112Default and Termination

Scope of Section This Section contains general provisions related to Default and termination of the Contract.

112.1Default

112.1.1 Grounds for Default The C ontractor and the Surety are in Default of the Contract if the Contractor or the Surety violate any provision of Section 103.3.2 or the following:

proceed,

the timely Completion of the Work,

Unacceptable Work, or neglects or refuses to uncover Unauthorized or Uninspected Work when directed by the Department,

insolvency that could affect the Work in any way,

ten Days,

Department, or

material provision of the Contract. 112.1.2 Notice of Default / Cure Except as otherwise provided in this Contract, if Default occurs, the Department may give written Notice of Default to the Contractor and its Surety. Failure to give Notice of Default is in no way a waiver by the Department of any provision of the Contract. If the Contractor or Surety fa ils to completely cure such Default within a period of 14 Days after Notice of Default, then the Department may (A) terminate the Contract for cause in accordance with Section 112.2.1 - For Cause, or (B) take prosecution of the Work away from the Contractor without violating the Contract.

112.2Termination The Department may, by written order to the Contractor,

terminate the Contract as provided in this Section 112. Termination of the Contract or portion thereof shall not relieve the Contractor of its Contractual responsibilities for the Work completed (including warranty obligations), nor shall it relieve the Surety of its obligation for claims arising from the Work or the Contract. 112.2.1 For Cause If the Contractor fails to completely cure all Defects identified in the Notice(s) of Default provided for in Section 112.1.2 within the 14-Day cure period provided, the Department may immediately terminate the Contract for cause by written Notice of Termination For Cause. In this event, the Department may use any or all Materials and Equipment for the Work and may enter into an Agreement with another entity for the Completion of the Work, or use such other methods as in the opinion of the Department are required for the Completion of the intent of the Contract in an acceptable and timely manner. The Department will pay for a ll Accepted items of Work as of the date of Termination at agreed upon prices. Items eliminated in their entirety by Termination will be paid for as provided in Section 109.2 - Elimination of Items, except that there will be no reductions in the amount of the credit to the Department. The Contractor shall make all Work records available to the Department upon request regarding payment under this Section. All costs and charges incurred by the Department, together with the cost of completing the Work specified in the Contract, will be deducted from amounts otherwise due the Contractor. If such expenses exceed the sum that would have been payable under the Contract, then the Contractor and the Surety are liable and shall pay to the Department the amount of such excess within 30 Days of the Delivery of a Statement setting forth such expenses to the Contractor and the Surety, as applicable. If the Contractor files for bankruptcy at any time before expi ration of the warranty periods provided by this Contract, then the Contractor and its Surety agree, if requested by the Department and within 30 Days of such request, to take all actions necessary or convenient to reject or accept this Contract under the executory Contract provisions of the federal bankruptcy code. 112.2.2 For Convenience The Department may terminate this Con tract for convenience or for any reason that is in the best interest of the Department. Terminations caused without fault of or for reasons beyond the control of the Contractor are Terminations for Convenience. The Department will notify the Contractor of such terminations by sending a Notice of Termination for Convenience. In case of a Termination for Convenience, the Department will pay for all Accepted items of Work as of the date of termination at agreed upon prices. Items eliminated in their entirety by Termination will be paid for as provided in Section 109.2 - Elimination of Items. The Contractor shall make all Work records available to the Department upon request regarding payment under this Section. Acceptable Materials, obtained by the Contractor for the Work but which have not been incorporated therein, may at the option of the Department be purchased from the Contractor at Actual Costs delivered to a prescribed location or otherwise disposed of as mutually agreed. After Receipt of Notice of Ter mination for Convenience from the Department, the Contractor may also submit a claim for additional damages or costs not covered above or elsewhere in this Contract to the Project Manager within 60 Days of the effective Termination date. Such claim may include such cost items as idle Equipment time, Bidding and Project investigative costs, overhead expenses attributable to the Project terminated, legal and accounting charges involved in claim preparation, Subcontractor costs not otherwise paid for, idle labor cost if Work is stopped in advance of termination date, guaranteed payments for private land usage as part of the original Contract, and any other cost or damage item for which the Contractor reasonably believes reimbursement should be made. In no event, however, will loss of anticipated profits be considered as part of any settlement. The Contractor agrees to make the Bid Escrow, Documentation, i f any, and its cost records available to the extent necessary to determine the validity and amount of each item claimed. The Department will respond in writing to such claim within 60 Days of Receipt. If the Contractor wants additional consideration, the Contractor must Deliver a written “Notice of Unresolved Dispute” to the Director as provided in Section 111.3.1 - Notice of Unresolved Dispute and comply with all other applicable Dispute resolution provisions of

A-1 APPENDIX A TO DIVISION 100

as provided in all certifications set forth in this Appendix A - Federal Contract Provisions Supplement, including: • Certification Regarding No Kickbacks to Procure Contract as pro vided on this page 1 below. • Certification Regarding Non-collusion as provided on page 1 below. • Certification Regarding Non-segregated Facilities as provided b y FHWA Form 1273, section III set forth on page 21 below. • "Certification Regarding Debarment, Suspension, Ineligibility a nd Voluntary Exclusion" as provided by FHWA Form 1273, section XI set forth on page 32 below. • "Certification Regarding Use of Contract Funds for Lobbying" as provided by FHWA Form 1273, section XII set forth on page 35 below. Unless otherwise provided below, the term “Bidder,”, for the p urposes of these certifications, includes the Bidder, its principals, and the pe rson(s) signing the Bid. Upon execution of the Contract, the Bidder (then called the Contract or) will again make all the certifications indicated in this paragraph above. CERTIFICATION REGARDING NO KICKBACKS TO PROCURE CONTRACT Excep t expressly stated by the Bidder on sheets submitted with the Bid (if any), the Bidder hereby certifies, to the best of its knowledge and belief, that it has not:

other consideration, any firm or person (other than a bona fide employee working solely for me) to solicit or secure this contract;

