HomeMy WebLinkAboutAgee Construction Corp Contract - Bid 12300027-12589- 10-19-23 CML 5060(358)
CONTRACT
CITY OF FRESNO
PUBLIC WORK OF IMPROVEMENT
THIS CONTRACT(Contract) is made and entered into by and between CITY OF FRESNO,
a California municipal corporation (City), and Agee Construction Corporation, a California
corporation (Contractor), as follows:
1. Contract Documents. The "Notice Inviting Bids," "Instructions to Bidders," "Bid
Proposal," and the "Specifications" including "General Conditions," "Special Conditions," and
"Technical Specifications"for the following: PWO0910 Tulare Complete Streets From Sth Street
to Cedar Avenue CML 5060 358 Bid File No. 12300027-12589 copies of which are annexed
hereto, together with all the drawings, plans, and documents specifically referred to in said
annexed documents, including Performance and Payment Bonds, if required, and are hereby
incorporated into and made a part of this Contract, and shall be known as the Contract
Documents.
2. Price and Work. For the monetary consideration of Two Million Three Hundred
Thirty Nine Thousand Two Hundred Fifty Dollars and Zero Cents [$2,339,250.00], as set
forth in the Bid Proposal, Contractor promises and agrees to perform or cause to be performed,
in a good and workmanlike manner, under the direction and to the satisfaction of the City's
"Engineer," and in strict accordance with the Specifications, all of the work as set forth in the
Contract Documents.
3. Payment. City accepts Contractor's Bid Proposal as stated and agrees to pay the
consideration stated, at the times, in the amounts, and under the conditions specified in the
Contract Documents. The Contractor agrees to accept electronic payment from City.
4. Indemnification. To the furthest extent allowed by law including California Civil Code
Section 2782, Contractor shall indemnify, hold harmless and defend City and each of its officers,
officials, employees, agents and volunteers from any and all loss, liability, fines, penalties,
forfeitures, costs and damages (whether in contract, tort or strict liability, including, but not limited
to personal injury, death at any time and property damage) incurred by City, Contractor or any
other person, and from any and all claims, demands and actions in law or equity (including
attorney's fees, litigation expenses, and cost to enforce), arising or alleged to have arisen directly
or indirectly out of performance of this Contract. Contractor's obligations under the preceding
sentence shall apply regardless of whether City or any of its officers, officials, employees, agents,
or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties,
forfeitures, costs, or damages caused by the active or sole negligence, or willful misconduct, of
City or any of its officers, officials, employees, agents, or volunteers.
If Contractor should subcontract all or any portion of the work to be performed under this
Contract, Contractor shall require each subcontractor to indemnify, hold harmless and defend City
and each of its officers, officials, employees, agents, and volunteers in accordance with the terms
of the preceding paragraph.
This section shall survive termination or expiration of this Contract.
A230647 2023-03
DPWPLADivl 1.1 rev.04-23
CML 5060(358)
5. Trench Shoring Detailed Plan. Contractor acknowledges the provisions of Section
6705 of the California Labor Code and, if said provisions are applicable to this Contract, agrees
to comply therewith.
6. Worker's Compensation Certification. In compliance with the provisions of Section
1861 of the California Labor Code, Contractor hereby certifies as follows:
I am aware of the provisions of Section 3700 of the California Labor Code which require every
employer to be insured against liability for worker's compensation or to undertake self-insurance
in accordance with the provisions of that Code, and I will comply with such provisions before
commencing the performance of work of this Contract and will make my subcontractors aware of
this provision.
7. The City Manager, or designee, is hereby authorized and directed to execute and
implement this Agreement. The previous sentence is not intended to delegate any authority to the
City Manager to administer the Agreement, any delegation of authority must be expressly included
in the Agreement.
[Signatures follow on the next page.]
A230647 2023-03
DPWPLADivi 1.2 rev.04-23
CML 5060(358)
IN WITNESS WHEREOF, the parties have executed this Contract on the day and year here
below written, of which the date of execution by City shall be subsequent to that of Contractor's,
and this Contract shall be binding and effective upon execution by both parties.
AGEE CONSTRUCTION CITY OF FIRES
CORPORATION, a Californi r corporation
a California co ora n .
By:_
10W, P E
onstruction Manager
Name: Alan D. Dirlam Capital Projects Department
(Type or print written signature)
Dated:
Title: Sr. Chief Estimator
(If corporation or LLC., Board Chair,
Pres., or Vice Pres.) ATTEST:
TODD STERMER, CMC, MMC
Dated: 11/08/2023 City Clerk�
By: Deputy Date
Name: Kym E. Olivas
(Type or print written signature.) No signature of City Attorney required.
Standard Document#DPW-S Formal Bid
Title: Secretary Contract— PWI (01-2023) has been used
(If corporation or LLC., CFO,Treasurer, without modification, as certified by the
Secretary or Assistant Secretary) and signn2z��
By:
Dated: 11/08/2023 bra McGary I
Construction Compliance Specialist
Capital Project Department
City Address-
City of Fresno
Attention: Debra McGary
Construction Compliance Specialist
1721 Van Ness
Fresno, CA 93721
A230647 2023-03
DPWPLADivl 1.3 rev.04-23
FHWA-1273—Revised October 23,2023
REQUIRED CONTRACT PROVISIONS
FEDERAL-AID CONSTRUCTION CONTRACTS
performed on the contract by the contractor's own organization
I. General and with the assistance of workers under the contractor's
Il. Nondiscrimination immediate superintendence and to all work performed on the
III. Non-segregated Facilities contract by piecework,station work,or by subcontract. 23
IV. Davis-Bacon and Related Act Provisions CFR 633.102(d).
V. Contract Work Hours and Safety Standards Act
Provisions 3. A breach of any of the stipulations contained in these
VI. Subletting or Assigning the Contract Required Contract Provisions may be sufficient grounds for
VII Safety:Accident Prevention withholding of progress payments,withholding of final
Vill. False Statements Concerning Highway Projects payment,termination of the contract,suspension/debarment
IX. Implementation of Clean Air Act and Federal Water or any other action determined to be appropriate by the
Pollution Control Act contracting agency and FHWA.
X. Certification Regarding Debarment,Suspension,
Ineligibility and Voluntary Exclusion 4. Selection of Labor:During the performance of this contract,
XI. Certification Regarding Use of Contract Funds for the contractor shall not use convict labor for any purpose
Lobbying within the limits of a construction project on a Federal-aid
XII. Use of United States-Flag Vessels: highway unless it is labor performed by convicts who are on
parole,supervised release,or probation 23 U.S C. 114(b).
ATTACHMENTS The term Federal-aid highway does not include roadways
functionally classified as local roads or rural minor collectors
A. Employment and Materials Preference for Appalachian 23 U S.C. 101(a).
Development Highway System or Appalachian Local Access
Road Contracts(included in Appalachian contracts only)
II. NONDISCRIMINATION(23 CFR 230.107(a);23 CFR Part
230,Subpart A,Appendix A;EO 11246)
I. GENERAL
The provisions of this section related to 23 CFR Part 230,
1. Form FHWA-1273 must be physically incorporated in each Subpart A,Appendix A are applicable to all Federal-aid
construction contract funded under title 23, United States construction contracts and to all related construction
Code,as required in 23 CFR 633.102(b)(excluding subcontracts of$10,000 or more. The provisions of 23 CFR
emergency contracts solely intended for debris removal). The Part 230 are not applicable to material supply,engineering,or
contractor(or subcontractor)must insert this form in each architectural service contracts.
subcontract and further require its inclusion in all lower tier
subcontracts(excluding purchase orders, rental agreements In addition,the contractor and all subcontractors must comply
and other agreements for supplies or services). 23 CFR with the following policies:Executive Order 11246,41 CFR
633.102(e). Part 60,29 CFR Parts 1625-1627,23 U.S.0 140,Section 504
of the Rehabilitation Act of 1973,as amended(29 U.S.C.794),
The applicable requirements of Form FHWA-1273 are Title VI of the Civil Rights Act of 1964,as amended(42 U.S.C.
incorporated by reference for work done under any purchase 2000d et seq.),and related regulations including 49 CFR Parts
order, rental agreement or agreement for other services. The 21,26,and 27;and 23 CFR Parts 200,230,and 633.
prime contractor shall be responsible for compliance by any
subcontractor,lower-tier subcontractor or service provider. 23 The contractor and all subcontractors must comply with: the
CFR 633.102(e). requirements of the Equal Opportunity Clause in 41 CFR 60-
1.4(b)and,for all construction contracts exceeding$10,000,
Form FHWA-1273 must be included in all Federal-aid design- the Standard Federal Equal Employment Opportunity
build contracts, in all subcontracts and in lower tier Construction Contract Specifications in 41 CFR 60-4.3.
subcontracts(excluding subcontracts for design services,
purchase orders, rental agreements and other agreements for Note:The U.S.Department of Labor has exclusive authority to
supplies or services)in accordance with 23 CFR 633 102 The determine compliance with Executive Order 11246 and the
design-builder shall be responsible for compliance by any policies of the Secretary of Labor including 41 CFR Part 60.
