HomeMy WebLinkAboutRC Systems of Waterloo - Salient Video Managment System - 9/14/2020CONTRACT FOR PROCURING OF
VIDEO MANAGEMENT SYSTEM FOR
CITY OF WATERLOO, IOWA
This contract made and entered into this 14th day of Sept. , 20 20, by and between
the City of Waterloo, Iowa, a Municipal Corporation, (hereinafter referred to as City), and
RC System, 1657 Falls Avenue, Waterloo, IA. 50701, (hereinafter referred to as Supplier),
WITNESSETH:
1) Supplier agrees to supply and integrate Salient video management system in Waterloo
traffic operations video monitoring system for the total amount of seventy eight thousand
four hundred and ten dollars and eighty six cents as follows:
1
Initial Cost of Software Including migrations or Installation on Server
of Existing Cameras and Software License if Any
$3400.00
2
Initial Training In Waterloo
$0.00
3
Camera License for 200 Cameras
$25,126.00
4
Annual Software License
Free for 5 years
5
Software Version Update Cost Per Update
Free for 5 years
6
Misc. Costs Other Licenses, Users, Server, Other Devices
None
7
3 Year Warranty
Free for 5 years
8
Server Cost with Min 16 TB
$39,684.86
g
3 Year Support 8x5 (120 Hours) Estimated at 40Hours Per Year, $85 Per Hour
$10,200
10Connecting
Connection Cost Per Analog Camera Including Camera License Cost,
Device Cost, etc.
$0.00
11
Mobile Device Access
$0.00
12
Other Licenses
None
TOTAL
$78,410.86
2) Supplier understands, agrees with, and is bound by the pertinent terms mentioned in the
April 2019 Request for Proposal, Supplier's Proposal dated 05/08/2019, and Conditions of
Contract for Purchasing Video Management System, all of which are considered part of this
contract.
3) Contract begin date is expected to be October 1, 2020.
4) Supply and integration shall be completed within 2 months from the date of contract
execution.
5) This contract is not divisible, but in the event of a conflict between this contract and the
various instruments incorporated by reference, this contract shall govern.
6) There shall be no recurring per camera fees such as software update fee, per camera annual
maintenance fee, etc. charged to the City for a period of 5 calendar years from the date of
execution of this contract for any and all cameras added and connected to the Salient VMS.
Page 1 of 2
7) Federal Highway Administration Form FHWA-1273 and Appendix II of 2 CFR Part 200
are physically attached to and are part of this contract.
RCSystems/Radio Communications Company
Contractor Dd F. B
BY:
Title: General Managar
CITY OF WATERLOO, IOWA
Quentin Hat
Mayor
Kellef �elchle
City Clerk
Approved by the City Council of the City of Waterloo, Iowa, on September 14, 20 2Q
ATTEST: Kellej �elchle
Page2of2
, City Clerk
Waterloo, Iowa
City of Waterloo, Iowa
Conditions of Contract
For Purchasing Video Management System
1. Definitions
1.1 In this Contract, the following terms shall be interpreted as indicated:
a) "The Contract" means the agreement entered into between the City of Waterloo, and the
Supplier, as recorded in the Contract Form signed by the parties, including all attachments and
appendices thereto and all documents incorporated by reference therein.
b) "The Contract Price" means the price payable to the Supplier under the Contract for the full
and proper performance of its contractual obligations.
c) "COC" means this document titled Conditions of Contract.
d) "RFP" means request for proposal.
e) "The Goods" means all of the equipment, machinery, and/or other materials which the
Supplier is required to supply to the City under the Contract.
f) "The Services" means those services ancillary to the supply of the Goods, such as
transportation and insurance, and any other incidental services, such as installation,
commissioning, provision of technical assistance, training, and other such obligations of the
Supplier covered under the Contract.
g) "The City" means the City of Waterloo, Iowa.
h) "DOT" means Iowa Department of Transportation
i) "FHWA" means federal highway administration
j) "VMS" Video Management System
k) "The Supplier" means the individual or firm supplying the Goods and Services under this
Contract.
I) "The Project Site," means the Public Works Building, 625 Glenwood Street Waterloo, Iowa
50703.
m) "Day" means calendar day.
2. Application
2.1 These Conditions shall apply to the extent that they are not superseded by provisions of
other parts of the Contract.
3. Standards
3.1 The Goods supplied under this Contract shall conform to the standards mentioned in the
Request for Proposals.
4. Use of Contract Documents and Information
Conditions of Contract
Traffic Operation Department Page 1 of 7
4.1 Any document, other than the Contract itself, enumerated in COC shall remain the
property of the City and shall be returned (all copies) to the City on completion of the Supplier's
performance under the Contract if so required by the City.
5. Patent Rights
5.1 The Supplier shall indemnify the City against all third -party claims of infringement of
patent, trademark, or industrial design rights arising from use of the Goods or any part thereof in
the City.
6. Performance Security
6.1 Within thirty (30) days of receipt of the notification of Contract award, the successful
Bidder shall furnish to the City the performance security in the amount specified not less than the
supplier's bid price.
6.2 The proceeds of the performance security shall be payable to the City as compensation for
any loss resulting from the Supplier's failure to complete its obligations under the Contract.
6.3 The performance security shall be in one of the following forms:
a) a bank guarantee or an irrevocable letter of credit issued by a reputable bank, in the form
provided in the bidding documents or another form acceptable to the City; or
b) a cashier's or certified check or certified share draft.
6.4 The performance security will be discharged by the City and returned to the Supplier not
later than thirty (30) days following the date of completion of the Supplier's performance
obligations under the Contract, including any warranty obligations, unless otherwise.
7. Inspections and Tests
7.1 The City or its representative shall have the right to inspect and/or to test the Goods to
confirm their conformity to the Contract specifications at no extra cost to the City. The RFP shall
specify what inspections and tests the City requires and where they are to be conducted. The City
shall notify the Supplier in writing, in a timely manner, of the identity of any representatives
retained for these purposes.
7.2 The inspections and tests may be conducted on the premises of the Supplier or its
subcontractor(s), at point of delivery, and/or at the Goods' final destination. If conducted on the
premises of the Supplier or its subcontractor(s), all reasonable facilities and assistance, including
access to drawings and production data, shall be furnished to the inspectors at no charge to the
City.
Conditions of Contract
Traffic Operation Department Page 2 of 7
7.3 Should any inspected or tested Goods fail to conform to the specified requirements, the
City may reject the Goods, and the Supplier shall either replace the rejected Goods or make
alterations necessary to meet specification requirements free of cost to the City.
7.4 The City's right to inspect, test and, where necessary, reject the Goods after the Goods'
arrival to the final destination shall in no way be limited or waived by reason of the Goods having
previously been inspected, tested, and passed by the City or its representative prior to the Goods
shipment.
7.5 Testing and inspecting under COC Clause 7 shall not in any way release the Supplier from
any warranty or other obligations under this Contract.
8. Packing
8.1 The Supplier shall provide such packing of the Goods as is required to prevent their damage
or deterioration during transit to their final destination, as indicated in the Contract. The packing
shall be sufficient to withstand, without limitation, rough handling during transit and exposure to
extreme temperatures, salt and precipitation during transit, and open storage.
9. Delivery and Documents
9.1 Delivery of the Goods shall be made by the Supplier in accordance with the terms specified
in the RFP.
9.3 Documents to be submitted by the Supplier are specified in RFP.
10. Insurance
10.1 The Goods supplied under the Contract shall be fully insured against loss or damage
incidental to manufacture or acquisition, transportation, storage, and delivery.
11. Transportation
11.1 The Supplier is required under Contract to deliver the Goods to the Project Location and bear
all the associated costs.
12. Incidental Services
12.1 The Supplier may be required to provide any or all of the following services, including
additional services, if any mentioned elsewhere in the RFP:
a) performance or supervision of on -site assembly and/or start-up of the supplied Goods;
b) furnishing of tools required for assembly and/or maintenance of the supplied Goods;
c) furnishing of a detailed operations and maintenance manual for each appropriate unit of the
supplied Goods;
Conditions of Contract
Traffic Operation Department Page 3 of 7
d) performance or supervision or maintenance and/or repair of the supplied Goods, for a period
of time agreed by the parties, provided that this service shall not relieve the Supplier of any
warranty obligations under this Contract; and
e) training of the City's personnel, at the Supplier's plant and/or on -site, in assembly, start-up,
operation, maintenance, and/or repair of the supplied Goods.
12.2 Prices charged by the Supplier for incidental services, if not included in the Contract Price
for the Goods, shall be agreed upon in advance by the parties and shall not exceed the prevailing
rates charged to other parties by the Supplier for similar services.
14. Warranty
14.1 The Supplier warrants that the Goods supplied under the Contract are new, unused, of the
most recent or current models, and that they incorporate all recent improvements in design and
materials unless provided otherwise in the Contract. The Supplier further warrants that all Goods
supplied under this Contract shall have no defect, arising from design, materials, or workmanship
(except when the design and/or material is required by the City's specifications) or from any act or
omission of the Supplier, that may develop under normal use of the supplied Goods in the
conditions prevailing in the country of final destination.
14.2 This warranty shall remain valid for twelve (12) months after the Goods, or any portion
thereof as the case may be, have been delivered to and accepted at the final destination indicated
in the Contract unless specified otherwise elsewhere in the RFP.
14.3 The City shall promptly notify the Supplier in writing of any claims arising under this
warranty.
14.4 Upon receipt of such notice, the Supplier shall, within 30 days and with all reasonable
speed, repair or replace the defective Goods or parts thereof, without costs to the City.
14.5 If the Supplier, having been notified, fails to remedy the defect(s) within the period
specified, the City may proceed to take such remedial action as may be necessary, at the Supplier's
risk and expense and without prejudice to any other rights which the City may have against the
Supplier under the Contract.
15. Payment
15.1 Full payment will be processed after the VMS is installed, tested, and fully accepted by the
City.
15.2 The Supplier's request(s) for payment shall be made to the City in writing, accompanied by
an invoice describing, as appropriate, the Goods delivered and Services performed accompanied by
appropriate documentation, and upon fulfillment of other obligations stipulated in the Contract.
16. Prices
Conditions of Contract
Traffic Operation Department Page 4 of 7
16.1 Prices charged by the Supplier for Goods delivered and Services performed under the
Contract shall not vary from the prices quoted by the Supplier in its bid, with the exception of any
approved price adjustments.
