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Contractor has achieved its goals for women generally, the Cont ractor 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 tha t existing records satisfy this requirement, contractors shall not be required to maintain sepa rate 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 Gran t 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.
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If the cost of products purchased for permanent use in this pr oject which are manufactured of steel, iron, or the appli cation of any coating to products o f 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 endin g 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 c ontractors. 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 & Es timates (PS&E).
FHWA will not participate, directly or indirectly, in payment f or 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 pr oprietary 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 e qually suitable products.
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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, St ate 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 Departme nt 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 c oncurred 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 s tockpile 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 F HWA’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 disp osal 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 ad ditional 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 CONT RACTS (As revised through May 1, 2 012)
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
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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 U se of Contract Funds for Lobbying ATTACHMENTS A. Employment and Materials Preference for Appalachian Developm ent Highway System or Appalachian Local Access Road Contracts (included in Appalachia n contracts only)
under Title 23 (excluding emergency contracts solely intended f or debris removal). The contractor (or subcontractor) must insert this form in each sub contract and further require its inclusion in all lower tier subcontracts (excluding purchase or ders, 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 subcontra ctor, 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 subcontr acts for design services, purchase orders, rental agreements and other agreements for sup plies or services). The design- builder shall be responsible for compliance by any subcontracto r, 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 incor porated (not referenced) in all contracts, subcontracts and lower-tier subcontracts (exc luding purchase orders, rental agreements and other agreements for supplies or services relate d to a construction contract).
shall apply to all work performed on the contract by the contra ctor's own organization and with the assistance of workers under the contractor's immediate supe rintendence and to all work performed on the contract by piecework, station work, or by sub contract.
sufficient grounds for withholdi ng of progress payments, withho lding of final payment, termination of the contract, suspension / debarment or any othe r action determined to be appropriate by the contracting agency and FHWA.
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convict labor for any purpose within the limits of a constructi on project on a Federal-aid highway unless it is labor performed by convicts who are on par ole, supervised release, or probation. The term Federal-ai d highway does not include roadw ays functionally classified as local roads or rural minor collectors. II. NONDISCRIMINATION
The provisions of this secti on related to 23 CFR Part 230 are a pplicable to all Federal-aid construction contracts and to all related construction subcontr acts of $10,000 or more. The provisions of 23 CFR Part 230 are not applicable to material su pply, 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 US C § 140, the Rehabilitation Act of 1973, as amended (29 USC § 794), Title VI of the Civil R ights Act of 1964, as amended, and related regulations i ncluding 49 CFR Parts 21, 26 and 27; a nd 23 CFR Parts 200, 230, and 633. The contractor and all subcontractors must comply with the requ irements 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 Cons truction Contract Specifications in 41 CFR § 60-4.3. Note: The U.S. Department of Labor has exclusive authority to d etermine compliance with Executive Order 11246 and the policies of the Secretary of Labo r including 41 CFR 60, and 29 CFR 1625-1627. The contracting agenc y and the FHWA have the au thority and the responsibility to ensure compliance with 23 USC § 140, the Reha bilitation 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 Pa rts 200, 230, and 633. The following provision is adopted from 23 CFR Part 230, Append ix A, with appropriate revisions to conform to the U.S. D epartment of Labor (US DOL) a nd 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 Pa rt 1630, 29 CFR Parts 1625- 1627, 41 CFR 60 and 49 CFR 27) and orders of the Secretary of L abor 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 Ac t of 1990 (42 U.S.C. § 12101 et seq.) set forth under 28 CFR P art 35 and 29 CFR Part 1630 are i ncorporated by reference in this contract. In the execution of this contract, the contractor agr ees to comply with the following minimum specific requirement activities of EEO:
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that it has made every good fa ith effort to provide equal oppor tunity with respect to all of its terms and conditions of employment and in their review of activ ities under the contract.
"It is the policy of this Company to assure that applicants are employed, and that employees are treated during employment, w ithout regard to their race, re ligion, sex, color, national origin, age or disability. Such action shall include: employme nt, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or ter mination; rates of pay or other forms of compensation; and sel ection for training, including ap prenticeship, pre- apprenticeship, and/or on-the-job training."
EEO Officer who will have the responsibility for and must be ca pable 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 recommends uch action, or who are substantially involved in such action, will be made fully cogni zant of, and will implement, the contractor's EEO policy and contractual responsibilities to pro vide EEO in each grade and classification of employment. To ensure that the above agreeme nt will be met, the following actions will be taken as a minimum:
the start of work and then not l ess often than once every six m onths, 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 contracto r's EEO obligations within thirty days following their reporti ng for duty with the contractor.