retain the services of any firm or person in connection with carrying out the contract, or; C) paid, or agreed to pay, to any firm, organization, or per son (other than a bona fide employee working solely for me) any fee, contribution, donation , or consideration of any kind for, or in connection with, procuring or carrying out the contract; By signing and submitting a Bid, the Bidder acknowledges that this certification is to be furnished to the Maine Department of Transportation and the Fed eral Highway Administration (FHWA), U.S. Department of Transportation in connection with th is contract in anticipation of federal aid highway funds and is subject to applicable state an d federal laws, both criminal and civil. A-2 CERTIFICATION REGARDING NONCOLLUSION Under penalty of perjury as provided by federal law (28 U.S.C. §1746), the Bidder hereby certifies, to the best of its knowledge and belief, that: the Bidder has not, either directly or indirectly, entered into any agreement, participated in any collusion, or otherwise taken any action in restraint of competitive bidding in connection with the Contract. For related provisions, see Section 102.7.2 (C) of the Standard Specifications - "Effects of Signing and Delivery of Bids" - "Certifications", Section 3 of this Appendix A entitled "Other Federal Requirements" including section XI - "Certification Reg arding Debarment, Suspension, Ineligibility, and Voluntary Exclusion" and section XII. - "Cer tification Regarding Use of Contract Funds for Lobbying." *****************************************************************************

The U.S. Department of Transportation (DOT) operates the above toll-free “hotline” Monday through Friday, 8:00 a.m. to 5:00 p.m., eastern time. A nyone with knowledge of possible bid rigging, bidder collusion, or other fraudulent act ivities should use the “hotline” to report such activities. The “hotline” is part of the DOT’s continuing effort to identif y and investigate highway construction contract fraud and abuse and is operated under the direction of the DOT Inspector General. All information will be treated confidentially, and caller anonymity will be respected. *****************************************************************************

Unless expressly otherwise provided in the Bid Documents, the provisions contained in this Section 2 of this "Federal Contract Provisions Supplement" are hereby incorporated into the Bid Documents and Contract.

not discriminate on the basis of race, color, national origin, or sex in the performance of this Contract. The Contractor shall carry out applicable requiremen ts of 49 CFR Part 26 in the award and administration of DOT assisted contracts. Failure by the Contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the Department deems appr opriate. The Contractor and subcontractors shall comply with Title VI of the Civil Rights Act of 1964, as amended, and with all State of Maine and other Federal Civil Rights laws. For related provisions, see Subsection B - "Nondiscrimination a nd Affirmative Action - Executive Order 11246" of this Section 2 and Section 3 - Other Federal Requirements of this "Federal Contract Provisions Supplement" including section II - "Nondiscrimination" of the “Required Contract Provisions, Federal Aid Construction Contracts”, FHWA-1273. A-3

Executive Order 11246, which was issued by President Johnson in 1965 and amended in 1967 and 1978, this Contract provides as follows. The Contractor shall take specific affirmative actions to ensu re equal employment opportunity. The evaluation of the Contractor’s compliance wit h these specifications shall be based upon its efforts to achieve maximum results from its acti ons. The Contractor shall document these efforts fully, and shall implement affirmative a ction steps at least as extensive as the following: Ensure and maintain a working environment free of harassment, i ntimidations, and coercion at all sites, and in all facilities at which the Contractor’s e mployees are assigned to work. The Contractor, where possible, will assign two or more women to ea ch construction project. The Contractor shall specifically ensure that all forepersons, supe rintendents, and other on-site supervisory personnel are aware of and carry out the Contractor ’s obligation to maintain such a working environment, with specific attention to minority or fem ale individuals working at such sites or in such facilities. Establish and maintain a current list of minority and female re cruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the Contractor or its union have employment opportunities available, and to maintain a record of the organization’s responses. Maintain a current file of the names, addresses and telephone n umbers of each minority and female off-the-street applicant and minority or female referral from a union, a recruitment source or community organization and of what action was taken w ith respect to each such individual. If such individual was sent to the union hiring ha ll for referral and was not referred back to the Contractor by the union or, if referred, not employed by the Contractor, this shall be documented in the file with the reason therefore, along with wh atever additional actions the Contractor may have taken. Provide immediate written notification to the Department’s Civi l Rights Office when the union or unions with which the Contractor has a collective barg aining agreement has not referred to the Contractor a minority person or woman sent by t he Contractor, or when the Contractor has other information that the union referral process has impeded the Design- Builder’s efforts to meet its obligations. Develop on-the-job training opportunities and/or participate in training programs for the area which expressly include minorities and women, including up grading programs and apprenticeship and trainee programs relevant to the Contractor’ s employment needs, especially those programs funded or approved by the Department of Labor. The Contractor shall provide notice of these programs to the sources compiled under B above. Disseminate the Contractor’s EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the Contractor in meeting its EEO obligation; by including it in any policy manual and collec tive bargaining agreement; by A-4 publicizing it in the company newspaper, annual report, etc.; b y specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posting the company EEO policy on bulletin boards accessible to all employees at each location where construction work is performed. Review, at least annually, the company’s EEO policy and affirma tive action obligations under these specifications with all employees having any respon sibility for hiring, assignment, layoff, termination, or other employment decisions including specific review of these items with on-site supervisory personnel such as Superintendents, General Forepersons, etc., prior to the initiation of construction work at any job site. A written rec ord shall be made and maintained identifying the time and place of these meetings, persons atten ding, subject matter discussed, and disposition of the subject matter. Disseminate the Contractor’s EEO policy externally by including it in any advertising in the news media, specifically including minority and female news med ia, and providing written notification to and discussing the Contractor’s EEO policy with other Contractor’s and Subcontractors with whom the Contractor does or anticipates doing business. Direct its recruitment efforts, both orally and written to mino rity, female and community organizations, to schools with minority and female students and to minority and female recruitment and training organizations serving the Contractor’s recruitment area and employment needs. Not later that one month prior to the date f or the acceptance of applications for apprenticeship or other training by any recruitment source, the Contractor shall send written notification to organizations such as the above describing the openings, screenings, procedures, and test to be used in the selection process. Encourage present minority and female employees to recruit othe r minority persons and women and, where reasonable, provide after school, summer and v acation employment to minority and female youth, both on the site and in other areas of a Contractor’s workforce. Validate all tests and other selection requirements. Conduct, at least annually, an inventory and evaluation at leas t of all minority and female personnel for promotional opportunities and encourage these emp loyees to seek or to prepare for, through appropriate training, etc., such opportunities. Ensure that seniority practices, job classifications, work assi gnments and other personnel practices, do not have a discriminatory effect by continually m onitoring all personnel and employment related activities to ensure that the EEO policy and the Contractor’s obligations under these specifications are being carried out. Ensure that all facilities and company activities are non segre gated except that separate or single-user toilet and necessary changing facilities shall be p rovided to assure privacy between the sexes. A-5 Document and maintain a record of all solicitations of offers f or subcontracts from minority and female construction Contractor’s and suppliers, including c irculation of solicitations to minority and female Contractor associations and other business associations. Conduct a review, at least annually, of all supervisors’ adhere nce to and performance under the Contractor’s EEO policies and affirmative action obligations.