17. Change Orders
17.1 The City may at any time, by a written order given to the Supplier make changes within the
general scope of the Contract in any one or more of the following:
a) drawings, designs, or specifications, where Goods to be furnished under the Contract are to be
specifically manufactured for the City;
b) the method of shipment or packing;
c) the place of delivery; and/or
d) Services to be provided by the Supplier.
17.2 If any such change causes an increase or decrease in the cost of, or the time required for,
the Supplier's performance of any provisions under the Contract, an equitable adjustment shall be
made in the Contract Price or delivery schedule, or both, and the Contract shall accordingly be
amended. Any claims by the Supplier for adjustment under this clause must be asserted within
thirty (30) days from the date of the Supplier's receipt of the City's change order.
18. Contract Amendments
18.1 No variation in or modification of the terms of the Contract shall be made except by
written amendment signed by the parties.
19. Assignment
19.1 The Supplier shall not assign, in whole or in part, its obligations to perform under this
Contract, except with the City's prior written consent.
20. Subcontracts
20.1 The Supplier shall notify the City in writing of all subcontracts awarded under this Contract
if not already specified in the bid. Such notification, in the original bid or later, shall not relieve the
Supplier from any liability or obligation under the Contract.
20.2 Subcontracts must comply with the provisions of COC Clauses.
21. Delays in the Supplier's Performance
21.1 Delivery of the Goods and performance of Services shall be made by the Supplier in
accordance with the time schedule prescribed by the City in the RFP.
21.2 If at any time during performance of the Contract, the Supplier or its subcontractor(s)
should encounter conditions impeding timely delivery of the Goods and performance of Services,
Conditions of Contract
Traffic Operation Department Page 5 of 7
the Supplier shall promptly notify the City in writing of the fact of the delay, its likely duration and
its cause(s). As soon as practicable after receipt of the Supplier's notice, the City shall evaluate the
situation and may at its discretion extend the Supplier's time for performance, with or without
liquidated damages, in which case the extension shall be ratified by the parties by amendment of
Contract.
21.3 Except as provided under COC Clause 24, a delay by the Supplier in the performance of its
delivery obligations shall render the Supplier liable to the imposition of liquidated damages
pursuant to COC Clause 22, unless an extension of time is agreed upon pursuant without the
application of liquidated damages.
22. Liquidated Damages
22.1 Subject to COC Clause 24, if the Supplier fails to deliver any or all of the Goods or to
perform the Services within the period(s) specified in the Contract, the City Will, without prejudice
to its other remedies under the Contract, deduct from the Contract Price, as liquidated damages, a
sum equal to 1/1000 of contract price per day of delay until actual delivery or performance, up to a
maximum delay of 45 days. Once the maximum is reached, the City may consider termination of
the Contract pursuant to the COC Clause 23.
23. Termination for Default
23.1 The City, without prejudice to any other remedy for breach of Contract, by written notice
of default sent to the Supplier, may terminate this Contract in whole or in part:
a) if the Supplier fails to deliver any or all of the Goods within the period(s) specified in the
Contract, or within any extension thereof granted by the City pursuant to COC Clause 21; or
b) if the Supplier fails to perform any other obligation(s) under the Contract.
23.2 In the event the City terminates the Contract in whole or in part, pursuant to COC Clause
23.1, the City may procure, upon such terms and in such manner as it deems appropriate, Goods or
Services similar to those undelivered, and the Supplier shall be liable to the City for any excess costs
for such similar Goods or Services. However, the Supplier shall continue performance of the
Contract to the extent not terminated.
24. Force Majeure
24.1 Notwithstanding the provisions of COC Clauses 21, 22, and 23, the Supplier shall not be
liable for forfeiture of its performance security, liquidated damages, or termination for default if
and to the extent that its delay in performance or other failure to perform its obligations under the
Contract is the result of an event of Force Majeure.
24.2 For purposes of this clause, "Force Majeure" means an event beyond the control of the
Supplier and not involving the Supplier's fault or negligence and not foreseeable. Such events may
Conditions of Contract
Traffic Operation Department Page 6 of 7
include, but are not restricted to, acts of the City in its sovereign capacity, wars, fires, floods,
epidemics.
24.3 If a Force Majeure situation arises, the Supplier shall promptly notify the City in writing of
such condition and the cause thereof. Unless otherwise directed by the City in writing, the Supplier
shall continue to perform its obligations under the Contract as far as is reasonably practical, and
shall seek all reasonable alternative means for performance not prevented by the Force Majeure
event.
25. Termination for Insolvency
25.1 The City may at any time terminate the Contract by giving written notice to the Supplier if
the Supplier becomes bankrupt or otherwise insolvent. In this event, termination will be without
compensation to the Supplier, provided that such termination will not prejudice or affect any right
of action or remedy which has accrued or will accrue thereafter to the City.
26. Termination for Convenience
26.1 The City, by written notice sent to the Supplier, may terminate the Contract, in whole or in
part, at any time for its convenience. The notice of termination shall specify that termination is for
the City's convenience, the extent to which performance of the Supplier under the Contract is
terminated, and the date upon which such termination becomes effective.
26.2 The Goods that are complete and ready for shipment within thirty (30) days after the
Supplier's receipt of notice of termination shall be accepted by the City at the Contract terms and
prices. For the remaining Goods, the City may elect:
c) to have any portion completed and delivered at the Contract terms and prices; and/or
d) to cancel the remainder and pay to the Supplier an agreed amount for partially completed
Goods and Services and for materials and parts previously procured by the Supplier.
28. Notices
28.1 Any notice given by one party to the other pursuant to this Contract shall be sent to the
other party in writing or by email to the other party's address.
28.2 A notice shall be effective when delivered or on the notice's effective date, whichever is
later.
Conditions of Contract
Traffic Operation Department Page 7 of 7
Pt. 200, App. II
early notification about the requirements al-
lows the potential applicant to decide not to
apply or to take needed actions before re-
ceiving the Federal award. The announce-
ment need not include all of the terms and
conditions of the Federal award, but may
refer to a document (with information about
how to obtain it) or Internet site where ap-
plicants can see the terms and conditions. If
this funding opportunity will lead to Federal
awards with some special terms and condi-
tions that differ from the Federal awarding
agency's usual (sometimes called "general")
terms and conditions, this section should
highlight those special terms and conditions.
Doing so will alert applicants that have re-
ceived Federal awards from the Federal
awarding agency previously and might not
otherwise expect different terms and condi-
tions. For the same reason, the announce-
ment should inform potential applicants
about special requirements that could apply
to particular Federal awards after the review
of applications and other information, based
on the particular circumstances of the effort
to be supported (e.g., if human subjects were
to be involved or if some situations may jus-
tify special terms on intellectual property,
data sharing or security requirements).
3. Reporting —Required. This section must
include general information about the type
(e.g., financial or performance), frequency,
and means of submission (paper or elec-
tronic) of post -Federal award reporting re-
quirements. Highlight any special reporting
requirements for Federal awards under this
funding opportunity that differ (e.g., by re-
port type, frequency, form/format, or cir-
cumstances for use) from what the Federal
awarding agency's Federal awards usually
require.
G. FEDERAL AWARDING AGENCY CONTACT(S)—
REQUIRED
The announcement must give potential ap-
plicants a point(s) of contact for answering
questions or helping with problems while the
funding opportunity is open. The intent of
this requirement is to be as helpful as pos-
sible to potential applicants, so the Federal
awarding agency should consider approaches
such as giving:
i. Points of contact who may be reached in
multiple ways (e.g., by telephone, FAX, and/
or email, as well as regular mail).
ii. A fax or email address that multiple
people access, so that someone will respond
even if others are unexpectedly absent dur-
ing critical periods.
iii. Different contacts for distinct kinds of
help (e.g., one for questions of programmatic
content and a second for administrative
questions).
2 CFR Ch. II (1-1-14 Edition)
H. OTHER INFORMATION —OPTIONAL
This section may include any additional
information that will assist a potential ap-
plicant. For example, the section might:
i. Indicate whether this is a new program
or a one-time initiative.
ii. Mention related programs or other up-
coming or ongoing Federal awarding agency
funding opportunities for similar activities.
iii. Include current Internet addresses for
Federal awarding agency Web sites that may
be useful to an applicant in understanding
the program.
iv. Alert applicants to the need to identify
proprietary information and inform them
about the way the Federal awarding agency
will handle it.
v. Include certain routine notices to appli-
cants (e.g., that the Federal government is
not obligated to make any Federal award as
a result of the announcement or that only
grants officers can bind the Federal govern-
ment to the expenditure of funds).
APPENDIX II TO PART 200—CONTRACT
PROVISIONS FOR NON-FEDERAL ENTI-
TY CONTRACTS UNDER FEDERAL
AWARDS
In addition to other provisions required by
the Federal agency or non -Federal entity, all
contracts made by the non -Federal entity
under the Federal award must contain provi-
sions covering the following, as applicable.
(A) Contracts for more than the simplified
acquisition threshold currently set at
$150,000, which is the inflation adjusted
amount determined by the Civilian Agency
Acquisition Council and the Defense Acquisi-
tion Regulations Council (Councils) as au-
thorized by 41 U.S.C. 1908, must address ad-
ministrative, contractual, or legal remedies
in instances where contractors violate or
breach contract terms, and provide for such
sanctions and penalties as appropriate.
(B) All contracts in excess of $10,000 must
address termination for cause and for con-
venience by the non -Federal entity including
the manner by which it will be effected and
the basis for settlement.
(C) Equal Employment Opportunity. Ex-
cept as otherwise provided under 41 CFR
Part 60, all contracts that meet the defini-
tion of "federally assisted construction con-
tract" in 41 CFR Part 60-1.3 must include the
equal opportunity clause provided under 41
CFR 60-1.4(b), in accordance with Executive
Order 11246, "Equal Employment Oppor-
tunity" (30 FR 12319, 12935, 3 CFR Part, 1964-
1965 Comp., p. 339), as amended by Executive
Order 11375, "Amending Executive Order
11246 Relating to Equal Employment Oppor-
tunity," and implementing regulations at 41
CFR part 60, "Office of Federal Contract
Compliance Programs, Equal Employment
Opportunity, Department of Labor."
194
OMB Guidance
(D) Davis -Bacon Act, as amended (40 U.S.C.
3141-3148). When required by Federal program
legislation, all prime construction contracts
in excess of $2,000 awarded by non -Federal
entities must include a provision for compli-
ance with the Davis -Bacon Act (40 U.S.C.
