HomeMy WebLinkAboutRadio Communications_RC Systems - Video Wall Procurement Agreemnt - 7.6.2021 City of Waterloo TOF-284-W
FORM OF CONTRACT
FOR THE SUPPLYING AND INSTALLING OF
VIDEO WALL SYSTEM
Iowa DOT Project Number STP-U-8155(755)--70-07
City Project Number TOF-284-W
CITY OF WATERLOO,IOWA
This agreement made and entered into this 6th day of July ,2021,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 Integrator),WITNESSETH:
1) Integrator agrees to supply and install the Video Wall System,and furnish all tools, equipment, materials,and labor
necessary to do all the work called for in the Request for Proposal(RFP)in a workmanshiplike manner and for the
prices set forth in Integrator's submitted Cost Proposal as indicated below and meeting requirements as per RFP
which was accepted by the City,and which is understood and agreed to be a part of this contract.
VIDEO WALL SYSTEM COMPLETE WITH ALLTHE NECESSARY HARDWARE,SOFTWARE,EQUIPMENT,AND COMPONENTS FULLY
INSTALLED FULLY INTEGRATED INCLUDING 9-MONITOR VIDEO WALL DISPLAY COMPLETE AND CONTROL SYSTEM COMPLETE WITH $82,596.52
SUPPORT STRUCTURE FULLY OPERATIONAL FULLY INTEGRATED INCLUDING 4 HOUR TRAINING AT WATERLOO TRAFFIC OPERATIONS
CENTER
TOTAL CONTRACT PRICE IN WRITING:eighty two thousand fare hundred and ningly six dollars and fift
y two cents
2) Integrator understands, agrees with, and is bound by the pertinent terms mentioned in the February 2021 Request
for Proposal, and Integrator's Proposal dated March 6, 2021, and Conditions of Contract for Purchasing Video Wall
System,and email replies by Integrator to questions regarding Integrator's proposals all of which are considered part
of this Agreement.
3) Agreement begin date is expected to be July 12,2021.
4) Supply and integration shall be completed within 4 months from the date of agreement execution plus any extension
approved by the City needed to coordinate with the traffic operation center room remodeling.
5) This contract is not divisible, but in the event of a conflict between this agreement and the various instruments
incorporated by reference,this agreement shall govern.
6) Federal Highway Administration Form FHWA-1273 and Appendix II of 2 CFR Part 200 are physically attached to and
are part of this agreement.
R S
Integrator
BY:
Title: General Manager
FOR CITY OF WATERLOO, IOWA
U'e14111 Hart 6/7/2021
Mayor Quentin Hart Date
Approved by the City Council of the City of Waterloo, Iowa, on July 6 , 2021.
ATTEST: Kelley 7elchle , City Clerk, Waterloo, Iowa
Form of Contract Page 1 of 1
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City of Waterloo, Iowa
Conditions of Contract
For Purchasing Video Wall System
Iowa DOT Project Number STP-U-8155(755)--70-07
1. Definitions
1.1 In this Contract,the following terms shall be interpreted as indicated:
a) "The Contract" means the Contract entered into between the City of Waterloo, and the
Integrator, as recorded in the Form of Contract 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 Integrator 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
Integrator 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
Integrator 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) "VWS" means Video Wall System
k) "The Integrator" means the individual or firm supplying the Goods and Services under this
Contract.
1) "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 provisionsof
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.
3.2 Use of Contract Documents and Information.Any document, other than the Contract
itself, enumerated in COC shall remain the property of the City and shall be returned (all copies)
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to the City on completion of the Integrator's performance under the Contract if so required by
the City.
4. Patent Rights
4.1 The Integrator 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.
5. Performance Security
5.1 When required elsewhere in the Contract and within thirty(30) days of receipt of the
notification of Contract award, the entity submitting the successful proposal shall furnish to the
City the performance security in the amount specified not less than the Integrator's proposed
price.
5.2 The proceeds of the performance security shall be payable to the City as compensation
for any loss resulting from the Integrator's failure to complete its obligations under the Contract.
5.3 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.
5.4 The performance security will be discharged by the City and returned to the Integrator
not later than thirty(30) days following the date of completion of the Integrator's performance
obligations under the Contract, including any warranty obligations.
6. Inspections and Tests
6.1 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. Inspections
and tests will be performed at the project location and after installation.The City shall notify the
Integrator in writing, in a timely manner, of the identity of any representatives retained for these
purposes.
6.2 The inspections and tests may be conducted on the premises of the Integrator or its
subcontractor(s), at point of delivery, and/or at the Goods'final destination. If conducted on the
premises of the Integrator 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. Should any inspected or tested Goods fail to conform to the specified
requirements,the City may reject the Goods, and the Integrator shall either replace the rejected
Goods or make alterations necessary to meet specification requirements free of cost to the City.
6.3 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
Conditions of Contract Page 2
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previously been inspected,tested, and passed by the City or its representative prior to the Goods
shipment.
6.4 Testing and inspecting under COC Clause 7 shall not in any way release the Integrator
from any warranty or other obligations under this Contract.
7. Packing
7.1 The Integrator 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.
8. Delivery and Documents
8.1 Delivery of the Goods shall be made by the Integrator in accordance with the terms
specified in the RFP.
9.3 Documents to be submitted by the Integrator are specified in the RFP.
9. Insurance
9.1 The Goods supplied under the Contract shall be fully insured against loss ordamage
incidental to manufacture or acquisition,transportation, storage, and delivery.
10. Transportation
10.1 The Integrator is required under Contract to deliver the Goods to the Project Location and
bear all the associated costs.
11. Incidental Services
11.1 The Integrator 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; 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 Integrator of any warranty obligations under this Contract; and
d) training of the City's personnel, at the Integrator's plant and/or on-site, in assembly, start-
up, operation, maintenance, and/or repair of the supplied Goods.
11.2 Prices charged by the Integrator 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
Conditions of Contract Page 3
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prevailing rates charged to other parties by the Integrator for similar services.
14. Warranty
14.1 The Integrator 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 Integrator 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 Integrator,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 or the proposal.
14.3 The City shall promptly notify the Integrator in writing of any claims arising under this
warranty.
14.4 Upon receipt of such notice, the Integrator 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 Integrator, 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
Integrator's risk and expense and without prejudice to any other rights which the City may have
against the Integrator under the Contract.
1s. Payment
15.1 First payment will be processed upon stockpile or delivery of the monitors. Full payment
will be processed after the VWS is installed,tested, and fully accepted by the City.
15.2 The Integrator'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
16.1 Prices charged by the Integrator for Goods delivered and Services performed under the
Contract shall not vary from the prices quoted by the Integrator in its bid, with the exception of
any approved price adjustments. In case of a Lump Sum price the portion of Lump Sum payment
request shall be reasonable,the City reserves the right to ask for documentation to justify any
partial payments of a lump sum prices.
17. Change Orders
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17.1 The City may at any time, by a written order given to the Integrator 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 Integrator.
17.2 If any such change causes an increase or decrease in the cost of, or the time required for,
the Integrator'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 Integrator for adjustment under this clause must be asserted within
thirty (30) days from the date of the Integrator'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 Integrator 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 Integrator 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 Integrator from any liability or obligation under the Contract.
20.2 Subcontracts must comply with the provisions of COC Clauses.
21. Delays in the Integrator's Performance
21.1 Delivery of the Goods and performance of Services shall be made by the Integrator in
accordance with the time schedule prescribed by the City in the RFP or the Contract.
21.2 If at any time during performance of the Contract,the Integrator or its subcontractor(s)
should encounter conditions impeding timely delivery of the Goods and performance of Services,
the Integrator 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 Integrator's notice,the City shall
evaluate the situation and may at its discretion extend the Integrator'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 Integrator in the performance of
Conditions of Contract Page 5
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its delivery obligations shall render the Integrator 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 Integrator 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 Integrator, may terminate this Contract in whole or in part:
a) if the Integrator 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 Integrator 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 Integrator shall be liable to the City for any
excess costs for such similar Goods or Services. However, the Integrator 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 Integrator 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
Integrator and not involving the Integrator's fault or negligence and not foreseeable. Such
events may 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 Integrator shall promptly notify the City in writing
of such condition and the cause thereof. Unless otherwise directed by the City in writing,the
Integrator 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.
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25. Termination for Insolvency
25.1 The City may at any time terminate the Contract by giving written notice to the
Integrator if the Integrator becomes bankrupt or otherwise insolvent. In this event, termination
will be without compensation to the Integrator, 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 Integrator, 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 Integrator
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
Integrator'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 Integrator an agreed amount for partially completed
Goods and Services and for materials and parts previously procured by the Integrator.