tradesperson goals are 6.9% women and .5% minorities employed. However, goals may be adjusted upward at the mutual agreement of the Contractor and t he Department. Calculation of these percentages shall not include On-the-Job Training Program trainees, and shall not include clerical or field clerk position employees. For a more complete presentation of requirements for such Goals , see the federally required document “Goals for Employment of Females and Minorities” set f orth in the next 6 pages below. ***************************************************************************** Start of GOALS FOR EMPLOYMENT OF FEMALES AND MINORITIES Federally Required Contract Document §60-4.2 Solicitations

and bids on all Federal and federally assisted construction con tracts or subcontracts in excess of $10,000 to be performed in geographical areas designa ted by the Director pursuant to § 60-4.6 of this part (see 41 CFR § 60-4.2(a)): Notice of Requirement for Affirmative Action to Ensure Equal Op portunity (Executive Order 11246)

"Standard Federal Equal Employment Specifications" set forth herein.

terms for the Contractor's aggregate work force in each trade o n all construction work in the covered area, are as follows: Goals for female participation in each trade 6.9% Goals for minority participation for each trade Maine 001 Bangor, ME 0.8% Non-SMSA Counties (Aroostook, Hancock, Penobscot, Piscataquis, Waldo, Washington) 002 Portland-Lewiston, ME A-6 SMSA Counties: 4243 Lewiston-Auburn, ME 0.5% (Androscoggin) 6403 Portland, ME 0.6% (Cumberland, Sagadahoc) Non-SMSA Counties: 0.5% (Franklin, Kennebec, Knox, Lincoln, Oxford, Somerset, York) These goals are applicable to all the Contractor's construction work (whether or not it is Federal or federally assisted) performed in the covered area. If the contractor performs construction work in a geographical area located outside of the covered area, it shall apply the goals established for such geographical area where the work is actually performed. With regard to this second area, the contractor also is subject to t he goals for both its federally involved and non-federally involved construction. The contractor's compliance with the Executive Order and the re gulations in 41 CFR

Part 60-4 shall be based on its implementation of the Equal Opp ortunity Clause, specific

affirmative action obligations required by the specificationss et forth in 41 CFR § 60-4.3(a), and its efforts to meet the goals. The hours of minority and female employment and training must be substantially uniform throughout the length of the cont ract, and in each trade, and the contractor shall make a good faith effort to employ minorit ies and women evenly on each of its projects. The transfer of minority or female emplo yees or trainees from Contractor to Contractor or from project to project for the sol e purpose of meeting the Contractor's goals shall be in violation of the contract, the E xecutive Order and the regulations in 41 CFR Part 60-4. Compliance with the goals wil l be measured against the total work hours performed.

Contract Compliance Programs within 10 working days of award of any construction subcontract in excess of $10,000 at any tier for construction w ork under the contract resulting from this solicitation. The notification shall list the name, address and telephone number of the subcontractor, employer identification number of the subcontractor, estimated dollar amount of the subcontract; estimated started and completion dates of the subcontract; and the geographical area in which the subcontract is to be performed.

area" is (insert description of the geographical areas where th e contract is to be performed giving the state, county and city, if any). STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUCTION CONTRACT SPECIFICATIONS (EXECUTIVE ORDER 11246)

A-7

contract resulted;

States Department of Labor, or any person to whom the Director delegates authority;

Employer's Quarterly Federal Tax Return, U.S. Treasury Department form 941;

Hispanic origin);

or other Spanish Culture or origin, regardless of race);

of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands); and

peoples of the North America and maintaining identifiable triba l affiliations through membership and participation or community identification).

work involving any construction trade, it shall physically incl ude in each subcontract in excess of $10,000 the provisions of these specifications and th e Notice which contains the applicable goals for minority and female participation and whic h i s s e t f o r t h i n t h e solicitations from which this contract resulted.

approved by the U.S. Department of Labor in the covered area either individually or through an association, its affirmative action obligations on all work in the Plan area (including goals and timetables) shall be in accordance with that Plan for those trades which have unions participating in the Plan. Contractors must be able to demonst rate their participation in and compliance with the provisions of any such Hometown Plan. Each Contractor or Subcontractor participating in an approved Plan is individually required to comply with its obligations under the EEO clause, and to make a good faith effo rt to achieve each goal under the Plan in each trade in which it has employees. The ov erall good faith performance by other Contractors for Subcontractors toward a goal in an app roved Plan does not excuse any covered Contractor's or Subcontractor's failure to take goo d faith efforts to achieve the Plan goals and timetables.

paragraphs 7 a. through p. of these specifications. The goals set forth in the solicitation from which this contract resulted are expressed as percentages of the total hours of employment and training of minority and female utilization the Contractor should reasonably be able to achieve in each construction trade in whi ch it has employees in contractors performing construction work in geographical areas where they do not have a Federal or federally assisted construction contract shall apply the minority and female goals A-8 established for the geographical areas where the work is being performed. Goals are published periodically in the Federal Register in notice form a nd such notices may be obtained from any Office of Federal Contract Compliance Programs office or from Federal procurement contracting officers. The Contractor is expected t o make substantially uniform progress in meeting its goals in each craft during the period specific.

with whom the Contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the Contractor's obligations under these specifications, Executive Order 11246, or the regulations promulgated pursuant, thereto.

meeting the goals, such apprentices and trainees must be employed by the Contractor during the training period, and the Contractor must have made a commitment to employ the apprentices and trainees at the completion of their training, s ubject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department of Labor.

