CC 2024-01-09_09.f. Award Contract Swinging Bridge Retrofit_CushmanItem 9.f.
MEMORANDUM
TO: City Council
FROM: Bill Robeson, Assistant City Manager/Public Works Director
BY: Shannon Sweeney, City Engineer
SUBJECT: Consideration of Award of Contract to Cushman Contracting
Corporation for Construction of the Swinging Bridge Retrofit Project,
PW 2021-06 and Find the Action Exempt from CEQA
SUMMARY: Awarding a contract for the construction of the Swinging Bridge
Retrofit Project and finding the action exempt from California
Environmental Quality Act (“CEQA”) under the CEQA Class 1
Exemption, which applies to the operation, repair, maintenance,
permitting, leasing, licensing, or minor alteration of existing
structures, facilities, mechanical equipment, or topographical features
where the project involves negligible or no expansion of existing or
former use. (State CEQA Guidelines, § 15301).
DATE: January 9, 2024
SUMMARY OF ACTION:
Award a construction contract for the Swinging Bridge Retrofit Project (Project) to
Cushman Contracting Corporation (Cushman).
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
The FY 2023-24 Capital Improvement Program (CIP) budget includes $1,456,589 for the
Swinging Bridge Retrofit Project consisting of the following funds: $500,000 of federal
Community Project Funding/Congressionally Directed Spending (CPFCDS) funds,
$356,297 of American Rescue Plan Act (ARPA) funds, and $600,292 of sales tax
carryover funds.
Six bids were received by the bid opening date and time of December 14, 2023, 2:00 PM.
Bids ranged from $937,000 to $1,961,758.50. The low bid of $937,000 with a 10%
contingency of $93,700, design/construction support, and construction management
costs of $155,000, for a total of $1,185,700.
Page 137 of 282
Item 9.f.
City Council
Consideration of Award of Contract to Cushman Contracting Corporation for
Construction of the Swinging Bridge Retrofit Project, PW 2021-06 and Find the
Action Exempt from CEQA
January 9, 2024
Page 2
RECOMMENDATION:
1) Award a contract for the Swinging Bridge Retrofit Project to Cushman Contracting
Corporation in the amount of $937,000, in substantially final form subject to any minor,
technical or non-substantive changes approved by the City Manager in consultation with
the City Attorney; 2) Authorize the City Manager to approve change orders of 10% of the
contract amount, $93,700, for unanticipated costs during the construction phase of the
Project; and 3) Determine that the Project is categorically exempt from the California
Environmental Quality Act (“CEQA”) under the Class 1 exemption, which applies to the
operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of
existing structures, facilities, mechanical equipment, or topographical features where the
project involves negligible or no expansion of existing or former use. (State CEQA
Guidelines, § 15301).
BACKGROUND:
The Swinging Bridge was originally constructed in early 1875 by the Short family, whose
land was divided by the Arroyo Grande Creek. The bridge spans a total length of 171 feet
and is suspended 40 feet above the creek. The bridge is owned and maintained by the
City of Arroyo Grande and is the only bridge of its kind in California. The bridge was
damaged by a falling tree in March 1995. With strong community support, it was restored
in May 1995. However, during a subsequent review of the bridge, there were indica tions
of structural deficiencies in the foundation. In 2016, a capital improvement project was
added to the budget for Phase 1, which consisted of an evaluation of the critical
components of the bridge by a structural engineer. Then, based on the findings of the
evaluation, Phase 2 of the project would consist of the preparation of plans, specifications
and cost estimates. This would allow the City to publicly advertise the project and through
the bidding process, select a contractor to complete permanent repairs. Phase 3 would
be the construction of the repairs.
Phase 1 was completed in 2016 and identified the needed repairs for Phase 2. The
evaluation prepared in 2016 also recommended a load restriction of no more than five
people on the bridge at any given time until Phases 2 and 3 were completed.