subcontractor, lower-tier subcontractor or service provider and 29 CFR Parts 1625-1627. The contracting agency and
the FHWA have the authority and the responsibility to ensure
Contracting agencies may reference Form FHWA-1273 in compliance with 23 U.S.0 140,Section 504 of the
solicitation-for-bids or request-for-proposals documents, Rehabilitation Act of 1973,as amended(29 U.S.C.794),and
however,the Form FHWA-1273 must be physically Title VI of the Civil Rights Act of 1964,as amended(42 U S C
incorporated(not referenced)in all contracts,subcontracts and 2000d et seq), and related regulations including 49 CFR Parts
lower-tier subcontracts(excluding purchase orders, rental 21,26,and 27;and 23 CFR Parts 200,230,and 633.
agreements and other agreements for supplies or services
related to a construction contract). 23 CFR 633.102(b). The following provision is adopted from 23 CFR Part 230,
Subpart A,Appendix A,with appropriate revisions to conform
2. Subject to the applicability criteria noted in the following to the U S. Department of Labor(US DOL)and FHWA
sections,these contract provisions shall apply to all work requirements
1
1.Equal Employment Opportunity: Equal Employment d. Notices and posters setting forth the contractor's EEO
Opportunity(EEO)requirements not to discriminate and to policy will be placed in areas readily accessible to employees,
take affirmative action to assure equal opportunity as set forth applicants for employment and potential employees.
under laws,executive orders,rules, regulations(see 28 CFR
Part 35,29 CFR Part 1630,29 CFR Parts 1625-1627,41 CFR e. The contractor's EEO policy and the procedures to
Part 60 and 49 CFR Part 27)and orders of the Secretary of implement such policy will be brought to the attention of
Labor as modified by the provisions prescribed herein,and employees by means of meetings,employee handbooks,or
imposed pursuant to 23 U.S.C. 140,shall constitute the EEO other appropriate means.
and specific affirmative action standards for the contractor's
project activities under this contract.The provisions of the 4.Recruitment:When advertising for employees,the
Americans with Disabilities Act of 1990(42 U.S.C. 12101 et contractor will include in all advertisements for employees the
seq.)set forth under 28 CFR Part 35 and 29 CFR Part 1630 notation:"An Equal Opportunity Employer." All such
are incorporated by reference in this contract. In the execution advertisements will be placed in publications having a large
of this contract,the contractor agrees to comply with the circulation among minorities and women in the area from
following minimum specific requirement activities of EEO: which the project work force would normally be derived.
a.The contractor will work with the contracting agency and a. The contractor will,unless precluded by a valid
the Federal Government to ensure that it has made every bargaining agreement,conduct systematic and direct
good faith effort to provide equal opportunity with respect to all recruitment through public and private employee referral
of its terms and conditions of employment and in their review sources likely to yield qualified minorities and women. To
of activities under the contract. 23 CFR 230,409(g)(4)&(5). meet this requirement,the contractor will identify sources of
potential minority group employees and establish with such
b.The contractor will accept as its operating policy the identified sources procedures whereby minority and women
following statement: applicants may be referred to the contractor for employment
consideration.
"it is the policy of this Company to assure that applicants
are employed,and that employees are treated during b. In the event the contractor has a valid bargaining
employment,without regard to their race,religion,sex, agreement providing for exclusive hiring hall referrals,the
sexual orientation,gender identity,color, national origin,age contractor is expected to observe the provisions of that
or disability. Such action shall include:employment, agreement to the extent that the system meets the contractor's
upgrading,demotion,or transfer; recruitment or recruitment compliance with EEO contract provisions. Where
advertising;layoff or termination;rates of pay or other forms implementation of such an agreement has the effect of
of compensation;and selection for training, including discriminating against minorities or women,or obligates the
apprenticeship,pre-apprenticeship, and/or on-the-job contractor to do the same,such implementation violates
training." Federal nondiscrimination provisions.
2. EEO Officer:The contractor will designate and make c. The contractor will encourage its present employees to
known to the contracting officers an EEO Officer who will have refer minorities and women as applicants for employment.
the responsibility for and must be capable of effectively Information and procedures with regard to referring such
administering and promoting an active EEO program and who applicants will be discussed with employees.
must be assigned adequate authority and responsibility to do
so. 5. Personnel Actions:Wages,working conditions,and
employee benefits shall be established and administered,and
3. Dissemination of Policy:All members of the contractor's personnel actions of every type, including hiring, upgrading,
staff who are authorized to hire,supervise,promote,and promotion,transfer,demotion, layoff,and termination,shall be
discharge employees,or who recommend such action or are taken without regard to race,color, religion,sex,sexual
substantially involved in such action,will be made fully orientation,gender identity, national origin,age or disability.
cognizant of and will implement the contractor's EEO policy The following procedures shall be followed:
and contractual responsibilities to provide EEO in each grade
and classification of employment. To ensure that the above a. The contractor will conduct periodic inspections of project
agreement will be met,the following actions will be taken as a sites to ensure that working conditions and employee facilities
minimum: do not indicate discriminatory treatment of project site
personnel.
a. Periodic meetings of supervisory and personnel office
employees will be conducted before the start of work and then b. The contractor will periodically evaluate the spread of
not less often than once every six months,at which time the wages paid within each classification to determine any
contractor's EEO policy and its implementation will be evidence of discriminatory wage practices.
reviewed and explained. The meetings will be conducted by
the EEO Officer or other knowledgeable company official. c. The contractor will periodically review selected personnel
actions in depth to determine whether there is evidence of
b. All new supervisory or personnel office employees will be discrimination. Where evidence is found,the contractor will
given a thorough indoctrination by the EEO Officer,covering promptly take corrective action. If the review indicates that the
all major aspects of the contractor's EEO obligations within discrimination may extend beyond the actions reviewed,such
thirty days following their reporting for duty with the contractor. corrective action shall include all affected persons.
c. All personnel who are engaged in direct recruitment for d. The contractor will promptly investigate all complaints of
the project will be instructed by the EEO Officer in the alleged discrimination made to the contractor in connection
contractor's procedures for locating and hiring minorities and with its obligations under this contract,will attempt to resolve
women. such complaints,and will take appropriate corrective action
2
within a reasonable time. If the investigation indicates that the sufficient referrals(even though it is obligated to provide
discrimination may affect persons other than the complainant, exclusive referrals under the terms of a collective bargaining
such corrective action shall include such other persons. Upon agreement)does not relieve the contractor from the
completion of each investigation,the contractor will inform requirements of this paragraph. In the event the union referral
every complainant of all of their avenues of appeal. practice prevents the contractor from meeting the obligations
pursuant to Executive Order 11246,as amended,and these
6.Training and Promotion: special provisions,such contractor shall immediately notify the
contracting agency.
a. The contractor will assist in locating,qualifying,and
increasing the skills of minorities and women who are 8. Reasonable Accommodation for Applicants/
applicants for employment or current employees. Such efforts Employees with Disabilities: The contractor must be familiar
should be aimed at developing full journey level status with the requirements for and comply with the Americans with
employees in the type of trade or job classification involved. Disabilities Act and all rules and regulations established
thereunder. Employers must provide reasonable
b. Consistent with the contractor's work force requirements accommodation in all employment activities unless to do so
and as permissible under Federal and State regulations,the would cause an undue hardship.
contractor shall make full use of training programs(i.e.,
apprenticeship and on-the-job training programs for the 9.Selection of Subcontractors,Procurement of Materials
geographical area of contract performance). In the event a and Leasing of Equipment:The contractor shall not
special provision for training is provided under this contract, discriminate on the grounds of race,color,religion,sex,sexual
this subparagraph will be superseded as indicated in the orientation,gender identity, national origin,age,or disability in
special provision. The contracting agency may reserve the selection and retention of subcontractors, including
training positions for persons who receive welfare assistance procurement of materials and leases of equipment. The
in accordance with 23 U.S.C. 140(a). contractor shall take all necessary and reasonable steps to
ensure nondiscrimination in the administration of this contract.
c. The contractor will advise employees and applicants for
employment of available training programs and entrance a. The contractor shall notify all potential subcontractors,
requirements for each. suppliers,and lessors of their EEO obligations under this
contract.
d. The contractor will periodically review the training and
promotion potential of employees who are minorities and b. The contractor will use good faith efforts to ensure
women and will encourage eligible employees to apply for subcontractor compliance with their EEO obligations.
such training and promotion.
