for Highway Construction Page 116 of 71 5 SECTION 110 – CIVIL RIGHTS
110.01 General Requirements.
Contractor will comply with 110 in accordance with the Special Equal Employment Opportunity Responsibilities under 23 CFR 140 and 23 CFR 230, Subpart A and D (also refer to United States Department of Transportation (USDOT) form FHWA -1273 attached to each contract ). To find the nearest employment office, visit https://www.labor.idaho.gov/dnn/Local -Office-Directory The Contractor will take affirmative action to assure equal employment opportunity as required by Executive Order 11246 and Executive Order 11375. The Contractor must ensure compliance with the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) where appropriate. Contractors, consultants, suppliers, and service providers bidding and performing the Department’s federal - aid funded projects must register as vendors at https://itd.dbesystem.com . For more information, contact the Office of Civil Right s 208- 334-8567 or email civilrights@itd.idaho.gov .
110.02 Equal Employment Opportunity.
A.Employment Lists , Labor Selection , Non-D iscrimination A local public employment agency has been designated by the State to prepare the employment lists for the project. Employ all qualified unskilled labor possible from lists provided by the employment agency designated in the contract . The Contractor may use the s ervices of the employment agency for obtaining labor of the intermediate and skilled grade. In the performance of this contract, within the limitations of 107.01 requiring employment of 95% Idaho residents, give preference in employment t o qualified honorably discharged Veterans of the United States Armed Forces.
1.Compliance with Regulations: Comply with the Regulations relative to nondiscrimination in federally assisted programs of the USDOT, 49 CFR 21, as they may be amended from time to time, (hereinafter referred to as the "Regulations").
2.Nondiscrimination: Do not discriminate on the grounds of race, color, religion, sex, sexual orientation and gender identity, national origin, age, or disability in the selection and retention of subcont ractors, including procurement of materials and leases of equipment. Do not participate either directly or indirectly in the discrimination prohibited by section 21.5 of the Regulations, including employment practices when the contract cove rs a program set forth in Appendix B of the Regulations.
3.Solicitations for Subcontracts. Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding or negotiation made by the Contractor for work t o be performed under a subcontract, including procurement of materials or leases of equipment, notify each potential subcontractor or supplier of the Contractor's obligations of this contract and for Highway Construction Page 117 of 715 Regulations relative to nondiscrimination o n the grounds of race, color, religion, sex, sexual orientation and gender identity, national origin, age, or disability.
4.Information and Reports: Provide all information and reports required by r egulations and/or directives issued and permit access to books, records, accounts, other sources of information, and facilities as may be determined by the Department or the FHWA to be pertinent to ascertain compliance with such Regulations or directives. Where any information required of a Contract or is in the exclusive possession of another who fails or refuses to furnish this information, inform the Department or the FHWA as appropriate, and set forth what efforts have been made to obtain the information.
5.Sanctions for Noncompliance: In the event the Contractor is in noncompliance with the nondiscrimination provision of this contract , the Department will impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: Withhold progres s payments until it is determined that the C ontractor is found in compliance; Suspend the contract in whole or in part, with no progress payments or time extensions made during this time, until the C ontractor or subcontractor is found to be in compliance; Cancel or terminate the contract for cause and/or ; Assess against the C ontractor's final payment on this contract or any progress payments on current or future Idaho projects an administrati ve remedy by reducing the final payment or future progress payment in an amount equal to 10% of this contract or $7,700, whichever is less. Incorporation of the Provisions: Includ e the provisions of paragraphs (1) through (5) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. Take such action with respect to subcontractor or procurement as the Department or the FHWA may direct as a means of enforcing the provisions, including sanctions for noncompliance, provided, however, that in the event a Contractor becomes involved in, or is threatened with litigation with a subcont ractor or supplier as a result of such direction, the Contractor may request the Depar tment to enter into such litigation to protect the interests of the State, and in addition, the Contractor may request the United States to enter into such litigation to protect t he interests of the United States.
B.Labor Provisions Pay wages of labor in legal tender of the United States, except that this condition will be considered satisfied if payment is made by a negotiable check, on a solvent bank, which may b e cashed readily by the employee in the local community for the full amount w ithout discount or collection charges of any kind. Where checks are used for payment, make all necessary arrangements for them to be cashed and give information regarding such arr angements. Do not ask or accept fee of any kind from any person as a condition of employment on the project. Do not charge employees for tools used in performing their respective duties except for reasonably avoidable loss or damage thereto. for Highway Construction Page 118 of 71 5 Do not require employees working on the project to lodge, board or trade at a particular place or with a particular person. Do not charge for any transportation provided by the contractor or his/her agents to any person employed on the work. All laborers must be employed on a wage basis, but this must not be construed to prohibit the rental of teams , trucks, or other equipment from individuals. No such rental agreement or any charges for feed, gasoline, supplies or repairs on account of such agreement, shall cause any deduction from the wages accruing to any employee except as authorized by the regulations hereinbefore cited.