opportunity. The evaluation of the Contractor's compliance wit h these specifications shall be based upon its effort to achieve maximum results from its ac tions. The Contractor shall document these efforts fully, and shall implement affirmative a ction steps at least as expensive as the following:

at all sites, and in all facilities at which the Contractor's e mployees are assigned to work. The Contractor, when possible, will assign two or more women to each construction project. The Contractor shall specifically ensure that all for emen, superintendents, and other on-site supervisory personnel are aware of and carry out the Contractor's obligation to maintain such a working environment, with specifi c attention to minority or female individuals working at such sites or in such facilities.

written notification to minority and female recruitment sources and to community organizations when the Contractor or its unions have employment opportunities available, and maintain a record of the organization's responses.

and female off-the-street applicant and minority or female refe rral from a union, a recruitment sources or community organization and of what actio n was taken with respect to each such individual. If such individual was sent t o the union hiring hall for referral and was not referred back to the Contractor by the uni on or, if referred, not employed by the Contractor, this shall be documented in the fil e with the reason therefore, along with whatever additional actions the Contractor may have taken. A-9

which the Contractor has a collective bargaining agreement has not referred to the Contractor a minority person or woman sent by the Contractor, o r when the Contractor has other information that the union referral process has impeded the Contractor's efforts to meet its obligations.

area which expressly include minorities and women, including up grading programs and apprenticeship and trainee programs relevant to the Contractor' s employment needs, especially those programs funded or approved by the Department of Labor. The Contractor shall provide notice of these programs to the sources complied under 7b above.

training programs and requesting their cooperation in assisting the Contractor in meeting its EEO obligations; by including in any policy manual and coll ective bargaining agreement; by publicizing it in the company newspaper, annual r eport, etc.; by specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posting the company EEO policy on bulletin boards accessible to all employees at each location where const ruction work is performed.

under these specifications with all employees having any respon sibility for hiring, assignment, layoff, termination or other employment decisions i ncluding specific review of these items with on-site supervisory personnel such as Super intendents, General Foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and pl ace of these meetings, persons attending, subject matter discussed, and disposition of the subject matter.

the news media, specifically including minority and female news media, and providing written notification to and discussing the Contractor's EEO policy with other Contractors and Subcontractors with whom the Contractor does or anticipates doing business.

organizations, to schools with minority and female students and to minority and female recruitment and training organizations serving the Contractor's recruitment area and employment needs. Not later than one month other training by a ny recruitment source, the Contractor shall send written notification to organizations such as the above, describing prior to the date for the acceptance of applications for apprenticeship or the openings, screening procedures, and tests to be used in the selection process.

women and, where reasonable, provide after school, summer and v acation employment to minority and female youth both on site and in other areas of a Contractor's work force. A-10

under 41 CFR Part 60-3.

female personnel for promotional opportunities and encourage th ese employees to seek or to prepare for, through appropriate training, etc., such opportunities.

practices, do not have a discriminatory effect by continually monitoring all personnel and employment related activities to ensure that the EEO policy and the Contractor's obligations under these specifications are being carried out.

or single-user toilet and necessary changing facilities shall be provided to assure privacy between the sexes.

minority and female construction contractors and suppliers, including circulation of solicitation to minority and female contractor associations and other business associations.

under the Contractor's EEO policies and affirmative action obligations.

one or more of their affirmative action obligations (7 a throug h p.). The efforts of a contractor association, joint contractor-union, contractor-comm unity, or other similar group of which the contractor is a member and participant, may be ass erted as fulfilling any one or more of its obligations under 7 a through p. of these specifications provided that the contractor actively participates in the group, makes every effo rt to assure that the group has a positive impact on the employment of minorities and women in the industry, ensures that the concrete benefits of the program and reflected in the Contr actor's minority and female work force participation, makes a good faith effort to meet its individual goals and timetables, and can provide access to documentation which demon strates the effectiveness of actions take on behalf of the Contractor. The obligation to comply, however, is the Contractor's and failure of such a group to fulfill an obligati on shall not be a defense for the Contractor's noncompliance.

The Contractor, however, is required to provide equal employmen t opportunity and to take affirmative action for all minority groups, both make and femal e, and all women, both minority and non-minority. Consequently, the Contractor may be in violation of the Executive Order if a particular group is employed in a substant ially disparate manner (for example, specific minority group of women is underutilized.) A-11

Contractor has achieved its goals for women generally, the Contractor may be in violation of the Executive Order if standards to discriminate against any pe rson because of race, color, religion, sex, or national origin.

Government contracts pursuant to Executive Order 11246.

specifications and of the Equal Opportunity Clause, includings uspension, termination and cancellation of existing subcontracts as may be imposed or orde red pursuant to Executive Order 11246, as amended, and its implementation regulations by the Office of Federal Contract Compliance Programs. Any Contractor who fails to carr y out such sanctions and penalties shall be in violation of these specifications and Exe cutive Order 11246, as amended.

specific affirmative action steps, at least as extensive as those standards prescribed in paragraph 7 of these specifications, so as to achieve maximum r esults from its efforts to ensure equal employment opportunity. If the Contractor fails t o comply with the requirements of the Executive Order, the implementing regulatio ns, or these specifications, the Director shall proceed in accordance with 41 CFR § 60-4.6.

activity to ensure that the company EEO policy is being carried out, to submit reports relating to the provisions hereof as may be required by the Gov ernment and to keep records. Records shall at least include for each employee the name, addr ess, telephone numbers, construction trade, union affiliation if any, employee identifi cation number when assigned, social security number, race, sex, status (e.g. mechanic, appre ntice, trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay, and location sat which the work was performed. Records be maintained in an easily understandable and retrievable form; however, to the degree that existing records satisfy this requirement, contractors shall not be required to maintain separate records.

which establish different standards of compliance or upon the a pplication of requirements for the hiring of local or other area residents (e.g., those un der the Public Works Employment Act of 1977 and the Community Development Block Grant Program). End of GOALS FOR EMPLOYMENT OF FEMALES AND MINORITIES

Unless expressly otherwise provided in the Bid Documents, the provisions contained in this Section 3 of this "Federal Contract Provisions Supplement" are hereby incorporated into the Bid Documents and Contract. A-12