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 Page 7
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Federal Highway Administration Form FHWA-1273
and Appendix II of 2 CFR Part 200
FHWA-1273-- Revised May 1,2012
REQUIRED CONTRACT PROVISIONS
FEDERAL-AID CONSTRUCTION CONTRACTS
I. General 3. A breach of any of the stipulations contained in these
II. Nondiscrimination Required Contract Provisions may be sufficient grounds for
III. Nonsegregated Facilities withholding of progress payments,withholding of final
IV. Davis-Bacon and Related Act Provisions payment,termination of the contract,suspension/debarment
V. Contract Work Hours and Safety Standards Act or any other action determined to be appropriate by the
Provisions contracting agency and FHWA.
VI. Subletting or Assigning the Contract
VII. Safety:Accident Prevention 4. Selection of Labor: During the performance of this contract,
VIII. False Statements Concerning Highway Projects the contractor shall not use convict labor for any purpose
IX. Implementation of Clean Air Act and Federal Water within the limits of a construction project on a Federal-aid
Pollution Control Act highway unless it is labor performed by convicts who are on
X. Compliance with Governmentwide Suspension and parole,supervised release,or probation. The term Federal-aid
Debarment Requirements highway does not include roadways functionally classified as
XI. Certification Regarding Use of Contract Funds for local roads or rural minor collectors.
Lobbying
ATTACHMENTS ll. NONDISCRIMINATION
A.Employment and Materials Preference for Appalachian The provisions of this section related to 23 CFR Part 230 are
Development Highway System or Appalachian Local Access applicable to all Federal-aid construction contracts and to all
Road Contracts(included in Appalachian contracts only) 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.
I. GENERAL
In addition,the contractor and all subcontractors must comply
1. Form FHWA-1273 must be physically incorporated in each with the following policies: Executive Order 11246,41 CFR 60,
construction contract funded under Title 23(excluding 29 CFR 1625-1627,Title 23 USC Section 140,the
emergency contracts solely intended for debris removal). The Rehabilitation Act of 1973,as amended(29 USC 794),Title VI
contractor(or subcontractor)must insert this form in each of the Civil Rights Act of 1964,as amended,and related
subcontract and further require its inclusion in all lower tier regulations including 49 CFR Parts 21,26 and 27;and 23 CFR
subcontracts(excluding purchase orders, rental agreements Parts 200,230,and 633.
and other agreements for supplies or services).
The contractor and all subcontractors must comply with: the
The applicable requirements of Form FHWA-1273 are requirements of the Equal Opportunity Clause in 41 CFR 60-
incorporated by reference for work done under any purchase 1.4(b)and,for all construction contracts exceeding$10,000,
order,rental agreement or agreement for other services. The the Standard Federal Equal Employment Opportunity
prime contractor shall be responsible for compliance by any Construction Contract Specifications in 41 CFR 60-4.3.
subcontractor,lower-tier subcontractor or service provider.
Note:The U.S.Department of Labor has exclusive authority to
Form FHWA-1273 must be included in all Federal-aid design- determine compliance with Executive Order 11246 and the
build contracts, in all subcontracts and in lower tier policies of the Secretary of Labor including 41 CFR 60,and 29
subcontracts(excluding subcontracts for design services, CFR 1625-1627. The contracting agency and the FHWA have
purchase orders, rental agreements and other agreements for the authority and the responsibility to ensure compliance with
supplies or services). The design-builder shall be responsible Title 23 USC Section 140,the Rehabilitation Act of 1973,as
for compliance by any subcontractor, lower-tier subcontractor amended(29 USC 794),and Title VI of the Civil Rights Act of
or service provider. 1964,as amended,and related regulations including 49 CFR
Parts 21,26 and 27;and 23 CFR Parts 200,230,and 633.
Contracting agencies may reference Form FHWA-1273 in bid
proposal or request for proposal documents,however,the The following provision is adopted from 23 CFR 230,Appendix
Form FHWA-1273 must be physically incorporated(not A,with appropriate revisions to conform to the U.S.
referenced)in all contracts,subcontracts and lower-tier Department of Labor(US DOL)and FHWA requirements.
subcontracts(excluding purchase orders, rental agreements
and other agreements for supplies or services related to a 1. Equal Employment Opportunity: Equal employment
construction contract). opportunity(EEO)requirements not to discriminate and to take
affirmative action to assure equal opportunity as set forth
2. Subject to the applicability criteria noted in the following under laws,executive orders, rules,regulations(28 CFR 35,
sections,these contract provisions shall apply to all work 29 CFR 1630,29 CFR 1625-1627,41 CFR 60 and 49 CFR 27)
performed on the contract by the contractor's own organization and orders of the Secretary of Labor as modified by the
and with the assistance of workers under the contractor's provisions prescribed herein,and imposed pursuant to 23
immediate superintendence and to all work performed on the U.S.C. 140 shall constitute the EEO and specific affirmative
contract by piecework,station work,or by subcontract. action standards for the contractor's project activities under
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1
this contract.The provisions of the Americans with Disabilities 4. Recruitment:When advertising for employees,the
Act of 1990(42 U.S.C. 12101 et seq.)set forth under 28 CFR contractor will include in all advertisements for employees the
35 and 29 CFR 1630 are incorporated by reference in this notation:"An Equal Opportunity Employer." All such
contract. In the execution of this contract,the contractor advertisements will be placed in publications having a large
agrees to comply with the following minimum specific circulation among minorities and women in the area from
requirement activities of EEO: which the project work force would normally be derived.
a.The contractor will work with the contracting agency and a. The contractor will, unless precluded by a valid
the Federal Government to ensure that it has made every bargaining agreement,conduct systematic and direct
good faith effort to provide equal opportunity with respect to all recruitment through public and private employee referral
of its terms and conditions of employment and in their review sources likely to yield qualified minorities and women. To
of activities under the contract. meet this requirement,the contractor will identify sources of
potential minority group employees,and establish with such
b.The contractor will accept as its operating policy the identified sources procedures whereby minority and women
following statement: applicants may be referred to the contractor for employment
consideration.
"It is the policy of this Company to assure that applicants
are employed,and that employees are treated during b. In the event the contractor has a valid bargaining
employment,without regard to their race,religion,sex,color, agreement providing for exclusive hiring hall referrals,the
national origin,age or disability. Such action shall include: contractor is expected to observe the provisions of that
employment,upgrading,demotion,or transfer; recruitment or agreement to the extent that the system meets the contractor's
recruitment advertising;layoff or termination;rates of pay or compliance with EEO contract provisions. Where
other forms of compensation;and selection for training, implementation of such an agreement has the effect of
including apprenticeship,pre-apprenticeship,and/or on-the- discriminating against minorities or women,or obligates the
job training." contractor to do the same,such implementation violates
Federal nondiscrimination provisions.
2. EEO Officer:The contractor will designate and make
known to the contracting officers an EEO Officer who will have c. The contractor will encourage its present employees to
the responsibility for and must be capable of effectively refer minorities and women as applicants for employment.
administering and promoting an active EEO program and who Information and procedures with regard to referring such
must be assigned adequate authority and responsibility to do applicants will be discussed with employees.
so.
5. Personnel Actions:Wages,working conditions,and
3. Dissemination of Policy:All members of the contractor's employee benefits shall be established and administered,and
staff who are authorized to hire,supervise, promote,and personnel actions of every type, including hiring, upgrading,
discharge employees,or who recommend such action,or who promotion,transfer,demotion, layoff,and termination,shall be
are substantially involved in such action,will be made fully taken without regard to race,color,religion,sex,national
cognizant of,and will implement,the contractor's EEO policy origin,age or disability. The following procedures shall be
and contractual responsibilities to provide EEO in each grade followed:
and classification of employment. To ensure that the above
agreement will be met,the following actions will be taken as a a. The contractor will conduct periodic inspections of project
minimum: sites to insure that working conditions and employee facilities
do not indicate discriminatory treatment of project site
a. Periodic meetings of supervisory and personnel office personnel.
employees will be conducted before the start of work and then
not less often than once every six months,at which time the b. The contractor will periodically evaluate the spread of
contractor's EEO policy and its implementation will be wages paid within each classification to determine any
reviewed and explained. The meetings will be conducted by evidence of discriminatory wage practices.
the EEO Officer.
c. The contractor will periodically review selected personnel
b. All new supervisory or personnel office employees will be actions in depth to determine whether there is evidence of
given a thorough indoctrination by the EEO Officer,covering discrimination. Where evidence is found,the contractor will
all major aspects of the contractor's EEO obligations within promptly take corrective action. If the review indicates that the
thirty days following their reporting for duty with the contractor. discrimination may extend beyond the actions reviewed,such
corrective action shall include all affected persons.
