103AWARD AND EXECUTION OF CONTRACT

103.01Disadvantaged Business Enterprise Program

This requirement will apply only to a federal aid contract.

Failure to carry out the requirements set forth in 49 CFR Part 26, as outlined in the Department's DBE Program Manual, shall constitute a breach of contract and, after notification, may result in such contract sanctions as the Department or the Federal Highway Administration may determine to be appropriate, including, but not limited 10 to: (a) withholding of payments to the Contractor under the contract until the Contractor complies, and/or (b) cancellation, termination or suspension of the contract, in whole or in part.

The above referenced CFR secti on requires the following policy and disadvantaged business enterprise obligation to be included in all subsequent agreements between the Contractor and all subcontractors as follows:

field on which DBE’s can compete fairly for federally funded 20 contracts. Consequently, the disadvantaged business enterprise requirements of 49 CFR Part 26, as outlined in the Department’s DBE Program Manual, apply to this contract.

national origin, religion, sex, sexual orientation or gender identity in the award and performance of this contract. The Contractor shall carry out the applicable DBE requirements in the award and administration of federally funded contracts. Failure by the Contractor to carry out these requirements is a 30 material breach of this contract which may result in the termination of this contract or such other remedy as the Department deems appropriate, which may include, but is not limited to: withholding progress payments; assessing sanctions; liquidated damages; and/or disqualifying the Contractor from 102.02

future bidding as non-responsible. The Contractor shall include language prohibiting discrimination on the basis of race, color, national origin, religion, sex, sexual orientation or gender identity in the performance of this contract and all subcontracts.

The following definitions will apply.

1 . D B E A small business concern which is at least 51% owned by one or more socially and economically disadvantaged individuals, or, in the case of a publicly owned business, at least 51% of the stock of which is owned by one or more socially and economically disadvantaged individuals; and whose managements and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it. 50

A small business as defined pursuant to Section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto, except that a small business concern shall not include a concern or gr oup of concerns controlled by the same socially and economically disadvantaged individual or individuals which has annual average gross receipts in excess of $16.6 million over the previous three fiscal years.

Those individuals who are citizens of the United States or lawfully admitted 60 permanent residents and who are women, black Americans, Hispanic Americans, Native Americans, Asian-Paci fic Americans, Asian-Indian Americans, or other minorities or individuals found to be disadvantaged by the Small Business Administration pursuant to Section 8(a) of the Small Business Act.

A business enterprise which has completed and filed a request for certification with the Department, and that the business enterprise has been reviewed and determined to comply with the guidelines established in 49 CFR Part 26. Business enterprises which are determined to be eligible will be certified as DBEs to perform 70 specific types of work.

A contract provision DBE goal may be shown on the Proposal sheet. Such goal, if required, has been established as the desired minimum amount to be contracted to DBEs. The Contractor shall meet or exceed the goal, or demonstrate that it could not be met despite good faith efforts. Achievement of the goal does not relieve the Contractor of the requirement for affirm ative action on subsequent subcontracting on this contract. Only work with listed DBEs that are certified prior to the date of the letting will count toward the goal. Credit towards contract goals will be given only for 80 work performed by certified DBEs in the work areas for which they have been 103.01

certified. The same requirements with respect to obtaining the goal apply for a Contractor that is certified as a DBE. A DBE Contractor shall either achieve the goal utilizing other DBE firms or demonstrate that the goal could not be met despite good faith efforts.

Contracting may be in the form of a su bcontract, lease agreement, or material supply agreement. Prime contractors will r eceive 100% credit for work done by the DBE under subcontracts and lease agreements. Credit for utilization of a DBE material supplier depends on whether the supplier is a manufacturer, regular dealer or broker. 90 Full credit will be given for suppliers who manufacture the items and are certified as Supplier Manufacturer in the DBE repository. Credit will be limited to 60% of the expenditure for suppliers acting as a regu lar dealer and are certified as Supplier Regular Dealer in the DBE repository. Credit will be limited to fees and commissions for suppliers acting as a broker and are certified as Supplier Broker in the DBE repository. Suppliers shall also perform a commercially useful function in order for credit to be received.