7.Unions: If the contractor relies in whole or in part upon 10. Assurances Required:
unions as a source of employees,the contractor will use good
faith efforts to obtain the cooperation of such unions to a. The requirements of 49 CFR Part 26 and the State
increase opportunities for minorities and women. 23 CFR DOT's FHWA-approved Disadvantaged Business Enterprise
230.409. Actions by the contractor,either directly or through a (DBE)program are incorporated by reference.
contractor's association acting as agent,will include the
procedures set forth below: b. The contractor,subrecipient or subcontractor shall not
discriminate on the basis of race,color, national origin,or sex
a. The contractor will use good faith efforts to develop,in in the performance of this contract.The contractor shall carry
cooperation with the unions,joint training programs aimed out applicable requirements of 49 CFR part 26 in the award
toward qualifying more minorities and women for membership and administration of DOT-assisted contracts.Failure by the
in the unions and increasing the skills of minorities and women contractor to carry out these requirements is a material breach
so that they may qualify for higher paying employment. of this contract,which may result in the termination of this
contract or such other remedy as the recipient deems
b. The contractor will use good faith efforts to incorporate an appropriate,which may include,but is not limited to:
EEO clause into each union agreement to the end that such (1)Withholding monthly progress payments;
union will be contractually bound to refer applicants without (2)Assessing sanctions;
regard to their race,color,religion,sex,sexual orientation, (3)Liquidated damages;and/or
gender identity,national origin,age,or disability. (4)Disqualifying the contractor from future bidding as non-
responsible.
c The contractor is to obtain information as to the referral c. The Title VI and nondiscrimination provisions of U.S.
practices and policies of the labor union except that to the DOT Order 1050.2A at Appendixes A and E are incorporated
extent such information is within the exclusive possession of by reference. 49 CFR Part 21
the labor union and such labor union refuses to furnish such
information to the contractor,the contractor shall so certify to 11.Records and Reports:The contractor shall keep such
the contracting agency and shall set forth what efforts have records as necessary to document compliance with the EEO
been made to obtain such information. requirements. Such records shall be retained for a period of
three years following the date of the final payment to the
d. In the event the union is unable to provide the contractor contractor for all contract work and shall be available at
with a reasonable flow of referrals within the time limit set forth reasonable times and places for inspection by authorized
in the collective bargaining agreement,the contractor will, representatives of the contracting agency and the FHWA.
through independent recruitment efforts,fill the employment
vacancies without regard to race,color, religion,sex,sexual a. The records kept by the contractor shall document the
orientation,gender identity, national origin,age,or disability; following:
making full efforts to obtain qualified and/or qualifiable
minorities and women. The failure of a union to provide
3
(1)The number and work hours of minority and non- Projects funded under 23 U.S.C. 117,and National Highway
minority group members and women employed in each work Freight Program projects funded under 23 U.S.C. 167.
classification on the project;
(2)The progress and efforts being made in cooperation The following provisions are from the U.S. Department of
with unions,when applicable,to increase employment Labor regulations in 29 CFR 5.5"Contract provisions and
opportunities for minorities and women;and related matters"with minor revisions to conform to the FHWA-
1273 format and FHWA program requirements.
(3)The progress and efforts being made in locating, hiring,
training,qualifying,and upgrading minorities and women. 1. Minimum wages(29 CFR 5.5)
b. The contractors and subcontractors will submit an annual a. Wage rates and fringe benefits. All laborers and
report to the contracting agency each July for the duration of mechanics employed or working upon the site of the work(or
the project indicating the number of minority,women,and non- otherwise working in construction or development of the
minority group employees currently engaged in each work project under a development statute),will be paid
classification required by the contract work. This information is unconditionally and not less often than once a week,and
to be reported on Form FHWA-1391. The staffing data should without subsequent deduction or rebate on any account
ll deductions are permitted
the last payroll period preceding the end of July. If on-the-job regulations issued 11 the Secretary Labor under the
training is being required by special provision,the contractor Copeland Act(29 CFR part 3)),the full amount of basic hourly
will required collect and report training data. The wages and bona fide fringe benefits(or cash equivalents
employment dataa should reflect the work force board during thereof)due at time of payment computed at rates not less
all or any part of the last payroll period precedingg the end of than those contained in the wage determination of the
July. Secretary of Labor which is attached hereto and made a part
hereof, regardless of any contractual relationship which may
III.NONSEGREGATED FACILITIES be alleged to exist between the contractor and such laborers
and mechanics.As provided in paragraphs(d)and(e)of 29
This provision is applicable to all Federal-aid construction CFR 5.5,the appropriate wage determinations are effective by
contracts and to all related construction subcontracts of more operation of law even if they have not been attached to the
than$10,000. 41 CFR 60-1.5. contract.Contributions made or costs reasonably anticipated
for bona fide fringe benefits under the Davis-Bacon Act(40
As prescribed by 41 CFR 60-1.8,the contractor must ensure U.S.C.3141(2)(B))on behalf of laborers or mechanics are
that facilities provided for employees are provided in such a considered wages paid to such laborers or mechanics,subject
manner that segregation on the basis of race,color, religion, to the provisions of paragraph 1.e.of this section;also, regular
sex,sexual orientation,gender identity,or national origin contributions made or costs incurred for more than a weekly
cannot result. The contractor may neither require such period(but not less often than quarterly)under plans,funds,or
segregated use by written or oral policies nor tolerate such use programs which cover the particular weekly period,are
by employee custom. The contractor's obligation extends deemed to be constructively made or incurred during such
further to ensure that its employees are not assigned to weekly period.Such laborers and mechanics must be paid the
perform their services at any location under the contractor's appropriate wage rate and fringe benefits on the wage
control where the facilities are segregated. The term"facilities" determination for the classification(s)of work actually
includes waiting rooms,work areas, restaurants and other performed,without regard to skill,except as provided in
eating areas,time clocks,restrooms,washrooms, locker paragraph 4.of this section.Laborers or mechanics performing
rooms and other storage or dressing areas,parking lots, work in more than one classification may be compensated at
drinking fountains, recreation or entertainment areas, the rate specified for each classification for the time actually
transportation,and housing provided for employees. The worked therein:Provided,That the employer's payroll records
contractor shall provide separate or single-user restrooms and accurately set forth the time spent in each classification in
necessary dressing or sleeping areas to assure privacy which work is performed.The wage determination(including
between sexes. any additional classifications and wage rates conformed under
paragraph 1.c.of this section)and the Davis-Bacon poster
(WH-1321)must be posted at all times by the contractor and
IV. DAVIS-BACON AND RELATED ACT PROVISIONS its subcontractors at the site of the work in a prominent and
accessible place where it can be easily seen by the workers.
This section is applicable to all Federal-aid construction
projects exceeding$2,000 and to all related subcontracts and b.Frequently recurring classifications. (1)In addition a wage
lower-tier subcontracts(regardless of subcontract size), in and fringe benefit rates that have been determined to be
accordance with 29 CFR 5.5. The requirements apply to all prevailing under the procedures set forth in 29 CFR part 1, a
projects located within the right-of-way of a roadway that is wage determination may contain,pursuant to§1.3(f),wage
functionally classified as Federal-aid highway. 23 U.S.C. 113. and fringe benefit rates for classifications of laborers and
This excludes roadways functionally classified as local roads mechanics for which conformance requests are regularly
or rural minor collectors,which are exempt. 23 U.S.C. 101, submitted pursuant to paragraph 1.c.of this section, provided
Where applicable law requires that projects be treated as a that:
project on a Federal-aid highway,the provisions of this subpart
will apply regardless of the location of the project. Examples (i)The work performed by the classification is not
include:Surface Transportation Block Grant Program projects performed by a classification in the wage determination for
funded under 23 U.S.C. 133[excluding recreational trails which a prevailing wage rate has been determined;
projects],the Nationally Significant Freight and Highway
4
(ii)The classification is used in the area by the under paragraphs 1.c.(3)and(4)of this section.The contractor
construction industry;and must furnish a written copy of such determination to each
affected worker or it must be posted as a part of the wage
(iii)The wage rate for the classification bears a reasonable determination.The wage rate(including fringe benefits where
relationship to the prevailing wage rates contained in the appropriate)determined pursuant to paragraph 1.c.(3)or(4)of
this section must be paid to all workers performing work in the
wage determination. classification under this contract from the first day on which
work is performed in the classification.
(2)The Administrator will establish wage rates for such
classifications in accordance with paragraph 1.c.(1)(iii)of this d.Fringe benefits not expressed as an hourly rate.
section.Work performed in such a classification must be paid Whenever the minimum wage rate prescribed in the contract
at no less than the wage and fringe benefit rate listed on the for a class of laborers or mechanics includes a fringe benefit
wage determination for such classification. which is not expressed as an hourly rate,the contractor may
either pay the benefit as stated in the wage determination or
c.Conformance. (1)The contracting officer must require that may pay another bona fide fringe benefit or an hourly cash
any class of laborers or mechanics,including helpers,which is equivalent thereof.
not listed in the wage determination and which is to be
employed under the contract be classified in conformance with e. Unfunded plans. If the contractor does not make
the wage determination.Conformance of an additional payments to a trustee or other third person,the contractor may
classification and wage rate and fringe benefits is appropriate consider as part of the wages of any laborer or mechanic the
only when the following criteria have been met: amount of any costs reasonably anticipated in providing bona
fide fringe benefits under a plan or program,Provided,That
(i)The work to be performed by the classification the Secretary of Labor has found, upon the written request of
requested is not performed by a classification in the wage the contractor, in accordance with the criteria set forth in
determination;and §5.28,that the applicable standards of the Davis-Bacon Act
have been met.The Secretary of Labor may require the
u The classification is used in the area b the contractor to set aside in a separate account assets for the
( ) y
construction industry;and meeting of obligations under the plan or program
iu The proposed wage rate,including an bona fide fringe f.Interest. In the event of a failure to pay all or part of the
( ) p p g g y g wages required by the contract,the contractor will be required
benefits,bears a reasonable relationship to the wage rates to pay interest on any underpayment of wages.
contained in the wage determination.