c. All personnel who are engaged in direct recruitment for
the project will be instructed by the EEO Officer in the d. The contractor will promptly investigate all complaints of
contractor's procedures for locating and hiring minorities and alleged discrimination made to the contractor in connection
women. with its obligations under this contract,will attempt to resolve
such complaints,and will take appropriate corrective action
d. Notices and posters setting forth the contractor's EEO within a reasonable time. If the investigation indicates that the
policy will be placed in areas readily accessible to employees, discrimination may affect persons other than the complainant,
applicants for employment and potential employees. such corrective action shall include such other persons. Upon
completion of each investigation,the contractor will inform
e. The contractor's EEO policy and the procedures to every complainant of all of their avenues of appeal.
implement such policy will be brought to the attention of
employees by means of meetings,employee handbooks,or 6.Training and Promotion:
other appropriate means.
a. The contractor will assist in locating,qualifying,and
increasing the skills of minorities and women who are
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2
applicants for employment or current employees. Such efforts with the requirements for and comply with the Americans with
should be aimed at developing full journey level status Disabilities Act and all rules and regulations established there
employees in the type of trade or job classification involved. under. Employers must provide reasonable accommodation in
all employment activities unless to do so would cause an
b. Consistent with the contractor's work force requirements undue hardship.
and as permissible under Federal and State regulations,the
contractor shall make full use of training programs, i.e., 9.Selection of Subcontractors,Procurement of Materials
apprenticeship,and on-the-job training programs for the and Leasing of Equipment:The contractor shall not
geographical area of contract performance. In the event a discriminate on the grounds of race,color, religion,sex,
special provision for training is provided under this contract, national origin,age or disability in the selection and retention
this subparagraph will be superseded as indicated in the of subcontractors,including procurement of materials and
special provision. The contracting agency may reserve leases of equipment. The contractor shall take all necessary
training positions for persons who receive welfare assistance and reasonable steps to ensure nondiscrimination in the
in accordance with 23 U.S.C. 140(a). administration of this contract.
c. The contractor will advise employees and applicants for a. The contractor shall notify all potential subcontractors and
employment of available training programs and entrance suppliers and lessors of their EEO obligations under this
requirements for each. contract.
d. The contractor will periodically review the training and b. The contractor will use good faith efforts to ensure
promotion potential of employees who are minorities and subcontractor compliance with their EEO obligations.
women and will encourage eligible employees to apply for
such training and promotion.
10. Assurance Required by 49 CFR 26.13(b):
7. Unions: If the contractor relies in whole or in part upon
unions as a source of employees,the contractor will use good a. The requirements of 49 CFR Part 26 and the State
faith efforts to obtain the cooperation of such unions to DOT's U.S. DOT-approved DBE program are incorporated by
increase opportunities for minorities and women. Actions by reference.
the contractor,either directly or through a contractor's
association acting as agent,will include the procedures set b. The contractor or subcontractor shall not discriminate on
forth below: the basis of race,color, national origin,or sex in the
performance of this contract. The contractor shall carry out
a. The contractor will use good faith efforts to develop,in applicable requirements of 49 CFR Part 26 in the award and
cooperation with the unions,joint training programs aimed administration of DOT-assisted contracts. Failure by the
toward qualifying more minorities and women for membership contractor to carry out these requirements is a material breach
in the unions and increasing the skills of minorities and women of this contract,which may result in the termination of this
so that they may qualify for higher paying employment. contract or such other remedy as the contracting agency
deems appropriate.
b. The contractor will use good faith efforts to incorporate an
EEO clause into each union agreement to the end that such 11.Records and Reports:The contractor shall keep such
union will be contractually bound to refer applicants without records as necessary to document compliance with the EEO
regard to their race,color, religion,sex, national origin,age or requirements. Such records shall be retained for a period of
disability. three years following the date of the final payment to the
contractor for all contract work and shall be available at
c. The contractor is to obtain information as to the referral reasonable times and places for inspection by authorized
practices and policies of the labor union except that to the representatives of the contracting agency and the FHWA.
extent such information is within the exclusive possession of
the labor union and such labor union refuses to furnish such a. The records kept by the contractor shall document the
information to the contractor,the contractor shall so certify to following:
the contracting agency and shall set forth what efforts have
been made to obtain such information. (1)The number and work hours of minority and non-
minority group members and women employed in each work
d. In the event the union is unable to provide the contractor classification on the project;
with a reasonable flow of referrals within the time limit set forth
in the collective bargaining agreement,the contractor will, (2)The progress and efforts being made in cooperation
through independent recruitment efforts,fill the employment with unions,when applicable,to increase employment
vacancies without regard to race,color, religion, sex, national opportunities for minorities and women;and
origin,age or disability;making full efforts to obtain qualified
and/or qualifiable minorities and women. The failure of a union (3)The progress and efforts being made in locating,hiring,
to provide sufficient referrals(even though it is obligated to training,qualifying,and upgrading minorities and women;
provide exclusive referrals under the terms of a collective
bargaining agreement)does not relieve the contractor from the b. The contractors and subcontractors will submit an annual
requirements of this paragraph. In the event the union referral report to the contracting agency each July for the duration of
practice prevents the contractor from meeting the obligations the project,indicating the number of minority,women,and
pursuant to Executive Order 11246,as amended,and these non-minority group employees currently engaged in each work
special provisions,such contractor shall immediately notify the classification required by the contract work. This information is
contracting agency. to be reported on Form FHWA-1391. The staffing data should
represent the project work force on board in all or any part of
8. Reasonable Accommodation for Applicants/ the last payroll period preceding the end of July. If on-the-job
Employees with Disabilities: The contractor must be familiar training is being required by special provision,the contractor
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3
will be required to collect and report training data. The of paragraph 1.d.of this section;also,regular contributions
employment data should reflect the work force on board during made or costs incurred for more than a weekly period(but not
all or any part of the last payroll period preceding the end of less often than quarterly)under plans,funds,or programs
July. 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
III.NONSEGREGATED FACILITIES wage rate and fringe benefits on the wage determination for
the classification of work actually performed,without regard to
This provision is applicable to all Federal-aid construction skill,except as provided in 29 CFR 5.5(a)(4).Laborers or
contracts and to all related construction subcontracts of mechanics performing work in more than one classification
$10,000 or more. may be compensated at the rate specified for each
classification for the time actually worked therein: Provided,
The contractor must ensure that facilities provided for That the employer's payroll records accurately set forth the
employees are provided in such a manner that segregation on time spent in each classification in which work is performed.
the basis of race,color,religion,sex,or national origin cannot The wage determination(including any additional classification
result. The contractor may neither require such segregated and wage rates conformed under paragraph 1.b.of this
use by written or oral policies nor tolerate such use by section)and the Davis-Bacon poster(WH-1321)shall be
employee custom. The contractor's obligation extends further posted at all times by the contractor and its subcontractors at
to ensure that its employees are not assigned to perform their the site of the work in a prominent and accessible place where
services at any location,under the contractor's control,where it can be easily seen by the workers.
the facilities are segregated. The term"facilities"includes
waiting rooms,work areas,restaurants and other eating areas, b.(1)The contracting officer shall require that any class of
time clocks,restrooms,washrooms,locker rooms,and other laborers or mechanics,including helpers,which is not listed in
storage or dressing areas,parking lots,drinking fountains, the wage determination and which is to be employed under the
recreation or entertainment areas,transportation,and housing contract shall be classified in conformance with the wage
provided for employees. The contractor shall provide separate determination.The contracting officer shall approve an
or single-user restrooms and necessary dressing or sleeping additional classification and wage rate and fringe benefits
areas to assure privacy between sexes. therefore only when the following criteria have been met:
IV. DAVIS-BACON AND RELATED ACT PROVISIONS (i)The work to be performed by the classification
requested is not performed by a classification in the wage
This section is applicable to all Federal-aid construction determination;and
projects exceeding$2,000 and to all related subcontracts and
lower-tier subcontracts(regardless of subcontract size). The (ii)The classification is utilized in the area by the
requirements apply to all projects located within the right-of- construction industry;and
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. (iii)The proposed wage rate,including any bona fide
fringe benefits,bears a reasonable relationship to the
Contracting agencies may elect to apply these requirements to
other projects. wage rates contained in the wage determination.