110.03 Disadvantaged Business Enterprise (DBE ) Program Requirements.
Failure to comply with the DBE program requirement percentage as specified in the Special Provisions or the percentage determined on the Department’s approved ITD -2396 DBE Commitments form (required in 103) is a breach of contract. Whenever the Engineer determines, after investigating and obtaining evidence the Contractor has not complied with the DBE program requirement, the Engineer will take corrective action. The Contractor or subcontractor will not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The Contractor will carry out applicable requirements of 49 CFR part 26 in the award and administration of contracts. Failure by the Contractor to carry out these requirements is a material breach of this contract, that may result in the termination of this contract or such other remedy as the Department deems appropriate (e.g., withholding monthly progress payments, assessing sanctions, liquidated damages, disqualifying the contractor from future bidding as non- responsible). For additional DBE program information, see the Department’s DBE program requirements located at: https://apps.itd.idaho.gov/apps/ocr/ocrdbeprogram.aspx .
A.Disadvantaged Business Enterprise for Race/Gender – Neutral Contracts. To achieve the Department’s current DBE annual participation goal, the Department respectfully requests and encourages responders to consider utilizing subcontractors and suppliers listed on its DBE directory located at https://itd.idaho .gov/civilrights/ . Regulations and statutes require and authorize the DBE Program under Titles I (other than Part B) and V of the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), Pub. L. 102-2 40, 105 Stat. 1914, and Titles I, III, and, V of the Transportation Equity Act for the 21st Century (TEA -21), Pub. L. 105- 178, 112 Stat. 107, Titles I, III, and V of the Safe, Accountable, Flexibl e, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA- LU), Pub. L. 109 -59, 119 Stat. 1144, and Divisions A and B of the Moving Ahead for Progress in the 21st Century Act (MAP -21), Pub. L. 112- 141, 126 Stat. 405, Fixing America's Surface Transportation Act (FAST Act) Pub. L. 114- 113.
1.It is the Departm ent’s policy to ensure DBEs, as defined in 49 CFR Part 26, have an equal opportunity to receive and participate in the USDOT -assisted contracts. The Contractor will include these requirements in every subcontract and modify language as necessary to make the program binding on all subcontracts. The Contractor agrees to ensure DBE firms have the opportunity to participate in the performance of the contr act. The Contractor or its subcontractor(s) will not discriminate based on race, color, national origin, sex, age, or disability in the performance of the contract. The Contractor will carry out applicable requirements of 49 CFR Part 26 in the award and administration of USDOT -assiste d contracts. Failure by the Contractor to carry out these requirements is a material breach of this for Highway Construction Page 119 of 71 5 contract, that may result in the termination of this contract or result in the implementation of other remedy, as the Department deems appropriate. It is r equired that a Contractor verify a DBE firm’s certification with the Idaho Unified Certification Program (UCP). The UCP directo ry is located at: https://itd.dbesystem.com . The Department’s Office of Civil Rights must receive the completed ITD -2396 form with all supporting documentation by 5:00 pm MT on the day of bid opening or the Contractor’s bid will be deemed irregular as specified in 102.10. The ITD -2396 form, with all supporting documentation must be emailed to DBESubmittal@itd.idaho.gov or delivered to the Department’s headquarters. The Depar tment will provide an email receipt of delivery. The Consultants must use the ITD -2398 form for consultant agreements when making DBE goal commitments for contract goals. If the Department declares a DBE firm ineligible to perform work after the execution of a signed contract, then the DBE firm may complete the work, the Department will count the DBE firm’s participation toward the contract goal, although the DBE participation will not count toward the overall annual Department DBE goal. If a Federal agency and/or the Department decertify a DBE before the DBE firm signs a contract, then the Contractor must replace the ineligible DBE firm with another DBE firm or demonstrate that it made a GFE to do so.
2.The Department determines the level of DBE participation on a contract -by-contract basis determined by the Department’s contract goal method, the contract bid documentation will state the contract goal percentage. The Department will credit dollar volumes of participation toward the contract goal. The Department will base the goal attainment on actual expenditures made to DBE firms providing a CUF , as adjusted as specified in 110.03.B.3. This includes only work actually performed by and paid to the DBE firm and the cost of equipment, supplies, and materials, except when the DBE purchases or leases the equipment, supplies, and materials from the Contractor. The bidder her eby certifies that it made GFEs to seek out and consider DBE firms for work on the contract .