If the cost of products purchased for permanent use in this pr oject which are manufactured of steel, iron, or the application of any coating to products of these materials exceeds 0.1 percent of the contract amount, or $2,500.00, whichever is greater, the products shall have been manufactured and the coating applied in the United States. The coating materials are not subject to this clause, only the application of the coating. I n computing that amount, only the cost of the product and coating application cost will be included. Ore, for the manufacture of steel or iron, may be from outside the United States; however, all other manufacturing processes of steel or iron must be in t he United States to qualify as having been manufactured in the United States. United States includes the 50 United States and any place subj ect to the jurisdiction thereof. Products of steel include, but are not limited to, such produc ts as structural steel, piles, guardrail, steel culverts, reinforcing steel, structural plate and steel supports for signs, luminaries and signals. Products of iron include, but are not limited to, such products as cast iron grates. Application of coatings include, but are not limited to, such applications as epoxy, galvanized and paint. To assure compliance with this section, the Contractor shalls ubmit a certification letter on its letterhead to the Department stating the following: “This is to certify that products made of steel, iron or the ap plication of any coating to products of these materials whose costs are in excess of $2,500 .00 or 0.1 percent of the original contract amount, whichever is greater, were manufa ctured and the coating, if one was required, was applied in the United States.”

Applicability: FHWA's prohibition against the use of convict ma terial only applies to Federal-aid highways. Materials produced after July 1, 1991, b y convict labor may be incorporated in a Federal-aid highway construction project only if: 1) such materials have been produced by convicts who are on parole, supervised release, or probation from a prison; or 2) such material has been produced in a qualified prison facili ty, e.g., prison industry, with the amount produced during any 12-month period, for use in Federal-aid projects, not exceeding the amount produced, for such use, during the 12-month period ending July 1, 1987. Materials obtained from prison facilities (e.g., prison industr ies) are subject to the same requirements for Federal-aid participation that are imposed upo n materials acquired from other A-13 sources. Materials manufactured or produced by convict labor w ill be given no preferential treatment. The preferred method of obtaining materials for a project is th rough normal contracting procedures which require the contractor to furnish all materials to be incorporated in the work. The contractor selects the source, public or private, from whic h the materials are to be obtained (23 CFR § 635.407). Prison industries are prohibited from bidding on projects directly (23 CFR § 635.112e), but may act as material supplier to construction contractors. Prison materials may also be approved as State-furnished material. However, since public agencies may not bid in competition with private firms, direct acquisition of materials from a prison industry for use as State-furnished material is s ubject to a public interest finding with the FHWA Division Administrator's concurrence (23 CFR § 63 5.407d). Selection of materials produced by convict labor as State-furnished materials for mandatory use should be cleared prior to the submittal of the Plans Specifications & Estimates (PS&E).

FHWA will not participate, directly or indirectly, in payment for any premium or royalty on any patented or proprietary material, specification, or proc ess specifically set forth in the plans and specifications for a project, unless:  the item is purchased or obtained through competitive bidding w ith equally suitable unpatented items,  the STA certifies either that the proprietary or patented item is essential for synchronization with the existing highway facilities or that no equally suitable alternative exists, or  the item is used for research or for a special type of construction on relatively short sections of road for experimental purposes. States should follo w FHWA's procedures for "Construction Projects Incorporating Experimental Features" ( expermnt.htm) for the submittal of work plans and evaluations. The primary purpose of the policy is to have competition in sel ection of materials and allow for development of new materials and products. The polic y further permits materials and products that are judged equal may be bid under generic specifi cations. If only patented or proprietary products are acceptable, they shall be bid as alter n a t i v e s w i t h a l l , o r a t l e a s t a reasonable number of, acceptable materials or products listed; and the FHWA Division Administrator may approve a single source if it can be found th at its utilization is in the public interest. Trade names are generally the key to identifying patented or proprietary materials. Trade name examples include 3M, Corten, etc. Generally, products ide ntified by their brand or trade name are not to be specified without an "or equal" phrase, and, if trade names are used, all, or at least a reasonable number of acceptable "equal" materials or pr oducts should be listed. The licensing of several suppliers to produce a product does not ch ange the fact that it is a single product and should not be specified to the exclusion of other equally suitable products. A-14

Materials produced within Maine shall not be favored to the exc lusion of comparable materials produced outside of Maine. State preference clauses g ive particular advantage to the designated source and thus restrict competition. Therefore, State preference provisions shall not be used on any Federal-aid construction projects. This policy also applies to State preference actions against ma terials of foreign origin, except as otherwise permitted by Federal law. Thus, States cann ot give preference to in-State material sources over foreign material sources. Under the Buy A merica provisions, the States are permitted to expand the Buy America restrictions provided t hat the STA is legally authorized under State law to impose more stringent requirements.

635.407

Current FHWA policy requires that the contractor must furnish a ll materials to be incorporated in the work, and the contractor shall be permitted to select the sources from which the materials are to be obtained. Exceptions to this requiremen t may be made when there is a definite finding, by the Department and concurred in by FHWA’s Division Administrator, that it is in the public interest to require the contractor to use mate rials furnished by the Department or from sources designated by the Department. The exception polic y can best be understood by separating State-furnished materials into the categories of man ufactured materials and local natural materials. Manufactured Materials When the use of State-furnished manufac tured materials is approved based on a public interest finding, such use must be m ade mandatory. The optional use of State-furnished manufactured materials is in violation o f our policy prohibiting public agencies from competing with private firms. Manufactured mater ials to be furnished by the Department must be acquired through competitive bidding, unless there is a public interest finding for another method, and concurred in by FHWA’s Division Administrator. Local Natural Materials When the Department owns or controls a local natural materials source such as a borrow pit or a stockpile of salvaged pavement material, etc., the materials may be designated for either optional or mandatory use; however, ma ndatory use will require a public interest finding (PIF) and FHWA’s Division Administrator's concurrence. In order to permit prospective bidders to properly prepare thei r bids, the location, cost, and any conditions to be met for obtaining materials that are m ade available to the contractor shall be stated in the bidding documents. Mandatory Disposal Sites Normally, the disposal site for surpl us excavated materials is to be of the contractor's choosing; although, an optional site( s) may be shown in the contract provisions. A mandatory site shall be specified when there is a finding by the Department, with the concurrence of the FHWA Division Administrator, that such p lacement is the most A-15 economical or that the environment would be substantially enhan ced without excessive cost. Discussion of the mandatory use of a disposal site in the envir onmental document may serve as the basis for the public interest finding. Summarizing FHWA policy for the mandatory use of borrow or disposal sites:  mandatory use of either requires a public interest finding and FHWA’s Division Administrator's concurrence,  mandatory use of either may be based on environmental consideration where the environment will be substantially enhanced without excessive additional cost, and  where the use is based on environmental considerations, the dis cussion in the environmental document may be used as the basis for the public interest finding. Factors to justify a public interest finding should include suc h items as cost effectiveness, system integrity, and local shortages of material.