3141-3144, and 3146-3148) as supplemented by
Department of Labor regulations (29 CFR
Part 5, "Labor Standards Provisions Appli-
cable to Contracts Covering Federally Fi-
nanced and Assisted Construction"). In ac-
cordance with the statute, contractors must
be required to pay wages to laborers and me-
chanics at a rate not less than the prevailing
wages specified in a wage determination
made by the Secretary of Labor. In addition,
contractors must be required to pay wages
not less than once a week. The non -Federal
entity must place a copy of the current pre-
vailing wage determination issued by the De-
partment of Labor in each solicitation. The
decision to award a contract or subcontract
must be conditioned upon the acceptance of
the wage determination. The non -Federal en-
tity must report all suspected or reported
violations to the Federal awarding agency.
The contracts must also include a provision
for compliance with the Copeland "Anti -
Kickback" Act (40 U.S.C. 3145), as supple-
mented by Department of Labor regulations
(29 CFR Part 3, "Contractors and Sub-
contractors on Public Building or Public
Work Financed in Whole or in Part by Loans
or Grants from the United States"). The Act
provides that each contractor or sub -
recipient must be prohibited from inducing,
by any means, any person employed in the
construction, completion, or repair of public
work, to give up any part of the compensa-
tion to which he or she is otherwise entitled.
The non -Federal entity must report all sus-
pected or reported violations to the Federal
awarding agency.
(E) Contract Work Hours and Safety
Standards Act (40 U.S.C. 3701-3708). Where
applicable, all contracts awarded by the non -
Federal entity in excess of $100,000 that in-
volve the employment of mechanics or labor-
ers must include a provision for compliance
with 40 U.S.C. 3702 and 3704, as supplemented
by Department of Labor regulations (29 CFR
Part 5). Under 40 U.S.C. 3702 of the Act, each
contractor must be required to compute the
wages of every mechanic and laborer on the
basis of a standard work week of 40 hours.
Work in excess of the standard work week is
permissible provided that the worker is com-
pensated at a rate of not less than one and a
half times the basic rate of pay for all hours
worked in excess of 40 hours in the work
week. The requirements of 40 U.S.C. 3704 are
applicable to construction work and provide
that no laborer or mechanic must be re-
quired to work in surroundings or under
working conditions which are unsanitary,
hazardous or dangerous. These requirements
do not apply to the purchases of supplies or
Pt. 200, App. II
materials or articles ordinarily available on
the open market, or contracts for transpor-
tation or transmission of intelligence.
(F) Rights to Inventions Made Under a
Contract or Agreement. If the Federal award
meets the definition of "funding agreement"
under 37 CFR §401.2 (a) and the recipient or
subrecipient wishes to enter into a contract
with a small business firm or nonprofit orga-
nization regarding the substitution of par-
ties, assignment or performance of experi-
mental, developmental, or research work
under that "funding agreement," the recipi-
ent or subrecipient must comply with the re-
quirements of 37 CFR Part 401, "Rights to In-
ventions Made by Nonprofit Organizations
and Small Business Firms Under Govern-
ment Grants, Contracts and Cooperative
Agreements," and any implementing regula-
tions issued by the awarding agency.
(G) Clean Air Act (42 U.S.C. 7401-7671q.) and
the Federal Water Pollution Control Act (33
U.S.C. 1251-1387), as amended —Contracts and
subgrants of amounts in excess of $150,000
must contain a provision that requires the
non -Federal award to agree to comply with
all applicable standards, orders or regula-
tions issued pursuant to the Clean Air Act
(42 U.S.C. 7401-7671q) and the Federal Water
Pollution Control Act as amended (33 U.S.C.
1251-1387). Violations must be reported to the
Federal awarding agency and the Regional
Office of the Environmental Protection
Agency (EPA).
(H) Mandatory standards and policies re-
lating to energy efficiency which are con-
tained in the state energy conservation plan
issued in compliance with the Energy Policy
and Conservation Act (42 U.S.C. 6201).
(I) Debarment and Suspension (Executive
Orders 12549 and 12689)—A contract award
(see 2 CFR 180.220) must not be made to par-
ties listed on the governmentwide Excluded
Parties List System in the System for Award
Management (SAM), in accordance with the
OMB guidelines at 2 CFR 180 that implement
Executive Orders 12549 (3 CFR Part 1986
Comp., p. 189) and 12689 (3 CFR Part 1989
Comp., p. 235), "Debarment and Suspension."
The Excluded Parties List System in SAM
contains the names of parties debarred, sus-
pended, or otherwise excluded by agencies, as
well as parties declared ineligible under stat-
utory or regulatory authority other than Ex-
ecutive Order 12549.
(J) Byrd Anti -Lobbying Amendment (31
U.S.C. 1352)—Contractors that apply or bid
for an award of $100,000 or more must file the
required certification. Each tier certifies to
the tier above that it will not and has not
used Federal appropriated funds to pay any
person or organization for influencing or at-
tempting to influence an officer or employee
of any agency, a member of Congress, officer
or employee of Congress, or an employee of a
member of Congress in connection with ob-
taining any Federal contract, grant or any
195
Pt. 200, App. III
other award covered by 31 U.S.C. 1352. Each
tier must also disclose any lobbying with
non -Federal funds that takes place in con-
nection with obtaining any Federal award.
Such disclosures are forwarded from tier to
tier up to the non -Federal award.
(K) See §200.322 Procurement of recovered
materials.
APPENDIX III TO PART 200—INDIRECT
(F&A) COSTS IDENTIFICATION AND
ASSIGNMENT, AND RATE DETERMINA-
TION FOR INSTITUTIONS OF HIGHER
EDUCATION (IHES)
A. GENERAL
This appendix provides criteria for identi-
fying and computing indirect (or indirect
(F&A)) rates at IHEs (institutions). Indirect
(F&A) costs are those that are incurred for
common or joint objectives and therefore
cannot be identified readily and specifically
with a particular sponsored project, an in-
structional activity, or any other institu-
tional activity. See subsection B.1, Defini-
tion of Facilities and Administration, for a
discussion of the components of indirect
(F&A) costs.
1. Major Functions of an Institution
Refers to instruction, organized research,
other sponsored activities and other institu-
tional activities as defined in this section:
a. Instruction means the teaching and
training activities of an institution. Except
for research training as provided in sub-
section b, this term includes all teaching and
training activities, whether they are offered
for credits toward a degree or certificate or
on a non-credit basis, and whether they are
offered through regular academic depart-
ments or separate divisions, such as a sum-
mer school division or an extension division.
Also considered part of this major function
are departmental research, and, where
agreed to, university research.
(1) Sponsored instruction and training means
specific instructional or training activity es-
tablished by grant, contract, or cooperative
agreement. For purposes of the cost prin-
ciples, this activity may be considered a
major function even though an institution's
accounting treatment may include it in the
instruction function.
(2) Departmental research means research,
development and scholarly activities that
are not organized research and, con-
sequently, are not separately budgeted and
accounted for. Departmental research, for
purposes of this document, is not considered
as a major function, but as a part of the in-
struction function of the institution.
b. Organized research means all research
and development activities of an institution
that are separately budgeted and accounted
for. It includes:
2 CFR Ch. II (1-1-14 Edition)
(1) Sponsored research means all research
and development activities that are spon-
sored by Federal and non -Federal agencies
and organizations. This term includes activi-
ties involving the training of individuals in
research techniques (commonly called re-
search training) where such activities utilize
the same facilities as other research and de-
velopment activities and where such activi-
ties are not included in the instruction func-
tion.
(2) University research means all research
and development activities that are sepa-
rately budgeted and accounted for by the in-
stitution under an internal application of in-
stitutional funds. University research, for
purposes of this document, must be com-
bined with sponsored research under the
function of organized research.
c. Other sponsored activities means programs
and projects financed by Federal and non -
Federal agencies and organizations which in-
volve the performance of work other than in-
struction and organized research. Examples
of such programs and projects are health
service projects and community service pro-
grams. However, when any of these activities
are undertaken by the institution without
outside support, they may be classified as
other institutional activities.
d. Other institutional activities means all ac-
tivities of an institution except for instruc-
tion, departmental research, organized re-
search, and other sponsored activities, as de-
fined in this section; indirect (F&A) cost ac-
tivities identified in this Appendix para-
graph B, Identification and assignment of in-
direct (F&A) costs; and specialized services
facilities described in §200.468 Specialized
service facilities of this Part.
Examples of other institutional activities
include operation of residence halls, dining
halls, hospitals and clinics, student unions,
intercollegiate athletics, bookstores, faculty
housing, student apartments, guest houses,
chapels, theaters, public museums, and other
similar auxiliary enterprises. This definition
also includes any other categories of activi-
ties, costs of which are "unallowable" to
Federal awards, unless otherwise indicated
in an award.
2. Criteria for Distribution
a. Base period. A base period for distribu-
tion of indirect (F&A) costs is the period
during which the costs are incurred. The
base period normally should coincide with
the fiscal year established by the institution,
but in any event the base period should be so
selected as to avoid inequities in the dis-
tribution of costs.
b. Need for cost groupings. The overall ob-
jective of the indirect (F&A) cost allocation
process is to distribute the indirect (F&A)
costs described in Section B, Identification
and assignment of indirect (F&A) costs, to
196
VI.
VII.
VIII.
IX.
X.
XI.
REQUIRED CONTRACT PROVISIONS
FEDERAL -AID CONSTRUCTION CONTRACTS
General
Nondiscrimination
Nonsegregated Facilities
Davis -Bacon and Related Act Provisions
Contract Work Hours and Safety Standards Act
Provisions
Subletting or Assigning the Contract
Safety: Accident Prevention
False Statements Concerning Highway Projects
Implementation of Clean Air Act and Federal Water
Pollution Control Act
Compliance with Governmentwide Suspension and
Debarment Requirements
Certification Regarding Use of Contract Funds for
Lobbying
ATTACHMENTS
A. Employment and Materials Preference for Appalachian
Development Highway System or Appalachian Local Access
Road Contracts (included in Appalachian contracts only)
I. GENERAL
1. Form FHWA-1273 must be physically incorporated in each
construction contract funded under Title 23 (excluding
emergency contracts solely intended for debris removal). The
contractor (or subcontractor) must insert this form in each
subcontract and further require its inclusion in all lower tier
subcontracts (excluding purchase orders, rental agreements
and other agreements for supplies or services).