EEO Officer in the contractor's pr ocedures for locating and hiring minorities and women.
accessible to employees, applicants for employment and potentia l employees.
to the attention of employees by means of meetings, employee ha ndbooks, or other appropriate means.
advertisements for employees the notation: "An Equal Opportunit y Employer." All such
A-19 advertisements will be placed in publications having a large ci rculation among minorities and women in the area from which t he project work force would norma lly be derived.
and direct recruitment through public and private employee refe rral 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 co ntractor 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 cont ract provisions. Where implementation of such an agreement has the effect of discrimin ating against minorities or women, or obligates the contractor to do the same, such impleme ntation violates Federal nondiscrimination provisions.
applicants for employment. Information and procedures with reg ard to referring such applicants will be discussed with employees.
and administered, and personnel actions of every type, includin g hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken wit hout regard to race, color, religion, sex, national origin, age or disability. The following procedu res shall be followed:
conditions and employee facilities do not indicate discriminato ry 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 inclu de all affected persons.
the contractor in connection with its obligations under this co ntract, 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 pers ons 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 av enues 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 o f trade or job classification involved.
and State regulations, the contractor shall make full use of tr aining programs, i.e., apprenticeship, and on-the-job training programs for the geogra phical area of contract performance. In the event a s pecial provision for training is provided under this contract, this subparagraph will be superseded as indicated in the special pro vision. 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 employ ees to apply for such training and promotion.
contractor will use good faith e fforts to obtain the cooperatio n of such unions to increase opportunities for minorities and women. Actions by the contrac tor, either directly or through a contractor's association acting as agent, will include the proc edures set forth below:
training programs aimed toward qualifying more minorities and w omen for membership in the unions and increasing the skills of minorities and women so tha t they may qualify for higher paying employment.
agreement to the end that such union will be contractually boun d to refer applicants without regard to their race, color, religion, sex, national origin, ag e or disability.
union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses t o 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 ag reement, the contractor will, through independent recruitment efforts, fill the employment va cancies without regard to race, color, religion, sex, national origin, age or disability; makin g full efforts to obtain qualified and/or qualifiable minorities and women. The failure of a unio n 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 pr actice prevents the contracto r from meeting the obligations pursuant to Executive Order 11246, as amended, and these specia l provisions, such contractor shall immediately notify the contracting agency.
contractor must be familiar with the requirements for and compl y with the Americans with Disabilities Act and all rules and regulations established ther e 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 necessa ry 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 pe rformance of this contract. T he contractor shall carry out applicable requirements of 49 C FR Part 26 in the award and admi nistration of DOT-assisted contracts. Failure by the contractor to carry out these requir ements is a material breach of this contract, which may result in t he termination of this contract or such other remedy as the contracting agency deems appropriate.
compliance with the EEO requirements. Such records shall be re tained 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 auth orized 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 t he project, indicating the numbe r of minority, women, and non- minority group employees currently engaged in each work classif ication required by the contract work. This information is to be reported on Form FHWA-1391 . The staffing data should represent the project w ork force on board in all or any part of the last payroll period preceding the end of July. If on-th e-job training is being req uired by special provision, the contractor will be required to collect and report training data . The employment data should reflect the work force on boar d during all or any part of the l ast payroll period preceding the end of July. III. NONSEGREGATED FACILITIES
This provision is applicable to all Federal-aid construction co ntracts 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 o r oral policies nor tolerate such use by employee custom. The contractor's obligation extends fu rther to ensure that its employees are not assigned to perform their services at any loc ation, under the contractor's control, where the facilities are segregated. The term "facili ties" includes waiting rooms, work areas, restaurants and other eating areas, time clocks, restroo ms, washrooms, locker rooms, and other storage or dressing ar eas, parking lots, drinking fountai ns, recreation or entertainment areas, transportation, and housing provided for employees. The contractor shall provide separate or single-user restrooms and necessary dressing or sle eping areas to assure privacy between sexes. IV. Davis-Bacon and Related Act Provisions This section is applicable to all Federal-aid construction proj ects 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 co llectors, which are exempt. Co ntracting 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.