3.The Department will credit fees and expenditures toward to DBE goal as follows:
a.100 percent of the dollar value equal to the clearly defined portion of the work of the contract that the DBE performs with its own forces in a joint venture between a DBE and a non- DBE firm.
b.100 percent of expenditures to a DBE manufacturer, a DBE subcontractor, or DBE professional consultant.
c.100 percent of expenditures to a trucking firm that uses trucks it owns, insures, and operates using drivers it employs or leases from another DBE firm including an owner/operator who is also certified as a DBE. A DBE firm may lease trucks fro m a non- DBE firm, including an owner/operator. As a result, the DBE will receive credit for the total value of the services provided by the non- DBE firm not to exceed the value of the services provided by the DBE -owned trucks. Any additional participation by non- DBE firms will receive credit only for fees or commission received. Example: DBE Firm X uses 2 of its own trucks on a contract . It leases 2 trucks from DBE Firm Y and 6 trucks from no n-DBE Firm Z. DBE credit would be awarded for the total value of transportation services provided by Firm X and Firm Y, and may be awarded for the total value of transportation services provided by 4 of the 6 trucks provided by Firm Z. In all , full credit would be allowed for the participation of 8 trucks. In respect to the other 2 trucks provided by Firm Z, for Highway Construction Page 120 of 71 5 DBE credit could be awarded only for the fees or commissions pertaining to those trucks Firm X receives because of the lease with Firm Z. A lease must indicate that the DBE has exclusive use and control over the leased truck. This does not preclude the leased truck from working for others during the term of the lease if the DBE consents, so long as the lease gives the DBE absolute priority for use of the leased truck. A leased truck must conspicuously display the name and identification number of the DBE.
d.100 percent of the fees for equipment leased from a DBE towards the contract goal when the Contractor leases the equipment from a DBE, provided the DBE owns or has the equipment registered in its name. If the DBE obtains the equipment from other sources, the Engineer will only credit the net fe e.
e.60 percent of expenditures paid out to a DBE dealer for supplies provided and the DBE is not a manufacturer. A regular dealer is a firm that owns, operates, or maintains a store, warehouse, or other facility that supplies materials, articles, or equipment for purchase or lease and regularly stocks, sells, and leases to the public during the usual course of business.
f.100 percent of the net fee (if deemed reasonable) for DBE brokers, packagers, and manufacturers' representatives.
4.Regarding DBE participation on contracts, the Contractor must provide the following (also refer to required ITD -0315 form to obtain subcontractor approval):
a.The Contractor will document and maintain the identity of the solicited DBE firms and non- DBE firms or volunteer quotations. Information will be documented and made available upon request on the work and associated dollar amounts of each DBE firm and non- DBE firm.
b.The Contractor will provide, upon request, the identification of the DBE firms and non -DBE firms the Contractor uses in the execution of the contract .
c.The Contractor will ma intain a description of the work and associated dollar amounts for each DBE firm and non- DBE firm used in the execution of the contract .
d.The Contractor will maintain and make available upon request the dollar amount of the participation of each DBE firm and non- DBE firm used.
e.The Contractor will provide, upon request the name of the Contractor's designated official responsible for administering the Contractor's DBE program.
5.The Contractor will make a documented GFE showing actions and support for reaching the Departm ent’s overall annual DBE goal.
6.Following is a list of efforts the Department will evaluate to determine if the Contractor used a GFE to obtain DBE participation. In addition to the efforts made, the Department will consider when the Contractor made the efforts and how intense the efforts were.
a.Has the Contractor provided written notice to a reasonable number of specific DBEs that their interest in the contract was being solicited in sufficient time to allow the DBEs to participate effectively? The Contractor must describe efforts and submit a copy of all correspondence, including emails, soliciting bids from DBEs. for Highway Construction Page 121 of 71 5 b. Has the Contractor followed- up initial solicitation of interest by contacting DBEs to determine with certainty whether the DBEs were interested? Submit follow -up activity documentation (e.g., telephone logs, letters, emails).
c.Has the Contractor selected portions of the work to be performed by DBEs to increase the likelihood of meeting the D BE goal, including, where appropriate, breaking down contracts into economically feasible units to facilitate DBE participation? The Contractor must describe efforts in detail.
d.Has the Contractor provided interested DBEs with adequate information about the plans, specifications, and requirements of the contract? Describe what action was taken.
e.Has the Contractor negotiated in good faith with interested DBEs, not rejecting DBEs as unqualified wi thout sound reasons based on a thorough investigation of their capabilities? Describe efforts.
f.Describe any other efforts not covered by items a through e above that may demonstrate the Contractor’s good faith efforts to obtain DBE participation.
7.The DBE firm must perform a CUF on the contract in order for the Engineer to count expenditures toward the contract goal and annual goal. The Department defines a CUF using general industry practices and the provisions of 49 CFR Part 26. A DBE performs a CUF when:
a.A DBE firm executes a distinct element of the work by actually performing, managing, and supervising the work involved in accordance with industry standard practices, except where such practices are not consistent with DBE regulations and requirements, and
b.The DBE firm receives due compensation as agreed upon for the work performed. If a DBE does not perform or exercise responsibility for at least 30 percent of the total cost of its contract with its own workforce or the DBE subcontracts a greater portion of the work of a contract than would be expected on the basis of normal industry practice for the type of work involved, the Department must presume the DBE is not performing a CUF. As with all non -CUF determinations, the DBE may present evidence to rebut this presumption.
8.Reporting and confirmation of DBE participation will b e performed on the Department’s diversity tracking syst em at https://itd.dbesystem.com as specified in 109.05.