The applicable requirements of Form FHWA-1273 are
incorporated by reference for work done under any purchase
order, rental agreement or agreement for other services. The
prime contractor shall be responsible for compliance by any
subcontractor, lower -tier subcontractor or service provider.
Form FHWA-1273 must be included in all Federal -aid design -
build contracts, in all subcontracts and in lower tier
subcontracts (excluding subcontracts for design services,
purchase orders, rental agreements and other agreements for
supplies or services). The design -builder shall be responsible
for compliance by any subcontractor, lower -tier subcontractor
or service provider.
Contracting agencies may reference Form FHWA-1273 in bid
proposal or request for proposal documents, however, the
Form FHWA-1273 must be physically incorporated (not
referenced) in all contracts, subcontracts and lower -tier
subcontracts (excluding purchase orders, rental agreements
and other agreements for supplies or services related to a
construction contract).
2. Subject to the applicability criteria noted in the following
sections, these contract provisions shall apply to all work
performed on the contract by the contractor's own organization
and with the assistance of workers under the contractor's
immediate superintendence and to all work performed on the
contract by piecework, station work, or by subcontract.
FHWA-1273 -- Revised May 1, 2012
3. A breach of any of the stipulations contained in these
Required Contract Provisions may be sufficient grounds for
withholding of progress payments, withholding of final
payment, termination of the contract, suspension / debarment
or any other action determined to be appropriate by the
contracting agency and FHWA.
4. Selection of Labor: During the performance of this contract,
the contractor shall not use convict labor for any purpose
within the limits of a construction project on a Federal -aid
highway unless it is labor performed by convicts who are on
parole, supervised release, or probation. The term Federal -aid
highway does not include roadways functionally classified as
local roads or rural minor collectors.
II. NONDISCRIMINATION
The provisions of this section related to 23 CFR Part 230 are
applicable to all Federal -aid construction contracts and to all
related construction subcontracts of $10,000 or more. The
provisions of 23 CFR Part 230 are not applicable to material
supply, engineering, or architectural service contracts.
In addition, the contractor and all subcontractors must comply
with the following policies: Executive Order 11246, 41 CFR 60,
29 CFR 1625-1627, Title 23 USC Section 140, the
Rehabilitation Act of 1973, as amended (29 USC 794), Title VI
of the Civil Rights Act of 1964, as amended, and related
regulations including 49 CFR Parts 21, 26 and 27; and 23 CFR
Parts 200, 230, and 633.
The contractor and all subcontractors must comply with: the
requirements of the Equal Opportunity Clause in 41 CFR 60-
1.4(b) and, for all construction contracts exceeding $10,000,
the Standard Federal Equal Employment Opportunity
Construction Contract Specifications in 41 CFR 60-4.3.
Note: The U.S. Department of Labor has exclusive authority to
determine compliance with Executive Order 11246 and the
policies of the Secretary of Labor including 41 CFR 60, and 29
CFR 1625-1627. The contracting agency and the FHWA have
the authority and the responsibility to ensure compliance with
Title 23 USC Section 140, the Rehabilitation Act of 1973, as
amended (29 USC 794), and Title VI of the Civil Rights Act of
1964, as amended, and related regulations including 49 CFR
Parts 21, 26 and 27; and 23 CFR Parts 200, 230, and 633.
The following provision is adopted from 23 CFR 230, Appendix
A, with appropriate revisions to conform to the U.S.
Department of Labor (US DOL) and FHWA requirements.
1. Equal Employment Opportunity: Equal employment
opportunity (EEO) requirements not to discriminate and to take
affirmative action to assure equal opportunity as set forth
under laws, executive orders, rules, regulations (28 CFR 35,
29 CFR 1630, 29 CFR 1625-1627, 41 CFR 60 and 49 CFR 27)
and orders of the Secretary of Labor as modified by the
provisions prescribed herein, and imposed pursuant to 23
U.S.C. 140 shall constitute the EEO and specific affirmative
action standards for the contractor's project activities under
1
this contract. The provisions of the Americans with Disabilities
Act of 1990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR
35 and 29 CFR 1630 are incorporated by reference in this
contract. In the execution of this contract, the contractor
agrees to comply with the following minimum specific
requirement activities of EEO:
a. The contractor will work with the contracting agency and
the Federal Government to ensure that it has made every
good faith effort to provide equal opportunity with respect to all
of its terms and conditions of employment and in their review
of activities under the contract.
b. The contractor will accept as its operating policy the
following statement:
"It is the policy of this Company to assure that applicants
are employed, and that employees are treated during
employment, without regard to their race, religion, sex, color,
national origin, age or disability. Such action shall include:
employment, upgrading, demotion, or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or
other forms of compensation; and selection for training,
including apprenticeship, pre -apprenticeship, and/or on-the-
job training."
2. EEO Officer: The contractor will designate and make
known to the contracting officers an EEO Officer who will have
the responsibility for and must be capable of effectively
administering and promoting an active EEO program and who
must be assigned adequate authority and responsibility to do
so.
3. Dissemination of Policy: All members of the contractor's
staff who are authorized to hire, supervise, promote, and
discharge employees, or who recommend such action, or who
are substantially involved in such action, will be made fully
cognizant of, and will implement, the contractors EEO policy
and contractual responsibilities to provide EEO in each grade
and classification of employment. To ensure that the above
agreement will be met, the following actions will be taken as a
minimum:
a. Periodic meetings of supervisory and personnel office
employees will be conducted before the start of work and then
not less often than once every six months, at which time the
contractors EEO policy and its implementation will be
reviewed and explained. The meetings will be conducted by
the EEO Officer.
b. All new supervisory or personnel office employees will be
given a thorough indoctrination by the EEO Officer, covering
all major aspects of the contractor's EEO obligations within
thirty days following their reporting for duty with the contractor.
c. All personnel who are engaged in direct recruitment for
the project will be instructed by the EEO Officer in the
contractors procedures for locating and hiring minorities and
women.
d. Notices and posters setting forth the contractor's EEO
policy will be placed in areas readily accessible to employees,
applicants for employment and potential employees.
e. The contractors EEO policy and the procedures to
implement such policy will be brought to the attention of
employees by means of meetings, employee handbooks, or
other appropriate means.
4. Recruitment: When advertising for employees, the
contractor will include in all advertisements for employees the
notation: "An Equal Opportunity Employer." All such
advertisements will be placed in publications having a large
circulation among minorities and women in the area from
which the project work force would normally be derived.
a. The contractor will, unless precluded by a valid
bargaining agreement, conduct systematic and direct
recruitment through public and private employee referral
sources likely to yield qualified minorities and women. To
meet this requirement, the contractor will identify sources of
potential minority group employees, and establish with such
identified sources procedures whereby minority and women
applicants may be referred to the contractor for employment
consideration.
b. In the event the contractor has a valid bargaining
agreement providing for exclusive hiring hall referrals, the
contractor is expected to observe the provisions of that
agreement to the extent that the system meets the contractor's
compliance with EEO contract provisions. Where
implementation of such an agreement has the effect of
discriminating against minorities or women, or obligates the
contractor to do the same, such implementation violates
Federal nondiscrimination provisions.
c. The contractor will encourage its present employees to
refer minorities and women as applicants for employment.
Information and procedures with regard to referring such
applicants will be discussed with employees.
5. Personnel Actions: Wages, working conditions, and
employee benefits shall be established and administered, and
personnel actions of every type, including hiring, upgrading,
promotion, transfer, demotion, layoff, and termination, shall be
taken without regard to race, color, religion, sex, national
origin, age or disability. The following procedures shall be
followed:
a. The contractor will conduct periodic inspections of project
sites to insure that working conditions and employee facilities
do not indicate discriminatory treatment of project site
personnel.
b. The contractor will periodically evaluate the spread of
wages paid within each classification to determine any
evidence of discriminatory wage practices.
c. The contractor will periodically review selected personnel
actions in depth to determine whether there is evidence of
discrimination. Where evidence is found, the contractor will
promptly take corrective action. If the review indicates that the
discrimination may extend beyond the actions reviewed, such
corrective action shall include all affected persons.
d. The contractor will promptly investigate all complaints of
alleged discrimination made to the contractor in connection
with its obligations under this contract, will attempt to resolve
such complaints, and will take appropriate corrective action
within a reasonable time. If the investigation indicates that the
discrimination may affect persons other than the complainant,
such corrective action shall include such other persons. Upon
completion of each investigation, the contractor will inform
every complainant of all of their avenues of appeal.
6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and
increasing the skills of minorities and women who are
2
applicants for employment or current employees. Such efforts
should be aimed at developing full journey level status
employees in the type of trade or job classification involved.
b. Consistent with the contractor's work force requirements
and as permissible under Federal and State regulations, the
contractor shall make full use of training programs, i.e.,
apprenticeship, and on-the-job training programs for the
geographical area of contract performance. In the event a
special provision for training is provided under this contract,
this subparagraph will be superseded as indicated in the
special provision. The contracting agency may reserve
training positions for persons who receive welfare assistance
in accordance with 23 U.S.C. 140(a).
c. The contractor will advise employees and applicants for
employment of available training programs and entrance
requirements for each.
d. The contractor will periodically review the training and
promotion potential of employees who are minorities and
women and will encourage eligible employees to apply for
such training and promotion.
7. Unions: If the contractor relies in whole or in part upon
unions as a source of employees, the contractor will use good
faith efforts to obtain the cooperation of such unions to
increase opportunities for minorities and women. Actions by
the contractor, either directly or through a contractor's
association acting as agent, will include the procedures set
forth below:
a. The contractor will use good faith efforts to develop, in
cooperation with the unions, joint training programs aimed
toward qualifying more minorities and women for membership
in the unions and increasing the skills of minorities and women
so that they may qualify for higher paying employment.
b. The contractor will use good faith efforts to incorporate an
EEO clause into each union agreement to the end that such
union will be contractually bound to refer applicants without
regard to their race, color, religion, sex, national origin, age or
disability.
c. The contractor is to obtain information as to the referral
practices and policies of the labor union except that to the
extent such information is within the exclusive possession of
the labor union and such labor union refuses to furnish such
information to the contractor, the contractor shall so certify to
the contracting agency and shall set forth what efforts have
been made to obtain such information.
d. In the event the union is unable to provide the contractor
with a reasonable flow of referrals within the time limit set forth
in the collective bargaining agreement, the contractor will,
through independent recruitment efforts, fill the employment
vacancies without regard to race, color, religion, sex, national
origin, age or disability; making full efforts to obtain qualified
and/or qualifiable minorities and women. The failure of a union
to provide sufficient referrals (even though it is obligated to
provide exclusive referrals under the terms of a collective
bargaining agreement) does not relieve the contractor from the
requirements of this paragraph. In the event the union referral
practice prevents the contractor from meeting the obligations
pursuant to Executive Order 11246, as amended, and these
special provisions, such contractor shall immediately notify the
contracting agency.
