sent by electronic mail to the applicant. Not later than twenty days after the date the notice was mailed or sent by electronic mail, the applicant may submit additional information to the commissioner with a request for reconsideration. The commissioner shall issue a final determination regarding the application not later than ninety days after the date the commissioner mailed or sent by electronic mail the notice of the preliminary determination, which ninety-day period may be extended for an additional period not to exceed ninety days if (1) the commissioner gives written notice to the applicant that the commissioner requires additional time, and (2) such notice is mailed or sent by electronic mail during the initial ninety-day period.

      (i) The commissioner may not issue or renew a prequalification certificate to any contractor or substantial subcontractor (1) who is disqualified pursuant to section 31-57c or 31-57d, or (2) who has a principal or key personnel who, within the past five years, has a conviction or has entered a plea of guilty or nolo contendere for or has admitted to commission of an act or omission that reasonably could have resulted in disqualification pursuant to any provision of subdivisions (1) to (3), inclusive, of subsection (d) of section 31-57c or subdivisions (1) to (3), inclusive, of subsection (d) of section 31-57d, as determined by the commissioner.

      (j) The commissioner may revoke a contractor's or substantial subcontractor's prequalification or reduce the contractor's or substantial subcontractor's prequalification classification or aggregate work capacity ratings, after an opportunity for a hearing, if the commissioner receives additional information that supports such revocation or reduction. During the course of such hearing process, the commissioner may suspend a contractor's or substantial subcontractor's prequalification certificate if the commissioner determines that there is probable cause to believe that such contractor or substantial subcontractor engaged in conduct that significantly undermines the skill, ability or integrity of such contractor or substantial subcontractor. Any such suspension shall not exceed a period of three months and shall be accompanied by a written decision of the commissioner that sets forth the reasons for and duration of such suspension. The commissioner shall send notification of any such suspension to such contractor or substantial subcontractor by certified mail, return receipt requested. Such contractor or substantial subcontractor may file a response, in writing, not later than thirty days after receipt of such notice. The commissioner shall review any such response submitted by a contractor or substantial subcontractor within such thirty-day period.

      (k) (1) Any substantial evidence of fraud in obtaining or maintaining prequalification or any materially false statement in the application, update statement or update bid statement may, in the discretion of the awarding authority, result in termination of any contract awarded the contractor by the awarding authority. The awarding authority shall provide written notice to the commissioner of such false statement not later than thirty days after discovering such false statement. The commissioner shall provide written notice of such false statement to the Commissioner of Construction Services, the Commissioner of Consumer Protection and the president of The University of Connecticut not later than thirty days after discovering such false statement or receiving such notice.

      (2) The commissioner shall deny or revoke the prequalification of any contractor or substantial subcontractor if the commissioner finds that the contractor or substantial subcontractor, or a principal or key personnel of such contractor or substantial contractor, within the past five years (A) has included any materially false statement in a prequalification application, update statement or update bid statement, (B) has been convicted of, entered a plea of guilty or nolo contendere for, or admitted to, a crime related to the procurement or performance of any public or private construction contract, or (C) has otherwise engaged in fraud in obtaining or maintaining prequalification. Any revocation made pursuant to this subsection shall be made only after an opportunity for a hearing. Any contractor or substantial subcontractor whose prequalification has been revoked pursuant to this subsection shall be disqualified for a period of two years after which the contractor or substantial subcontractor may reapply for prequalification, except that a contractor or substantial subcontractor whose prequalification has been revoked on the basis of conviction of a crime or engaging in fraud shall be disqualified for a period of five years after which the contractor or substantial subcontractor may reapply for prequalification. The commissioner shall not prequalify a contractor or substantial subcontractor whose prequalification has been revoked pursuant to this subdivision until the expiration of said two-year, five-year, or other applicable disqualification period and the commissioner is satisfied that the matters that gave rise to the revocation have been eliminated or remedied.

      (l) The commissioner shall provide written notice of any revocation, disqualification, reduction in classification or capacity rating or reinstated prequalification to the Commissioner of Construction Services, the Commissioner of Consumer Protection and the president of The University of Connecticut not later than thirty days after any final determination.

      (m) The provisions of this section and section 4a-101 shall not apply to subcontractors who are not substantial subcontractors.

      (n) The commissioner shall establish an update statement for use by contractors and substantial subcontractors for purposes of renewing or upgrading a prequalification certificate and an update bid statement for purposes of submitting a bid pursuant to section 4b-91.

      (o) Any contractor or substantial subcontractor aggrieved by the commissioner's final determination concerning a preliminary determination, a denial of certification, a reduction in prequalification classification or aggregate work capacity rating or a revocation or nonrenewal of certification may appeal to the Superior Court in accordance with section 4-183.

      (P.A. 03-215, S. 3; 03-278, S. 129; June 30 Sp. Sess. P.A. 03-6, S. 146(g), (h); P.A. 04-141, S. 2; 04-189, S. 1; P.A. 06-134, S. 16, 22; P.A. 07-202, S. 3, 4; Sept. Sp. Sess. P.A. 09-7, S. 159; P.A. 11-51, S. 50; 11-229, S. 6.)