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unconditionally and not less often than once a week, and withou t 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 Secr etary of Labor which is attached hereto and made a part hereof, regardless of any contractual re lationship which may be alleged to exist between the contractor and such laborers and mechanics . Contributions made or costs reasonably anticipated for bona fid e fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechani cs are considered wages paid to such laborers or mechanics, subject to the provisions of paragr aph 1.d. of this section; also, regular contributions made or costs incurred for more than a we ekly 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 be nefits on the wage determination for the classification of work actually performed, without rega rd to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics performing work in mor e than one classification may be compensated at the rate specified for each classification fo r the time actually worked therein: Provided, That the employer's payroll records accurately set fo rth 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 cont ractor 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 whic h is to be employed under the contract shall be classified in c onformance with the wage deter mination. The contracting officer shall approve an additional classification and wage rat e 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 a gree 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 th e Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized repr esentative, will approve,
A-24 modify, or disapprove every additi onal classification action wi thin 30 days of receipt and so advise the contracting officer or will notify the contracting o fficer within the 30-day period that additional time is necessary.
or their representatives, and the contracting officer do not ag ree on the proposed classification and wage rate (including the amount designated for fringe benef its, where appropriate), the contracting officer shall refer the questions, including the vi ews 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 con tracting officer or will notify the contracting officer within the 30-day period that additiona l 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 a n hourly rate, the contractor shall either pay the benefit as stated in the wage determination or s hall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
may consider as part of the wages of any laborer or mechanic th e amount of any costs reasonably anticipated in providing bona fide fringe benefits u nder 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 writt en 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 sam e prime contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing w age requirements that is held by the same prime contractor, so much of the accrued payments or a dvances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontr actor 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 contrac tor, 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 preserve d for a period of three years th ereafter 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 ac tual wages paid. Whenever the Secretary of Labor has found under 29 CFR§ 5.5(a)(1)(iv) t hat 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-Ba con 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 pl an or program has been communicated in writing to the la borers 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 tr ainee programs, the registration of the apprentices and trainees, and the ratios and wage rates pre scribed in the applicable programs.
performed a copy of all payrolls to the contracting agency. Th e 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 submit ted in any form desired. Optional Form WH–347 is available for this purpose from the Wag e 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 payro lls by all subcontractors. Contractors and subcontractors shall maintain the full socials ecurity number and current address of each covered worker, and shall provide them upon req uest to the contracting agency for transmission to the State DOT , the FHWA or the Wage and Hou r Division of the Department of Labor for purposes of an investigation or audit o f 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 subm ission to the contracting agenc y..
contractor or subcontractor or hi s or her agent who pays or sup ervises the payment of the persons employed under the contract and shall certify the follo wing:
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under § 5.5 (a)(3)(ii) of Regulations, 29 CFR part 5, the appro priate 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 pai d the full weekly wages earned, without rebate, either di rectly 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 cont ract.
of Optional Form WH–347 shall satisfy the requirement for submi ssion of the “Statement of Compliance” required by paragraph 3.b.(2) of this section.
subcontractor to civil or criminal prosecution under section 10 01 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 mak e 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 paym ent, advance, or guarantee of funds. Furthermore, failure to submit the required records upo n request or to make such records available may be grounds for debarment action pursuant to 29 CF R 5.12.
Apprentices will be permitted to work at less than the predeter mined rate for the work they performed when they are employed pursuant to and individually r egistered in a bona fide apprenticeship program registered with the U.S. Department of L abor, Employment and Training Administration, Office of Apprenticeship Training, Emp loyer 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 apprentic e in such an apprenticeship program, who is not individuall y registered in the program, but who has been certified by the Office of Apprenticeship Traini ng, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary empl oyment as an apprentice.
A-27 The allowable ratio of apprentices to journeymen on the job sit e 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 appren tice 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 determin ation for the classification of w ork actually performed. In addition, any apprentice performing work on the job site in exc ess 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 contrac tor 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 specif ied in the registered program for the apprentice's level of progress, expressed as a percentage o f the journeymen hourly rate specified in the applicable wage determination. Apprentices sh all 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 applicabl e apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Appr enticeship Training, Employer an d Labor Services, or a State Apprenticeship Agency recognize d by the Office, withdraws appro val 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 a cceptable program is approved.
Except as provided in 29 CFR § 5.16, trainees will not be permi tted to work at less than the predetermined rate for the work performed unless they are emplo yed pursuant to and individually registered in a program which has received prior a pproval, evidenced by formal certification by the U.S. Department of Labor, Employment and T raining Administration. The ratio of trainees to journeymen on the job site shall not b e 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 j ourneyman hourly rate specified in the applicable wage determination. Trainees shall be paid frin ge 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 liste d 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 participati ng in a training plan approved by the Employment and Training Administration shall be paid not less t han 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 withdra ws 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 p rogram is approved.
under this part shall be in conformity with the equal employmen t 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 requir ements 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 r atio 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, whi ch are incorporated by refere nce in this contract.
subcontracts and also require the subcontractors to include For m FHWA-1273 in any lower tier subcontracts. The prime contractor shall be responsible for th e 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 i n 29 CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract.
provisions of this contract sha ll 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 c ontracting 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 D avis-Bacon Act or 29 CFR § 5.12(a)(1).
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Government contract by virtue of section 3(a) of the Davis-Baco n Act or 29 CFR § 5.12(a)(1).