The Contractor shall not terminate or reduce a commitment to a DBE, or an approved substitute DBE firm, that was listed on the Affirmative Action Certification 100 without the prior written consent of the Department. This includes, but is not limited to, instances in which the Contractor seeks to perform work originally designated for a DBE subcontractor with its own forces or those of an affiliate, a non-DBE firm, or with another DBE firm. Unless the Department provides written consent, the Contractor shall not be entitled to any payment for work or materials unless it is performed or supplied by the listed DBE.

Written consent will only be provided by the Department if the Contractor has good cause to terminate or reduce its comm itment to the DBE firm. Good cause shall consist of any of the following circumstances: 110

written contract.

work of its subcontract in a manner consistent with normal industry standards, unless such failure or refusal of the DBE subcontractor to perform its work on the subcontract results from the bad faith or discriminatory action of the Contractor.

Contractor's reasonable, nondiscriminatory bond requirements.

exhibits credit unworthiness.

works projects because of suspension and debarment 103.01

proceedings pursuant to 2 CFR Parts 180, 215 and 1200 or applicable state law. 130

subcontractor is not a responsible contractor.

project and provides the Department written notice of its withdrawal.

of work required. 140

listed DBE contractor is unable to complete its work on the contract.

determine, which compels the termination of the DBE subcontractor. Good cause does not exist, however, if the Contractor seeks to terminate a DBE it relied upon to obtain the contract so that it can self-perform the work for which the DBE 150 contractor was engaged or so that the Contractor can substitute another DBE or non-DBE contractor after the contract has been awarded.

Before transmitting to the Department its request to terminate or reduce a commitment made to a listed DBE, the Contractor shall give written notice to the affected DBE, with a copy to the Department, of its intent to request termination or reduction and the reasons for the request. The DBE shall be given five days to respond to the Contractor and the Department of the reasons, if any, why it objects to the proposed termination or reduction, and why the Department should not approve the 160 Contractor’s action. If required in a particular case, as a matter of public necessity and safety, the Department may specify a response period shorter than five days.

When a DBE subcontractor is terminated as specified herein or fails to complete its work on the contract for any reason, the Department will require the Contractor to make good faith efforts to find another DBE subcontractor to substitute for the original DBE. These good faith efforts shall be directed at finding another DBE to perform at least the same amount of work under the co ntract as the DBE that was terminated, to the extent needed to meet the contract goal the Department established for the contract.

In order to receive DBE credit for commitmen ts made as part of the prime contract award process, a DBE firm shall be certified before the due date for bids on the prime contract. There may be situations after the award of the prime contract in which it is appropriate to count DBE credit for the use of a DBE firm. To be eligible to obtain 103.01

DBE credit in these situations, the DBE firm shall be certified prior to participation on the contract.

If a non-DBE contractor joint ventures with a DBE contractor, the portion of the joint venture which is performed by a DBE may be utilized to achieve the DBE goal. Two types of DBE joint ventures are allowed and are defined as follows: 180

A DBE contractor and a non-DBE contractor bidding on specific pay items to be performed by each company.

A DBE contractor and a non-DBE contractor combining resources and agreeing upon a percentage of the total work to be performed by each contractor.

DBE joint ventures Type A do not require DBE joint venture certification. DBE 190 joint ventures Type B do require DBE joint venture certification. A request for DBE joint ventures Type B certification shall be submitted no later than 9:00 a.m. local time the last business day before the letting and shall be approved prior to bidding in order to receive credit toward the DBE goal. The DBE shall be certified with the Department prior to requesting DBE joint venture certification. The work for the DBE shall be identified, performed, managed, and supervised by its forces.

The Contractor shall develop an affi rmative action plan for a Disadvantaged Business Enterprise Program which shall include the minimum requirements as 200 follows:

the Contractor’s Disadvantaged Business Enterprise Program.

intended to be used in seeking out and considering certified DBEs as subcontractors or suppliers.

a potential subcontractor for the particular pay items within the capabilities of the DBEs. This list shall include but shall not be limited to the requirements as follows:

as to their DBE certification status.

each subcontractor or supplier.

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103.01

Appendix A of 49 CFR Part 26 has been used for guidance in preparing the

Department’s procedures to determine the adequacy of good faith efforts. Additional

factors consistent with 49 CFR Part 26, and the Department’s policies and procedures

have also been utilized.