      History: P.A. 03-215 effective July 1, 2004; P.A. 03-278 amended Subsec. (a)(2) by redefining "subcontractor", effective July 1, 2004; June 30 Sp. Sess. P.A. 03-6 replaced Commissioner and Department of Consumer Protection with Commissioner and Department of Agriculture and Consumer Protection, effective July 1, 2004; P.A. 04-141 added Subsec. (a)(4) and (5) defining "aggregate work capacity rating" and "single project limit", amended Subsec. (f) to establish October 1, 2005, deadline for adoption of regulations by the commissioner and add provision re single project limits, amended Subsec. (g) to include references to single project limits and add provisions enabling the commissioner to issue prequalification certificates for an effective period not to exceed two years, amended Subsec. (h) to allow for the sending of the commissioner's preliminary determination by electronic mail, and made technical changes in Subsecs. (i) and (k)(2); P.A. 04-189 repealed Sec. 146 of June 30 Sp. Sess. P.A. 03-6, thereby reversing the merger of the Departments of Agriculture and Consumer Protection, effective June 1, 2004; P.A. 06-134 redefined "prequalification" in Subsec. (a) to include any other public work and except public highway or bridge projects, effective January 1, 2007, and further amended Subsec. (a) to redefine "prequalification" to include reference to work performed under such a contract as a substantial subcontractor and to define "substantial subcontractor", amended Subsec. (c) to delete former Subdiv. (3) re applicant's experience and redesignate existing Subdivs. (4) to (7) as Subdivs. (3) to (6), amended Subsec. (f) to change performance look back period from within the past five years to a period of not less than the past three years and add references to substantial subcontractors, amended Subsec. (g) to provide for fee of not less than one-half of application fee and eliminate minimum fee of $600 in Subdiv. (3) and add references to substantial subcontractors in Subdivs. (1) and (2), amended Subsecs. (i) to (n), inclusive, to include references to substantial subcontractors and make technical changes, and added Subsec. (p) re regulations to establish a schedule of application fees for substantial subcontractors, effective October 1, 2007; P.A. 07-202 redefined "prequalification" in Subsec. (a)(1), defined "contract" in Subsec. (a)(6), amended Subsec. (i) to insert "or renew", amended Subsec. (j) to enable commissioner to suspend contractor's prequalification certificate if commissioner determines there is probable cause to believe contractor engaged in conduct that significantly undermines contractor's skill, ability or integrity, amended Subsec. (k) to require substantial evidence of fraud, include references to update bid statement, include President of The University of Connecticut in list of persons to receive notice of false statement and require opportunity for a hearing prior to any revocation, amended Subsec. (l) to include reference to President of The University of Connecticut, amended Subsec. (n) to include update bid statement and made technical changes, effective July 10, 2007, and amended Subsec. (f) to delete provision re performance for a period of not less than the past three years, redesignated existing Subsec. (a)(6) as Subsec. (a)(7) and deleted Subsec. (p) re adoption of regulations, effective October 1, 2007; Sept. Sp. Sess. P.A. 09-7 amended Subsec. (j) to add references to substantial subcontractors, amended Subsec. (k) to make a technical change in Subdiv. (1), and replace references to person with references to contractor, substantial contractor, or principal or key personnel of such contractor or substantial contractor, add provision re entering plea of guilty or nolo contendere, or admitting to crime related to procurement or performance of any public or private construction contract, and eliminate provision re 5-year look back period in Subdiv. (2), amended Subsec. (n) to replace reference to bidders with reference to contractors and amended Subsec. (o) to replace reference to applicant with reference to contractor or substantial contractor, effective October 5, 2009; P.A. 11-51 amended Subsecs. (k)(1) and (l) to substitute "Commissioner of Construction Services" for "Commissioner of Public Works, effective July 1, 2011; P.A. 11-229 amended Subsec. (d) to make technical changes, to delete references to "plant and equipment" and "bank and credit references" re statement prepared, to add exception for applicants accepted into a certified community development financial institution bonding program, to replace "maximum" with "letter stating the aggregate work capacity and single project limit" re bonding capacity and to define "certified community development financial institution".

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      Sec. 4a-101. Standard contractor evaluation form. Public agency to submit completed evaluation form. Contractor response. Definitions. Preliminary evaluation. Exemption from liability. Failure to submit form. (a) On or before October 1, 2005, the Commissioner of Administrative Services shall adopt regulations, in accordance with chapter 54, to establish a standard contractor evaluation form. Such form shall include, at a minimum, the following evaluation criteria: (1) Timeliness of performance; (2) quality of performance; (3) cost containment, including, but not limited to, the contractor's ability to work within the contract's allotted cost, the accuracy of the contractor's billing, and the number and cause of change orders and the manner in which the contractor determined the price on the change orders; (4) safety; (5) the quality of the contractor's working relationship with the agency and the quality of the contractor's supervision of the work area; (6) communication with the agency; (7) the quality of the contractor's required documentation; (8) the performance of the contractor's subcontractors and substantial subcontractors, to the extent known by the official who completes the evaluation; and (9) the contractor's and any subcontractor's compliance with part III of chapter 557, or chapter 558, or the provisions of the federal Davis-Bacon Act, 40 USC, Sections 276a to 276a-5, inclusive, as from time to time amended, to the extent known by the official who completes the evaluation.