(2)The conformance process may not be used to split, 2. Withholding(29 CFR 5.5)
subdivide,or otherwise avoid application of classifications
listed in the wage determination. a. Withholding requirements.The contracting agency may,
upon its own action,or must, upon written request of an
(3)If the contractor and the laborers and mechanics to be authorized representative of the Department of Labor,withhold
or cause to be withheld from the contractor so much of the
employed in the classification(if known),or their accrued payments or advances as may be considered
representatives,and the contracting officer agree on the necessary to satisfy the liabilities of the prime contractor or any
classification and wage rate(including the amount designated subcontractor for the full amount of wages and monetary relief,
for fringe benefits where appropriate),a report of the action including interest, required by the clauses set forth in this
taken will be sent by the contracting officer by email to section for violations of this contract,or to satisfy any such
DBAconformance dai. ov.The Administrator,or an liabilities required by any other Federal contract,or federally
authorized representative,will approve,modify,or disapprove assisted contract subject to Davis-Bacon labor standards,that
every additional classification action within 30 days of receipt is held by the same prime contractor(as defined in§5.2).The
and so advise the contracting officer or will notify the necessary funds may be withheld from the contractor under
contracting officer within the 30—day period that additional time this contract,any other Federal contract with the same prime
is necessary contractor,or any other federally assisted contract that is
subject to Davis-Bacon labor standards requirements and is
(4)In the event the contractor,the laborers or mechanics to held by the same prime contractor, regardless of whether the
be employed in the classification or their representatives,and other contract was awarded or assisted by the same agency,
the contracting officer do not agree on the proposed and such funds may be used to satisfy the contractor liability
classification and wage rate(including the amount designated for which the funds were withheld. In the event of a
for fringe benefits,where appropriate),the contracting officer contractor's failure to pay any laborer or mechanic,including
will, by email to❑BAconformance oQdol.gov, refer the any apprentice or helper working on the site of the work all or
questions, including the views of all interested parties and the part of the wages required by the contract,or upon the
recommendation of the contracting officer,to the Administrator contractor's failure to submit the required records as discussed
for determination The Administrator,or an authorized in paragraph 3.d.of this section,the contracting agency may
representative,will issue a determination within 30 days of on its own initiative and after written notice to the contractor,
receipt and so advise the contracting officer or will notify the take such action as may be necessary to cause the
contracting officer within the 30—day period that additional time suspension of any further payment,advance,or guarantee of
Is necessary. funds until such violations have ceased
(5)The contracting officer must promptly notify the b.Priority to withheld funds.The Department has priority to
contractor of the action taken by the Wage and Hour Division funds withheld or to be withheld in accordance with paragraph
5
2.a.of this section or Section V,paragraph 3.a.,or both,over agency.The prime contractor is responsible for the submission
claims to those funds by: of all certified payrolls by all subcontractors.A contracting
agency or prime contractor may permit or require contractors
1 A contractor's Buret ies to submit certified payrolls through an electronic system,as
( ) y(' ), including without limitation long as the electronic system requires a legally valid electronic
performance bond sureties and payment bond sureties; signature;the system allows the contractor,the contracting
agency,and the Department of Labor to access the certified
(2)A contracting agency for its reprocurement costs; payrolls upon request for at least 3 years after the work on the
prime contract has been completed;and the contracting
(3)A trustee(s)(either a court-appointed trustee or a U.S. agency or prime contractor permits other methods of
trustee,or both)in bankruptcy of a contractor,or a contractor's submission in situations where the contractor is unable or
bankruptcy estate; limited in its ability to use or access the electronic system.
(4)A contractor's assignee(s); (2)Information required.The certified payrolls submitted
must set out accurately and completely all of the information
required to be maintained under paragraph 3 a.(2)of this
(5)A contractor's successor(s);or section,except that full Social Security numbers and last
known addresses,telephone numbers,and email addresses
(6)A claim asserted under the Prompt Payment Act,31 must not be included on weekly transmittals.Instead,the
U.S.C.3901-3907. certified payrolls need only include an individually identifying
number for each worker(e.g,the last four digits of the
worker's Social Security number).The required weekly
3.Records and certified payrolls(29 CFR 5.5) certified payroll information may be submitted using Optional
Form WH-347 or in any other format desired. Optional Form
WH-347 is available for this purpose from the Wage and Hour
a. Basic record requirements(1)Length of record retention. Division w e b s i t e at Mt .,#www.dof.q o v1site s1dola ovlfiles1WHD1
All regular payrolls and other basic records must be teoacylfiteslwh3471.odf or its successor website. It is not a
maintained by the contractor and any subcontractor during the violation of this section for a prime contractor to require a
course of the work and preserved for all laborers and subcontractor to provide full Social Security numbers and last
mechanics working at the site of the work(or otherwise known addresses,telephone numbers, and email addresses to
working in construction or development of the project under a the prime contractor for its own records,without weekly
development statute)for a period of at least 3 years after all submission by the subcontractor to the contracting agency.
the work on the prime contract is completed.
(2)Information required. Such records must contain the (3)Statement of Compliance. Each certified payroll
submitted must be accompanied by a"Statement of
name;Social Security number;last known address,telephone Compliance,"signed by the contractor or subcontractor,or the
number,and email address of each such worker;each contractor's or subcontractor's agent who pays or supervises
worker's correct classification(s)of work actually performed; the payment of the persons working on the contract,and must
hourly rates of wages paid(including rates of contributions or certify the following:
costs anticipated for bona fide fringe benefits or cash
equivalents thereof of the types described in 40 U.S.C.
3141(2)(B)of the Davis-Bacon Act);daily and weekly number (i)That the certified payroll for the payroll period contains
of hours actually worked in total and on each covered contract; the information required to be provided under paragraph 3.b.
deductions made;and actual wages paid. of this section,the appropriate information and basic records
are being maintained under paragraph 3.a.of this section,
(3)Additional records relating to fringe benefits.Whenever and such information and records are correct and complete;
the Secretary of Labor has found under paragraph 1.e.of this
section that the wages of any laborer or mechanic include the (ii)That each laborer or mechanic(including each helper
amount of any costs reasonably anticipated in providing and apprentice)working on the contract during the payroll
benefits under a plan or program described in 40 U.S.C. period has been paid the full weekly wages earned,without
3141(2)(B)of the Davis-Bacon Act,the contractor must rebate,either directly or indirectly,and that no deductions
maintain records which show that the commitment to provide have been made either directly or indirectly from the full
such benefits is enforceable,that the plan or program is wages earned,other than permissible deductions as set
financially responsible,and that the plan or program has been forth in 29 CFR part 3;and
communicated in writing to the laborers or mechanics affected,
and records which show the costs anticipated or the actual (iii)That each laborer or mechanic has been paid not less
cost incurred in providing such benefits than the applicable wage rates and fringe benefits or cash
equivalents for the classification(s)of work actually
(4)Additional records relating to apprenticeship.Contractors performed,as specified in the applicable wage determination
with apprentices working under approved programs must incorporated into the contract.
maintain written evidence of the registration of apprenticeship
programs,the registration of the apprentices,and the ratios
and wage rates prescribed in the applicable programs. (4) Use of Optional Form WH-347 The weekly submission
of a properly executed certification set forth on the reverse
side of Optional Form WH-347 will satisfy the requirement for
b. Certified payroll requirements(1)Frequency and method submission of the"Statement of Compliance"required by
of submission.The contractor or subcontractor must submit paragraph 3.b.(3)of this section.
weekly,for each week in which any DBA-or Related Acts-
covered work is performed,certified payrolls to the contracting
6
(5)Signature.The signature by the contractor, of each covered worker,and must provide them upon request
subcontractor,or the contractor's or subcontractor's agent to the contracting agency,the State DOT,the FHWA,the
must be an original handwritten signature or a legally valid contractor,or the Wage and Hour Division of the Department
electronic signature. of Labor for purposes of an investigation or other compliance
action.