The following provisions are from the U.S.Department of (2)If the contractor and the laborers and mechanics to be
Labor regulations in 29 CFR 5.5"Contract provisions and employed in the classification(if known),or their
related matters"with minor revisions to conform to the FHWA- representatives,and the contracting officer agree on the
1273 format and FHWA program requirements. 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
1. Minimum wages Administrator of the Wage and Hour Division,Employment
Standards Administration, U.S.Department of Labor,
a. All laborers and mechanics employed or working upon Washington,DC 20210.The Administrator,or an authorized
the site of the work,will be paid unconditionally and not less representative,will approve,modify,or disapprove every
often than once a week,and without subsequent deduction or additional classification action within 30 days of receipt and
rebate on any account(except such payroll deductions as are so advise the contracting officer or will notify the contracting
permitted by regulations issued by the Secretary of Labor officer within the 30-day period that additional time is
under the Copeland Act(29 CFR part 3)),the full amount of necessary.
wages and bona fide fringe benefits(or cash equivalents
thereof)due at time of payment computed at rates not less (3)In the event the contractor,the laborers or mechanics
than those contained in the wage determination of the to be employed in the classification or their representatives,
Secretary of Labor which is attached hereto and made a part and the contracting officer do not agree on the proposed
hereof,regardless of any contractual relationship which may classification and wage rate(including the amount
be alleged to exist between the contractor and such laborers designated for fringe benefits,where appropriate),the
and mechanics. contracting officer shall refer the questions,including the
views of all interested parties and the recommendation of the
Contributions made or costs reasonably anticipated for bona contracting officer,to the Wage and Hour Administrator for
fide fringe benefits under section 1(b)(2)of the Davis-Bacon determination.The Wage and Hour Administrator,or an
Act on behalf of laborers or mechanics are considered wages authorized representative,will issue a determination within
paid to such laborers or mechanics,subject to the provisions 30 days of receipt and so advise the contracting officer or
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4
will notify the contracting officer within the 30-day period that Bacon Act,the contractor shall maintain records which show
additional time is necessary. that the commitment to provide such benefits is enforceable,
that the plan or program is financially responsible,and that the
(4)The wage rate(including fringe benefits where plan or program has been communicated in writing to the
appropriate)determined pursuant to paragraphs 1.b.(2)or laborers or mechanics affected,and records which show the
1.b.(3)of this section,shall be paid to all workers performing costs anticipated or the actual cost incurred in providing such
work in the classification under this contract from the first benefits.Contractors employing apprentices or trainees under
day on which work is performed in the classification. approved programs shall maintain written evidence of the
registration of apprenticeship programs and certification of
trainee programs,the registration of the apprentices and
c.Whenever the minimum wage rate prescribed in the trainees,and the ratios and wage rates prescribed in the
contract for a class of laborers or mechanics includes a fringe applicable programs.
benefit which is not expressed as an hourly rate,the contractor
shall either pay the benefit as stated in the wage determination b.(1)The contractor shall submit weekly for each week in
or shall pay another bona fide fringe benefit or an hourly cash which any contract work is performed a copy of all payrolls to
equivalent thereof. the contracting agency. The payrolls submitted shall set out
accurately and completely all of the information required to be
d. If the contractor does not make payments to a trustee or maintained under 29 CFR 5.5(a)(3)(i),except that full social
other third person,the contractor may consider as part of the security numbers and home addresses shall not be included
wages of any laborer or mechanic the amount of any costs on weekly transmittals. Instead the payrolls shall only need to
reasonably anticipated in providing bona fide fringe benefits include an individually identifying number for each employee
under a plan or program,Provided,That the Secretary of e.g.,the last four digits of the employee's social security
Labor has found,upon the written request of the contractor, number).The required weekly payroll information may be
that the applicable standards of the Davis-Bacon Act have submitted in any form desired.Optional Form WH-347 is
been met.The Secretary of Labor may require the contractor available for this purpose from the Wage and Hour Division
to set aside in a separate account assets for the meeting of Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm
obligations under the plan or program. or its successor site.The prime contractor is responsible for
the submission of copies of payrolls by all subcontractors.
2. Withholding 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
The contracting agency shall upon its own action or upon for transmission to the State DOT,the FHWA or the Wage and
written request of an authorized representative of the Hour Division of the Department of Labor for purposes of an
Department of Labor,withhold or cause to be withheld from investigation or audit of compliance with prevailing wage
the contractor under this contract,or any other Federal requirements. It is not a violation of this section for a prime
contract with the same prime contractor,or any other federally- contractor to require a subcontractor to provide addresses and
assisted contract subject to Davis-Bacon prevailing wage social security numbers to the prime contractor for its own
requirements,which is held by the same prime contractor,so records,without weekly submission to the contracting agency..
much of the accrued payments or advances as may be
considered necessary to pay laborers and mechanics, (2)Each payroll submitted shall be accompanied by a
including apprentices,trainees,and helpers,employed by the "Statement of Compliance,"signed by the contractor or
contractor or any subcontractor the full amount of wages subcontractor or his or her agent who pays or supervises the
required by the contract. In the event of failure to pay any payment of the persons employed under the contract and shall
laborer or mechanic,including any apprentice,trainee,or certify the following:
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 (i)That the payroll for the payroll period contains the
may be necessary to cause the suspension of any further information required to be provided under§5.5(a)(3)(ii)of
payment,advance,or guarantee of funds until such violations Regulations,29 CFR part 5,the appropriate information is
have ceased. being maintained under§5.5(a)(3)(i)of Regulations,29
CFR part 5,and that such information is correct and
3. Payrolls and basic records complete;
a. Payrolls and basic records relating thereto shall be (ii)That each laborer or mechanic(including each
maintained by the contractor during the course of the work and helper,apprentice,and trainee)employed on the contract
preserved for a period of three years thereafter for all laborers during the payroll period has been paid the full weekly
and mechanics working at the site of the work.Such records wages earned,without rebate,either directly or indirectly,
shall contain the name,address,and social security number of and that no deductions have been made either directly or
each such worker,his or her correct classification,hourly rates indirectly from the full wages earned,other than
of wages paid(including rates of contributions or costs permissible deductions as set forth in Regulations,29 CFR
anticipated for bona fide fringe benefits or cash equivalents part 3;
thereof of the types described in section 1(b)(2)(B)of the
Davis-Bacon Act),daily and weekly number of hours worked, (iii)That each laborer or mechanic has been paid not
deductions made and actual wages paid.Whenever the less than the applicable wage rates and fringe benefits or
Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv)that cash equivalents for the classification of work performed,
the wages of any laborer or mechanic include the amount of as specified in the applicable wage determination
any costs reasonably anticipated in providing benefits under a incorporated into the contract.
plan or program described in section 1(b)(2)(B)of the Davis-
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5
(3)The weekly submission of a properly executed rate specified in the applicable wage determination.
certification set forth on the reverse side of Optional Form Apprentices shall be paid fringe benefits in accordance with
WH-347 shall satisfy the requirement for submission of the the provisions of the apprenticeship program.If the
"Statement of Compliance"required by paragraph 3.b.(2)of apprenticeship program does not specify fringe benefits,
this section. apprentices must be paid the full amount of fringe benefits
listed on the wage determination for the applicable
(4)The falsification of any of the above certifications may classification. If the Administrator determines that a different
subject the contractor or subcontractor to civil or criminal practice prevails for the applicable apprentice classification,
prosecution under section 1001 of title 18 and section 231 of fringes shall be paid in accordance with that determination.
title 31 of the United States Code.
In the event the Office of Apprenticeship Training,Employer
c.The contractor or subcontractor shall make the records and Labor Services,or a State Apprenticeship Agency
required under paragraph 3.a.of this section available for recognized by the Office,withdraws approval of an
inspection,copying,or transcription by authorized apprenticeship program,the contractor will no longer be
representatives of the contracting agency,the State DOT,the permitted to utilize apprentices at less than the applicable
FHWA, or the Department of Labor,and shall permit such predetermined rate for the work performed until an acceptable
representatives to interview employees during working hours program is approved.
on the job.If the contractor or subcontractor fails to submit the
required records or to make them available,the FHWA may, b.Trainees(programs of the USDOL).
after written notice to the contractor,the contracting agency or
the State DOT,take such action as may be necessary to Except as provided in 29 CFR 5.16,trainees will not be
cause the suspension of any further payment,advance,or permitted to work at less than the predetermined rate for the
guarantee of funds.Furthermore,failure to submit the required work performed unless they are employed pursuant to and
records upon request or to make such records available may individually registered in a program which has received prior
be grounds for debarment action pursuant to 29 CFR 5.12. approval,evidenced by formal certification by the U.S.