The following factors will be considered in determining good faith efforts prior

to award of a contract. The Contractor, including DBE Contractors, shall submit

evidence on each of the factors.230

ready, willing, and able DBEs who express a desire to work

on any of the pay items of the contract.

opportunity to analyze the contract and submit quotations

prior to letting. Information provided by the Contractor to

the DBEs shall include, at a minimum, the contract number,

pay items, quantities for those pay items to be240

subcontracted, and the date the subcontract bid is desired.

performed by DBEs in order to increase the likelihood of

DBE participation. This shall include, where appropriate, an

attempt to break down the contract into economically

feasible units to facilitate DBE participation.

complete information about the plans, specifications, and250

requirements of the contract. Attempts shall be made to

have plans available or to notify the DBE of the location of

available plans. The Contractor shall notify the DBE of

revisions to the contract.

to DBEs if such subcontracting to DBEs results in the need

to further subdivide remaining work items.

DBEs and not reject such DBEs as unqualified without

sound reasons based on thorough investigation of their

capabilities. Confirmed documentation that a DBE has not

beenable to perform previous work through no fault of

others will be considered to be sound reason. Unacceptable

103.01

criteria include, but are not limited to, unsubstantiated oral

statements and unsigned documentation.

in obtaining bonding, lines of credit, or insurance required270

by the State. However, the Contractor shall affirmatively

consider waiving requirements it may have in order to assist

the DBE.

used to meet the contract goal for the Department’s DBE

program.

The Contractor will be considered to have made good faith efforts if it either:

280

to meet the goal, or

accordance with the factors set out above to meet the goal

even though it did not succeed in obtaining enough DBE

participation to do so.

If a DBE goal has been established for the contract, the Contractor shall take good

faith efforts to achieve the established goal prior to the bid opening. The Affirmative290

Action Certification shall be completed and submitted with the Proposal to indicate

both race/gender conscious and race/gender neutral proposed DBE utilization.

The award of the contract will be made to the lowest and best bidder when all

other requirements have been met and good faith efforts have been taken toward

meeting the DBE goal, if required, in accordance with these requirements.

If the apparent low bidder has not achieved the contract DBE goal, the bidder shall

respond by email or in writing within five business days after notification by the

Department of the failure to meet the DBE goal. The response shall provide evidence300

identifying the bidder’s good faith efforts and all affirmative actions taken prior to

letting to achieve the required DBE goal. Failure to respond within the five business

day period will result in rejection of the bid, and may result in forfeiture of the bid

bond, and the referral of the bidder to the Prequalification Committee.

Responses shall be sent to the Department’s Division of Contract Administration.

The Department will review the bidder’s good faith efforts for compliance with these

requirements.

If the Department determines that adequate good faith efforts have been made,310

and the bidder has met all other bidding requirements, the contract will be awarded.

103.01

If the Department determines that good faith efforts were inadequate, the

Department will notify the bidder of the determination by email. The determination

will outline the reasons for determination of non-compliance with good faith effort

requirements.

The bidder may request a review of a determination of non-compliance by email

or written submittal within five business days of the bidder’s receipt of notification of

non-compliance from the Department. The request for review shall include evidence320

disputing the Department’s reasons for issuing a determination of non-compliance.

The request shall be sent to the Department’s Division of Contract Administration.

Upon receipt of a request, the Department will contact the bidder to schedule a

review. The review will be held by the Department’s Deputy Commissioner and Chief

Legal Counsel, or a designee who did not participate in the original determination of

non-compliance. The review will be conducted in accordance with the Department’s

policy for review of good faith efforts requirements. A copy of the policy is available

on the Department’s website or through the Division of Contract Administration.

330

If the Deputy Commissioner’s finding determines that the bidder’s good faith

efforts were adequate, and the bidder has met all other bidding requirements, the

contract will be awarded and the Department will adjust the contract time by the

number of calendar days from the date of the original determination of non-compliance

to and including the date of the Deputy Commissioner’s findings.

If the Deputy Commissioner’s finding determines that the bidder’s good faith

efforts were inadequate, the finding will be forwarded to the Commissioner. The

Commissioner will review the Deputy Commissioner’s finding and issue a written

Contract Award Determination.340

If the Commissioner’s Contract Award Determination finds that the bidder’s good

faith efforts were adequate, and the bidder has met all other bidding requirements, the

contract will be awarded and the Department will adjust the contract time by the

number of calendar days from the start of the original determination of non-

compliance to and including the date of the Commissioner’s determination.