(6)Falsification The falsification of any of the above
certifications may subject the contractor or subcontractor to 4.Apprentices and equal employment opportunity(29 CFR
civil or criminal prosecution under 18 U.S.C. 1001 and 31 5.5)
U S.C.3729.
a.Apprentices(1)Rate of pay.Apprentices will be permitted
(7)Length of certified payroll retention.The contractor or to work at less than the predetermined rate for the work they
subcontractor must preserve all certified payrolls during the perfom)when they are employed pursuant to and individually
course of the work and for a period of 3 years after all the work registered in a bona fide apprenticeship program registered
on the prime contract is completed. with the U.S.Department of Labor.Employment and Training
Administration,Office of Apprenticeship(OA),or with a State
c. Contracts,subcontracts,and related documents.The Apprenticeship Agency recognized by the OA.A person who is
contractor or subcontractor must maintain this contract or not individually registered in the program,but who has been
subcontract and related documents including,without certified by the OA or a State Apprenticeship Agency(where
limitation, bids,proposals,amendments,modifications,and appropriate)to be eligible for probationary employment as an
extensions.The contractor or subcontractor must preserve apprentice,will be permitted to work at less than the
these contracts,subcontracts,and related documents during predetermined rate for the work they perform in the first 90
the course of the work and for a period of 3 years after all the days of probationary employment as an apprentice in such a
work on the prime contract is completed. program.In the event the OA or a State Apprenticeship
Agency recognized by the OA withdraws approval of an
apprenticeship program,the contractor will no longer be
d Required disclosures and access(1)Required record permitted to use apprentices at less than the applicable
disclosures and access to workers.The contractor or predetermined rate for the work performed until an acceptable
subcontractor must make the records required under program is approved.
paragraphs 3.a.through 3 c of this section,and any other
documents that the contracting agency,the State DOT,the (2)Fringe benefits.Apprentices must be paid fringe benefits
FHWA,or the Department of Labor deems necessary to in accordance with the provisions of the apprenticeship
determine compliance with the labor standards provisions of program. If the apprenticeship program does not specify fringe
any of the applicable statutes referenced by§5.1,available for benefits,apprentices must be paid the full amount of fringe
inspection, copying,or transcription by authorized benefits listed on the wage determination for the applicable
representatives of the contracting agency,the State DOT,the classification. If the Administrator determines that a different
FHWA,or the Department of Labor,and must permit such practice prevails for the applicable apprentice classification,
representatives to interview workers during working hours on fringe benefits must be paid in accordance with that
the job determination.
(2)Sanctions for non-compliance with records and worker (3)Apprenticeship ratio.The allowable ratio of apprentices to
access requirements. If the contractor or subcontractor fails to journeyworkers on the job site in any craft classification must
submit the required records or to make them available,or not be greater than the ratio permitted to the contractor as to
refuses to permit worker interviews during working hours on the entire work force under the registered program or the ratio
the job,the Federal agency may,after written notice to the applicable to the locality of the project pursuant to paragraph
contractor,sponsor,applicant,owner,or other entity,as the 4.a.(4)of this section.Any worker listed on a payroll at an
case may be,that maintains such records or that employs apprentice wage rate,who is not registered or otherwise
such workers,take such action as may be necessary to cause employed as stated in paragraph 4.a.(1)of this section, must
the suspension of any further payment,advance,or guarantee be paid not less than the applicable wage rate on the wage
of funds. Furthermore,failure to submit the required records determination for the classification of work actually performed.
upon request or to make such records available,or to permit In addition,any apprentice performing work on the job site in
worker interviews during working hours on the job,may be excess of the ratio permitted under this section must be paid
grounds for debarment action pursuant to§5.12. In addition, not less than the applicable wage rate on the wage
any contractor or other person that fails to submit the required determination for the work actually performed.
records or make those records available to WHD within the
time WHD requests that the records be produced will be
precluded from introducing as evidence in an administrative (4)Reciprocity of ratios and wage rates.Where a contractor
proceeding under 29 CFR part 6 any of the required records is performing construction on a project in a totality other than
that were not provided or made available to WHD.WHD will the locality in which its program is registered,the ratios and
take into consideration a reasonable request from the wage rates(expressed in percentages of the journeyworker's
contractor or person for an extension of the time for hourly rate)applicable within the locality in which the
submission of records.WHD will determine the construction is being performed must be observed. If there is
reasonableness of the request and may consider,among other no applicable ratio or wage rate for the locality of the project,
things,the location of the records and the volume of the ratio and wage rate specified in the contractor's registered
production. program must be observed.
(3)Required information disclosures.Contractors and b.Equal employment opportunity.The use of apprentices
subcontractors must maintain the full Social Security number and journeyworkers under this part must be in conformity with
and last known address,telephone number,and email address
7
the equal employment opportunity requirements of Executive b.No part of this contract shall be subcontracted to any
Order 11246,as amended,and 29 CFR Dart 30. person or firm ineligible for award of a Government contract by
virtue of 40 U.S.C.3144(b)or§5.12(a).
c Apprentices and Trainees(programs of the U.S DOT)
c.The penalty for making false statements is prescribed in
Apprentices and trainees working under apprenticeship and the U.S.Code,Title 18 Crimes and Criminal Procedure, 18
skill training programs which have been certified by the U.S C.1001.
Secretary of Transportation as promoting EEO in connection
with Federal-aid highway construction programs are not 11.Anti-retaliation.It is unlawful for any person to discharge,
subject to the requirements of paragraph 4 of this Section IV. demote, intimidate,threaten, restrain,coerce,blacklist, harass,
23 CFR 230.111(e)(2).The straight time hourly wage rates for or in any other manner discriminate against,or to cause any
apprentices and trainees under such programs will be person to discharge,demote,intimidate,threaten, restrain,
established by the particular programs.The ratio of coerce,blacklist,harass,or in any other manner discriminate
apprentices and trainees to journeyworkers shall not be against, any worker or job applicant for:
greater than permitted by the terms of the particular program.
a. Notifying any contractor of any conduct which the worker
5.Compliance with Copeland Act requirements. The reasonably believes constitutes a violation of the DBA,Related
contractor shall comply with the requirements of 29 CFR part Acts,this part,or 29 CFR Dart 1 or 3;
3,which are incorporated by reference in this contract as
provided in 29 CFR 5.5 b.Filing any complaint, initiating or causing to be initiated
any proceeding,or otherwise asserting or seeking to assert on
6.Subcontracts.The contractor or subcontractor must insert behalf of themselves or others any right or protection under the
FHWA-1273 in any subcontracts,along with the applicable DBA,Related Acts,this part,or 29 CFR Dart 1 or 3,-
wage determination(s)and such other clauses or contract
modifications as the contracting agency may by appropriate c.Cooperating in any investigation or other compliance
instructions require,and a clause requiring the subcontractors action,or testifying
to include these clauses and wage determination(s)in any in any proceeding under the DBA, Related
Acts,this part,or 29 CFR Dart 1 or 3 or
lower tier subcontracts.The prime contractor is responsible for ;
the compliance by any subcontractor or lower tier
subcontractor with all the contract clauses in this section. In d. Informing any other person about their rights under the
the event of any violations of these clauses,the prime DBA,Related Acts,this part,or 29 CFR part I,or 3
contractor and any subcontractor(s)responsible will be liable
for any unpaid wages and monetary relief, including interest
from the date of the underpayment or loss,due to any workers V. CONTRACT WORK HOURS AND SAFETY STANDARDS
of lower-tier subcontractors,and may be subject to debarment, ACT
as appropriate. 29 CFR 5.5.
7.Contract termination:debarment. A breach of the Pursuant to 29 CFR 5.5(b),the following clauses apply to any
contract clauses in 29 CFR 5.5 may be grounds for termination Federal-aid construction contract in an amount in excess of
of the contract,and for debarment as a contractor and a $100,000 and subject to the overtime provisions of the
subcontractor as provided in 29 CFR 5 12 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
8.Compliance with Davis-Bacon and Related Act terms laborers and mechanics include watchpersons and
requirements. All rulings and interpretations of the Davis- guards.
Bacon and Related Acts contained in 29 CFR parts 1,3,and 5
are herein incorporated by reference in this contract as 1.Overtime requirements. No contractor or subcontractor
provided in 29 CFR 5.5. contractingfor any part of the contract work which may require
or involve the employment of laborers or mechanics shall
9.Disputes concerning labor standards.As provided in 29 require or permit any such laborer or mechanic in any
CFR 5.5,disputes arising out of the labor standards provisions workweek in which he or she is employed on such work to
of this contract shall not be subject to the general disputes work in excess of forty hours in such workweek unless such
clause of this contract Such disputes shall be resolved in laborer or mechanic receives compensation at a rate not less
accordance with the procedures of the Department of Labor than one and one-half times the basic rate of pay for all hours
set forth in 29 CFR parts 5,6,and 7 Disputes within the worked in excess of forty hours in such workweek. 29 CFR
meaning of this clause include disputes between the contractor 5.5
(or any of its subcontractors)and the contracting agency,the
U.S.Department of Labor,or the employees or their
representatives. 2.Violation; liability for unpaid wages;liquidated
damages.In the event of any violation of the clause set forth
in paragraph 1.of this section the contractor and any
10.Certification of eligibility.a.By entering into this contract, subcontractor responsible therefor shall be liable for the
the contractor certifies that neither it nor any person or firm unpaid wages and interest from the date of the underpayment.
who has an interest in the contractor's firm is a person or firm In addition,such contractor and subcontractor shall be liable to
ineligible to be awarded Government contracts by virtue of 40 the United States(in the case of work done under contract for
U.S.C.3144(b)or§5.12(a). 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
8
mechanic,including watchpersons and guards,employed in event of any violations of these clauses,the prime contractor
violation of the clause set forth in paragraph 1.of this section, and any subcontractor(s)responsible will be liable for any
in the sum currently provided in 29 CFR 5.5(b)(2)'for each unpaid wages and monetary relief,including interest from the
calendar day on which such individual was required or date of the underpayment or loss,due to any workers of lower-
permitted to work in excess of the standard workweek of forty tier subcontractors,and associated liquidated damages and
hours without payment of the overtime wages required by the may be subject to debarment,as appropriate.
clause set forth in paragraph 1.of this section.