Department of Labor,Employment and Training
4. Apprentices and trainees Administration.
a.Apprentices(programs of the USDOL). The ratio of trainees to journeymen on the job site shall not be
greater than permitted under the plan approved by the
Apprentices will be permitted to work at less than the Employment and Training Administration.
predetermined rate for the work they performed when they are
employed pursuant to and individually registered in a bona fide Every trainee must be paid at not less than the rate specified
apprenticeship program registered with the U.S.Department of in the approved program for the trainee's level of progress,
Labor, Employment and Training Administration,Office of expressed as a percentage of the journeyman hourly rate
Apprenticeship Training,Employer and Labor Services,or with specified in the applicable wage determination.Trainees shall
a State Apprenticeship Agency recognized by the Office,or if a be paid fringe benefits in accordance with the provisions of the
person is employed in his or her first 90 days of probationary trainee program.If the trainee program does not mention
employment as an apprentice in such an apprenticeship fringe benefits,trainees shall be paid the full amount of fringe
program,who is not individually registered in the program,but benefits listed on the wage determination unless the
who has been certified by the Office of Apprenticeship Administrator of the Wage and Hour Division determines that
Training,Employer and Labor Services or a State there is an apprenticeship program associated with the
Apprenticeship Agency(where appropriate)to be eligible for corresponding journeyman wage rate on the wage
probationary employment as an apprentice. determination which provides for less than full fringe benefits
for apprentices.Any employee listed on the payroll at a trainee
The allowable ratio of apprentices to journeymen on the job rate who is not registered and participating in a training plan
site in any craft classification shall not be greater than the ratio approved by the Employment and Training Administration shall
permitted to the contractor as to the entire work force under be paid not less than the applicable wage rate on the wage
the registered program.Any worker listed on a payroll at an determination for the classification of work actually performed.
apprentice wage rate,who is not registered or otherwise In addition,any trainee performing work on the job site in
employed as stated above,shall be paid not less than the excess of the ratio permitted under the registered program
applicable wage rate on the wage determination for the shall be paid not less than the applicable wage rate on the
classification of work actually performed. In addition,any wage determination for the work actually performed.
apprentice performing work on the job site in excess of the
ratio permitted under the registered program shall be paid not In the event the Employment and Training Administration
less than the applicable wage rate on the wage determination withdraws approval of a training program,the contractor will no
for the work actually performed.Where a contractor is longer be permitted to utilize trainees at less than the
performing construction on a project in a locality other than applicable predetermined rate for the work performed until an
that in which its program is registered,the ratios and wage acceptable program is approved.
rates(expressed in percentages of the journeyman's hourly
rate)specified in the contractor's or subcontractor's registered c. Equal employment opportunity.The utilization of
program shall be observed. apprentices,trainees and journeymen under this part shall be
in conformity with the equal employment opportunity
Every apprentice must be paid at not less than the rate requirements of Executive Order 11246,as amended,and 29
specified in the registered program for the apprentice's level of CFR part 30.
progress,expressed as a percentage of the journeymen hourly
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6
d. Apprentices and Trainees(programs of the U.S.DOT).
Apprentices and trainees working under apprenticeship and V. CONTRACT WORK HOURS AND SAFETY
skill training programs which have been certified by the STANDARDS ACT
Secretary of Transportation as promoting EEO in connection
with Federal-aid highway construction programs are not The following clauses apply to any Federal-aid construction
subject to the requirements of paragraph 4 of this Section IV. contract in an amount in excess of$100,000 and subject to the
The straight time hourly wage rates for apprentices and overtime provisions of the Contract Work Hours and Safety
trainees under such programs will be established by the Standards Act.These clauses shall be inserted in addition to
particular programs.The ratio of apprentices and trainees to the clauses required by 29 CFR 5.5(a)or 29 CFR 4.6. As
journeymen shall not be greater than permitted by the terms of used in this paragraph,the terms laborers and mechanics
the particular program. include watchmen and guards.
5.Compliance with Copeland Act requirements. The 1.Overtime requirements. No contractor or subcontractor
contractor shall comply with the requirements of 29 CFR part contracting for any part of the contract work which may require
3,which are incorporated by reference in this contract. or involve the employment of laborers or mechanics shall
require or permit any such laborer or mechanic in any
6.Subcontracts. The contractor or subcontractor shall insert workweek in which he or she is employed on such work to
Form FHWA-1273 in any subcontracts and also require the work in excess of forty hours in such workweek unless such
subcontractors to include Form FHWA-1273 in any lower tier laborer or mechanic receives compensation at a rate not less
subcontracts.The prime contractor shall be responsible for the than one and one-half times the basic rate of pay for all hours
compliance by any subcontractor or lower tier subcontractor worked in excess of forty hours in such workweek.
with all the contract clauses in 29 CFR 5.5.
2.Violation; liability for unpaid wages; liquidated
7.Contract termination:debarment. A breach of the damages. In the event of any violation of the clause set forth
contract clauses in 29 CFR 5.5 may be grounds for termination in paragraph(1.)of this section,the contractor and any
of the contract,and for debarment as a contractor and a subcontractor responsible therefor shall be liable for the
subcontractor as provided in 29 CFR 5.12. 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
8.Compliance with Davis-Bacon and Related Act District or to such territory),for liquidated damages.Such
requirements. All rulings and interpretations of the Davis- liquidated damages shall be computed with respect to each
Bacon and Related Acts contained in 29 CFR parts 1,3,and 5 individual laborer or mechanic, including watchmen and
are herein incorporated by reference in this contract. guards,employed in violation of the clause set forth in
paragraph(1.)of this section,in the sum of$10 for each
9.Disputes concerning labor standards.Disputes arising calendar day on which such individual was required or
out of the labor standards provisions of this contract shall not permitted to work in excess of the standard workweek of forty
be subject to the general disputes clause of this contract.Such hours without payment of the overtime wages required by the
clause set forth in paragraph(1.)of this section.
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 3.Withholding for unpaid wages and liquidated damages.
between the contractor(or any of its subcontractors)and the The FHWA or the contacting agency shall upon its own action
contracting agency,the U.S.Department of Labor,or the or upon written request of an authorized representative of the
employees or their representatives. Department of Labor withhold or cause to be withheld,from
any moneys payable on account of work performed by the
10.Certification of eligibility. 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
a. By entering into this contract,the contractor certifies that Hours and Safety Standards Act,which is held by the same
neither it(nor he or she)nor any person or firm who has an prime contractor,such sums as may be determined to be
interest in the contractor's firm is a person or firm ineligible to necessary to satisfy any liabilities of such contractor or
be awarded Government contracts by virtue of section 3(a)of subcontractor for unpaid wages and liquidated damages as
the Davis-Bacon Act or 29 CFR 5.12(a)(1). provided in the clause set forth in paragraph(2.)of this
section.
b. No part of this contract shall be subcontracted to any person
or firm ineligible for award of a Government contract by virtue 4.Subcontracts. The contractor or subcontractor shall insert
of section 3(a)of the Davis-Bacon Act or 29 CFR 5.12(a)(1). in any subcontracts the clauses set forth in paragraph (1.)
through(4.)of this section and also a clause requiring the
c.The penalty for making false statements is prescribed in the subcontractors to include these clauses in any lower tier
U.S.Criminal Code, 18 U.S.C. 1 tate 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.
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7
evidenced in writing and that it contains all pertinent provisions
VI.SUBLETTING OR ASSIGNING THE CONTRACT and requirements of the prime contract.
This provision is applicable to all Federal-aid construction 5.The 30%self-performance requirement of paragraph(1)is
contracts on the National Highway System. not applicable to design-build contracts;however,contracting
agencies may establish their own self-performance
1.The contractor shall perform with its own organization requirements.
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 VII.SAFETY:ACCIDENT PREVENTION
designated by the contracting agency. Specialty items may be
performed by subcontract and the amount of any such T h i s p r o v i s i o n i s applicable to all Federal-aid
specialty items performed may be deducted from the total construction contracts and to all related subcontracts.
original contract price before computing the amount of work
required to be performed by the contractor's own organization 1. In the performance of this contract the contractor shall
(23 CFR 635.116). comply with all applicable Federal,State,and local laws
governing safety,health,and sanitation(23 CFR 635).The
a. The term"perform work with its own organization"refers contractor shall provide all safeguards,safety devices and
to workers employed or leased by the prime contractor,and protective equipment and take any other needed actions as it
equipment owned or rented by the prime contractor,with or determines,or as the contracting officer may determine,to be
without operators. Such term does not include employees or reasonably necessary to protect the life and health of
equipment of a subcontractor or lower tier subcontractor, employees on the job and the safety of the public and to
agents of the prime contractor,or any other assignees. The protect property in connection with the performance of the
term may include payments for the costs of hiring leased work covered by the contract.
employees from an employee leasing firm meeting all relevant
Federal and State regulatory requirements. Leased 2. It is a condition of this contract,and shall be made a
employees may only be included in this term if the prime condition of each subcontract,which the contractor enters into
contractor meets all of the following conditions: pursuant to this contract,that the contractor and any
subcontractor shall not permit any employee,in performance
(1)the prime contractor maintains control over the of the contract,to work in surroundings or under conditions
supervision of the day-to-day activities of the leased which are unsanitary,hazardous or dangerous to his/her
employees; health or safety,as determined under construction safety and
(2)the prime contractor remains responsible for the quality health standards(29 CFR 1926)promulgated by the Secretary
of the work of the leased employees; of Labor,in accordance with Section 107 of the Contract Work
(3)the prime contractor retains all power to accept or Hours and Safety Standards Act(40 U.S.C.3704).
exclude individual employees from work on the project;and
(4)the prime contractor remains ultimately responsible for 3.Pursuant to 29 CFR 1926.3,it is a condition of this contract
the payment of predetermined minimum wages,the that the Secretary of Labor or authorized representative
submission of payrolls,statements of compliance and all thereof,shall have right of entry to any site of contract
other Federal regulatory requirements. performance to inspect or investigate the matter of compliance
with the construction safety and health standards and to carry
b."Specialty Items"shall be construed to be limited to work out the duties of the Secretary under Section 107 of the
that requires highly specialized knowledge,abilities,or Contract Work Hours and Safety Standards Act(40
equipment not ordinarily available in the type of contracting U.S.C.3704).