Unless expressly otherwise provided in the Bid Documents, the following “Required Contract Provisions, Federal Aid Construction Contracts”, FHWA- 1273, are hereby incorporated into the Bid Documents and Contract. ***************************************************************************** Start of FHWA 1273 REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONSTRUCTION CONTRACTS (As revised through May 1, 2012) FHWA-1273 -- Revised May 1, 2012 REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONSTRUCTION CONTRACTS

II. Nondiscrimination III. Nonsegregated Facilities IV. Davis-Bacon and Related Act Provisions A-16

VI. Subletting or Assigning the Contract VII. Safety: Accident Prevention VIII. False Statements Concerning Highway Projects IX. Implementation of Clean Air A ct and Federal Water Pollution Control Act

XI. Certification Regarding Use of Contract Funds for Lobbying ATTACHMENTS

Appalachian Local Access Road Contracts (included in Appalachian contracts only)

under Title 23 (excluding emergency contracts solely intended for debris removal). The contractor (or subcontractor) must insert this form in each subcontract and further require its inclusion in all lower tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services). The applicable requirements of Form FHWA-1273 are incorporated by reference for work done under any purchase order, rental agreement or agreement for other services. The prime contractor shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider. Form FHWA-1273 must be included in all Federal-aid design-build contracts, in all subcontracts and in lower tier subcontracts (excluding subcontracts for design services, purchase orders, rental agreements and other agreements for supplies or services). The design- builder shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider. Contracting agencies may reference Form FHWA-1273 in bid proposal or request for proposal documents; however, the Form FHWA-1273 must be physically incorporated (not referenced) in all contracts, subcontracts and lower-tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services related to a construction contract).

shall apply to all work performed on the contract by the contractor's own organization and with the assistance of workers under the contractor's immediate superintendence and to all work performed on the contract by piecework, station work, or by subcontract.

sufficient grounds for withholding of progress payments, withholding of final payment, termination of the contract, suspension / debarment or any other action determined to be appropriate by the contracting agency and FHWA. A-17

convict labor for any purpose within the limits of a construction project on a Federal-aid highway unless it is labor performed by convicts who are on parole, supervised release, or probation. The term Federal-aid highway does not include roadways functionally classified as local roads or rural minor collectors. II. NONDISCRIMINATION The provisions of this section related to 23 CFR Part 230 are applicable to all Federal-aid construction contracts and to all related construction subcontracts of $10,000 or more. The provisions of 23 CFR Part 230 are not applicable to material supply, engineering, or architectural service contracts. In addition, the contractor and all subcontractors must comply with the following policies: Executive Order 11246, 41 CFR 60, 29 CFR Parts 1625-1627, 23 USC § 140, the Rehabilitation Act of 1973, as amended (29 USC § 794), Title VI of the Civil Rights Act of 1964, as amended, and related regulations including 49 CFR Parts 21, 26 and 27; and 23 CFR Parts 200, 230, and 633. The contractor and all subcontractors must comply with the requirements of the Equal Opportunity Clause in 41 CFR § 60-1.4(b) and, for all construction contracts exceeding $10,000, the Standard Federal Equal Employment Opportunity Construction Contract Specifications in 41 CFR § 60-4.3. Note: The U.S. Department of Labor has exclusive authority to determine compliance with Executive Order 11246 and the policies of the Secretary of Labor including 41 CFR 60, and 29 CFR 1625-1627. The contracting agency and the FHWA have the authority and the responsibility to ensure compliance with 23 USC § 140, the Rehabilitation Act of 1973, as amended (29 USC § 794), and Title VI of the Civil Rights Act of 1964, as amended, and related regulations including 49 CFR Parts 21, 26 and 27; and 23 CFR Parts 200, 230, and 633. The following provision is adopted from 23 CFR Part 230, Appendix A, with appropriate revisions to conform to the U.S. Department of Labor (US DOL) and FHWA requirements.

to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (28 CFR Part 35, 29 CFR Part 1630, 29 CFR Parts 1625- 1627, 41 CFR 60 and 49 CFR 27) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. § 140 shall constitute the EEO and specific affirmative action standards for the contractor's project activities under this contract. The provisions of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) set forth under 28 CFR Part 35 and 29 CFR Part 1630 are incorporated by reference in this contract. In the execution of this contract, the contractor agrees to comply with the following minimum specific requirement activities of EEO: A-18

that it has made every good faith effort to provide equal opportunity with respect to all of its terms and conditions of employment and in their review of activities under the contract.

"It is the policy of this Company to assure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, color, national origin, age or disability. Such action shall include: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship, pre- apprenticeship, and/or on-the-job training."

EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active EEO program and who must be assigned adequate authority and responsibility to do so.

supervise, promote, and discharge employees, or who recommend such action, or who are substantially involved in such action, will be made fully cognizant of, and will implement, the contractor's EEO policy and contractual responsibilities to provide EEO in each grade and classification of employment. To ensure that the above agreement will be met, the following actions will be taken as a minimum:

the start of work and then not less often than once every six months, at which time the contractor's EEO policy and its implementation will be reviewed and explained. The meetings will be conducted by the EEO Officer.

by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty days following their reporting for duty with the contractor.