9.Breach of Contract /Damages. Whenever the Engineer determines, after investigating and obtaining evidence, the Contractor has not complied with 110.03.A, the Engineer will take the following actions:
a.Inform the Contractor, in writing, that the Department staff observed specific (listed) infractions the DBE must correct within 5 or fewer business days and that failure to take corrective action will result in withholding all or part of the progress payments.
b.The Engineer will withhold progress payments when the Contractor does not correct deficiencies.
c.If violations persist, the Engineer will contact the Department’s Office of Civil Rights for direction on imposing one or more of the following actions:
1.Withhold all or part of any progress payments until the Department determines the Contractor is back in compliance. for Highway Construction Page 122 of 71 5 (2) Suspend the contract completely, or in part, until the Contractor complies, with no progress payments delivered during the period, with no time extension made.
3.Cancel or terminate the contract for cause as specified in 108. 09.
4.Deduct from the Contractor’s final payment on this contract or any progress payments on current or future Idaho federal -aid contracts of an amount equal in value of the DBE committed work items not performed by the committed DBE firm. If the Department determines the Contractor caused the failure or the failure was an unintentional error or oversight, then the amount to be deducted may be reduced to 50 percent of the value of the unattained DBE participation based on the committed work items. In addition to sanctions, willful failure by a Contractor or a DBE firm to comply with this contract or with the Federal DBE regulations may result in disqualification from further or future contracting, subcontracting, or other participation in federally funded contracts and/or Department contracts. The Contractor has the right to appeal as specified in 105.16.
10.Record Keeping.
a.A Contractor must maintain all records relating to the DBE program and each subcontractor during the course of the work. The Contractor must preserve the documents for a period of 5 years from the date of final payment of the contract .
b.The Contractor or its subcontractor will make all records pertaining to the DBE program available for inspection, copying, or transcribing by authorized representatives of the Department or the FHWA and must allow the representatives to interview employees as necessary.
c.Failure to submit the required records upon request or to make these records available can be grounds for sanctions as specified in 110.03.A.9.
11.Joint Ventures.
a.To increase the opportunity for DBE firms to participate in contracts, DBE firms may enter into joint ventures with non- DBE firms. DBE joint venture applicants must complete the ITD -0646b, Schedule B form and submit it with the required documentation with their bid.
b.The DBE partner of the joint venture must have a separate agreement showing the DBE partner’s bid items. The agreement must be able to define the DBE partner’s distinct elements of work it will perform with its own forces.
c.The Contractor and the DBE firm must jointly submit a joint venture agreement and the Department will evaluate it on a contract -by-contract basis. The Contractor and DBE firm must submit the application with the bid documentation.
B.Disadvantaged Business Enterprise for Race/Gender – Conscious Contracts. Each contract will have a specific DBE availability percentage determined jointly by the Department’s design and construction staff and the Office of Civil Rights. The percentage determined will be included in the federal - aid contract bid documentation. The DBE directory is located at https://itd.idaho.gov/civilrights/ . Regulations and statutes require and authorize the Disadvantaged Business Enterprise Program under Titles I (other than Part B) and V of the ISTEA, Pub. L. 102- 240, 105 Stat. 1914, and Titles I, III, and, V of the TEA - for Highway Construction Page 123 of 71 5 21, Pub. L. 105- 178, 112 Stat. 107, Titles I, III, and V of the SAF ETEA- LU, Pub. L. 109- 59, 119 Stat. 1144, and Divisions A and B of the MAP -21, Pub. L. 112- 141, 126 Stat. 405, FAST Act Pub. L. 114- 113.
1.It is the Department’s policy to ensure DBEs, as defined in 49 CFR Part 26, have an equal opportunity to receive and par ticipate in the USDOT -assisted con tracts. The Contractor will include these requirements in every subcontract and modify language as necessary to make the program binding on all subcontracts. The Contractor agrees to ensure DBE firms have the opportunity to participate in the performance of the contract. The Contractor or its subcontractor(s) will not discriminate based on race, color, national origin, sex, age, or disability in the performance of the contract. The Contractor will carry out applicable requirements of 49 CFR Part 26 in the award and administration of USDOT -assisted contracts. Failure by the Contractor to carry out these requirements is a material breach of this contract, that may res ult in the termination of this contract or result in the implementation of other remedy, as the Department deems appropriate. It is required that a Contractor verify a DBE firm’s certificat ion with the Idaho UCP. The UCP directory is located at: https://itd.idaho.gov/civilrights/ . The Department’s Office of Civil Rights must receive the completed ITD -2396 form with al l supporting documentation by 5:00 pm MT on the day of bid opening or the Contractor’s bid will be deemed irregular as specified in 102.10. The ITD-2396 form, with all supporting documentation must be emailed to DBESubmittal@itd.idaho.gov or delivered to the Department’s headquarters. The Department will provide an email receipt of delivery. The Consultants must use the ITD -2398 form for consultant agreements when making DBE goal commitments for contract goals. If the Department declares a DBE firm ineligible to perform work after the execution of a signed contract, then the DBE firm may complete the w ork, the Department will count the DBE firm’s participation toward the contract goal, although the DBE participation will not count toward the overall annual Department DBE goal. If a Federal agency and/or the Department decertify a DBE before the DBE firm signs a con tract, then the Contractor must replace the ineligible DBE firm with another DBE firm or demonstrate that it made a GFE to do so.