Phases 2 and 3 of the Swinging Bridge project were included in the Capital Improvement
Budget for the FY 2021-23 Biennial Budget with a budget of $616,269 of Local Sales Tax
Funds. On December 14, 2021, the City Council approved construction plans and
specifications for retrofitting and upgrading the structural components of the Swinging
Bridge. The Project consisted of removing and replacing the existing cables and helical
anchors, reinforcing the existing concrete abutments, cleaning and painting the existing
towers, and tightening and/or installing bolts at the suspension bridge wood connections.
At the time, the total estimate for construction of the project was $730,870.
Page 138 of 282
Item 9.f.
City Council
Consideration of Award of Contract to Cushman Contracting Corporation for
Construction of the Swinging Bridge Retrofit Project, PW 2021-06 and Find the
Action Exempt from CEQA
January 9, 2024
Page 3
During the bidding process for the project, the condition of the existing wood members of
the bridge itself was reviewed in detail and it was determined that the treated lumber on
the bridge had exceeded its useful life. To address this, an Addendum was issued
presenting plans that contained a design for replacing the wood members. On February
1, 2022, two bids were received for the project. Based on the bids received, if only the
base bid (structural repairs) was awarded, the total estimate for the project would be
approximately $662,100. If replacement and painting of the treated lumber as an option,
the total estimate for the project would range from approximately $831,200 to $978,400.
Upon receiving and reviewing the bids, staff determined that, had the replacement of the
bridge’s existing wood members been identified prior to bid advertisement, it would have
been part of the base bid and the required contractor licensing would have included both
Class A and Class B licenses, resulting in a larger pool of potential contractors and
perhaps a more competitive bidding environment. Based on these factors, on February
22, 2022, the City Council rejected all bids and directed staff to solicit new bids after
modifications are made to the construction documents to include replacement and
painting of the wood members as part of the base bid, and to include Class A and Class
B contractor licensing for the project.
Once those modifications were made, the project was rebid on October 26, 2022. On the
bid opening date of November 29, 2022, two bids were received for the project, ranging
from $880,061 to $1,431,000. Just before the Project was awarded, the City was notified
that Federal Earmark funding of $500,000, under the “Community Project
Funding/Congressionally Directed Spending (CPFCDS)” program, was allocated to the
Project.
For the City to use this Federal funding to construct the Project, the Project needed to be
“federalized.” This involved rebidding the project with federal language in the bid package,
including rejection of all bids previously received and gaining federal approval of the
design. On February 14, 2023, the City Council rejected the previous bids and directed
staff to solicit new bids after the bid documents were modified to accommodate the federal
funding. The paperwork associated with federalizing the project was completed
November 7, 2023, and federal funds were encumbered at th at time. The project was
advertised that day on the City’s website, in the Tribune, and to appropriate trade journals.
On December 12, 2023, City Council appropriated $356,297 of ARPA funds to this
project. The justification for the use of ARPA funds is to r eplace lost public sector
revenues (referred to as the “revenue loss” use), using this funding to provide government
services to the extent of the reduction in revenue experienced during the pandemic .
Six bids were received by the bid opening date and time of December 14, 2023, 2:00 PM.
Bids ranged from $937,000-$1,961,758.50. The low bid of $937,000 was received from
Cushman Contracting Corporation.
Page 139 of 282
Item 9.f.
City Council
Consideration of Award of Contract to Cushman Contracting Corporation for
Construction of the Swinging Bridge Retrofit Project, PW 2021-06 and Find the
Action Exempt from CEQA
January 9, 2024
Page 4
ANALYSIS OF ISSUES:
This unique and iconic bridge provides safe pedestrian travel between the gazebo in
Olohan Alley at Short Street and Heritage Park. It is well-loved by residents and is a tourist
attraction for visitors.
Cushman listed multiple references, all of which involved construction, rehabilitation, or
modification of pedestrian bridges. All references that responded indicated that this
contractor performed quality work, was responsive, and finished t he projects on time and
on budget.