5.Anti-retaliation.It is unlawful for any person to discharge,
$31 as of January 15,2023(See 88 FR 88 FR 2210)as may demote,intimidate,threaten,restrain,coerce,blacklist,harass,
be adjusted annually by the Department of Labor,pursuant to or in any other manner discriminate against,or to cause any
the Federal Civil Penalties Inflation Adjustment Act of 1990 person to discharge,demote,intimidate,threaten, restrain,
coerce,blacklist,harass,or in any other manner discriminate
3.Withholding for unpaid wages and liquidated damages against,any worker or job applicant for:
a Withholding process.The FHWA or the contracting a.Notifying any contractor of any conduct which the worker
agency may, upon its own action,or must,upon written reasonably believes constitutes a violation of the Contract
request of an authorized representative of the Department of Work Hours and Safety Standards Act(CWHSSA)or its
Labor,withhold or cause to be withheld from the contractor so implementing regulations in this part;
much of the accrued payments or advances as may be
considered necessary to satisfy the liabilities of the prime b.Filing any complaint, initiating or causing to be initiated
contractor or any subcontractor for any unpaid wages; any proceeding,or otherwise asserting or seeking to assert on
monetary relief, including interest;and liquidated damages behalf of themselves or others any right or protection under
required by the clauses set forth in this section on this CWHSSA or this part;
contract, any other Federal contract with the same prime
contractor,or any other federally assisted contract subject to c.Cooperating in any investigation or other compliance
the Contract Work Hours and Safety Standards Act that is held action,or testifying in any proceeding under CWHSSA or this
by the same prime contractor(as defined in§5.2).The part;or
necessary funds may be withheld from the contractor under
this contract,any other Federal contract with the same prime
contractor,or any other federally assisted contract that is d. Informing any other person about their rights under
subject to the Contract Work Hours and Safety Standards Act CWHSSA or this part.
and is held by the same prime contractor, regardless of
whether the other contract was awarded or assisted by the
same agency,and such funds may be used to satisfy the VI.SUBLETTING OR ASSIGNING THE CONTRACT
contractor liability for which the funds were withheld.
This provision is applicable to all Federal-aid construction
b.Priority to withheld funds.The Department has priority to contracts on the National Highway System pursuant to 23 CFR
funds withheld or to be withheld in accordance with Section IV 635.116
paragraph 2.a.or paragraph 3.a.of this section,or both,over
claims to those funds by: 1.The contractor shall perform with its own organization
contract work amounting to not less than 30 percent(or a
(1)A contractor's surety(ies),including without limitation greater percentage if specified elsewhere in the contract)of
performance bond sureties and payment bond sureties; 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
(2)A contracting agency for its reprocurement costs; specialty items performed may be deducted from the total
original can tract price before computing the amount of work
(3)A trustee(s)(either a court-appointed trustee or a U.S. required to be performed by the contractor's own organization
trustee,or both)in bankruptcy of a contractor,or a contractor's (23 CFR 635.116).
bankruptcy estate; a. The term"perform work with its own organization"in
paragraph 1 of Section VI refers to workers employed or
(4)A contractor's assignee(s); leased 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
(5)A contractor's successor(s);or subcontractor or lower tier subcontractor,agents of the prime
contractor,or any other assignees The term may include
(6)A claim asserted under the Prompt Payment Act,31 payments for the costs of hiring leased employees from an
U.S.C.3901-3907. 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
4.Subcontracts.The contractor or subcontractor must insert following conditions: (based on longstanding interpretation)
in any subcontracts the clauses set forth in paragraphs 1.
through 5 of this section and a clause requiring the (1)the prime contractor maintains control over the
subcontractors to include these clauses in any lower tier supervision of the day-to-day activities of the leased
subcontracts.The prime contractor is responsible for employees;
compliance by any subcontractor or lower tier subcontractor (2)the prime contractor remains responsible for the quality
with the clauses set forth in paragraphs 1 through 5 In the of the work of the leased employees;
9
(3)the prime contractor retains all power to accept or health standards(29 CFR Part 1926)promulgated by the
exclude individual employees from work on the project;and Secretary of Labor, in accordance with Section 107 of the
(4)the prime contractor remains ultimately responsible for Contract Work Hours and Safety Standards Act(40 U.S.0
the payment of predetermined minimum wages,the 3704). 29 CFR 1926.10.
submission of payrolls,statements of compliance and all
other Federal regulatory requirements. 3. Pursuant to 29 CFR 1926.3. it is a condition of this contract
that the Secretary of Labor or authorized representative
b."Specialty Items"shall be construed to be limited to work thereof,shall have right of entry to any site of contract
that requires highly specialized knowledge,abilities,or performance to inspect or investigate the matter of compliance
equipment not ordinarily available in the type of contracting with the construction safety and health standards and to carry
organizations qualified and expected to bid or propose on the out the duties of the Secretary under Section 107 of the
contract as a whole and in general are to be limited to minor Contract Work Hours and Safety Standards Act(40 U.S.C.
components of the overall contract. 23 CFR 635.102. 3704).
2.Pursuant to 23 CFR 635.116(a),the contract amount upon
which the requirements set forth in paragraph(1)of Section VI Vill.FALSE STATEMENTS CONCERNING HIGHWAY
is computed includes the cost of material and manufactured PROJECTS
products which are to be purchased or produced by the
contractor under the contract provisions. This provision is applicable to all Federal-aid construction
contracts and to all related subcontracts.
3 Pursuant to 23 CFR 635.116(c),the contractor shall furnish
(a)a competent superintendent or supervisor who is employed In order to assure high quality and durable construction in
by the firm, has full authority to direct performance of the work conformity with approved plans and specifications and a high
in accordance with the contract requirements,and is in charge degree of reliability on statements and representations made
of all construction operations(regardless of who performs the by engineers,contractors,suppliers,and workers on Federal-
work)and(b)such other of its own organizational resources aid highway projects,it is essential that all persons concerned
(supervision,management,and engineering services)as the with the project perform their functions as carefully,thoroughly,
contracting officer determines is necessary to assure the and honestly as possible Willful falsification,distortion,or
performance of the contract. misrepresentation with respect to any facts related to the
project is a violation of Federal law. To prevent any
4 No portion of the contract shall be sublet,assigned or misunderstanding regarding the seriousness of these and
otherwise disposed of except with the written consent of the similar acts,Form FHWA-1022 shall be posted on each
contracting officer,or authorized representative,and such Federal-aid highway project(23 CFR Part 635)in one or more
consent when given shall not be construed to relieve the places where it is readily available to all persons concerned
contractor of any responsibility for the fulfillment of the with the project:
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 18 U.S.C. 1020 reads as follows:
and requirements of the prime contract.(based on long-
standing interpretation of 23 CFR 635 116). "Whoever,being an officer,agent,or employee of the United
States,or of any State or Territory,or whoever,whether a
5 The 30-percent self-performance requirement of paragraph person,association,firm,or corporation,knowingly makes any
(1)is not applicable to design-build contracts; however, false statement,false representation,or false report as to the
contracting agencies may establish their own self-performance character,quality,quantity,or cost of the material used or to
requirements. 23 CFR 635.116(d). 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
VII.SAFETY:ACCIDENT PREVENTION of construction on any highway or related project submitted for
approval to the Secretary of Transportation;or
This provision is applicable to all Federal-aid construction
contracts and to all related subcontracts Whoever knowingly makes any false statement,false
representation,false report or false claim with respect to the
1. In the performance of this contract the contractor shall character,quality,quantity,or cost of any work performed or to
comply with all applicable Federal,State,and local laws be performed,or materials furnished or to be furnished, in
governing safety, health,and sanitation(23 CFR Part 635). connection with the construction of any highway or related
The contractor shall provide all safeguards,safety devices and project approved by the Secretary of Transportation;or
protective equipment and take any other needed actions as it
determines,or as the contracting officer may determine,to be Whoever knowingly makes any false statement or false
reasonably necessary to protect the life and health of representation as to material fact in any statement,certificate,
employees on the job and the safety of the public and to or report submitted pursuant to provisions of the Federal-aid
protect property in connection with the performance of the Roads Act approved July 11, 1916, (39 Stat.355),as
work covered by the contract 23 CFR 635.108. amended and supplemented;
2 It is a condition of this contract,and shall be made a Shall be fined under this title or imprisoned not more than 5
condition of each subcontract,which the contractor enters into years or both."