2.The Department determines the level of DBE participation on a cont ract-by-contract basis determined by the Department’s contract goal method, the contract bid documentation will state the contract goal percentage. The Department will credit dollar volumes of participation toward the contract goal. The Department will base the goal attainment on actual expenditures made to DBE firms providing a CUF, as adjusted as specified in 110.03.B.3. This includes only work actually performed by and paid to the DBE firm and the cost of equipment, supplies, and materials, except when the DBE purchases or leases the equipment, supplies, and materials from the Contractor. The bidder hereby certifies that it made GFEs to seek out and consider DBE firms for work o n the contract.
3.The Department will credit fees and expenditures toward to DBE goal as follows:
5.100 percent of the dollar value equal to the clearly defined portion of the work of the contract that the DBE performs with its own forces in a joint venture between a DBE and a non- DBE firm.
a.100 percent of expenditures to a DBE manufacturer, a DBE sub contractor, or DBE professional consultant. for Highway Construction Page 124 of 71 5 b. 100 percent of expenditures to a trucking firm that uses trucks it owns, insures, and operates using drivers it employs or leases from another DBE firm including an owner/operator who is also certified as a DBE. A DBE firm may lease trucks from a non- DBE firm, including an owner/operator. As a result, the DBE will receive credit for the total value of the services provided by the non- DBE firm not to exceed the value of the services provided by the DBE -owned trucks. Any additional participation by non- DBE firms will receive credit only for fees or commission received. Example: DBE Firm X uses 2 of its own trucks on a con tract. It leases 2 trucks from DBE Firm Y and 6 trucks from non -DBE Firm Z. DBE credit would be awarded for the total value of transportation services provided by Firm X and Firm Y, and may be awarded for the total value of transportation services provided by 4 of the 6 trucks provided by Firm Z. In all, full credit would be allowed for the participation of 8 trucks. In respect to the other 2 trucks provided by Firm Z, DBE credit could be awarded only for the fees or commissions pertaining to those trucks Firm X receives because of the lease with Firm Z. A lease must indicate that the DBE has exclusive use and control over the leased truck. This does not preclude the leased truck from working for others during the term of the lease if the DBE consents, so long as the lease gives the DBE absolute priority for use of the leased truck. A leased truck must conspicuously display the name and identification number of the DBE.
c.100 percent of the fees for equipment leased from a DBE towards the contract goal when the Contractor leases the equipment from a DBE, provided the DBE owns or has the equipment registered in its name. If the DBE obtains the equipment from other sources, the Engineer will only credit the net fee.
d.60 percent of expenditures paid out to a DBE dealer for supplies provided and the DBE is not a manufacturer. A regular dealer is a firm that owns, operates, or maintains a store, warehouse, or other facility that supplies materials, articles, or equipment for purchase or lease and regularly stocks, sells, and leases to the public during the usual course of business.
e.100 percent of the net fee (if deemed reasonable) for DBE brokers, packagers, and manufacturers' representatives.
4.The Department requires all bidder ’s DBE commitments on the ITD -2396 form and all supporting documentation for a construction contract be received by the Department’s Office of Civil Rights by 5:00 pm MT on the day of bid opening. The ITD -2396 form, with all supporting documentation must be delivered to DBESubmittal@itd.idaho.gov or to the Department’s headquarters. The forms must contain:
a.The identity of the DBE firm(s) the Contractor is committing to use in meeting the contract ’s DBE goals. Any DBE commitment statements of confirmation must be made to the Contractor regardless of subcontracting relationships.
b.Description of the work and associated dollar amounts each DBE firm offe red to perform.
c.The DBE submittal package includes the ITD -2396 form, and the DBE quote or the ITD -2399 form which mu st include the:
1.Commitment statement (a written statement that the DBE is committed to performing the work quoted, if selected).
2.Date. for Highway Construction Page 125 of 715 (3) Prime Contractor (can be shown as “To Prime Contractor” or “To All Prim e Contractors”; cannot be shown as “To All Bidders ”).
4.Project identifier (project name and/or key number).
5.DBE work items.
6.DBE firm total (must match the ITD -2396 form).
7.DBE signature, which can be in one of the following forms :
a.Handwritten signature or initials.
b.An electronic signature that is not typed using software (e.g., Adobe® Reader, Adobe Professional, Adobe E -Signature, DocuSign®).
c.Other acceptable forms of confirming the commitment include:
i.Email with the DBE email return address, project name, and key number in the subject line and place the committed dollar amount in body of the email with typed first and last name and title of sender. ii. DBE firm letterhead with the project name, key number, and the committed dollar amount in body of the letter with a typed or signed first and last name and title.