If the Commissioner’s Contract Award Determination finds that the bidder’s good

faith efforts were inadequate, at the Commissioner’s sole option and without further

proceedings, either all bids will be rejected or the contract will be awarded to the next350

lowest and qualified bidder. An apparent low bidder who has not met the DBE goal

and requirements for good faith efforts may be requested not to rebid on this contract

during subsequent lettings.

The Commissioner’s Contract Award Determination will be the final decision of

the Department.

103.01

When extra work in accordance with 104.03 is added to a contract with a DBE

goal, the Contractor shall hire or make good faith efforts to hire a DBE subcontractor360

to perform significant extra work.

For purposes of DBE good faith efforts, significant extra work is defined as new

pay items added to a Contract that result in a new contracting opportunity not

reasonably related to existing pay items being performed by the Contractor or a

subcontractor.

When significant extra work related to existing pay items being performed by a

DBE subcontractor is added to a contract with a DBE goal, the Contractor shall offer

that same DBE subcontractor the opportunity to perform the extra work whether or370

not the existing pay items are counted toward the DBE goal. The Contractor shall

consider other DBE subcontractors if the extra work would result in the original DBE

subcontractor exceeding its prequalification limits. The Department may consider an

exception to a DBE subcontractor’s prequalification limit. If the DBE subcontractor is

unable to perform the extra work, the Contractor shall hire or make good faith efforts

to hire an alternate DBE subcontractor to perform the work.

When significant extra work related to existing pay items being performed by a

non-DBE subcontractor is added to a contract with a DBE goal, the non-DBE

subcontractor may perform the extra work. If the non-DBE subcontractor is unable to380

perform the extra work, the Contractor may self-perform the extra work. If the

Contractor chooses not to self-perform the extra work, the Contractor shall hire or

make good faith efforts to hire a DBE firm to perform the work.

When significant extra work related to existing pay items being performed by the

Contractor is added to a contract with a DBE goal, the Contractor may self-perform

the extra work. If the Contractor chooses not to self-perform the extra work, the

Contractor shall hire or make good faith efforts to hire a DBE firm to perform the

work.

390

The Contractor shall forward documentation of good faith efforts to hire a DBE

subcontractor to perform extra work to the District Equal Employment Opportunity

Officer (EEO Officer) for review. The EEO Officer will determine if good faith efforts

have been met in accordance with 103.01(e)1.

If the EEO Officer determines that the Contractor failed to make good faith efforts

to hire a DBE firm when required as a result of significant extra work, written notice

will be sent to the Contractor. The Contractor may appeal the determination in

accordance with 103.01(e)1.

400

The Affirmative Action Certification, included in the Proposal, shall be completed

when the Proposal is submitted to the Department. The certification shall list all DBE

103.01

firms the Contractor plans to utilize, either race/gender consciously or race/gender

neutrally. Blank certifications shall cause the bid to be rejected. If a portion of a pay

item is to be performed by a DBE, an explanation shall be included stating exactly

what the DBE is performing or supplying. Failure to do so may affect the award of the

contract. The Contractor shall ensure that DBE firms listed on the Affirmative Action

Certification are certified DBE firms as listed in the Department’s DBE directory at

the time of letting. In addition to the listing of DBE firms that will be used race/gender410

consciously to meet the goal, the Contractor shall also provide a total for the amount

of work that it anticipates will be performed by other DBE firms used race/gender

neutrally on the contract beyond the goal requirements.

Race/gender neutral awards involve the utilization of a DBE firm because the

DBE firm is the best firm to perform the work. Race/gender conscious awards involve

the utilization of a DBE firm primarily to achieve the contract DBE goal.

If the Contractor intends to subcontract a portion of the work, affirmative action420

shall be taken to seek out and consider DBEs as potential subcontractors prior to the

subcontractual commitment.

The contacts made with potential DBE subcontractors and the results thereof shall

be documented and made available to the Department and the FHWA upon request.

If the Contractor originally did not intend to subcontract a portion of the work and

later circumstances dictate subcontracting a portion of the work, the affirmative action

contacts described herein shall be performed.

430

Upon receipt of notification from the Department, a Disadvantaged Business

Enterprise Utilization Affidavit, Form DBE-3, shall be completed by the Contractor

and returned to the Department. The Contractor and the subcontractor/lessor/supplier

shall certify on Form DBE-3 that specific amounts have been paid and received. A

DBE-3 Form certification shall be completed and submitted for every DBE utilized on

the contract, whether or not there was a DBE contract goal.