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
10
IX.IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL
WATER POLLUTION CONTROL ACT(42 U.S.C.7606;2 e.The terms"covered transaction,""debarred,"
CFR 200.88; EO 11738) "suspended,""ineligible,""participant,""person,""principal,"
and"voluntarily excluded,"as used in this clause,are defined
This provision is applicable to all Federal-aid construction in 2 CFR Parts 180,Subpart I, 180.900-180.1020,and 1200.
contracts in excess of$150,000 and to all related "First Tier Covered Transactions"refers to any covered
subcontracts. 48 CFR 2.101;2 CFR 200.327. transaction between a recipient or subrecipient of Federal
funds and a participant(such as the prime or general contract).
By submission of this bid/proposal or the execution of this "Lower Tier Covered Transactions"refers to any covered
contract or subcontract,as appropriate,the bidder, proposer, transaction under a First Tier Covered Transaction(such as
Federal-aid construction contractor,subcontractor,supplier,or subcontracts). "First Tier Participant"refers to the participant
vendor agrees to comply with all applicable standards,orders who has entered into a covered transaction with a recipient or
or regulations issued pursuant to the Clean Air Act(42 U.S.C. subrecipient of Federal funds(such as the prime or general
7401-7671 q)and the Federal Water Pollution Control Act,as contractor). "Lower Tier Participant"refers any participant who
amended(33 U S.C. 1251-1387).Violations must be reported has entered into a covered transaction with a First Tier
to the Federal Highway Administration and the Regional Office Participant or other Lower Tier Participants(such as
of the Environmental Protection Agency. 2 CFR Part 200, subcontractors and suppliers).
Appendix II.
f.The prospective first tier participant agrees by submitting
The contractor agrees to include or cause to be included the this proposal that,should the proposed covered transaction be
requirements of this Section in every subcontract,and further entered intro,it shall not knowingly enter into any lower tier
agrees to take such action as the contracting agency may covered transaction with a person who is debarred,
direct as a means of enforcing such requirements. 2 CFR suspended,declared ineligible,or voluntarily excluded from
200327. participation in this covered transaction,unless authorized by
the department or agency entering into this transaction. 2
CFR 180.330.
X.CERTIFICATION REGARDING DEBARMENT,
SUSPENSION,INELIGIBILITY AND VOLUNTARY g.The prospective first tier participant further agrees by
EXCLUSION submitting this proposal that it will include the clause titled
"Certification Regarding Debarment.Suspension.Ineligibility
This provision is applicable to all Federal-aid construction and Voluntary Exclusion-Lower Tier Covered Transactions,"
contracts,design-build contracts,subcontracts,lower-tier provided by the department or contracting agency,entering
subcontracts, purchase orders,lease agreements,consultant into this covered transaction,without modification,in all lower
contracts or any other covered transaction requiring FHWA tier covered transactions and in all solicitations for lower tier
approval or that is estimated to cost$25,000 or more— as covered transactions exceeding the$25,000 threshold. 2 CFR
defined in 2 CFR Parts 180 and 1200. 2 CFR 180.220 and 180.220 and 180.300.
1200.220.
h.A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
1.Instructions for Certification—First Tier Participants: transaction that is not debarred,suspended,ineligible,or
voluntarily excluded from the covered transaction, unless it
a.By signing and submitting this proposal,the prospective knows that the certification is erroneous. 2 CFR 180.300;
first tier participant is providing the certification set out below. 180.320,and 180.325. A participant is responsible for
ensuring that its principals are not suspended,debarred, or
b.The inability of a person to provide the certification set out otherwise ineligible to participate in covered transactions. 2
below will not necessarily result in denial of participation in this CFR 180.335, To verify the eligibility of its principals,as well
covered transaction.The prospective first tier participant shall as the eligibility of any lower tier prospective participants,each
submit an explanation of why it cannot provide the certification participant may, but is not required to,check the System for
set out below.The certification or explanation will be Award Management website htt s:llwww.sam. ov . 2 CFR
considered in connection with the department or agency's 180.300, 180.320,and 180.325.
determination whether to enter into this transaction.However,
failure of the prospective first tier participant to furnish a i. Nothing contained in the foregoing shall be construed to
certification or an explanation shall disqualify such a person require the establishment of a system of records in order to
from participation in this transaction. 2 CFR 180.320. render in good faith the certification required by this clause.
The knowledge and information of the prospective participant
c The certification in this clause is a material representation is not required to exceed that which is normally possessed by
of fact upon which reliance was placed when the contracting a prudent person in the ordinary course of business dealings.
agency determined to eater into this transaction. If it is later
determined that the prospective participant knowingly rendered j. Except for transactions authorized under paragraph(f)of
an erroneous certification, in addition to other remedies these instructions, if a participant in a covered transaction
available to the Federal Government,the contracting agency knowingly enters into a lower tier covered transaction with a
may terminate this transaction for cause of default. 2 CFR person who is suspended,debarred,ineligible,or voluntarily
180 325 excluded from participation in this transaction, in addition to
other remedies available to the Federal Government,the
d.The prospective first tier participant shall provide department or agency may terminate this transaction for cause
immediate written notice to the contracting agency to whom or default. 2 CFR 180.325.
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 2 CFR 180.345 and 180.350.
11
2. Certification Regarding Debarment,Suspension, this transaction originated may pursue available remedies,
Ineligibility and Voluntary Exclusion—First Tier including suspension and/or debarmen�t.
Participants:
c.The prospective lower tier participant shall provide
a. The prospective first tier participant certifies to the best of immediate written notice to the person to which this proposal is
its knowledge and belief,that it and its principals: submitted if at any time the prospective lower tier participant
learns that its certification was erroneous by reason of
(1) Are not presently debarred,suspended,proposed for changed circumstances. 2 CFR 180.365.
debarment,declared ineligible, or voluntarily excluded from
participating in covered transactions by any Federal d.The terms"covered transaction,""debarred,"
department or agency,2 CFR 180.335;. "suspended,""ineligible,""participant,""person,""principal,"
and"voluntarily excluded,"as used in this clause,are defined
(2) Have not within a three-year period preceding this in 2 CFR Parts 180,Subpart I, 180.900—180.1020,and 1200.
proposal been convicted of or had a civil judgment rendered You may contact the person to which this proposal is
against them for commission of fraud or a criminal offense in submitted for assistance in obtaining a copy of those
connection with obtaining,attempting to obtain,or performing regulations. "First Tier Covered Transactions"refers to any
a public(Federal,State,or local)transaction or contract under covered transaction between a recipient or subrecipient of
a public transaction;violation of Federal or State antitrust Federal funds and a participant(such as the prime or general
statutes or commission of embezzlement,theft,forgery, contract). "Lower Tier Covered Transactions"refers to any
bribery,falsification or destruction of records,making false covered transaction under a First Tier Covered Transaction
statements,or receiving stolen property,2 CFR 180.800; (such as subcontracts). "First Tier Participant'refers to the
participant who has entered into a covered transaction with a
(3) Are not presently indicted for or otherwise criminally or recipient or subrecipient of Federal funds(such as the prime or
civilly charged by a governmental entity(Federal,State or general contractor). "Lower Tier Participant'refers any
local)with commission of any of the offenses enumerated in participant who has entered into a covered transaction with a
paragraph(a)(2)of this certification,2 CFR 180.700 and First Tier Participant or other Lower Tier Participants(such as
180.800;and subcontractors and suppliers).
(4) Have not within a three-year period preceding this e.The prospective lower tier participant agrees by
application/proposal had one or more public transactions submitting this proposal that,should the proposed covered
(Federal,State or local)terminated for cause or default. 2 transaction be entered into,it shall not knowingly enter into
CFR 180.335(d). any lower tier covered transaction with a person who is
debarred,suspended,declared ineligible,or voluntarily
(5)Are not a corporation that has been convicted of a felony excluded from participation in this covered transaction,unless
violation under any Federal law within the two-year period authorized by the department or agency with which this
preceding this proposal(USDOT Order 4200.6 implementing transaction originated. 2 CFR 1200.220 and 1200.332.
appropriations act requirements);and
f.The prospective lower tier participant further agrees by
(6)Are not a corporation with any unpaid Federal tax liability submitting this proposal that it will include this clause titled
that has been assessed,for which all judicial and "Certification Regarding Debarment,Suspension, Ineligibility
administrative remedies have been exhausted,or have lapsed, and Voluntary Exclusion-Lower Tier Covered Transaction,"
and that is not being paid in a timely manner pursuant to an without modification, in all lower tier covered transactions and
agreement with the authority responsible for collecting the tax in all solicitations for lower tier covered transactions exceeding
liability(USDOT Order 4200.6 implementing appropriations act the$25,000 threshold. 2 CFR 180 220 and 1200.220.
requirements).
g.A participant in a covered transaction may rely upon a
b. Where the prospective participant is unable to certify to certification of a prospective participant in a lower tier covered
any of the statements in this certification,such prospective transaction that is not debarred,suspended,ineligible,or
participant should attach an explanation to this proposal. 2 voluntarily excluded from the covered transaction,unless it
CFR 180.335 and 180 340 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
3. Instructions for Certification-Lower Tier Participants: the eligibility of any lower tier prospective participants,each
participant may, but is not required to,check the System for
(Applicable p g ( .sam.4ov/),which is
pp cable to all subcontracts,purchase orders,and other Award Management website h�s:llwww.
lower tier transactions requiring prior FHWA approval or compiled by the General Services Administration. 2 CFR
estimated to cost$25,000 or more-2 CFR Parts 180 and 180.300, 180 320, 180 330,and 180.335.