ALTERNATIVES:
The following alternatives are provided for the Council’s consideration:
1. Award a contract for the Swinging Bridge Retrofit Project to Cushman Contracting
Corporation in the amount of $937,000, in substantially final form subject to any
minor, technical or non-substantive changes approved by the City Manager in
consultation with the City Attorney; 2) Authorize the City Manager to approve
change orders for 10% of the contract amount, $93,700, for unanticipated costs
during the construction phase of the project; and 3) Determine that the project is
categorically exempt from the California Environmental Quality Act (CEQA) under
the Class 1 exemption, which applies to the operation, repair, maintenance,
permitting, leasing, licensing, or minor alteration of existing structures, facilities,
mechanical equipment, or topographical features where the project involves
negligible or no expansion of existing or former use. (State CEQA Guidelines, §
15301);
2. Do not approve staff’s recommendations and request further information;
3. Modify staff’s recommendation and approve; or
4. Provide other direction to staff.
ADVANTAGES:
Retrofit of the Swinging Bridge will remove the 5 -person maximum weight limit and
provide a safe non-motorized crossing of Arroyo Grande Creek.
This project is anticipated to take 140 working days to complete. Award of the project at
this time will allow for an estimated project start date of February 6, 2024, and completion
on August 23, 2024, in advance of the Harvest Festival in September. Starting the project
in February enables materials with long lead times to be purchased so that work in the
creek can be performed during the allowable window of June 3 rd through September
30th.
Page 140 of 282
Item 9.f.
City Council
Consideration of Award of Contract to Cushman Contracting Corporation for
Construction of the Swinging Bridge Retrofit Project, PW 2021-06 and Find the
Action Exempt from CEQA
January 9, 2024
Page 5
DISADVANTAGES:
The Swinging Bridge will be closed during construction and some adjacent parking
spaces will be needed to accommodate construction activities. Adjacent residents and
businesses will experience construction noise during the project.
ENVIRONMENTAL REVIEW:
The project is categorically exempt from the California Environmental Quality Act (CEQA)
under the Class 1 exemption, which applies to the operation, repair, maintenance,
permitting, leasing, licensing, or minor alteration of existing structures, facilities,
mechanical equipment, or topographical features where the project involves negligible or
no expansion of existing or former use. (State CEQA Guidelines, § 15301). A Notice of
Exemption for this project was filed with the County of San Luis Obispo on February 18,
2021. As part of the design, permits for this project have been obtained from California
Fish and Wildlife and Regional Water Quality Control Board. Mitigation as required by
these permits has been incorporated into the plans and specifications.
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted at City Hall and on the City’s website in accordance with
Government Code Section 54954.2.
Attachments:
1. Bid Opening Log Sheet
2. Proposed Agreement
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ATTACHMENT 1
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ATTACHMENT 2
CONTRACT
for the Construction of:
THE RETROFIT OF SWINGING BRIDGE OVER ARROYO GRANDE CREEK
THIS AGREEMENT, made and entered into this 9th day of January, 2024, by and
between the CITY OF ARROYO GRANDE, a municipal corporation of the State of
California, hereinafter designated City, party of the first part, and CUSHMAN
CONTRACTING CORPORATION, hereinafter designated as Contractor, party of the
second part,
WITNESSETH: That the parties hereto do mutually agree as follows:
ARTICLE I. Scope of Work. For and in consideration of the payments and agreements
hereinafter mentioned to be made and performed by City, Contractor agrees with City to
furnish all materials, equipment and labor and construct facilities for City, and to perform
and complete in a good and workmanlike manner all the work pertaining thereto shown
on the plans and described in the specifications hereto attached, and to furnish at his own
proper cost and expense all tools, equipment, labor, and materials necessary therefore,
except such materials as in the said specifications are stipulated to be furnished by City,
and to do everything required by this Contract and the said specifications and plans, and
the requirements of the Engineer under them, to wit:
Item Item Unit of Estimated Item Price Total
No. Description Measure Quantity (in figures) (in figures)
BASE BID
1 BRIDGE RETROFIT LS 1 937,000 937,000
Base Bid Total $937,000
Nine hundred thirty-seven thousand dollars and zero cents (Price in Words)
Company Name: Cushman Contracting Corporation
The Bidder shall break down the lump sum price per the following Schedule of Values:
Prices listed below shall total the lump sum price above.