Hauling leases made with DBEs shall be submitted to the Department for approval

before beginning work. Leases for hauling, when used, shall be submitted when440

borrow, subbase, compacted aggregate, HMA mix, cement concrete mix, or a

combination of the above is to be hauled by a DBE. The lease shall show the dollar

amount of anticipated work before the work begins. The actual dollar amount shall be

reported to the Department after the work has been completed.

In order to perform a commercially useful function on a contract, the dollar

volume of hauling by a DBE trucking firm that is counted toward the DBE goal is

limited to the total value of transportation services provided by the DBE's own trucks;

the total value of transportation services a DBE lessee provides with its own trucks;

103.01

and the total value of transportation services a non-DBE lessee provides with its own450

trucks, not to exceed the value of transportation services provided by DBE-owned

trucks. In addition, DBE credit will also be given for any fee or commission the non-

DBE lessee receives as a result of the lease arrangement for any additional non-DBE

trucks.

In order to count leased trucks toward the goal, the lease must indicate that the

DBE has exclusive use of and control over the truck. This does not preclude the leased

truck from being used by others during the term of the lease with the consent of the

DBE, so long as the lease gives the DBE absolute priority for use of the leased truck.

Leased trucks must display the name and identification number of the DBE. The DBE460

must be responsible for the management and supervision of the entire trucking

operation for which it is responsible on a particular contract, and there cannot be a

contrived arrangement for the purpose of meeting the DBE goals.

The Contractor shall provide the Engineer copies of any lease agreements between

DBE trucking subcontractors and any DBE or non-DBE trucking firms or

owner/operators that will be used to supplement the DBE trucking subcontractor’s

trucks for the purpose of meeting the DBE goal. Copies of these lease agreements shall

be provided by the time of use of any supplemental trucks on the Contract.

470

In addition to delivery ticket information required by Section 106, the name of

trucking firm shall be included on each ticket for material delivered to the job site by

a DBE trucking subcontractor or lessee.

The Contractor shall notify the Department when purchases or rental of

equipment, other than leases for hauling, are made with DBEs. The information

submitted shall include the name of the business, the dollar amount of the transaction,

and the type of purchase made or type of equipment rented.

If a subcontract agreement between the Contractor and a majority subcontractor480

requires that the majority subcontractor sublease a portion of its hauling to a DBE, the

Contractor may receive credit toward the contract goal. The Contractor shall notify the

Department when sublease agreements exist, the name of the DBE, the dollar amount

of anticipated hauling before the work begins, and the actual dollar amount after the

work is completed. The subcontractor shall certify actual utilization of the DBE at the

end of the work and provide such certification to the Contractor for submission to the

Department.

The Contractor shall keep such records as necessary to determine compliance with490

its DBE utilization obligations and compliance with the Guidelines for Determining

of Good Faith Efforts. The Contractor’s records shall indicate the minimum

requirements as follows:

subcontractors and suppliers and type and dollar value of work

103.01

or materials services being performed on or incorporated into

this contract.

disadvantaged contractor organizations and individual

disadvantaged contractors for work on this contract.

calls to obtain the services of DBEs on this contract.

Reports shall be submitted as required by the Department for those contracts and

other business agreements executed with DBEs with respect to the records referred to

above.

510

All such records shall be maintained for a period of three years following

acceptance of final payment and shall be available for inspection by the Department

and the FHWA and their authorized representatives.

103.02Specific Equal Employment Opportunity Responsibilities

This requirement will apply only to a federal aid contract.

The Contractor and all subcontractors not including material suppliers, holding

subcontracts of $10,000.00 or more, shall comply with the following minimum

specific requirement activities of equal employment opportunity. The equal520

employment opportunity requirements of Executive Order 11246, included in the

Contract Information book, will be applicable to material suppliers as well as

contractors and subcontractors. The Contractor shall include these requirements in

each subcontract of $10,000.00 or more with such modification of language as

necessary to make them binding on the subcontractor.