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. VIII.FALSE STATEMENTS CONCERNING HIGHWAY
PROJECTS
2.The contract amount upon which the requirements set forth
in paragraph(1)of Section VI is computed includes the cost of T h i s p r o v i s i o n i s applicable to all Federal-aid
material and manufactured products which are to be construction contracts and to all related subcontracts.
purchased or produced by the contractor under the contract
provisions. In order to assure high quality and durable construction in
conformity with approved plans and specifications and a high
3.The contractor shall furnish(a)a competent superintendent degree of reliability on statements and representations made
or supervisor who is employed by the firm,has full authority to by engineers,contractors,suppliers,and workers on Federal-
direct performance of the work in accordance with the contract aid highway projects,it is essential that all persons concerned
requirements,and is in charge of all construction operations with the project perform their functions as carefully,thoroughly,
(regardless of who performs the work)and(b)such other of its and honestly as possible. Willful falsification,distortion,or
own organizational resources(supervision,management,and misrepresentation with respect to any facts related to the
engineering services)as the contracting officer determines is project is a violation of Federal law. To prevent any
necessary to assure the performance of the contract. misunderstanding regarding the seriousness of these and
similar acts, Form FHWA-1022 shall be posted on each
4.No portion of the contract shall be sublet,assigned or Federal-aid highway project(23 CFR 635)in one or more
otherwise disposed of except with the written consent of the places where it is readily available to all persons concerned
contracting officer,or authorized representative,and such with the project:
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 18 U.S.C. 1020 reads as follows:
contracting agency has assured that each subcontract is
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8
"Whoever,being an officer,agent,or employee of the United covered transaction.The prospective first tier participant shall
States,or of any State or Territory,or whoever,whether a submit an explanation of why it cannot provide the certification
person,association,firm,or corporation,knowingly makes any set out below.The certification or explanation will be
false statement,false representation,or false report as to the considered in connection with the department or agency's
character,quality,quantity,or cost of the material used or to determination whether to enter into this transaction.However,
be used,or the quantity or quality of the work performed or to failure of the prospective first tier participant to furnish a
be performed,or the cost thereof in connection with the certification or an explanation shall disqualify such a person
submission of plans,maps,specifications,contracts,or costs from participation in this transaction.
of construction on any highway or related project submitted for
approval to the Secretary of Transportation;or c.The certification in this clause is a material representation
of fact upon which reliance was placed when the contracting
Whoever knowingly makes any false statement,false agency determined to enter into this transaction. If it is later
representation,false report or false claim with respect to the determined that the prospective participant knowingly rendered
character,quality,quantity,or cost of any work performed or to an erroneous certification,in addition to other remedies
be performed,or materials furnished or to be furnished,in available to the Federal Government,the contracting agency
connection with the construction of any highway or related may terminate this transaction for cause of default.
project approved by the Secretary of Transportation;or
d.The prospective first tier participant shall provide
Whoever knowingly makes any false statement or false immediate written notice to the contracting agency to whom
representation as to material fact in any statement,certificate, this proposal is submitted if any time the prospective first tier
or report submitted pursuant to provisions of the Federal-aid participant learns that its certification was erroneous when
Roads Act approved July 1, 1916,(39 Stat.355),as amended submitted or has become erroneous by reason of changed
and supplemented; circumstances.
Shall be fined under this title or imprisoned not more than 5 e.The terms"covered transaction,""debarred,"
years or both." "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
IX.IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL Transactions"refers to any covered transaction between a
WATER POLLUTION CONTROL ACT grantee or subgrantee of Federal funds and a participant(such
as the prime or general contract). "Lower Tier Covered
This provision is applicable to all Federal-aid construction Transactions"refers to any covered transaction under a First
contracts and to all related subcontracts. Tier Covered Transaction(such as subcontracts). "First Tier
Participant"refers to the participant who has entered into a
By submission of this bid/proposal or the execution of this covered transaction with a grantee or subgrantee of Federal
contract,or subcontract,as appropriate,the bidder,proposer, funds(such as the prime or general contractor). "Lower Tier
Federal-aid construction contractor,or subcontractor,as Participant"refers any participant who has entered into a
appropriate,will be deemed to have stipulated as follows: covered transaction with a First Tier Participant or other Lower
Tier Participants(such as subcontractors and suppliers).
1.That any person who is or will be utilized in the
performance of this contract is not prohibited from receiving an f.The prospective first tier participant agrees by submitting
award due to a violation of Section 508 of the Clean Water Act this proposal that,should the proposed covered transaction be
or Section 306 of the Clean Air Act. entered into,it shall not knowingly enter into any lower tier
2.That the contractor agrees to include or cause to be covered transaction with a person who is debarred,
included the requirements of paragraph(1)of this Section X in suspended,declared ineligible,or voluntarily excluded from
every subcontract,and further agrees to take such action as participation in this covered transaction, unless authorized by
the contracting agency may direct as a means of enforcing the department or agency entering into this transaction.
such requirements.
g.The prospective first tier participant further agrees by
submitting this proposal that it will include the clause titled
X.CERTIFICATION REGARDING DEBARMENT, "Certification Regarding Debarment,Suspension, Ineligibility
SUSPENSION,INELIGIBILITY AND VOLUNTARY and Voluntary Exclusion-Lower Tier Covered Transactions,"
EXCLUSION provided by the department or contracting agency,entering
into this covered transaction,without modification, in all lower
This provision is applicable to all Federal-aid construction tier covered transactions and in all solicitations for lower tier
contracts,design-build contracts,subcontracts,lower-tier covered transactions exceeding the$25,000 threshold.
subcontracts,purchase orders,lease agreements,consultant
contracts or any other covered transaction requiring FHWA h.A participant in a covered transaction may rely upon a
approval or that is estimated to cost$25,000 or more— as certification of a prospective participant in a lower tier covered
defined in 2 CFR Parts 180 and 1200. 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,
1.Instructions for Certification—First Tier Participants: debarred,or otherwise ineligible to participate in covered
transactions. To verify the eligibility of its principals,as well as
a.By signing and submitting this proposal,the prospective the eligibility of any lower tier prospective participants,each
first tier participant is providing the certification set out below. participant may,but is not required to,check the Excluded
Parties List System website(https://www.epis.gov/),which is
b.The inability of a person to provide the certification set out compiled by the General Services Administration.
below will not necessarily result in denial of participation in this
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9
I. Nothing contained in the foregoing shall be construed to this transaction originated may pursue available remedies,
require the establishment of a system of records in order to including suspension and/or debarment.
render in good faith the certification required by this clause.