1001.
The following clauses apply to any Federal-aid construction con tract 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 l aborers and mechanics include watchmen and guards.
contract work which may require or involve the employment of la borers 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 exce ss of forty hours in such workw eek.
the clause set forth in paragr aph (1.) of this section, the con tractor 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 terr itory, to such District or to suc h 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 cla use set forth in paragraph (1.) of this section, in the sum of $10 for each calendar day on whi ch such individual was required or permitted to work in excess of the standard workweek of fort y 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 suc h contract or any other Federal contract with the same prime contractor, or any other federally -assisted contract subject to the Contract Work Hours and SafetyS tandards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any l iabilities 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 p rime contractor shall be responsible for compliance by any subcontractor or lower tiers ubcontractor with the clauses set forth in paragraphs (1.) t hrough (4.) of this section.
A-30 VI. SUBLETTING OR ASSIGNING THE CONTRACT
This provision is applicable to all Federal-aid construction co ntracts on the National Highway System. 1. The contractor shall perform with its own organization contr act work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the contracting agency. Specialty items may be performed by subcontract and the amount of any such specialty items performed may be deducted from the total original contract pric e before computing the amount of work required to be performe d by the contractor's own organi zation (23 CFR § 635.116).
by the prime contractor, and equipment owned or rented by the p rime contractor, with or without operators. Such term does not include employees or equ ipment of a subcontractor or lower tier subcontractor, agents of the prime contractor, or an y 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, statem ents 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 c ontract as a whole and in general are to be limited to minor components of the overall contract. 2. The contract amount upon which t he requirements set forth in paragraph (1) of Section VI is computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions. 3. The contractor shall furnish (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance of the work in accordance with the contract requirements, and is in charge of all construction operations ( regardless of who performs the work) and (b) such other of its own organizational resources (s upervision, management, and engineering services) as the contracting officer determines is necessary to assure the performance of the contract.
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written consent of the contrac ting officer, or authorized repre sentative, and such consent when given shall not be construed to r elieve the contractor of any r esponsibility for the fulfillment of the contract. Written consent will be given only after the con tracting agency has assured that each subcontract is evidenced in writing and that it contains a ll pertinent provisions and requirements of the prime contract. 5. The 30% self-performance requirement of paragraph (1) is not applicable to design-build contracts; however, contracting agencies may establish their ow n self-performance requirements. VII. SAFETY: ACCIDENT PREVENTION
This provision is applicable to all Federal-aid construction co ntracts and to all related subcontracts. 1. In the performance of this contract the contractor shall co mply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR Part 635). The contractor shall provide all safeguards, safety devices and protective equ ipment and take any other needed actions as it determines, or as the contracting officer may det ermine, to be reasonably necessary to protect the life and healt h 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 cont ractor and any subcontractor shall not permit any employee, in performance of the contract, to wor k 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 C FR Part 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the C ontract Work Hours and Safety Standards Act (40 U.S.C. § 3704). 3. Pursuant to 29 CFR § 1926.3, it is a condition of this contr act that the Secretary of Labor or authorized representative thereo f, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the constr uction 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 co ntracts and to all related subcontracts. In order to assure high quality and durable construction in con formity with approved plans and specifications and a high degree of reliability on statements a nd representations made by engineers, contractors, suppliers, and workers on Federal-aid h ighway projects, it is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and
A-32 honestly as possible. Willful f alsification, distortion, or mi srepresentation 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 C FR Part 635) in one or more pl aces 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 St ates, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any false statement, false represe ntation, or false report as to th e 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 submissio n of plans, maps, specifications, contracts, or costs of construction on any highway or related p roject submitted for approval to the Secretary of Transportation; or Whoever knowingly makes any false statement, false representati on, false report or false claim with respect to the character, quality, quantity, or cost of an y work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project appr oved by the Secretary of Transpo rtation; or Whoever knowingly makes any false statement or false representation as to material fact in any statement, certificate, or report submitted pursuant to provisi ons of the Federal-aid Roads Act approved July 1, 1916, (39 Stat. 355), as amended and supplemen ted; Shall be fined under this title or imprisoned not more than 5 y ears or both."
IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT
This provision is applicable to all Federal-aid construction co ntracts and to all related subcontracts. By submission of this bid/proposal or the execution of this con tract, or subcontract, as appropriate, the bidder, proposer, Federal-aid construction con tractor, or subcontractor, as appropriate, will be deemed to have stipulated as follows: 1. That any person who is or will be utilized in the performa nce of this contract is not prohibited from receiving an award due to a violation of Sectio n 508 of the Clean Water Act or
contracting agency may direct as a means of enforcing such requ irements.