103.03Record Keeping

All firms performing work on Department contracts, bidding on Department

contracts, or offering quotes for subcontract or trucking services shall register with the

Department, annually, by submitting the following information to the Department’s530

Prequalification Engineer:

103.03

103.04Blank

103.05Insurance

Prior to commencing the work, the Contractor shall obtain and thereafter keep in

force, the following insurance coverages provided by insurance companies acceptable550

to the Department and authorized to transact business under the laws of the State of

Indiana. Certificates of insurance shall be filed with the Department. The Department

may temporarily accept an insurance binder pending receipt of the certificate of

insurance. When Railroad’s Protective Liability insurance in accordance with

(d) is required, the original policy shall be submitted to the railroad company

with a copy transmitted to the Department. In addition, certificates of insurance shall

be provided to the railroad, on forms satisfactory to the railroad, covering the

Contractor’s Commercial General Liability and Business Automobile Liability

insurance.

560

The Contractor may purchase insurance for the full limits required by 103.05(b),

or 103.05(c), or by a combination of primary policies for lesser limits and remaining

limits provided by a Commercial Umbrella Liability policy.

Proof of renewal shall be furnished 15 days or more in advance of the policy

expiration. If subject to cancellation, the insurance company shall provide at least 30

days prior notice, and the insurer shall immediately notify the Department in writing

of such impending cancellation.

In the event of cancellation or expiration, all work on the contract shall be570

suspended except that necessary for traffic maintenance and the protection of life and

property. No extension in the contract completion time or additional payment will be

allowed on account of this requirement and contract time charges will continue.

Nothing contained herein shall modify the Contractor’s obligation of

indemnification and exculpation of the State and its representatives in accordance with

107.17

580

provisions of the Indiana Worker’s Compensation and

Occupational Diseases Act as amended.

Indiana shall be furnished as evidence of compliance with the

provisions of the Indiana Worker’s Compensation and

Occupational Diseases Act.

103.04

Required liability insurance coverage shall provide coverage for operations of the

Contractor and operations of subcontractors. The general aggregate limit shall be

endorsed so as to provide coverage for each contract as follows:

Aggregate Limit ............................................ $2,000,000

Coverages shall include:600

This policy shall cover owned, non-owned, and hired vehicles. The combined

single limit of liability for bodily injury and property damage liability per each

accident shall be $1,000,000.

When required, the Contractor shall carry, with respect to the operations

performed and those performed by others, for and in behalf of each railroad company,

Railroad Protective Liability insurance providing for a limit of not less than a

combined single limit of $2,000,000 per occurrence for damages arising out of bodily

injury, death, and property damage with an aggregate limit of $6,000,000 for the term620

of the policy.

In addition, the limits specified in 103.05(b)3 shall be increased to $2,000,000.

for Operations of Designated Contractor

The named insured in this policy shall be the State of Indiana, c/o Indiana

Department of Transportation. If specified elsewhere in the contract, the named

insured shall also include a local governmental agency.

630

The limits of coverage shall be not less than $1,000,000 for all damages arising

out of bodily injury or death in one occurrence, and for all damages arising out of

injury to or destruction of property in any one occurrence. Subject to the limit per

103.05

occurrence, an aggregate limit for the contract of not less than $3,000,000 shall be

provided during the policy period.

In addition to the limits specified herein, the policy and the binder shall also

include the endorsements to the Owner’s and Contractor’s Protective Liability

Insurance as follows:

640

include the Indiana Department of Transportation, its officers,

and employees. If specified in the contract, the term “named

insured” shall also include a local governmental agency, its

officers, and employees.

shall include on-site inspection, field engineering, field testing,

and activities incidental thereto.

650

work on the project to be performed by or on behalf of the

State at the site of the covered operation has been

completed, and the Contractor designated herein has been

relieved of further maintenance, as set out in the final

acceptance letter of the Indiana Department of

Transportation.

660

the minimum insurance coverages as of the latest filing with the

Indiana Department of Insurance by the Insurance Services

Office with the endorsements and amendments specified by

(e) of the Indiana Department of Transportation

Standard Specifications. The policy is identified as the latest

edition of form CG 00 09 as copyrighted by the Insurance

Services Office, Inc.

No direct payment will be made for insurance. The cost thereof shall be included

in the cost of the pay items.

103.06Waiver of Damages

At the time the contract is ready for final execution, all of the necessary right-of-

way may not have been secured. In order to expedite prompt execution of the contract,

the Contractor may sign a waiver of damages. This will waive all damages that might

accrue to the Contractor for delay, expense, inconvenience, loss of profits, or for all

other causes occasioned to the Contractor by the failure of the Department to secure

103.06

such right-of-way. The waiver shall be binding upon each subcontractor of the680

principal Contractor. This waiver provision will not apply on Federal Aid projects.