1. Mobilization $ 206,520
2. Remove existing wind cables and helical anchors and install new wind cables and
helical anchors $ 90,000
3. Install new CIDH piles and pile cap to reinforce existing abutments
$ 152,000
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ATTACHMENT 2
4. Remove existing rod hangers and replace with new cable/chain hangers and adjust
bridge profile $ 98,000
5. Clean and paint existing and new steel at towers and dispose of lead paint. Clean
and paint new steel hardware and existing galvanized steel members.
$ 54,000
6. Install new backspan cables at each tower at each abutment and install new helical
anchors at ends $ 85,000
7. Remove and replace existing planters to permit installation of new backspan cables
and helical anchors at Abutment 1 $ 44,600
8. Remove and replace existing landscaping, decorative hardscape, curb and gutter,
and AC paving to permit installation of new backspan cables and helical anchors at
Abutment 2
$ 41,500
9. Removal of existing wood members and replacing each component with new wood
members and composite decking. Install new center 2-3x6 stringers. Remove
existing steel connections, paint and reinstall. Remove and reinstall existing chain
link fabric. Install new steel hardware.
$ 126,750
10. Paint new wood members
$ 15,120
11. Miscellaneous work such as: pedestrian detour signing, temporary construction
fencing for work area, Temporary silt fence, permit compliance
$ 4,500
12. All other work shown on the plans, and other work required to complete the work
listed in the schedule of values
$ 10
13. Install a composite lumber cap added to the top of the wood railing
$ 15,000
14. Install new chain link fabric $ 4,000
ARTICLE II. Compensation and Payment. For furnishing all said equipment, materials
and labor, performing demolition as required, and doing all the work contemplated and
embraced in this Contract; and for all loss and damage arising out of the nature of the work
aforesaid, or from the action of the elements or from any unforeseen difficulties which may
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ATTACHMENT 2
arise or be encountered in the prosecution of the work until its acceptance by City, and for
all risks of every description connected with the work; also for all expenses incurred by or
in consequence of the suspension or discontinuance of work, except such as in the said
specifications are expressly stipulated to be borne by City; and for well and faithfully
completing the work and the whole thereof, in the manner shown and described in the said
plans and specifications and in accordance with the requirements of the City Engineer
under them, City will pay and Contractor shall receive as full compensation therefore the
amounts for such work as installed for the unit prices bid therefore in accordance with the
proposal of Contractor.
Final payment, constituting the entire unpaid balance of the Agreement Sum, shall be paid
by the City to the Contractor no sooner than thirty-five (35) days after a Notice of Completion
has been recorded, unless otherwise stipulated in the Notice of Completion, provided the
work has then been completed, the Agreement fully performed, and a final Certificate for
Payment has been issued by the City.
This Agreement is subject to the provisions of Article 1.7 (commencing at Section
20104.50) of Division 2, Part 3 of the Public Contract Code regarding prompt payment of
contractors by local governments. Article 1.7 mandates certain procedures for the payment
of undisputed and properly submitted payment requests within 30 days after receipt, for the
review of payment requests, for notice to Contractor of improper payment requests, and
provides for the payment of interest on progress payment requests which are not timely
made in accordance with that Article. This Agreement hereby incorporates the provisions
of Article 1.7 as though fully set forth herein.
ARTICLE III. Full Performance. City hereby promises and agrees with said Contractor
to employ, and does hereby employ, said Contractor to provide the materials and to do the
work according to the terms and conditions herein contained and referred to, for the prices
aforesaid, and hereby contracts to pay the same at the time, in the manner and upon the
conditions set forth in the specifications; and the said parties for themselves, their heirs,
executors, administrators, successors, and assigns, do hereby agree to full performance of
the covenants herein contained.