5.The Department considers the Contractor’s commitment to meet the specified goal as clear (prima facie) evidence it made a GFE to obtain DBE participation on the contract .
6.If the DBE commitment is below the contract goal amount, the Department will condition the award of contract to a determination made by the Contractor’s DBE pr ogram coordinator on the GFEs made to attain DBE participation. Following is a list of efforts the Department evaluates when determining the Contractor's GFEs to obtain DBE participation. In addition to GFEs, the Department will consider the timing and intensity of the undertaking.
a.What efforts has the Contractor made to conduct outreach/advertise to Department -certified DBEs? The Contractor must describe efforts, and attach copies of screenshots, published advertisements, or proofs of publication, if applicable.
b.Has the Contractor provided written notice to a reasonable number of specific DBEs that their interest in the contract was being solicited in sufficient time to allow the DBEs to participate effectively? The Contractor must describe efforts and submit a copy of all correspondence (including emails) soliciting bids from DBEs.
c.Has the Contractor followed up initial solic itation of interest by contacting DBEs to determine with cer tainty whether the DBEs were interested? Submit follow -up documentation (e.g., telephone logs, letters, emails).
d.Has the Contractor selected portions of the work to be performed by DBEs to increase the likelihood of meeting the DBE goal, including, where appropriate, breaking down contracts into economically feasible units to facilitate DBE participation? The Contractor must describe efforts in detail.
e.Has the Contractor provided interested DBEs with adequate information about the plans, specifications, and requirements of the contract ? Describe what action was taken. for Highway Construction Page 126 of 71 5 f. Has the Contractor negotiated in good faith with interested DBEs, not rejecting DBEs as unqualified without sound reasons based on a thorough investigation of their capabilities? Describe efforts.
g.Describe any other efforts not covered by items a through f above that may demonstrate the Contractor’s good faith efforts to obtain DBE participation on this contract .
7.A contract award is contingent on the Department approving the Contractor's ITD -2396 DBE commitment form. The commitment requires the Contractor to make continuing efforts throughout the contract to ensure that DBE participation remains at a level satisfying the following requirements:
a.Continuing DBE participation equals or exceeds contract goals.
b.Continuing DBE participation equals or exceeds the approved level that is less than the contract goal as allowed under 110.03.B.6. The Contractor cannot terminate a DBE subcontractor for convenience without the Engineer’s written consent. If situations or conditions arise preventing a DBE firm from completing the originally agreed upon work, the Contractor will take affirmative action steps to re- establish DBE participation at a level needed to meet the original contract goal or demonstrate a GFE demonstrating the Contractor afforded oth er DBEs the opportunity to assume the original work. Afterward, the Contractor must revise the DBE participation percentages by change order, identifying the replacement DBE, their quote, and statement of confirmation. The Engineer must approve the revised plan with concurrence from the Department’s Office of Civil Rights. Failure of the Contractor to meet 110.03.B will be a breach of contract. The Engineer will count the value of work actually performed by and paid to the D BE firms toward the Contractor's DBE goal once the Engineer verifies payment through the Contractor’s reporting of monthly payments to its subcontractors and suppliers using the Department’s online tracking system.
8.The DBE firm must perform a CUF on the contract in order for the Engineer to count expenditures toward the contract goal and annual goal. The Department defines CUF by us ing general industry practices and the provisions of 49 CFR Part 26. A DBE performs a CUF when:
a.A DBE firm exec utes a distinct element of the work by actually performing, managing, and supervising the work involved in accordance with industry standard practices, except where such practices are not consistent with DBE regulations and requirements, and
b.The DBE firm receives due compensation as agreed upon for the work performed. If a DBE does not perform or exercise responsibility for at least 30 percent of the total cost of its contract with its own workforce or the DBE subcontracts a greater portion of the work of a contract than would be expected on the basis of normal industry practice for the type of work involved, the Department must presume the DBE is not performing a CUF. As with all non- CUF determinations, the DBE may present evidence to rebut this presumption.
9.Breach of Contract /Damages. Whenever the Engineer determines, after investigating and obtaining evidence, the Contractor has not complied with 110.03.B, the Engineer will take the following actions: for Highway Construction Page 127 of 71 5 a. Inform the Contractor, in writing, that the Department staff observed specific (listed) infractions the DBE must correct within 5 or fewer business days and that failure to take corrective action will result in withholding all or part of the progress payments.
b.The Engineer will withhold progress payments when the Contractor does not correct deficiencies.
c.If violations persist, the Engineer will contact the Department’s Office of Civil Rights for direction on imposing one or more of the following actions:
1.Withhold all or part of progress payments until the Contractor complies.
2.Suspend the contract completely, or in part, until the Contractor complies, with no progress payments delivered during the period, with no time extension made.
3.Cancel or terminate the contract for cause as authorized in 108.09.