103.07Wage and Labor Requirements

These requirements apply to all contracts let by the Department. These

requirements will apply to all work performed by the Contractor with its own

organization and with the assistance of workers under its immediate superintendence,

and to all work performed by piecework, station work, subcontract, or lease.

The Contractor and its subcontractors shall not discriminate against an employee690

or applicant for employment, to be employed in the performance of the contract work,

with respect to hire, tenure, terms, conditions, or privileges of employment or matters

directly or indirectly related to employment, because of race, religion, color, sex,

sexual orientation, sexual identity, disability, national origin, or ancestry. Breach of

this covenant may be regarded as a material breach of the contract.

All labor shall be paid weekly. The payroll and related records of the Contractor

and all subcontractors shall be preserved for a period of three years after completion

of the project work and shall be open to the inspection of the Department.700

The wages of labor shall be paid in legal tender of the United States. However,

this condition will be considered satisfied if payment is made by means of a negotiable

check, on a solvent bank, which may be cashed readily by the employees in the local

community for the full amount, without discount or collection charges. If checks are

used for payment, the Contractor shall make all necessary arrangements for them to

be cashed and shall give information regarding such arrangements.

The Contractor on each contract let by the Department shall be responsible for

electronically filing certified payroll for its employees and any subcontractors on a710

weekly basis with the appropriate Department personnel and in a format acceptable to

the Department. Failure of the Contractor to timely file certified payroll for its

employees or any subcontractors, may result in the withholding of progress estimate

payments until the certified payroll is properly submitted.

No fee shall be asked or accepted by the Contractor or its agents from a person as

a condition of the contract.

No laborers shall be charged for tools used in performing their respective duties

except for reasonable avoidable loss or damage thereto.720

Each employee on the work covered by the contract shall be allowed to lodge,

board, or trade where or with whom he or she elects. Neither the Contractor nor its

agents, nor its employees shall directly or indirectly require as a condition of

103.07

employment that an employee shall lodge, board, or trade at a particular place or with

a particular person.

No charge shall be made for transportation furnished by the Contractor or its

agents to a person employed on the work.

730

No individual shall be employed as a laborer on the contract except on a wage

basis. This shall not be construed to prohibit the rental of trucks or other equipment

from individuals. No such rental agreement, or charges for fuel, supplies, or repairs on

account of such agreement shall cause deduction from the wages accruing to an

employee except as authorized by the regulation cited herein.

No person employed on a federally funded contract shall be paid less than required

by the rate of wages set forth for labor classifications listed in the General Decision as

required by the Davis Bacon Act and related Acts. No person employed on a state740

funded contract shall be paid at a rate of less than $15.00 per hour, as required by IC

8-23-9-22 or the rate of wages set forth for labor classifications listed in the General

Decision, whichever is greater.

The Contractor shall pay the workers who are employed in performance of the

contract work, rates of wages which are not less than the rates set forth for labor

classifications listed in the General Decision.

The computations used in arriving at the contract unit prices shall be based on the750

hourly rates shown in the General Decision and as shown above. The wages herein

stipulated shall become and be a part of the contract as provided by law.

The following statement, shown in the General Decision, will not apply to state

funded contracts.

“Unlisted classifications needed for work not included within the scope

of the classifications listed may be added after award only as provided in

the labor standards contract clauses (29 CFR 5.5(a)(1)(ii)).”

760

If the General Decision is not included in the Contract Information book, the

requirements of 103.07(c)1 will not apply.

103.08Accident Prevention and Safety

In the performance of the contract work, the Contractor shall comply with all

applicable federal, State, and local laws governing safety, health, and sanitation. The

Contractor shall provide all safeguards, safety devices, and protective equipment. The

Contractor shall take all reasonably necessary actions to protect the life and health of

employees on the project site and the safety of the public, and to protect property in770

103.08

connection with the performance of the contract work.

It is a condition of the contract, and shall be made a condition of each subcontract

entered into pursuant to the contract, that the Contractor and all subcontractors shall

not require a laborer or mechanic employed in performance of the contract work to

work in surroundings or in working conditions which are unsanitary, hazardous, or

dangerous to that person's health or safety, as determined under construction safety

and health standards 29 CFR 1926, as amended at the time the work is performed.