ARTICLE IV. Contract Documents. Contract Documents shall consist of The Notice to
Contractors, the Statement of Prevailing Wages, the Bid Requirements, the Contract Bid,
the Bond for Faithful Performance, the Bond for Materials and Laborers, the Contract
Agreement, the Standard Specifications & Engineering Standards, the Special Provisions
and the Project Plans mentioned therein and titled “THE RETROFIT OF SWINGING
BRIDGE OVER ARROYO GRANDE CREEK, PW 2021-06” all of which are hereto
attached and are hereby incorporated in and made a part of this Contract.
ARTICLE V. Bonds. Contractor shall forthwith furnish in triplicate, a faithful performance
bond in an amount equal to 100% of the contract price and a labor and materials bond in
an amount equal to 100% of the contract price, both bonds to be written by a surety
company acceptable to City and in the form prescribed by law.
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ATTACHMENT 2
ARTICLE VI. Time for Completion. All of Contractor’s work on the Project shall be
completed within durations established for the individual activities as set forth in the
Project Construction Schedule. All work shall commence ten (10) working days from the
start of contract time. Contractor shall refer to the invitations for bids, and Project Plans
and Specifications, all of which, as set forth below, are incorporated herein by reference,
for contractual obligations regarding individual activity durations. The aggregate sum total
work of all individual Prime Contractors to the City comprises the entire “Project” and shall
be commenced and completed in conformance with the Project Construction Schedule.
The entire Project shall be completed within 140 working days.
ARTICLE VII. Liquidated Damages. Pursuant to Government Code Section 53069.85,
if work is not completed within the contract time or in strict accordance with the Project
Schedule, it is understood, acknowledged and agreed that the City will suffer damage. It
is therefore agreed that the Contractor shall pay to the City the sum of Three thousand
and six hundred ($3,600.00) for each and every calendar day of delay beyond the
Contract Time, or beyond any completion schedule, construction schedule or Project
milestones established in or pursuant to the Project Schedule, or beyond the time
indicated in the Project Schedule for any individual Contract activity.
Contractor expressly understands, acknowledges and agrees that such liquidated
damages can and shall be imposed if the Contractor does not meet each and every
aspect of any activity schedule, completion schedule, construction schedule or Project
milestones established in or pursuant to the Project Schedule. If the City accepts work or
makes any payment under this Agreement after a default by reason of delays, the
acceptance of such work and/or payment(s) shall in no respect constitute a waiver or
modification of any provisions regarding Contract Time , a completion schedule, the
Project Schedule or the accrual of liquidated damages. In the event the same is not paid,
the Contractor further agrees that the City may deduct the amount thereof from any
money due or that may become due the Contractor under the Agreement. This paragraph
does not exclude recovery of damages under provisions of the Contract Documents, and
is expressly in addition to the City’s ability to seek other damages.
Contractor is to refer to the Project Construction Schedule for duration of individual
activities. Liquidated damages may be assessed if any individual activity duration
exceeds the time indicated for that activity on the Project Construction Schedule .
ARTICLE VIII. Indemnification. Contractor shall indemnify the City as set forth in
Section 7-1.05 of the Standard Specifications and Engineering Standards.
ARTICLE IX. Insurance. Contractor shall provide insurance as set forth in Section 7-
1.06 of the Standard Specifications and Engineering Standards. Maintenance of required
insurance coverage is a material element of this Contract and failure to maintain or renew
coverage or to provide evidence of renewal shall be a material breach of this Contract.
ARTICLE X. Governing Documents. It is further expressly agreed by and between the
parties hereto that should there be any conflict between the terms of this instrument and
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ATTACHMENT 2
the bid or proposal therefore, then this instrument shall control and nothing herein shall
be considered as an acceptance of the said terms of said bid or proposal conflicting
herewith.
ARTICLE XI. Compliance with Statutes and Regulations. Contractor will be
knowledgeable of and will comply with all applicable federal, state, county and city
statutes, rules, regulations, ordinances and orders.
ARTICLE XII. Notice. All notices or other official correspondence relating to contractual
matters between the parties hereto shall be made by personal service or by first class
mail, postage prepaid, addressed to the parties as follows:
City: City Clerk
City of Arroyo Grande
300 East Branch Street
Arroyo Grande, California 93420
Contractor: Kyle Cushman
Cushman Contracting Corporation
5254 Overpass Road
Goleta, CA 93111
ARTICLE XIII. Severability. If any part of this Contract is held invalid by a court of
competent jurisdiction, the balance shall retain its full force and effect.