8. Reasonable Accommodation for Applicants /
Employees with Disabilities: The contractor must be familiar
with the requirements for and comply with the Americans with
Disabilities Act and all rules and regulations established there
under. Employers must provide reasonable accommodation in
all employment activities unless to do so would cause an
undue hardship.
9. Selection of Subcontractors, Procurement of Materials
and Leasing of Equipment: The contractor shall not
discriminate on the grounds of race, color, religion, sex,
national origin, age or disability in the selection and retention
of subcontractors, including procurement of materials and
leases of equipment. The contractor shall take all necessary
and reasonable steps to ensure nondiscrimination in the
administration of this contract.
a. The contractor shall notify all potential subcontractors and
suppliers and lessors of their EEO obligations under this
contract.
b. The contractor will use good faith efforts to ensure
subcontractor compliance with their EEO obligations.
10. Assurance Required by 49 CFR 26.13(b):
a. The requirements of 49 CFR Part 26 and the State
DOT's U.S. DOT -approved DBE program are incorporated by
reference.
b. The contractor or subcontractor shall not discriminate on
the basis of race, color, national origin, or sex in the
performance of this contract. The contractor shall carry out
applicable requirements of 49 CFR Part 26 in the award and
administration of DOT -assisted contracts. Failure by the
contractor to carry out these requirements is a material breach
of this contract, which may result in the termination of this
contract or such other remedy as the contracting agency
deems appropriate.
11. Records and Reports: The contractor shall keep such
records as necessary to document compliance with the EEO
requirements. Such records shall be retained for a period of
three years following the date of the final payment to the
contractor for all contract work and shall be available at
reasonable times and places for inspection by authorized
representatives of the contracting agency and the FHWA.
a. The records kept by the contractor shall document the
following:
(1) The number and work hours of minority and non -
minority group members and women employed in each work
classification on the project;
(2) The progress and efforts being made in cooperation
with unions, when applicable, to increase employment
opportunities for minorities and women; and
(3) The progress and efforts being made in locating, hiring,
training, qualifying, and upgrading minorities and women;
b. The contractors and subcontractors will submit an annual
report to the contracting agency each July for the duration of
the project, indicating the number of minority, women, and
non -minority group employees currently engaged in each work
classification required by the contract work. This information is
to be reported on Form FHWA-1391. The staffing data should
represent the project work force on board in all or any part of
the last payroll period preceding the end of July. If on-the-job
training is being required by special provision, the contractor
3
will be required to collect and report training data. The
employment data should reflect the work force on board during
all or any part of the last payroll period preceding the end of
July.
III. NONSEGREGATED FACILITIES
This provision is applicable to all Federal -aid construction
contracts and to all related construction subcontracts of
$10,000 or more.
The contractor must ensure that facilities provided for
employees are provided in such a manner that segregation on
the basis of race, color, religion, sex, or national origin cannot
result. The contractor may neither require such segregated
use by written or oral policies nor tolerate such use by
employee custom. The contractors obligation extends further
to ensure that its employees are not assigned to perform their
services at any location, under the contractor's control, where
the facilities are segregated. The term "facilities" includes
waiting rooms, work areas, restaurants and other eating areas,
time clocks, restrooms, washrooms, locker rooms, and other
storage or dressing areas, parking lots, drinking fountains,
recreation or entertainment areas, transportation, and housing
provided for employees. The contractor shall provide separate
or single -user restrooms and necessary dressing or sleeping
areas to assure privacy between sexes.
IV. DAVIS-BACON AND RELATED ACT PROVISIONS
This section is applicable to all Federal -aid construction
projects exceeding $2,000 and to all related subcontracts and
lower -tier subcontracts (regardless of subcontract size). The
requirements apply to all projects located within the right-of-
way of a roadway that is functionally classified as Federal -aid
highway. This excludes roadways functionally classified as
local roads or rural minor collectors, which are exempt.
Contracting agencies may elect to apply these requirements to
other projects.
The following provisions are from the U.S. Department of
Labor regulations in 29 CFR 5.5 "Contract provisions and
related matters" with minor revisions to conform to the FHWA-
1273 format and FHWA program requirements.
1. Minimum wages
a. All laborers and mechanics employed or working upon
the site of the work, will be paid unconditionally and not less
often than once a week, and without subsequent deduction or
rebate on any account (except such payroll deductions as are
permitted by regulations issued by the Secretary of Labor
under the Copeland Act (29 CFR part 3)), the full amount of
wages and bona fide fringe benefits (or cash equivalents
thereof) due at time of payment computed at rates not less
than those contained in the wage determination of the
Secretary of Labor which is attached hereto and made a part
hereof, regardless of any contractual relationship which may
be alleged to exist between the contractor and such laborers
and mechanics.
Contributions made or costs reasonably anticipated for bona
fide fringe benefits under section 1(b)(2) of the Davis -Bacon
Act on behalf of laborers or mechanics are considered wages
paid to such laborers or mechanics, subject to the provisions
of paragraph 1.d. of this section; also, regular contributions
made or costs incurred for more than a weekly period (but not
less often than quarterly) under plans, funds, or programs
which cover the particular weekly period, are deemed to be
constructively made or incurred during such weekly period.
Such laborers and mechanics shall be paid the appropriate
wage rate and fringe benefits on the wage determination for
the classification of work actually performed, without regard to
skill, except as provided in 29 CFR 5.5(a)(4). Laborers or
mechanics performing work in more than one classification
may be compensated at the rate specified for each
classification for the time actually worked therein: Provided,
That the employer's payroll records accurately set forth the
time spent in each classification in which work is performed.
The wage determination (including any additional classification
and wage rates conformed under paragraph 1.b. of this
section) and the Davis -Bacon poster (WH-1321) shall be
posted at all times by the contractor and its subcontractors at
the site of the work in a prominent and accessible place where
it can be easily seen by the workers.
b. (1) The contracting officer shall require that any class of
laborers or mechanics, including helpers, which is not listed in
the wage determination and which is to be employed under the
contract shall be classified in conformance with the wage
determination. The contracting officer shall approve an
additional classification and wage rate and fringe benefits
therefore only when the following criteria have been met:
(i) The work to be performed by the classification
requested is not performed by a classification in the wage
determination; and
(ii) The classification is utilized in the area by the
construction industry; and
(iii) The proposed wage rate, including any bona fide
fringe benefits, bears a reasonable relationship to the
wage rates contained in the wage determination.
(2) If the contractor and the laborers and mechanics to be
employed in the classification (if known), or their
representatives, and the contracting officer agree on the
classification and wage rate (including the amount
designated for fringe benefits where appropriate), a report of
the action taken shall be sent by the contracting officer to the
Administrator of the Wage and Hour Division, Employment
Standards Administration, U.S. Department of Labor,
Washington, DC 20210. The Administrator, or an authorized
representative, will approve, modify, or disapprove every
additional classification action within 30 days of receipt and
so advise the contracting officer or will notify the contracting
officer within the 30-day period that additional time is
necessary.
(3) In the event the contractor, the laborers or mechanics
to be employed in the classification or their representatives,
and the contracting officer do not agree on the proposed
classification and wage rate (including the amount
designated for fringe benefits, where appropriate), the
contracting officer shall refer the questions, including the
views of all interested parties and the recommendation of the
contracting officer, to the Wage and Hour Administrator for
determination. The Wage and Hour Administrator, or an
authorized representative, will issue a determination within
30 days of receipt and so advise the contracting officer or
4
will notify the contracting officer within the 30-day period that
additional time is necessary.
(4) The wage rate (including fringe benefits where
appropriate) determined pursuant to paragraphs 1.b.(2) or
1.b.(3) of this section, shall be paid to all workers performing
work in the classification under this contract from the first
day on which work is performed in the classification.
c. Whenever the minimum wage rate prescribed in the
contract for a class of laborers or mechanics includes a fringe
benefit which is not expressed as an hourly rate, the contractor
shall either pay the benefit as stated in the wage determination
or shall pay another bona fide fringe benefit or an hourly cash
equivalent thereof.
d. If the contractor does not make payments to a trustee or
other third person, the contractor may consider as part of the
wages of any laborer or mechanic the amount of any costs
reasonably anticipated in providing bona fide fringe benefits
under a plan or program, Provided, That the Secretary of
Labor has found, upon the written request of the contractor,
that the applicable standards of the Davis -Bacon Act have
been met. The Secretary of Labor may require the contractor
to set aside in a separate account assets for the meeting of
obligations under the plan or program.
2. Withholding
The contracting agency shall upon its own action or upon
written request of an authorized representative of the
Department of Labor, withhold or cause to be withheld from
the contractor under this contract, or any other Federal
contract with the same prime contractor, or any other federally -
assisted contract subject to Davis -Bacon prevailing wage
requirements, which is held by the same prime contractor, so
much of the accrued payments or advances as may be
considered necessary to pay laborers and mechanics,
including apprentices, trainees, and helpers, employed by the
contractor or any subcontractor the full amount of wages
required by the contract. In the event of failure to pay any
laborer or mechanic, including any apprentice, trainee, or
helper, employed or working on the site of the work, all or part
of the wages required by the contract, the contracting agency
may, after written notice to the contractor, take such action as
may be necessary to cause the suspension of any further
payment, advance, or guarantee of funds until such violations
have ceased.