4.Deduct fr om the Contractor’s final payment on the contract or any pr ogress payments on current or future Idaho Federal -Aid contracts of an amount in equal value of the DBE committed work items not performed by the committed DBE firm. If the Department determines the Contractor caused the failure or the failure was an unintentional error or oversight, then the amount to be deducted may be reduced to 50 percent of the value of the unattain ed DBE participation based on the committed work items. In addition to sanctions, willful fa ilure by the Contractor or a DBE firm to comply with this contract or with the Federal DBE regulations may result in disqualification from further or future contracting, subcontracting, or other participation in federally funded contracts and/or Department contracts. The Contractor has the right to appeal as specified in 105.16.
10.Record Keeping.
a.A Contractor must maintain all records relating to the DBE program and each subcontractor during the course of the work. The Contractor must preserve the documents for a period of 5 years from the date of final payment of the contract .
b.The Contractor or its subcontractor will make all records pertaining to the DBE program available for inspection, copying, or transcribing by authorized representatives of the Department or the FHWA and must allow the representatives to interview employees as necessary.
c.Failure to submit the required records upon request or to make these records available can be grounds for sanctions as specified in 110.03. A.9.
11.Joint Ventures.
a.To increase the opportunity for DBE firms to participate in contracts, DBE firms may enter into joint ventures with non- DBE firms. DBE joint venture applicants must complete the ITD -0646b, Schedule B form and submit it with the required documentation with their bid.
b.The DBE partner of the joint venture must have a separate agreement showing the DBE partner’s bid items. The agreement must be able to define the DBE partner’s distinct elements of work it will perform with its own forces.
c.The Contractor and the DBE firm must jointly submit a joint venture agreement and the Department will evaluate it on a contract -by-contract basis. The Contractor and DBE firm must submit the application with the bid documentation. for Highway Construction Page 128 of 71 5 110.04 Training.
A.General. The Contractor will assist in locating, qualifying, and increasing the skills of minorities, women, and disadvantaged employees and applicants for employment. Consistent with the Contractor's w orkforce requirements and as permissible under federal and state regulations, the Contractor will make full use of training programs (e.g., apprenticeship, on- the-job training programs) for the geographical area of contract performance in accordance with 23 CFR 230 Appendix B to Subpart A of Part 230 when required. The Contractor, as part of its Equal Employment Opportunity (EEO) Affirmative Action Program (AAP) will provide on- the-job training (OJT) aimed at developing full journeymen in the type of trade, craft, or job classification involved. The number of trainees trained and hours/units will be in the contract bid sche dule. In the event the Contractor subcontracts a portion of the work, the Contractor will determine how many training hours/units the subcontractor must assume and provide. The Contractor will retain the principal responsibility for meeting the training requirements and must complete 51 percent of the assigned training requirements. The Contractor will ensure the training requirement is included in the subcontracts when required. Where feasible, 25 percent of apprentices or trainees in each occupation will be in their first year of their apprenticeship or training program(s). The minimum acceptable ratio for journeymen to trainees on Department contracts is 1:2. The ratio will not be greater than allowed under the plan approved by the U.S. Department of Labor (USDOL), Employment and Training Administration. The Contractor will distribute the number of trainees among the work classifications underutilized by minorities and women based on the Contractor's requirements and the availability of journeymen in the various underutilized classifications within a reasonable area of recruitment. The Department considers a reasonable area of recruitment as being 160 miles from the project site, within the state of Idaho, and depending on weather conditions. The Department’s Office of Civil Rights must approve the Contractor’s training program before the Contractor may commence work. The Contractor will specify the starting time for training in each of the classifications. The Department will credit the Contractor for each approved trainee or future trainee approved on the contract and will reimburse the Contractor for each trainee(s). Training and upgrading of minorities and women toward journeyman status is the primary objective of the training specification. The Contractor must make every attempt to enroll minorities, women, and disadvantaged individuals (i.e., by conducting systematic and direct recruitment through public and private sources likely to yield minority, women, and disadvantaged individuals) on the project to the extent available and within the reasonable ar ea of recruitment. Before determining compliance with the training specification, the Department will hold the Contractor accountable for demonstrating all steps taken to meet the training specification. Additionally, the Department does not intend for the training commitment to be used to discriminate against any applicant for training whether or not the applicant is a minority, woman, or disadvantaged individual. The Contractor cannot employ and train an employee as a trainee in any classification where he/she has previously completed a training course leading to journeyman status or where he/she previously earned journeyman wage in that craft/trade. In addition, the Contractor must satisfy this requirement by including the appropriate questions in the employee application, hiring process, or by utilizing some other means to determine if a potential trainee received previous training or if a trainee previously attained journeyman status for Highway Construction Page 129 of 71 5 in the proposed craft. Regardless of the method used, the Contractor's records must document the findings in each case. The Contractor must establish the minimum length and type of training for each classification for each training program selected by the Department, and the Contractor and the FHWA must approve the program before commencing work. In addition, the Department and the FHWA will