ARTICLE XIV. Governing Law; Jurisdiction. This Contract will be administered and
interpreted under the laws of the State of California. Jurisdiction of any litigation arising
from the Contract will be in San Luis Obispo County, California.
ARTICLE XV. Authorization. All officers and individuals executing this and other
documents on behalf of the respective parties hereby certify and warrant that they have
the capacity and have been duly authorized to execute said documents on behalf of the
entities indicated.
ARTICLE XVI. Provisions Required by Law. Each and every provision of law and
clause required by law to be inserted in this Contract, including but not limited to the
following statutorily required provisions, shall be deemed to be inserted herein and the
Contract shall be read and enforced as though it were included herein, and if through
mistake or otherwise any such provision is not inserted, or is not currently inserted, then
upon application of either party the Contract shall forthwith be physically amended to
make such insertion or correction.
The following statutorily required provisions hereby apply to this contract:
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Record Audit. In accordance with Government Code, Section 8546.7, records of both
the City and the Contractor shall be subject to examination and audit by the Auditor
General for a period of three (3) years after final payment.
Retention of Securities. Public Contract Code Section 22300 permits the substitution
of securities for any monies withheld by a public agency to ensure performance under a
contract, at the request and expense of the Contractor.
Claims. In accordance with the requirements of Public Contract Code Section 9204(e),
a copy of Public Contract Code Section 9204 is attached hereto and made a part hereof.
Prevailing Wages and DIR Registration. In accordance with California Labor Code
Section 1725.5, Contractors and Subcontractors (as defined by California Labor Code
Section 1722.1) bidding on or engaging in the performance of any Public Works contracts
in California shall be registered with the Department of Industrial Relation.
In accordance with California Labor Code Section 1770 and 1773, the City has
determined that prevailing wage rates apply to this project. Copies of the prevailing rates
of per diem wages applicable to this Contract are available from the California Division of
Labor Statistics and Research at www.dir.ca.gov/dslr/PWP/index.htm or 455 Golden
Gate Ave. 9th Floor, San Francisco, CA 94102. Any employee whose type of work is not
covered by any of the classified wage rates shall be paid not less than the rate of wage
listed for the classification which most nearly corresponds to the type of work performed.
Pursuant to California Labor Code Section 1775, the Contractor shall forfeit no more than
$200 per calendar day, or portion of a day, for each worker paid less than the prevailing
rates for such work or craft, and the penalty shall be imposed and distributed pursuant to
Section 1775.
The following Labor Code sections are hereby referenced and made a part of this
Agreement:
1. Section 1775 - Penalty for Failure to Comply with Prevailing Wage Rates.
3. Section 1777.5 - Apprenticeship Requirements.
4. Section 1813 - Penalty for Failure to Pay Overtime.
5. Sections 1810 and 1811 - Working Hour Restrictions.
6. Section 1776 - Payroll Records.
7. Section 1773.8 - Travel and Subsistence Pay.
The City will not recognize any claims for additional compensation because of the
payment of the wages set forth in the Contract.
In accordance with the requirements of Labor Code Section 1771.4(a)(1), this project is
subject to compliance monitoring and enforcement by the Department of Industrial
Relations
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In accordance with the provisions of the California Labor Code, contractors or
subcontractors may not perform work on a public works project with a subcontractor who
is ineligible to perform work on a public project pursuant to Section 1777.1 or Section
1777.17 of the California Labor Code. Any contract on a public works project entered into
between a contractor and a debarred subcontractor is void as a matter of law. A debarred
subcontractor may not receive any public money for performing work as a subcontractor
on a public works contract. Any public money that is paid or may have been paid to a
debarred subcontractor by a contractor on the Project shall be returned to the Agency.
The Contractor shall be responsible for the payment of wages to workers of a debarred
subcontractor who has been allowed to work on the Project.