3. Payrolls and basic records
a. Payrolls and basic records relating thereto shall be
maintained by the contractor during the course of the work and
preserved for a period of three years thereafter for all laborers
and mechanics working at the site of the work. Such records
shall contain the name, address, and social security number of
each such worker, his or her correct classification, hourly rates
of wages paid (including rates of contributions or costs
anticipated for bona fide fringe benefits or cash equivalents
thereof of the types described in section 1(b)(2)(B) of the
Davis -Bacon Act), daily and weekly number of hours worked,
deductions made and actual wages paid. Whenever the
Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that
the wages of any laborer or mechanic include the amount of
any costs reasonably anticipated in providing benefits under a
plan or program described in section 1(b)(2)(B) of the Davis -
Bacon Act, the contractor shall maintain records which show
that the commitment to provide such benefits is enforceable,
that the plan or program is financially responsible, and that the
plan or program has been communicated in writing to the
laborers or mechanics affected, and records which show the
costs anticipated or the actual cost incurred in providing such
benefits. Contractors employing apprentices or trainees under
approved programs shall maintain written evidence of the
registration of apprenticeship programs and certification of
trainee programs, the registration of the apprentices and
trainees, and the ratios and wage rates prescribed in the
applicable programs.
b. (1) The contractor shall submit weekly for each week in
which any contract work is performed a copy of all payrolls to
the contracting agency. The payrolls submitted shall set out
accurately and completely all of the information required to be
maintained under 29 CFR 5.5(a)(3)(i), except that full social
security numbers and home addresses shall not be included
on weekly transmittals. Instead the payrolls shall only need to
include an individually identifying number for each employee (
e.g. , the last four digits of the employee's social security
number). The required weekly payroll information may be
submitted in any form desired. Optional Form WH-347 is
available for this purpose from the Wage and Hour Division
Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm
or its successor site. The prime contractor is responsible for
the submission of copies of payrolls by all subcontractors.
Contractors and subcontractors shall maintain the full social
security number and current address of each covered worker,
and shall provide them upon request to the contracting agency
for transmission to the State DOT, the FHWA or the Wage and
Hour Division of the Department of Labor for purposes of an
investigation or audit of compliance with prevailing wage
requirements. It is not a violation of this section for a prime
contractor to require a subcontractor to provide addresses and
social security numbers to the prime contractor for its own
records, without weekly submission to the contracting agency..
(2) Each payroll submitted shall be accompanied by a
"Statement of Compliance," signed by the contractor or
subcontractor or his or her agent who pays or supervises the
payment of the persons employed under the contract and shall
certify the following:
(i) That the payroll for the payroll period contains the
information required to be provided under §5.5 (a)(3)(ii) of
Regulations, 29 CFR part 5, the appropriate information is
being maintained under §5.5 (a)(3)(i) of Regulations, 29
CFR part 5, and that such information is correct and
complete;
(ii) That each laborer or mechanic (including each
helper, apprentice, and trainee) employed on the contract
during the payroll period has been paid the full weekly
wages earned, without rebate, either directly or indirectly,
and that no deductions have been made either directly or
indirectly from the full wages earned, other than
permissible deductions as set forth in Regulations, 29 CFR
part 3;
(iii) That each laborer or mechanic has been paid not
less than the applicable wage rates and fringe benefits or
cash equivalents for the classification of work performed,
as specified in the applicable wage determination
incorporated into the contract.
5
(3) The weekly submission of a properly executed
certification set forth on the reverse side of Optional Form
WH-347 shall satisfy the requirement for submission of the
"Statement of Compliance" required by paragraph 3.b.(2) of
this section.
(4) The falsification of any of the above certifications may
subject the contractor or subcontractor to civil or criminal
prosecution under section 1001 of title 18 and section 231 of
title 31 of the United States Code.
c. The contractor or subcontractor shall make the records
required under paragraph 3.a. of this section available for
inspection, copying, or transcription by authorized
representatives of the contracting agency, the State DOT, the
FHWA, or the Department of Labor, and shall permit such
representatives to interview employees during working hours
on the job. If the contractor or subcontractor fails to submit the
required records or to make them available, the FHWA may,
after written notice to the contractor, the contracting agency or
the State DOT, take such action as may be necessary to
cause the suspension of any further payment, advance, or
guarantee of funds. Furthermore, failure to submit the required
records upon request or to make such records available may
be grounds for debarment action pursuant to 29 CFR 5.12.
4. Apprentices and trainees
a. Apprentices (programs of the USDOL).
Apprentices will be permitted to work at less than the
predetermined rate for the work they performed when they are
employed pursuant to and individually registered in a bona fide
apprenticeship program registered with the U.S. Department of
Labor, Employment and Training Administration, Office of
Apprenticeship Training, Employer and Labor Services, or with
a State Apprenticeship Agency recognized by the Office, or if a
person is employed in his or her first 90 days of probationary
employment as an apprentice in such an apprenticeship
program, who is not individually registered in the program, but
who has been certified by the Office of Apprenticeship
Training, Employer and Labor Services or a State
Apprenticeship Agency (where appropriate) to be eligible for
probationary employment as an apprentice.
The allowable ratio of apprentices to journeymen on the job
site in any craft classification shall not be greater than the ratio
permitted to the contractor as to the entire work force under
the registered program. Any worker listed on a payroll at an
apprentice wage rate, who is not registered or otherwise
employed as stated above, shall be paid not less than the
applicable wage rate on the wage determination for the
classification of work actually performed. In addition, any
apprentice performing work on the job site in excess of the
ratio permitted under the registered program shall be paid not
less than the applicable wage rate on the wage determination
for the work actually performed. Where a contractor is
performing construction on a project in a locality other than
that in which its program is registered, the ratios and wage
rates (expressed in percentages of the journeyman's hourly
rate) specified in the contractor's or subcontractor's registered
program shall be observed.
Every apprentice must be paid at not less than the rate
specified in the registered program for the apprentice's level of
progress, expressed as a percentage of the journeymen hourly
rate specified in the applicable wage determination.
Apprentices shall be paid fringe benefits in accordance with
the provisions of the apprenticeship program. If the
apprenticeship program does not specify fringe benefits,
apprentices must be paid the full amount of fringe benefits
listed on the wage determination for the applicable
classification. If the Administrator determines that a different
practice prevails for the applicable apprentice classification,
fringes shall be paid in accordance with that determination.
In the event the Office of Apprenticeship Training, Employer
and Labor Services, or a State Apprenticeship Agency
recognized by the Office, withdraws approval of an
apprenticeship program, the contractor will no longer be
permitted to utilize apprentices at less than the applicable
predetermined rate for the work performed until an acceptable
program is approved.
b. Trainees (programs of the USDOL).
Except as provided in 29 CFR 5.16, trainees will not be
permitted to work at less than the predetermined rate for the
work performed unless they are employed pursuant to and
individually registered in a program which has received prior
approval, evidenced by formal certification by the U.S.
Department of Labor, Employment and Training
Administration.
The ratio of trainees to journeymen on the job site shall not be
greater than permitted under the plan approved by the
Employment and Training Administration.
Every trainee must be paid at not less than the rate specified
in the approved program for the trainee's level of progress,
expressed as a percentage of the journeyman hourly rate
specified in the applicable wage determination. Trainees shall
be paid fringe benefits in accordance with the provisions of the
trainee program. If the trainee program does not mention
fringe benefits, trainees shall be paid the full amount of fringe
benefits listed on the wage determination unless the
Administrator of the Wage and Hour Division determines that
there is an apprenticeship program associated with the
corresponding journeyman wage rate on the wage
determination which provides for less than full fringe benefits
for apprentices. Any employee listed on the payroll at a trainee
rate who is not registered and participating in a training plan
approved by the Employment and Training Administration shall
be paid not less than the applicable wage rate on the wage
determination for the classification of work actually performed.
In addition, any trainee performing work on the job site in
excess of the ratio permitted under the registered program
shall be paid not less than the applicable wage rate on the
wage determination for the work actually performed.
In the event the Employment and Training Administration
withdraws approval of a training program, the contractor will no
longer be permitted to utilize trainees at less than the
applicable predetermined rate for the work performed until an
acceptable program is approved.
c. Equal employment opportunity. The utilization of
apprentices, trainees and journeymen under this part shall be
in conformity with the equal employment opportunity
requirements of Executive Order 11246, as amended, and 29
CFR part 30.
6
d. Apprentices and Trainees (programs of the U.S. DOT).
Apprentices and trainees working under apprenticeship and
skill training programs which have been certified by the
Secretary of Transportation as promoting EEO in connection
with Federal -aid highway construction programs are not
subject to the requirements of paragraph 4 of this Section IV.
The straight time hourly wage rates for apprentices and
trainees under such programs will be established by the
particular programs. The ratio of apprentices and trainees to
journeymen shall not be greater than permitted by the terms of
the particular program.
5. Compliance with Copeland Act requirements. The
contractor shall comply with the requirements of 29 CFR part
3, which are incorporated by reference in this contract.
6. Subcontracts. The contractor or subcontractor shall insert
Form FHWA-1273 in any subcontracts and also require the
subcontractors to include Form FHWA-1273 in any lower tier
subcontracts. The prime contractor shall be responsible for the
compliance by any subcontractor or lower tier subcontractor
with all the contract clauses in 29 CFR 5.5.
7. Contract termination: debarment. A breach of the
contract clauses in 29 CFR 5.5 may be grounds for termination
of the contract, and for debarment as a contractor and a
subcontractor as provided in 29 CFR 5.12.
8. Compliance with Davis -Bacon and Related Act
requirements. All rulings and interpretations of the Davis -
Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5
are herein incorporated by reference in this contract.
9. Disputes concerning labor standards. Disputes arising
out of the labor standards provisions of this contract shall not
be subject to the general disputes clause of this contract. Such
disputes shall be resolved in accordance with the procedures
of the Department of Labor set forth in 29 CFR parts 5, 6, and
7. Disputes within the meaning of this clause include disputes
between the contractor (or any of its subcontractors) and the
contracting agency, the U.S. Department of Labor, or the
employees or their representatives.
10. Certification of eligibility.
a. By entering into this contract, the contractor certifies that
neither it (nor he or she) nor any person or firm who has an
interest in the contractor's firm is a person or firm ineligible to
be awarded Government contracts by virtue of section 3(a) of
the Davis -Bacon Act or 29 CFR 5.12(a)(1).
b. No part of this contract shall be subcontracted to any person
or firm ineligible for award of a Government contract by virtue
of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1).
c. The penalty for making false statements is prescribed in the
U.S. Criminal Code, 18 U.S.C. 1001.
V. CONTRACT WORK HOURS AND SAFETY
STANDARDS ACT
The following clauses apply to any Federal -aid construction
contract in an amount in excess of $100,000 and subject to the
overtime provisions of the Contract Work Hours and Safety
Standards Act. These clauses shall be inserted in addition to
the clauses required by 29 CFR 5.5(a) or 29 CFR 4.6. As
used in this paragraph, the terms laborers and mechanics
include watchmen and guards.
1. Overtime requirements. No contractor or subcontractor
contracting for any part of the contract work which may require
or involve the employment of laborers or mechanics shall
require or permit any such laborer or mechanic in any
workweek in which he or she is employed on such work to
work in excess of forty hours in such workweek unless such
laborer or mechanic receives compensation at a rate not less
than one and one-half times the basic rate of pay for all hours
worked in excess of forty hours in such workweek.