The knowledge and information of the prospective participant c.The prospective lower tier participant shall provide
is not required to exceed that which is normally possessed by immediate written notice to the person to which this proposal is
a prudent person in the ordinary course of business dealings. submitted if at any time the prospective lower tier participant
learns that its certification was erroneous by reason of
j.Except for transactions authorized under paragraph(f)of changed circumstances.
these instructions,if a participant in a covered transaction
knowingly enters into a lower tier covered transaction with a d.The terms"covered transaction,""debarred,"
person who is suspended,debarred,ineligible,or voluntarily "suspended,""ineligible,""participant,""person,""principal,"
excluded from participation in this transaction,in addition to and"voluntarily excluded,"as used in this clause,are defined
other remedies available to the Federal Government,the in 2 CFR Parts 180 and 1200. You may contact the person to
department or agency may terminate this transaction for cause which this proposal is submitted for assistance in obtaining a
or default. 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"
2. Certification Regarding Debarment,Suspension, refers to any covered transaction under a First Tier Covered
Ineligibility and Voluntary Exclusion—First Tier Transaction(such as subcontracts). "First Tier Participant'
Participants: refers to the participant who has entered into a covered
transaction with a grantee or subgrantee of Federal funds
a. The prospective first tier participant certifies to the best of (such as the prime or general contractor). "Lower Tier
its knowledge and belief,that it and its principals: Participant'refers any participant who has entered into a
covered transaction with a First Tier Participant or other Lower
(1) Are not presently debarred,suspended,proposed for Tier Participants(such as subcontractors and suppliers).
debarment,declared ineligible,or voluntarily excluded from
participating in covered transactions by any Federal e.The prospective lower tier participant agrees by
department or agency; submitting this proposal that,should the proposed covered
transaction be entered into,it shall not knowingly enter into
(2) Have not within a three-year period preceding this any lower tier covered transaction with a person who is
proposal been convicted of or had a civil judgment rendered debarred,suspended,declared ineligible,or voluntarily
against them for commission of fraud or a criminal offense in excluded from participation in this covered transaction,unless
connection with obtaining,attempting to obtain,or performing authorized by the department or agency with which this
a public(Federal,State or local)transaction or contract under transaction originated.
a public transaction;violation of Federal or State antitrust
statutes or commission of embezzlement,theft,forgery, f.The prospective lower tier participant further agrees by
bribery,falsification or destruction of records,making false submitting this proposal that it will include this clause titled
statements,or receiving stolen property; "Certification Regarding Debarment,Suspension, Ineligibility
and Voluntary Exclusion-Lower Tier Covered Transaction,"
(3) Are not presently indicted for or otherwise criminally or without modification,in all lower tier covered transactions and
civilly charged by a governmental entity(Federal,State or in all solicitations for lower tier covered transactions exceeding
local)with commission of any of the offenses enumerated in the$25,000 threshold.
paragraph(a)(2)of this certification;and
g.A participant in a covered transaction may rely upon a
(4) Have not within a three-year period preceding this certification of a prospective participant in a lower tier covered
application/proposal had one or more public transactions transaction that is not debarred,suspended,ineligible,or
(Federal,State or local)terminated for cause or default. voluntarily excluded from the covered transaction,unless it
knows that the certification is erroneous.A participant is
b. Where the prospective participant is unable to certify to responsible for ensuring that its principals are not suspended,
any of the statements in this certification,such prospective debarred,or otherwise ineligible to participate in covered
participant shall attach an explanation to this proposal. transactions. To verify the eligibility of its principals,as well as
the eligibility of any lower tier prospective participants,each
2.Instructions for Certification-Lower Tier Participants: participant may,but is not required to,check the Excluded
Parties List System website(https://www.epls.gov/),which is
(Applicable to all subcontracts,purchase orders and other compiled by the General Services Administration.
lower tier transactions requiring prior FHWA approval or
estimated to cost$25,000 or more-2 CFR Parts 180 and h.Nothing contained in the foregoing shall be construed to
1200) require establishment of a system of records in order to render
in good faith the certification required by this clause.The
a.By signing and submitting this proposal,the prospective knowledge and information of participant is not required to
lower tier is providing the certification set out below. exceed that which is normally possessed by a prudent person
in the ordinary course of business dealings.
b.The certification in this clause is a material representation
of fact upon which reliance was placed when this transaction i.Except for transactions authorized under paragraph a of
was entered into. If it is later determined that the prospective these instructions,if a participant in a covered transaction
lower tier participant knowingly rendered an erroneous knowingly enters into a lower tier covered transaction with a
certification,in addition to other remedies available to the person who is suspended,debarred,ineligible,or voluntarily
Federal Government,the department,or agency with which excluded from participation in this transaction,in addition to
other remedies available to the Federal Government,the
Overall Page Number 18
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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11
ATTACHMENT A-EMPLOYMENT AND MATERIALS 6.The contractor shall include the provisions of Sections 1
PREFERENCE FOR APPALACHIAN DEVELOPMENT through 4 of this Attachment A in every subcontract for work
HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS which is,or reasonably may be,done as on-site work.
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.
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12
Pt. 200, App. II 2 CFR Ch. II (1-1-14 Edition)
early notification about the requirements al- H.OTHER INFORMATION—OPTIONAL
lows the potential applicant to decide not to This section may include any additional
apply or to take needed actions before re- information that will assist a potential ap-
ceiving the Federal award. The announce- plicant.For example,the section might:
ment need not include all of the terms and i. Indicate whether this is a new program
conditions of the Federal award, but may or a one-time initiative.
refer to a document(with information about ii. Mention related programs or other up-
how to obtain it) or Internet site where ap- coming or ongoing Federal awarding agency
plicants can see the terms and conditions. If funding opportunities for similar activities.
this funding opportunity will lead to Federal iii. Include current Internet addresses for
awards with some special terms and condi- Federal awarding agency Web sites that may
tions that differ from the Federal awarding be useful to an applicant in understanding
agency's usual (sometimes called "general") the program.
terms and conditions, this section should iv. Alert applicants to the need to identify
highlight those special terms and conditions. proprietary information and inform them
Doing so will alert applicants that have re- about the way the Federal awarding agency
ceived Federal awards from the Federal will handle it.
awarding agency previously and might not v. Include certain routine notices to appli-
otherwise expect different terms and condi- cants (e.g., that the Federal government is
not obligated to make any Federal award as
tions. For the same reason, the announce- a result of the announcement or that only
ment should inform potential applicants grants officers can bind the Federal govern-
about special requirements that could apply ment to the expenditure of funds).
to particular Federal awards after the review
of applications and other information, based APPENDIX II TO PART 200—CONTRACT
on the particular circumstances of the effort PROVISIONS FOR NON-FEDERAL ENTI-
to be supported(e.g., if human subjects were TY CONTRACTS UNDER FEDERAL
to be involved or if some situations may jus- AWARDS
tify special terms on intellectual property,
data sharing or security requirements). In addition to other provisions required by
3. Reporting—Required. This section must the Federal agency or non-Federal entity,all
include general information about the type contracts made by the non-Federal entity
(e.g., financial or performance), frequency, under the Federal award must contain provi-
and means of submission (paper or elec- sions covering the following,as applicable.
tronic) of post-Federal award reporting re- (A) Contracts for more than the simplified
quirements. Highlight any special reporting acquisition threshold currently set at
requirements for Federal awards under this $150,000, which is the inflation adjusted
funding opportunity that differ (e.g., by re- amount determined by the Civilian Agency
port type, frequency, form/format, or cir- Acquisition Council and the Defense Acquisi-
tion tion Regulations Council (Councils) as au-
umstances for use) from what the Federal
thorized by 41 U.S.C. 1908, must address ad-
awarding agency's Federal awards usually ministrative, contractual, or legal remedies
require. in instances where contractors violate or
G.FEDERAL AWARDING AGENCY CONTACT(8�— breach contract terms, and provide for such
REQUIRED sanctions and penalties as appropriate.
(B) All contracts in excess of$10,000 must
The announcement must give potential ap- address termination for cause and for con-
plicants a point(s) of contact for answering venience by the non-Federal entity including
questions or helping with problems while the the manner by which it will be effected and
funding opportunity is open. The intent of the basis for settlement.
this requirement is to be as helpful as pos- (C) Equal Employment Opportunity. Ex-
sible to potential applicants, so the Federal cept as otherwise provided under 41 CFR
awarding agency should consider approaches Part 60, all contracts that meet the defini-
such as giving: tion of "federally assisted construction con-
i. Points of contact who may be reached in tract"in 41 CFR Part 60-1.3 must include the
equal opportunity clause provided under 41
multiple ways (e.g., by telephone, FAX, and/
or email,as well as regular mail). CFR 601.4 in accordance with Executive
1
Order 112466,, "Equal Employment Oppor-
ii. A fax or email address that multiple tunity" (30 FR 12319, 12935, 3 CFR Part, 1964-
people access, so that someone will respond 1965 Comp., p. 339), as amended by Executive
even if others are unexpectedly absent dur- Order 11375, "Amending Executive Order
ing critical periods. 11246 Relating to Equal Employment Oppor-
iii. Different contacts for distinct kinds of tunity," and implementing regulations at 41
help(e.g., one for questions of programmatic CFR part 60, "Office of Federal Contract
content and a second for administrative Compliance Programs, Equal Employment
questions). Opportunity,Department of Labor."