EEO Officer in the contractor's procedures for locating and hiring minorities and women.

accessible to employees, applicants for employment and potential employees.

to the attention of employees by means of meetings, employee handbooks, or other appropriate means.

advertisements for employees the notation: "An Equal Opportunity Employer." All such A-19 advertisements will be placed in publications having a large circulation among minorities and women in the area from which the project work force would normally be derived.

and direct recruitment through public and private employee referral sources likely to yield qualified minorities and women. To meet this requirement, the contractor will identify sources of potential minority group employees, and establish with such identified sources procedures whereby minority and women applicants may be referred to the contractor for employment consideration.

hall referrals, the contractor is expected to observe the provisions of that agreement to the extent that the system meets the contractor's compliance with EEO contract provisions. Where implementation of such an agreement has the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Federal nondiscrimination provisions.

applicants for employment. Information and procedures with regard to referring such applicants will be discussed with employees.

and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, national origin, age or disability. The following procedures shall be followed:

conditions and employee facilities do not indicate discriminatory treatment of project site personnel.

classification to determine any evidence of discriminatory wage practices.

whether there is evidence of discrimination. Where such evidence is found, the contractor will promptly take corrective action. If the review indicates that the discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons.

the contractor in connection with its obligations under this contract, will attempt to resolve such complaints, and will take appropriate corrective action within a reasonable time. If the investigation indicates that the discrimination may affect persons other than the complainant, such corrective action shall include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all of their avenues of appeal.

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women who are applicants for employment or current employees. Such efforts should be aimed at developing full journey level status employees in the type of trade or job classification involved.

and State regulations, the contractor shall make full use of training programs, i.e., apprenticeship, and on-the-job training programs for the geographical area of contract performance. In the event a special provision for training is provided under this contract, this subparagraph will be superseded as indicated in the special provision. The contracting agency may reserve training positions for persons who receive welfare assistance in accordance with 23 U.S.C. § 140(a).

programs and entrance requirements for each.

who are minorities and women and will encourage eligible employees to apply for such training and promotion.

contractor will use good faith efforts to obtain the cooperation of such unions to increase opportunities for minorities and women. Actions by the contractor, either directly or through a contractor's association acting as agent, will include the procedures set forth below:

training programs aimed toward qualifying more minorities and women for membership in the unions and increasing the skills of minorities and women so that they may qualify for higher paying employment.

agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, national origin, age or disability.

union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to furnish such information to the contractor, the contractor shall so certify to the contracting agency and shall set forth what efforts have been made to obtain such information.

within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, national origin, age or disability; making full efforts to obtain qualified and/or qualifiable minorities and women. The failure of a union to provide sufficient referrals A-21 (even though it is obligated to provide exclusive referrals under the terms of a collective bargaining agreement) does not relieve the contractor from the requirements of this paragraph. In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the contracting agency.

contractor must be familiar with the requirements for and comply with the Americans with Disabilities Act and all rules and regulations established there under. Employers must provide reasonable accommodation in all employment activities unless to do so would cause an undue hardship.

contractor shall not discriminate on the grounds of race, color, religion, sex, national origin, age or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The contractor shall take all necessary and reasonable steps to ensure nondiscrimination in the administration of this contract.

EEO obligations under this contract.

EEO obligations.

program are incorporated by reference.

national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the contracting agency deems appropriate.

compliance with the EEO requirements. Such records shall be retained for a period of three years following the date of the final payment to the contractor for all contract work and shall be available at reasonable times and places for inspection by authorized representatives of the contracting agency and the FHWA.

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employed in each work classification on the project;

increase employment opportunities for minorities and women; and

upgrading minorities and women;

each July for the duration of the project, indicating the number of minority, women, and non- minority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA-1391. The staffing data should represent the project work force on board in all or any part of the last payroll period preceding the end of July. If on-the-job training is being required by special provision, the contractor will be required to collect and report training data. The employment data should reflect the work force on board during all or any part of the last payroll period preceding the end of July. III. NONSEGREGATED FACILITIES This provision is applicable to all Federal-aid construction contracts and to all related construction subcontracts of $10,000 or more. The contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex, or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensure that its employees are not assigned to perform their services at any location, under the contractor's control, where the facilities are segregated. The term "facilities" includes waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, washrooms, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees. The contractor shall provide separate or single-user restrooms and necessary dressing or sleeping areas to assure privacy between sexes. IV. Davis-Bacon and Related Act Provisions This section is applicable to all Federal-aid construction projects exceeding $2,000 and to all related subcontracts and lower-tier subcontracts (regardless of subcontract size). The requirements apply to all projects located within the right-of-way of a roadway that is functionally classified as Federal-aid highway. This excludes roadways functionally classified as local roads or rural minor collectors, which are exempt. Contracting agencies may elect to apply these requirements to other projects. The following provisions are from the U.S. Department of Labor regulations in 29 CFR § 5.5 “Contract provisions and related matters” with minor revisions to conform to the FHWA-1273 format and FHWA program requirements. A-23

unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR Prt 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph 1.d. of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under paragraph 1.b. of this section) and the Davis- Bacon poster (WH–1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers.

helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:

classification in the wage determination; and

relationship to the wage rates contained in the wage determination.

known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, A-24 modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.

or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Wage and Hour Administrator for determination. The Wage and Hour Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.

paragraphs 1.b.(2) or 1.b.(3) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.

mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.

may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.

The contracting agency shall, upon its own action or upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor under this contract, or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements that is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the contracting agency may, after written notice to the contractor, take such action as may be A-25 necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.

course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR§ 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.

performed a copy of all payrolls to the contracting agency. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR § 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH–347 is available for this purpose from the Wage and Hour Division Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the contracting agency for transmission to the State DOT, the FHWA or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the contracting agency..

contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: A-26

under § 5.5 (a)(3)(ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained under § 5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information is correct and complete;

employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR Part 3;

and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract.

of Optional Form WH–347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph 3.b.(2) of this section.

subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code.

section available for inspection, copying, or transcription by authorized representatives of the contracting agency, the State DOT, the FHWA, or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the FHWA may, after written notice to the contractor, the contracting agency or the State DOT, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12.

Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. A-27 The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

Except as provided in 29 CFR § 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered A-28 program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30.

Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in connection with Federal- aid highway construction programs are not subject to the requirements of paragraph 4 of this Section IV. The straight time hourly wage rates for apprentices and trainees under such programs will be established by the particular programs. The ratio of apprentices and trainees to journeymen shall not be greater than permitted by the terms of the particular program.

requirements of 29 CFR part 3, which are incorporated by reference in this contract.

subcontracts and also require the subcontractors to include Form FHWA-1273 in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5.

grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12.

interpretations of the Davis-Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract.

provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives.

person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR § 5.12(a)(1). A-29

Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR § 5.12(a)(1).

1001.