1200). 2 CFR 180 220 and 1200.220.
h. Nothing contained in the foregoing shall be construed to
a.By signing and submitting this proposal,the prospective require establishment of a system of records in order to render
lower tier participant is providing the certification set out below. in good faith the certification required by this clause The
knowledge and information of participant is not required to
b.The certification in this clause is a material representation exceed that which is normally possessed by a prudent person
of fact upon which reliance was placed when this transaction in the ordinary course of business dealings
was entered into. If it is later determined that the prospective
lower tier participant knowingly rendered an erroneous i.Except for transactions authorized under paragraph a of
certification, in addition to other remedies available to the these instructions, if a participant in a covered transaction
Federal Government,the department,or agency with which knowingly enters into a lower tier covered transaction with a
person who is suspended,debarred, ineligible,or voluntarily
12
excluded from participation in this transaction,in addition to cooperative agreement,the undersigned shall complete and
other remedies available to the Federal Government,the submit Standard Form-LLL,"Disclosure Form to Report
department or agency with which this transaction originated Lobbying,"in accordance with its instructions
may pursue available remedies, including suspension and/or
debarment. 2 CFR 180.325 2.This certification is a material representation of fact upon
which reliance was placed when this transaction was made or
entered into. Submission of this certification is a prerequisite
for making or entering into this transaction imposed by 31
4. Certification Regarding Debarment,Suspension, U.S.C.1352. Any person who fails to file the required
Ineligibility and Voluntary Exclusion--Lower Tier certification shall be subject to a civil penalty of not less than
Participants: $10,000 and not more than$100,000 for each such failure.
a.The prospective lower tier participant certifies,by 3 The prospective participant also agrees by submitting its
submission of this proposal,that neither it nor its principals: bid or proposal that the participant shall require that the
language of this certification be included in all lower tier
(1)is presently debarred,suspended,proposed for subcontracts,which exceed$100,000 and that all such
debarment,declared ineligible,or voluntarily excluded from recipients shall certify and disclose accordingly.
participating in covered transactions by any Federal
department or agency,2 CFR 180 355;
XII. USE OF UNITED STATES-FLAG VESSELS:
(2)is a corporation that has been convicted of a felony
violation under any Federal law within the two-year period This provision is applicable to all Federal-aid construction
preceding this proposal(USDOT Order 4200.6 implementing contracts,design-build contracts,subcontracts,lower-tier
appropriations act requirements);and subcontracts,purchase orders, lease agreements,or any other
covered transaction. 46 CFR Part 381
(3)is a corporation with any unpaid Federal tax liability that
has been assessed,for which all judicial and administrative This requirement applies to material or equipment that is
remedies have been exhausted,or have lapsed,and that is acquired for a specific Federal-aid highway project. 46 CFR
not being paid in a timely manner pursuant to an agreement 381 7 It is not applicable to goods or materials that come into
with the authority responsible for collecting the tax liability. inventories independent of an FHWA funded-contract.
(USDOT Order 4200.6 implementing appropriations act
requirements) When oceanic shipments(or shipments across the Great
Lakes)are necessary for materials or equipment acquired for a
b.Where the prospective lower tier participant is unable to specific Federal-aid construction project,the bidder,proposer,
certify to any of the statements in this certification,such contractor,subcontractor,or vendor agrees:
prospective participant should attach an explanation to this
proposal 1.To utilize privately owned United States-flag commercial
vessels to ship at least 50 percent of the gross tonnage
• • • • • (computed separately for dry bulk carriers,dry cargo liners,
and tankers)involved,whenever shipping any equipment,
material,or commodities pursuant to this contract,to the
XI.CERTIFICATION REGARDING USE OF CONTRACT extent such vessels are available at fair and reasonable rates
FUNDS FOR LOBBYING for United States-flag commercial vessels. 46 CFR 381.7.
This provision is applicable to all Federal-aid construction 2.To furnish within 20 days following the date of loading for
contracts and to all related subcontracts which exceed shipments originating within the United States or within 30
$100,000. 49 CFR Part 20,App.A. working days following the date of loading for shipments
originating outside the United States,a legible copy of a rated,
1.The prospective participant certifies,by signing and on commercial ocean bill-of-lading in English for each
submitting this bid or proposal,to the best of his or her shipment of cargo described in paragraph(b)(1)of this section
knowledge and belief,that: to both the Contracting Officer(through the prime contractor in
the case of subcontractor bills-of-lading)and to the Office of
a No Federal appropriated funds have been paid or will be Cargo and Commercial Sealift(MAR-620),Maritime
paid,by or on behalf of the undersigned,to any person for Administration,Washington, DC 20590.(MARAD requires
influencing or attempting to influence an officer or employee of copies of the ocean carrier's(master)bills of lading,certified
any Federal agency,a Member of Congress,an officer or onboard,dated,with rates and charges.These bills of lading
employee of Congress,or an employee of a Member of may contain business sensitive information and therefore may
Congress in connection with the awarding of any Federal be submitted directly to MARAD by the Ocean Transportation
contract,the making of any Federal grant,the making of any Intermediary on behalf of the contractor). 46 CFR 381.7,
Federal loan,the entering into of any cooperative agreement,
and the extension,continuation,renewal,amendment,or
modification of any Federal contract,grant, loan,or
cooperative agreement
b. If any funds other than Federal appropriated funds have
been paid or will be paid to any person for influencing or
attempting to influence an officer or employee of any Federal
agency,a Member of Congress,an officer or employee of
Congress,or an employee of a Member of Congress in
connection with this Federal contract,grant, loan,or
13
ATTACHMENT A-EMPLOYMENT AND MATERIALS
PREFERENCE FOR APPALACHIAN DEVELOPMENT
HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS
ROAD CONTRACTS(23 CFR 633,Subpart B,Appendix B)
This provision is applicable to all Federal-aid projects funded
under the Appalachian Regional Development Act of 1965.
1. During the performance of this contract,the contractor
undertaking to do work which is,or reasonably may be,done
as on-site work,shall give preference to qualified persons who
regularly reside in the labor area as designated by the DOL
wherein the contract work is situated,or the subregion,or the
Appalachian counties of the State wherein the contract work is
situated,except:
a.To the extent that qualified persons regularly residing in
the area are not available.
b.For the reasonable needs of the contractor to employ
supervisory or specially experienced personnel necessary to
assure an efficient execution of the contract work.
c.For the obligation of the contractor to offer employment to
present or former employees as the result of a lawful collective
bargaining contract,provided that the number of nonresident
persons employed under this subparagraph(1c)shall not
exceed 20 percent of the total number of employees employed
by the contractor on the contract work,except as provided in
subparagraph(4)below.
2.The contractor shall place a job order with the State
Employment Service indicating(a)the classifications of the
laborers,mechanics and other employees required to perform
the contract work,(b)the number of employees required in
each classification,(c)the date on which the participant
estimates such employees will be required,and(d)any other
pertinent information required by the State Employment
Service to complete the job order form. The job order may be
placed with the State Employment Service in writing or by
telephone. If during the course of the contract work,the
information submitted by the contractor in the original job order
is substantially modified,the participant shall promptly notify
the State Employment Service.
3.The contractor shall give full consideration to all qualified
job applicants referred to him by the State Employment
Service. The contractor is not required to grant employment to
any job applicants who, in his opinion,are not qualified to
perform the classification of work required.
4. If,within one week following the placing of a job order by
the contractor with the State Employment Service,the State
Employment Service is unable to refer any qualified job
applicants to the contractor,or less than the number
requested,the State Employment Service will forward a
certificate to the contractor indicating the unavailability of
applicants. Such certificate shall be made a part of the
contractor's permanent project records. Upon receipt of this
certificate,the contractor may employ persons who do not
normally reside in the labor area to fill positions covered by the
certificate, notwithstanding the provisions of subparagraph(1 c)
above.
5. The provisions of 23 CFR 633.207(e)allow the
contracting agency to provide a contractual preference for the
use of mineral resource materials native to the Appalachian
region.
6.The contractor shall include the provisions of Sections 1
through 4 of this Attachment A in every subcontract for work
which is,or reasonably may be,done as on-site work.
14