      (b) Each public agency shall compile evaluation information during the performance of the contract and complete and submit the evaluation form to the commissioner after completion of a building project under the agency's control if the building project is funded, in whole or in part, by state funds. Such evaluation information shall be available to any public agency for purposes of assessing the responsibility of the contractor during a bid selection and evaluation process. The designated official from such agency shall certify that the information contained in the evaluation form represents, to the best of the certifying official's knowledge, a true and accurate analysis of the contractor's performance record on the contract. The commissioner shall include the evaluation in the contractor's prequalification file. The official shall mail a copy of the completed evaluation form to the contractor. Any contractor who wishes to contest any information contained in the evaluation form may submit a written response to the commissioner not later than thirty days after the date the form was mailed as indicated by the postmark on the envelope. Such response shall set forth any additional information concerning the building project or the oversight of the contract by the public agency that may be relevant in the evaluation of the contractor's performance on the project. The commissioner shall include any such response in the contractor's prequalification file.

      (c) As used in this section, "public agency" means a public agency, as defined in section 1-200, "contract" means an agreement for work for the state or a municipality that is estimated to cost more than five hundred thousand dollars and is funded, in whole or in part, by state funds, "subcontractor" means a person who performs work with a value in excess of twenty-five thousand dollars for a contractor pursuant to a contract and "substantial subcontractor" means a substantial subcontractor, as defined in section 4a-100.

      (d) Upon fifty per cent completion of any building project under a public agency's control, the agency shall advise the contractor in writing of the agency's preliminary evaluation of the contractor's performance on the project.

      (e) No person, public agency, employee of a public agency or certifying official of a public agency shall be held liable to any contractor or subcontractor for any loss or injury sustained by such contractor or subcontractor as the result of the completion of an evaluation form, as required by this section or section 4a-100, unless such person, agency, employee or official is found by a court of competent jurisdiction to have acted in a wilful, wanton or reckless manner.

      (f) Any public agency that fails to submit a completed evaluation form, as required by this section, not later than seventy days after the completion of a project, shall be ineligible for the receipt of any public funds disbursed by the state for the purposes of the construction, reconstruction, alteration, remodeling, repair or demolition of any public building or any public works project until such completed evaluation form is submitted.

      (g) Notwithstanding the provisions of this section, any public agency of the state, when evaluating the performance of a contractor's subcontractors or substantial subcontractors, to the extent known, may rely on an evaluation of such subcontractors or substantial subcontractors that is conducted by the contractor. No contractor shall be held liable to any subcontractor or substantial subcontractor for any loss or injury sustained by such subcontractor or substantial subcontractor as the result of such evaluation provided to a public agency, unless such contractor is found by a court of competent jurisdiction to have acted in a wilful, wanton or reckless manner.

      (P.A. 03-215, S. 4; 03-278, S. 130; P.A. 04-141, S. 3; P.A. 06-134, S. 17, 23; P.A. 07-202, S. 5, 6; Sept. Sp. Sess. P.A. 09-7, S. 160; P.A. 11-229, S. 8.)

      History: P.A. 03-215 effective October 1, 2004; P.A. 03-278 amended Subsec. (c) by redefining "subcontractor", effective October 1, 2004; P.A. 04-141 amended Subsec. (a) to require adoption of regulations re contractor evaluation form by October 1, 2005, amended Subsec. (b) to add requirements that public agency compile evaluation information during performance of contract, that evaluation information be available to any public agency for purposes of assessing the contractor during a bid process and that the information in the evaluation form be certified by the agency, added Subsec. (e) re liability to contractor for loss or injury sustained by the contractor as a result of the evaluation form and added Subsec. (f) re penalty for failure of an agency to file evaluation forms; P.A. 06-134 amended Subsec. (c) to redefine "public agency" to eliminate exception for The University of Connecticut, effective January 1, 2007, and also amended Subsec. (a)(8) to include reference to the performance of substantial subcontractors, amended Subsec. (c) to define "substantial subcontractor", and added Subsec. (g) re municipal reliance on evaluations of substantial subcontractors performed by contractors, effective October 1, 2007; P.A. 07-202 amended Subsec. (c) to define "contract" and redefine "subcontractor", effective July 10, 2007; Sept. Sp. Sess. P.A. 09-7 amended Subsec. (g) to delete reference to Subsec. (a), replace reference to political subdivision with reference to public agency and add provision re contractors not being liable to subcontractors and substantial subcontractors for loss or injury sustained as result of evaluation unless a court finds contractor to have acted in a wilful, wanton or reckless manner, effective October 5, 2009; P.A. 11-229 amended Subsec. (e) to add "person" to entities exempted from liability and to add references to "subcontractor" and reference to Sec. 4a-100.

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