2. Violation; liability for unpaid wages; liquidated
damages. In the event of any violation of the clause set forth
in paragraph (1.) of this section, the contractor and any
subcontractor responsible therefor shall be liable for the
unpaid wages. In addition, such contractor and subcontractor
shall be liable to the United States (in the case of work done
under contract for the District of Columbia or a territory, to such
District or to such territory), for liquidated damages. Such
liquidated damages shall be computed with respect to each
individual laborer or mechanic, including watchmen and
guards, employed in violation of the clause set forth in
paragraph (1.) of this section, in the sum of $10 for each
calendar day on which such individual was required or
permitted to work in excess of the standard workweek of forty
hours without payment of the overtime wages required by the
clause set forth in paragraph (1.) of this section.
3. Withholding for unpaid wages and liquidated damages.
The FHWA or the contacting agency shall upon its own action
or upon written request of an authorized representative of the
Department of Labor withhold or cause to be withheld, from
any moneys payable on account of work performed by the
contractor or subcontractor under any such contract or any
other Federal contract with the same prime contractor, or any
other federally -assisted contract subject to the Contract Work
Hours and Safety Standards Act, which is held by the same
prime contractor, such sums as may be determined to be
necessary to satisfy any liabilities of such contractor or
subcontractor for unpaid wages and liquidated damages as
provided in the clause set forth in paragraph (2.) of this
section.
4. Subcontracts. The contractor or subcontractor shall insert
in any subcontracts the clauses set forth in paragraph (1.)
through (4.) of this section and also a clause requiring the
subcontractors to include these clauses in any lower tier
subcontracts. The prime contractor shall be responsible for
compliance by any subcontractor or lower tier subcontractor
with the clauses set forth in paragraphs (1.) through (4.) of this
section.
7
VI. SUBLETTING OR ASSIGNING THE CONTRACT
This provision is applicable to all Federal -aid construction
contracts on the National Highway System.
1. The contractor shall perform with its own organization
contract work amounting to not less than 30 percent (or a
greater percentage if specified elsewhere in the contract) of
the total original contract price, excluding any specialty items
designated by the contracting agency. Specialty items may be
performed by subcontract and the amount of any such
specialty items performed may be deducted from the total
original contract price before computing the amount of work
required to be performed by the contractor's own organization
(23 CFR 635.116).
a. The term "perform work with its own organization" refers
to workers employed or leased by the prime contractor, and
equipment owned or rented by the prime contractor, with or
without operators. Such term does not include employees or
equipment of a subcontractor or lower tier subcontractor,
agents of the prime contractor, or any other assignees. The
term may include payments for the costs of hiring leased
employees from an employee leasing firm meeting all relevant
Federal and State regulatory requirements. Leased
employees may only be included in this term if the prime
contractor meets all of the following conditions:
(1) the prime contractor maintains control over the
supervision of the day-to-day activities of the leased
employees;
(2) the prime contractor remains responsible for the quality
of the work of the leased employees;
(3) the prime contractor retains all power to accept or
exclude individual employees from work on the project; and
(4) the prime contractor remains ultimately responsible for
the payment of predetermined minimum wages, the
submission of payrolls, statements of compliance and all
other Federal regulatory requirements.
b. "Specialty Items" shall be construed to be limited to work
that requires highly specialized knowledge, abilities, or
equipment not ordinarily available in the type of contracting
organizations qualified and expected to bid or propose on the
contract as a whole and in general are to be limited to minor
components of the overall contract.
2. The contract amount upon which the requirements set forth
in paragraph (1) of Section VI is computed includes the cost of
material and manufactured products which are to be
purchased or produced by the contractor under the contract
provisions.
3. The contractor shall furnish (a) a competent superintendent
or supervisor who is employed by the firm, has full authority to
direct performance of the work in accordance with the contract
requirements, and is in charge of all construction operations
(regardless of who performs the work) and (b) such other of its
own organizational resources (supervision, management, and
engineering services) as the contracting officer determines is
necessary to assure the performance of the contract.
4. No portion of the contract shall be sublet, assigned or
otherwise disposed of except with the written consent of the
contracting officer, or authorized representative, and such
consent when given shall not be construed to relieve the
contractor of any responsibility for the fulfillment of the
contract. Written consent will be given only after the
contracting agency has assured that each subcontract is
evidenced in writing and that it contains all pertinent provisions
and requirements of the prime contract.
5. The 30% self -performance requirement of paragraph (1) is
not applicable to design -build contracts; however, contracting
agencies may establish their own self -performance
requirements.
VII. SAFETY: ACCIDENT PREVENTION
T his provision is applicable to all Federal -aid
construction contracts and to all related subcontracts.
1. In the performance of this contract the contractor shall
comply with all applicable Federal, State, and local laws
governing safety, health, and sanitation (23 CFR 635). The
contractor shall provide all safeguards, safety devices and
protective equipment and take any other needed actions as it
determines, or as the contracting officer may determine, to be
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.
2. It is a condition of this contract, and shall be made a
condition of each subcontract, which the contractor enters into
pursuant to this contract, that the contractor and any
subcontractor shall not permit any employee, in performance
of the contract, to work in surroundings or under conditions
which are unsanitary, hazardous or dangerous to his/her
health or safety, as determined under construction safety and
health standards (29 CFR 1926) promulgated by the Secretary
of Labor, in accordance with Section 107 of the Contract Work
Hours and Safety Standards Act (40 U.S.C. 3704).
3. Pursuant to 29 CFR 1926.3, it is a condition of this contract
that the Secretary of Labor or authorized representative
thereof, shall have right of entry to any site of contract
performance to inspect or investigate the matter of compliance
with the construction safety and health standards and to carry
out the duties of the Secretary under Section 107 of the
Contract Work Hours and Safety Standards Act (40
U.S.C.3704).
VIII. FALSE STATEMENTS CONCERNING HIGHWAY
PROJECTS
T his provision is applicable to all Federal -aid
construction contracts and to all related subcontracts.
In order to assure high quality and durable construction in
conformity with approved plans and specifications and a high
degree of reliability on statements and representations made
by engineers, contractors, suppliers, and workers on Federal -
aid highway projects, it is essential that all persons concerned
with the project perform their functions as carefully, thoroughly,
and honestly as possible. Willful falsification, distortion, or
misrepresentation with respect to any facts related to the
project is a violation of Federal law. To prevent any
misunderstanding regarding the seriousness of these and
similar acts, Form FHWA-1022 shall be posted on each
Federal -aid highway project (23 CFR 635) in one or more
places where it is readily available to all persons concerned
with the project:
18 U.S.C. 1020 reads as follows:
8
"Whoever, being an officer, agent, or employee of the United
States, or of any State or Territory, or whoever, whether a
person, association, firm, or corporation, knowingly makes any
false statement, false representation, or false report as to the
character, quality, quantity, or cost of the material used or to
be used, or the quantity or quality of the work performed or to
be performed, or the cost thereof in connection with the
submission of plans, maps, specifications, contracts, or costs
of construction on any highway or related project submitted for
approval to the Secretary of Transportation; or
Whoever knowingly makes any false statement, false
representation, false report or false claim with respect to the
character, quality, quantity, or cost of any work performed or to
be performed, or materials furnished or to be furnished, in
connection with the construction of any highway or related
project approved by the Secretary of Transportation; or
Whoever knowingly makes any false statement or false
representation as to material fact in any statement, certificate,
or report submitted pursuant to provisions of the Federal -aid
Roads Act approved July 1, 1916, (39 Stat. 355), as amended
and supplemented;
Shall be fined under this title or imprisoned not more than 5
years or both."
IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL
WATER POLLUTION CONTROL ACT
This provision is applicable to all Federal -aid construction
contracts and to all related subcontracts.
By submission of this bid/proposal or the execution of this
contract, or subcontract, as appropriate, the bidder, proposer,
Federal -aid construction contractor, or subcontractor, as
appropriate, will be deemed to have stipulated as follows:
1. That any person who is or will be utilized in the
performance of this contract is not prohibited from receiving an
award due to a violation of Section 508 of the Clean Water Act
or Section 306 of the Clean Air Act.
2. That the contractor agrees to include or cause to be
included the requirements of paragraph (1) of this Section X in
every subcontract, and further agrees to take such action as
the contracting agency may direct as a means of enforcing
such requirements.
X. CERTIFICATION REGARDING DEBARMENT,
SUSPENSION, INELIGIBILITY AND VOLUNTARY
EXCLUSION
This provision is applicable to all Federal -aid construction
contracts, design -build contracts, subcontracts, lower -tier
subcontracts, purchase orders, lease agreements, consultant
contracts or any other covered transaction requiring FHWA
approval or that is estimated to cost $25,000 or more — as
defined in 2 CFR Parts 180 and 1200.
1. Instructions for Certification — First Tier Participants:
a. By signing and submitting this proposal, the prospective
first tier participant is providing the certification set out below.
b. The inability of a person to provide the certification set out
below will not necessarily result in denial of participation in this
covered transaction. The prospective first tier participant shall
submit an explanation of why it cannot provide the certification
set out below. The certification or explanation will be
considered in connection with the department or agency's
determination whether to enter into this transaction. However,
failure of the prospective first tier participant to furnish a
certification or an explanation shall disqualify such a person
from participation in this transaction.
c. The certification in this clause is a material representation
of fact upon which reliance was placed when the contracting
agency determined to enter into this transaction. If it is later
determined that the prospective participant knowingly rendered
an erroneous certification, in addition to other remedies
available to the Federal Government, the contracting agency
may terminate this transaction for cause of default.
d. The prospective first tier participant shall provide
immediate written notice to the contracting agency to whom
this proposal is submitted if any time the prospective first tier
participant learns that its certification was erroneous when
submitted or has become erroneous by reason of changed
circumstances.
e. The terms "covered transaction," "debarred,"
"suspended," "ineligible," "participant," "person," "principal,"
and "voluntarily excluded," as used in this clause, are defined
in 2 CFR Parts 180 and 1200. "First Tier Covered
Transactions" refers to any covered transaction between a
grantee or subgrantee of Federal funds and a participant (such
as the prime or general contract). "Lower Tier Covered
Transactions" refers to any covered transaction under a First
Tier Covered Transaction (such as subcontracts). "First Tier
Participant" refers to the participant who has entered into a
covered transaction with a grantee or subgrantee of Federal
funds (such as the prime or general contractor). "Lower Tier
Participant" refers any participant who has entered into a
covered transaction with a First Tier Participant or other Lower
Tier Participants (such as subcontractors and suppliers).
f. The prospective first tier participant agrees by submitting
this proposal that, should the proposed covered transaction be
entered into, it shall not knowingly enter into any lower tier
covered transaction with a person who is debarred,
suspended, declared ineligible, or voluntarily excluded from
participation in this covered transaction, unless authorized by
the department or agency entering into this transaction.
g. The prospective first tier participant further agrees by
submitting this proposal that it will include the clause titled
"Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion -Lower Tier Covered Transactions,"
provided by the department or contracting agency, entering
into this covered transaction, without modification, in all lower
tier covered transactions and in all solicitations for lower tier
covered transactions exceeding the $25,000 threshold.
h. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it
knows that the certification is erroneous. A participant is
responsible for ensuring that its principals are not suspended,
debarred, or otherwise ineligible to participate in covered
transactions. To verify the eligibility of its principals, as well as
the eligibility of any lower tier prospective participants, each
participant may, but is not required to, check the Excluded
Parties List System website (https://www.epls.gov/) which is
compiled by the General Services Administration.