194
Overall Page Number 21
OMB Guidance Pt. 200, App. II
(D)Davis-Bacon Act,as amended(40 U.S.C. materials or articles ordinarily available on
3141-3148).When required by Federal program the open market, or contracts for transpor-
legislation, all prime construction contracts tation or transmission of intelligence.
in excess of $2,000 awarded by non-Federal (F) Rights to Inventions Made Under a
entities must include a provision for compli- Contract or Agreement.If the Federal award
ance with the Davis-Bacon Act (40 U.S.C. meets the definition of"funding agreement"
3141-3144, and 3146-3148) as supplemented by under 37 CFR §401.2 (a) and the recipient or
Department of Labor regulations (29 CFR subrecipient wishes to enter into a contract
Part 5, "Labor Standards Provisions Appli- with a small business firm or nonprofit orga-
cable to Contracts Covering Federally Fi- nization regarding the substitution of par-
nanced and Assisted Construction"). In ac- ties, assignment or performance of experi-
cordance with the statute, contractors must mental, developmental, or research work
be required to pay wages to laborers and me- under that "funding agreement," the recipi-
chanics at a rate not less than the prevailing ent or subrecipient must comply with the re-
wages specified in a wage determination quirements of 37 CFR Part 401, "Rights to In-
made by the Secretary of Labor.In addition, ventions Made by Nonprofit Organizations
contractors must be required to pay wages and Small Business Firms Under Govern-
not less than once a week. The non-Federal ment Grants, Contracts and Cooperative
entity must place a copy of the current pre- Agreements," and any implementing regula-
vailing wage determination issued by the De- tions issued by the awarding agency.
partment of Labor in each solicitation. The (G)Clean Air Act(42 U.S.C.7401-7671q.)and
decision to award a contract or subcontract the Federal Water Pollution Control Act (33
must be conditioned upon the acceptance of U.S.C. 1251-1387), as amended—Contracts and
the wage determination.The non-Federal en- subgrants of amounts in excess of $150,000
tity must report all suspected or reported must contain a provision that requires the
violations to the Federal awarding agency. non-Federal award to agree to comply with
The contracts must also include a provision all applicable standards, orders or regula-
for compliance with the Copeland "Anti- tions issued pursuant to the Clean Air Act
Kickback" Act (40 U.S.C. 3145), as supple- (42 U.S.C. 7401-7671q) and the Federal Water
mented by Department of Labor regulations Pollution Control Act as amended(33 U.S.C.
(29 CFR Part 3, "Contractors and Sub- 1251-1387).Violations must be reported to the
contractors on Public Building or Public Federal awarding agency and the Regional
Work Financed in Whole or in Part by Loans Office of the Environmental Protection
or Grants from the United States").The Act Agency(EPA).
provides that each contractor or sub- (H) Mandatory standards and policies re-
recipient must be prohibited from inducing, lating to energy efficiency which are con-
by any means, any person employed in the tained in the state energy conservation plan
construction, completion, or repair of public issued in compliance with the Energy Policy
work, to give up any part of the compensa- and Conservation Act(42 U.S.C.6201).
tion to which he or she is otherwise entitled. (I) Debarment and Suspension (Executive
The non-Federal entity must report all sus- Orders 12549 and 12689)—A contract award
pected or reported violations to the Federal (see 2 CFR 180.220) must not be made to par-
awarding agency. ties listed on the governmentwide Excluded
(E) Contract Work Hours and Safety Parties List System in the System for Award
Standards Act (40 U.S.C. 3701-3708). Where Management (SAM), in accordance with the
applicable,all contracts awarded by the non- OMB guidelines at 2 CFR 180 that implement
Federal entity in excess of $100,000 that in- Executive Orders 12549 (3 CFR Part 1986
volve the employment of mechanics or labor- Comp., p. 189) and 12689 (3 CFR Part 1989
ers must include a provision for compliance Comp.,p. 235), "Debarment and Suspension."
with 40 U.S.C.3702 and 3704, as supplemented The Excluded Parties List System in SAM
by Department of Labor regulations(29 CFR contains the names of parties debarred, sus-
Part 5). Under 40 U.S.C. 3702 of the Act, each pended,or otherwise excluded by agencies,as
contractor must be required to compute the well as parties declared ineligible under stat-
wages of every mechanic and laborer on the utory or regulatory authority other than Ex-
basis of a standard work week of 40 hours. ecutive Order 12549.
Work in excess of the standard work week is (J) Byrd Anti-Lobbying Amendment (31
permissible provided that the worker is com- U.S.C. 1352)—Contractors that apply or bid
pensated at a rate of not less than one and a for an award of$100,000 or more must file the
half times the basic rate of pay for all hours required certification. Each tier certifies to
worked in excess of 40 hours in the work the tier above that it will not and has not
week. The requirements of 40 U.S.C. 3704 are used Federal appropriated funds to pay any
applicable to construction work and provide person or organization for influencing or at-
that no laborer or mechanic must be re- tempting to influence an officer or employee
quired to work in surroundings or under of any agency, a member of Congress, officer
working conditions which are unsanitary, or employee of Congress,or an employee of a
hazardous or dangerous. These requirements member of Congress in connection with ob-
do not apply to the purchases of supplies or taining any Federal contract, grant or any
195
Overall Page Number 22
Pt. 200, App. III 2 CFR Ch. II (1-1-14 Edition)
other award covered by 31 U.S.C. 1352. Each (1) Sponsored research means all research
tier must also disclose any lobbying with and development activities that are spon-
non-Federal funds that takes place in con- sored by Federal and non-Federal agencies
nection with obtaining any Federal award. and organizations.This term includes activi-
Such disclosures are forwarded from tier to ties involving the training of individuals in
tier up to the non-Federal award. research techniques (commonly called re-
(K) See §200.322 Procurement of recovered search training)where such activities utilize
materials. the same facilities as other research and de-
velopment activities and where such activi-
APPENDIX III TO PART 200—INDIRECT ties are not included in the instruction func-
(F&A) COSTS IDENTIFICATION AND tion.
ASSIGNMENT, AND RATE DETERMINA- (2) University research means all research
TION FOR INSTITUTIONS OF HIGHER and development activities that are sepa-
EDUCATION(IHES) rately budgeted and accounted for by the in-
stitution under an internal application of in-
A.GENERAL stitutional funds. University research, for
This appendix provides criteria for identi- purposes of this document, must be com-
fying and computing indirect (or indirect bined with sponsored research under the
(F&A)) rates at IHES (institutions). Indirect function of organized research.
(F&A) costs are those that are incurred for c. Other sponsored activities means programs
common or joint objectives and therefore and projects financed by Federal and non-
cannot be identified readily and specifically Federal agencies and organizations which in-
with a particular sponsored project, an in- volve the performance of work other than in-
structional activity, or any other institu- struction and organized research. Examples
tional activity. See subsection B.1, Defini- of such programs and projects are health
tion of Facilities and Administration, for a service projects and community service pro-
discussion of the components of indirect grams.However,when any of these activities
(F&A)costs. are undertaken by the institution without
outside support, they may be classified as
I.Major Functions of an Institution other institutional activities.
d. Other institutional activities means all ac-
Refers to instruction, organized research,
sponsored activities and other searcsearchh,,institu- tivities of an institution except for instruc-
tional activities as defined in this section: tion, departmental research, organized re-
a. Instruction means the teaching and search, and other sponsored activities, as de-
training activities of an institution. Except fined in this section; indirect (F&A) cost ac-
for research training as provided in sub- tivities identified in this Appendix para-
section b,this term includes all teaching and graph B,Identification and assignment of en-
training activities, whether they are offered direct (F&A) costs; and specialized services
for credits toward a degree or certificate or facilities described in §200.468 Specialized
on a non-credit basis, and whether they are service facilities of this Part.
offered through regular academic depart- Examples of other institutional activities
ments or separate divisions, such as a sum- include operation of residence halls, dining
mer school division or an extension division. halls, hospitals and clinics, student unions,
Also considered part of this major function intercollegiate athletics, bookstores, faculty
are departmental research, and, where housing, student apartments, guest houses,
agreed to,university research. chapels,theaters,public museums,and other
(1)Sponsored instruction and training means similar auxiliary enterprises. This definition
specific instructional or training activity es- also includes any other categories of activi-
tablished by grant, contract, or cooperative ties, costs of which are "unallowable" to
agreement. For purposes of the cost prin- Federal awards, unless otherwise indicated
ciples, this activity may be considered a in an award.
major function even though an institution's 2.Criteria for Distribution
accounting treatment may include it in the
instruction function. a. Base period. A base period for distribu-
(2) Departmental research means research, tion of indirect (F&A) costs is the period
development and scholarly activities that during which the costs are incurred. The
are not organized research and, con- base period normally should coincide with
sequently, are not separately budgeted and the fiscal year established by the institution,
accounted for. Departmental research, for but in any event the base period should be so
purposes of this document, is not considered selected as to avoid inequities in the dis-
as a major function, but as a part of the in- tribution of costs.
struction function of the institution. b. Need for cost groupings. The overall ob-
b. Organized research means all research jective of the indirect (F&A) cost allocation
and development activities of an institution process is to distribute the indirect (F&A)
that are separately budgeted and accounted costs described in Section B, Identification
for.It includes: and assignment of indirect (F&A) costs, to
196
Overall Page Number 23