The following clauses apply to any Federal-aid construction contract in an amount in excess of $100,000 and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall be inserted in addition to the clauses required by 29 CFR § 5.5(a) or 29 CFR § 4.6. As used in this paragraph, the terms laborers and mechanics include watchmen and guards.

contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

the clause set forth in paragraph (1.) of this section, the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory) for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1.) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1.) of this section.

agency shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2.) of this section.

forth in paragraph (1.) through (4.) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1.) through (4.) of this section. A-30 VI. SUBLETTING OR ASSIGNING THE CONTRACT This provision is applicable to all Federal-aid construction contracts on the National Highway System.

than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the contracting agency. Specialty items may be performed by subcontract and the amount of any such specialty items performed may be deducted from the total original contract price before computing the amount of work required to be performed by the contractor's own organization (23 CFR § 635.116).

by the prime contractor, and equipment owned or rented by the prime contractor, with or without operators. Such term does not include employees or equipment of a subcontractor or lower tier subcontractor, agents of the prime contractor, or any other assignees. The term may include payments for the costs of hiring leased employees from an employee leasing firm meeting all relevant Federal and State regulatory requirements. Leased employees may only be included in this term if the prime contractor meets all of the following conditions:

of the leased employees;

employees;

work on the project; and

predetermined minimum wages, the submission of payrolls, statements of compliance and all other Federal regulatory requirements.

knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid or propose on the contract as a whole and in general are to be limited to minor components of the overall contract.

computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions.

the firm, has full authority to direct performance of the work in accordance with the contract requirements, and is in charge of all construction operations (regardless of who performs the work) and (b) such other of its own organizational resources (supervision, management, and engineering services) as the contracting officer determines is necessary to assure the performance of the contract. A-31

written consent of the contracting officer, or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the contracting agency has assured that each subcontract is evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract.

contracts; however, contracting agencies may establish their own self-performance requirements. VII. SAFETY: ACCIDENT PREVENTION This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.

State, and local laws governing safety, health, and sanitation (23 CFR Part 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract.

contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safety, as determined under construction safety and health standards (29 CFR Part 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. § 3704).

authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. § 3704). VIII. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS This provision is applicable to all Federal-aid construction contracts and to all related subcontracts. In order to assure high quality and durable construction in conformity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppliers, and workers on Federal-aid highway projects, it is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and A-32 honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts, Form FHWA-1022 shall be posted on each Federal-aid highway project (23 CFR Part 635) in one or more places where it is readily available to all persons concerned with the project: 18 U.S.C. § 1020 reads as follows: "Whoever, being an officer, agent, or employee of the United States, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any false statement, false representation, or false report as to the character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or Whoever knowingly makes any false statement, false representation, false report or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; or Whoever knowingly makes any false statement or false representation as to material fact in any statement, certificate, or report submitted pursuant to provisions of the Federal-aid Roads Act approved July 1, 1916, (39 Stat. 355), as amended and supplemented; Shall be fined under this title or imprisoned not more than 5 years or both." IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT This provision is applicable to all Federal-aid construction contracts and to all related subcontracts. By submission of this bid/proposal or the execution of this contract, or subcontract, as appropriate, the bidder, proposer, Federal-aid construction contractor, or subcontractor, as appropriate, will be deemed to have stipulated as follows:

prohibited from receiving an award due to a violation of Section 508 of the Clean Water Act or Section 306 of the Clean Air Act.

contracting agency may direct as a means of enforcing such requirements. A-33

INELIGIBILITY AND VOLUNTARY EXCLUSION This provision is applicable to all Federal-aid construction contracts, design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements, consultant contracts or any other covered transaction requiring FHWA approval or that is estimated to cost $25,000 or more – as defined in 2 CFR Parts 180 and 1200.

the certification set out below.

result in denial of participation in this covered transaction. The prospective first tier participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective first tier participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction.

placed when the contracting agency determined to enter into this transaction. If it is later determined that the prospective participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the contracting agency may terminate this transaction for cause of default.

contracting agency to whom this proposal is submitted if any time the prospective first tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.

"person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180 and 1200. “First Tier Covered Transactions” refers to any covered transaction between a grantee or subgrantee of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a grantee or subgrantee of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).

proposed covered transaction be entered into, it shall not knowingly enter into any lower tier A-34 covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction.

include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transactions," provided by the department or contracting agency, entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold.

participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the Excluded Parties List System website (https://www.epls.gov/), which is compiled by the General Services Administration.

system of records in order to render in good faith the certification required by this clause. The knowledge and information of the prospective participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. * * * * *

– First Tier Participants:

and its principals:

voluntarily excluded from participating in covered transactions by any Federal department or agency;

civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) A-35 transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;

governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (a)(2) of this certification; and

public transactions (Federal, State or local) terminated for cause or default.

certification, such prospective participant shall attach an explanation to this proposal.

(Applicable to all subcontracts, purchase orders and other lower tier transactions requiring prior FHWA approval or estimated to cost $25,000 or more - 2 CFR Parts 180 and 1200)

certification set out below.

placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.

to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances.

"person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180 and 1200. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. “First Tier Covered Transactions” refers to any covered transaction between a grantee or subgrantee of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a grantee or subgrantee of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).

proposed covered transaction be entered into, it shall not knowingly enter into any lower tier A-36 covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated.

include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold.

participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the Excluded Parties List System website (https://www.epls.gov/), which is compiled by the General Services Administration.

of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency 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:

nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency.

this certification, such prospective participant shall attach an explanation to this proposal. * * * * * A-37 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 Part 20).

best of his or her knowledge and belief, that:

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.

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.

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.

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. A-38 ATTACHMENT A - EMPLOYMENT AND MATERIALS PREFERENCE FOR APPALACHIAN DEVELOPMENT HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS ROAD CONTRACTS This provision is applicable to all Federal-aid projects funded under the Appalachian Regional Development Act of 1965.

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:

personnel necessary to assure an efficient execution of the contract work.

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.

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.

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.

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. A-39

contractual preference for the use of mineral resource materials native to the Appalachian region.

every subcontract for work which is, or reasonably may be, done as on-site work. End of FHWA 127 Chapter 2 DIVISION 200 - EARTHWORK