9
i. Nothing contained in the foregoing shall be construed to
require the establishment of a system of records in order to
render in good faith the certification required by this clause.
The knowledge and information of the prospective participant
is not required to exceed that which is normally possessed by
a prudent person in the ordinary course of business dealings.
j. Except for transactions authorized under paragraph (f) of
these instructions, if a participant in a covered transaction
knowingly enters into a lower tier covered transaction with a
person who is suspended, debarred, ineligible, or voluntarily
excluded from participation in this transaction, in addition to
other remedies available to the Federal Government, the
department or agency may terminate this transaction for cause
or default.
2. Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion — First Tier
Participants:
a. The prospective first tier participant certifies to the best of
its knowledge and belief, that it and its principals:
(1) Are not presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from
participating in covered transactions by any Federal
department or agency;
(2) Have not within a three-year period preceding this
proposal been convicted of or had a civil judgment rendered
against them for commission of fraud or a criminal offense in
connection with obtaining, attempting to obtain, or performing
a public (Federal, State or local) transaction or contract under
a public transaction; violation of Federal or State antitrust
statutes or commission of embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false
statements, or receiving stolen property;
(3) Are not presently indicted for or otherwise criminally or
civilly charged by a governmental entity (Federal, State or
local) with commission of any of the offenses enumerated in
paragraph (a)(2) of this certification; and
(4) Have not within a three-year period preceding this
application/proposal had one or more public transactions
(Federal, State or local) terminated for cause or default.
b. Where the prospective participant is unable to certify to
any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.
2. Instructions for Certification - Lower Tier Participants:
(Applicable to all subcontracts, purchase orders and other
lower tier transactions requiring prior FHWA approval or
estimated to cost $25,000 or more - 2 CFR Parts 180 and
1200)
a. By signing and submitting this proposal, the prospective
lower tier is providing the certification set out below.
b. The certification in this clause is a material representation
of fact upon which reliance was placed when this transaction
was entered into. If it is later determined that the prospective
lower tier participant knowingly rendered an erroneous
certification, in addition to other remedies available to the
Federal Government, the department, or agency with which
this transaction originated may pursue available remedies,
including suspension and/or debarment.
c. The prospective lower tier participant shall provide
immediate written notice to the person to which this proposal is
submitted if at any time the prospective lower tier participant
learns that its certification was erroneous by reason of
changed circumstances.
d. The terms 'covered transaction," "debarred,"
"suspended," "ineligible," "participant," "person," "principal,"
and "voluntarily excluded," as used in this clause, are defined
in 2 CFR Parts 180 and 1200. You may contact the person to
which this proposal is submitted for assistance in obtaining a
copy of those regulations. "First Tier Covered Transactions"
refers to any covered transaction between a grantee or
subgrantee of Federal funds and a participant (such as the
prime or general contract). "Lower Tier Covered Transactions"
refers to any covered transaction under a First Tier Covered
Transaction (such as subcontracts). "First Tier Participant"
refers to the participant who has entered into a covered
transaction with a grantee or subgrantee of Federal funds
(such as the prime or general contractor). "Lower Tier
Participant" refers any participant who has entered into a
covered transaction with a First Tier Participant or other Lower
Tier Participants (such as subcontractors and suppliers).
e. The prospective lower tier participant agrees by
submitting this proposal that, should the proposed covered
transaction be entered into, it shall not knowingly enter into
any lower tier covered transaction with a person who is
debarred, suspended, declared ineligible, or voluntarily
excluded from participation in this covered transaction, unless
authorized by the department or agency with which this
transaction originated.
f. The prospective lower tier participant further agrees by
submitting this proposal that it will include this clause titled
"Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion -Lower Tier Covered Transaction,"
without modification, in all lower tier covered transactions and
in all solicitations for lower tier covered transactions exceeding
the $25,000 threshold.
g. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it
knows that the certification is erroneous. A participant is
responsible for ensuring that its principals are not suspended,
debarred, or otherwise ineligible to participate in covered
transactions. To verify the eligibility of its principals, as well as
the eligibility of any lower tier prospective participants, each
participant may, but is not required to, check the Excluded
Parties List System website (https://www.epls.gov/) which is
compiled by the General Services Administration.
h. Nothing contained in the foregoing shall be construed to
require establishment of a system of records in order to render
in good faith the certification required by this clause. The
knowledge and information of participant is not required to
exceed that which is normally possessed by a prudent person
in the ordinary course of business dealings.
i. Except for transactions authorized under paragraph e of
these instructions, if a participant in a covered transaction
knowingly enters into a lower tier covered transaction with a
person who is suspended, debarred, ineligible, or voluntarily
excluded from participation in this transaction, in addition to
other remedies available to the Federal Government, the
10
department or agency with which this transaction originated
may pursue available remedies, including suspension and/or
debarment.
Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion --Lower Tier
Participants:
1. The prospective lower tier participant certifies, by
submission of this proposal, that neither it nor its principals is
presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from participating in
covered transactions by any Federal department or agency.
2. Where the prospective lower tier participant is unable to
certify to any of the statements in this certification, such
prospective participant shall attach an explanation to this
proposal.
XI. CERTIFICATION REGARDING USE OF CONTRACT
FUNDS FOR LOBBYING
This provision is applicable to all Federal -aid construction
contracts and to all related subcontracts which exceed
$100,000 (49 CFR 20).
1. The prospective participant certifies, by signing and
submitting this bid or proposal, to the best of his or her
knowledge and belief, that:
a. No Federal appropriated funds have been paid or will be
paid, by or on behalf of the undersigned, to any person for
influencing or attempting to influence an officer or employee of
any Federal agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of
Congress in connection with the awarding of any Federal
contract, the making of any Federal grant, the making of any
Federal loan, the entering into of any cooperative agreement,
and the extension, continuation, renewal, amendment, or
modification of any Federal contract, grant, loan, or
cooperative agreement.
b. If any funds other than Federal appropriated funds have
been paid or will be paid to any person for influencing or
attempting to influence an officer or employee of any Federal
agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in
connection with this Federal contract, grant, loan, or
cooperative agreement, the undersigned shall complete and
submit Standard Form-LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions.
2. This certification is a material representation of fact upon
which reliance was placed when this transaction was made or
entered into. Submission of this certification is a prerequisite
for making or entering into this transaction imposed by 31
U.S.C. 1352. Any person who fails to file the required
certification shall be subject to a civil penalty of not less than
$10,000 and not more than $100,000 for each such failure.
3. The prospective participant also agrees by submitting its
bid or proposal that the participant shall require that the
language of this certification be included in all lower tier
subcontracts, which exceed $100,000 and that all such
recipients shall certify and disclose accordingly.
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ATTACHMENT A - EMPLOYMENT AND MATERIALS
PREFERENCE FOR APPALACHIAN DEVELOPMENT
HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS
ROAD CONTRACTS
This provision is applicable to all Federal -aid projects funded
under the Appalachian Regional Development Act of 1965.
1. During the performance of this contract, the contractor
undertaking to do work which is, or reasonably may be, done
as on -site work, shall give preference to qualified persons who
regularly reside in the labor area as designated by the DOL
wherein the contract work is situated, or the subregion, or the
Appalachian counties of the State wherein the contract work is
situated, except:
a. To the extent that qualified persons regularly residing in
the area are not available.
b. For the reasonable needs of the contractor to employ
supervisory or specially experienced personnel necessary to
assure an efficient execution of the contract work.
c. For the obligation of the contractor to offer employment to
present or former employees as the result of a lawful collective
bargaining contract, provided that the number of nonresident
persons employed under this subparagraph (1c) shall not
exceed 20 percent of the total number of employees employed
by the contractor on the contract work, except as provided in
subparagraph (4) below.
2. The contractor shall place a job order with the State
Employment Service indicating (a) the classifications of the
laborers, mechanics and other employees required to perform
the contract work, (b) the number of employees required in
each classification, (c) the date on which the participant
estimates such employees will be required, and (d) any other
pertinent information required by the State Employment
Service to complete the job order form. The job order may be
placed with the State Employment Service in writing or by
telephone. If during the course of the contract work, the
information submitted by the contractor in the original job order
is substantially modified, the participant shall promptly notify
the State Employment Service.
3. The contractor shall give full consideration to all qualified
job applicants referred to him by the State Employment
Service. The contractor is not required to grant employment to
any job applicants who, in his opinion, are not qualified to
perform the classification of work required.
4. If, within one week following the placing of a job order by
the contractor with the State Employment Service, the State
Employment Service is unable to refer any qualified job
applicants to the contractor, or less than the number
requested, the State Employment Service will forward a
certificate to the contractor indicating the unavailability of
applicants. Such certificate shall be made a part of the
contractor's permanent project records. Upon receipt of this
certificate, the contractor may employ persons who do not
normally reside in the labor area to fill positions covered by the
certificate, notwithstanding the provisions of subparagraph (1c)
above.
5. The provisions of 23 CFR 633.207(e) allow the
contracting agency to provide a contractual preference for the
use of mineral resource materials native to the Appalachian
region.
6. The contractor shall include the provisions of Sections 1
through 4 of this Attachment A in every subcontract for work
which is, or reasonably may be, done as on -site work.
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