approve any program reasonably calculated to meet the EEO obligations of the Contractor and to qualify the average trainee for journeyman status in the classification concerned by the end of the training period. The Department will accept any apprenticeship program registered with the USDOL , Bureau of Apprenticeship & Training. The Department will additionally accept any training program registered with any other state apprenticeship agency recognized by the Bureau, approved by the USDOL , Manpower Administration and/or Bureau of Apprenticeship and Training, provided the Contractor administers the program consistently with the EEO obligation required by the federal -aid contract. The Department intends for any training provided under the training specification to be for construction crafts and trades rather than clerk -typists or secretarial -type positions; however, training is allowed in lower level management positions (e.g., project engineers, estimators, timekeepers) where the Contractor orients the training for construction project applications. The Department will allow a limited amount of training in the laborer class provided the Contractor provides significant and meaningful training and the FHWA approves the training in advance. The Department will allow some offsite training as long as the training is an integral part of an approved training program and i t does not comprise a significant part of the overall training. Trainees may earn apprenticeship credit on non- federal construction contracts; however, the Department will not reimburse the Contractor for training on any non-federal aid contracts . Except a s otherwise noted below, the Department will reimburse the contractor 80 cents per hour of training given to an employee on this contract in accordance with an approved trainin g. Once the Engineer approves the training, the Department will also reimburse the Contractor for training hours in excess of the number specified. In spite of the source of training funds, the Department will reimburse the Contractor the 80 cents per hour, provided the other source(s) do not specifically prohibit the Contractor from receiving other reimbursements. The Department will only reimburse the Contractor for offsite training where he/she does one or more of the following:
1.Concurrently employs the trainee(s) on a federal -aid contract .
2.Contributes to the cost of the training.
3.Provides the instruction to the trainee.
4.Pays the trainee(s) wages during the offsite training period. The Contractor must exhaust every attempt to provide the training according to the prescribed training program and to promote the trainee to journeyman status upon completion. During the training, the Contractor must document all GFEs made to deliver the training, the results of the training, and all efforts m ade to bring the trainee to journeyman standing; otherwise, the Department will not reimburse the Contractor for the required training. It is not required that all trainees be onboard for the entire length of the contract. The Contractor will dispatch his/her responsibilities under the training specification once the Contractor delivers acceptable training and the hours/units specified in the contract. for Highway Construction Page 130 of 71 5 While working on a USDOT federally funded contract, regardless of an existing collective bargaining agreement, the Contractor will follow US DOT regulations requiring the Contractor to pay the appropriate trainee wage rates (23 CFR 230, Appendix B to Subpart A -Training Special Provisions) as follows: Trainees will be paid at least 60 percent of the appropriate minimum journeyman' s rate specified in the contract for the first half of the training period, 75 percent for the third quarter of the training period, and 90 percent for the last quarter of the training period, unless apprentices or trainees in an approved existing program are enrolled as trainees on this project. In that case, the appropriate rates approved by the Departments of Labor or Transportation in connection with the existing program shall apply to all trainees being trained for the same classificat ion who are covered by this Training Special Provision. If a trainee enrolls in a USDOL training program, the proper approved rate(s) apply. If a trainee’s wage exceeds the prev ailing wage rate, then the training hours do not apply to the hours/units specified in the contract unless approved first by the Engineer. Trainee wages and apprenticeship ratios will be clearly notated by the Contractor in the certified payroll. Failure to meet the ratio will result in the Contractor paying full Davis -Bacon wage in all associated trainee classifications. The Contractor will follow the prescribed training program and must furnish the trainee with a copy before commencing training. Upon completion of the training program, the Contractor will furnish each trainee with a certification indicating the type and length of training satisfactorily completed. When requesting approval, a completed training submitt al will include:
1.Completed ITD -2777 form, including names of trainees.
2.A copy of the training program for each trainee work classification.
3.If USDOL approved, a copy of all associated USDOL documents.
4.Schedule of work for the trainee on this project.
B.Reporting. The Contractor will maintain all training records and furnish periodic reports to the Department, including the ITD 2776 form to document the Contractor’s GFEs made to meet the training specification. The Contractor must provide the number of individuals to be trained in each classification and the training program(s) he/she plans to use. The Contractor must notify the Engineer before making any payment to a trainee. The payment information must include the trainee’s name, address, employee number, and any previous training completed (running tally of total training hours). The Contractor must certify the trainee has never attained journeyman status in the craft specified. The Engineer will review the information submitted and approve or disapprove the trainee. The Department will not provide training credit without the Engineer’s prior approval. The Contractor must identify the trainee(s) on the Contractor’s certified payrolls.
110.05 Tribal/Tribal Employment Rights Ordinances (TERO).
To comply with the CFR, Tribal Employment Rights Ordinances (TERO) applies to federal -aid highway construction contracts on a tribal reservation covered by TERO. for Highway Construction Page 131 of 715 SECTION 200 – EARTHWORK
Source: Idaho Standard Specifications for Highway Construction, 2023 Edition. Pages 152–166 of 768.