IN WITNESS WHEREOF: The parties hereto have caused this Contract to be executed
the day and year first above written.
CITY OF ARROYO GRANDE
CONTRACTOR
By: By:
Mayor
Title
ATTEST:
City Clerk
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Attachment: Public Contract Code Section 9204
9204.
(a) The Legislature finds and declares that it is in the best interests of the state and its
citizens to ensure that all construction business performed on a public works project
in the state that is complete and not in dispute is paid in full and in a timely manner.
(a) Notwithstanding any other law, including, but not limited to, Article 7.1 (commencing
with Section 10240) of Chapter 1 of Part 2, Chapter 10 (commencing with Section
19100) of Part 2, and Article 1.5 (commencing with Section 20104) of Chapter 1 of
Part 3, this section shall apply to any claim by a contractor in connection with a public
works project.
(b) For purposes of this section:
(1) “Claim” means a separate demand by a contractor sent by registered mail or
certified mail with return receipt requested, for one or more of the following:
(A) A time extension, including, without limitation, for relief from damages
or penalties for delay assessed by a public entity under a contract for
a public works project.
(B) Payment by the public entity of money or damages arising from work
done by, or on behalf of, the contractor pursuant to the contract for a
public works project and payment for which is not otherwise expressly
provided or to which the claimant is not otherwise entitled.
(C) Payment of an amount that is disputed by the public entity.
(2) “Contractor” means any type of contractor within the meaning of Chapter 9
(commencing with Section 7000) of Division 3 of the Business and
Professions Code who has entered into a direct contract with a public entity
for a public works project.
(3) (A) “Public entity” means, without limitation, except as provided in
subparagraph (B), a state agency, department, office, division,
bureau, board, or commission, the California State University, the
University of California, a city, including a charter city, county,
including a charter county, city and county, including a charter city and
county, district, special district, public authority, political subdivision,
public corporation, or nonprofit transit corporation wholly owned by a
public agency and formed to carry out the purposes of the public
agency.
(B) “Public entity” shall not include the following:
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(i) The Department of Water Resources as to any project under
the jurisdiction of that department.
(ii) The Department of Transportation as to any project under the
jurisdiction of that department.
(iii) The Department of Parks and Recreation as to any project
under the jurisdiction of that department.
(iv) The Department of Corrections and Rehabilitation with respect
to any project under its jurisdiction pursuant to Chapter 11
(commencing with Section 7000) of Title 7 of Part 3 of the Penal
Code.
(v) The Military Department as to any project under the jurisdiction
of that department.
(vi) The Department of General Services as to all other projects.
(vii) The High-Speed Rail Authority.
(4) “Public works project” means the erection, construction, alteration, repair, or
improvement of any public structure, building, road, or other public
improvement of any kind.
(5) “Subcontractor” means any type of contractor within the meaning of Chapter
9 (commencing with Section 7000) of Division 3 of the Business and
Professions Code who either is in direct contract with a contractor or is a
lower tier subcontractor.
(d) (1) (A) Upon receipt of a claim pursuant to this section, the public entity to
which the claim applies shall conduct a reasonable review of the claim
and, within a period not to exceed 45 days, shall provide the claimant
a written statement identifying what portion of the claim is disputed
and what portion is undisputed. Upon receipt of a claim, a public entity
and a contractor may, by mutual agreement, extend the time period
provided in this subdivision.
(B) The claimant shall furnish reasonable documentation to support the
claim.
(C) If the public entity needs approval from its governing body to provide
the claimant a written statement identifying the disputed portion and
the undisputed portion of the claim, and the governing body does not
meet within the 45 days or within the mutually agreed to extension of
time following receipt of a claim sent by registered mail or certified
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mail, return receipt requested, the public entity shall have up to three
days following the next duly publicly noticed meeting of the governing
body after the 45-day period, or extension, expires to provide the
claimant a written statement identifying the disputed portion and the
undisputed portion.
(D) Any payment due on an undisputed portion of the claim shall be
processed and made within 60 days after the public entity issues its
written statement. If the public entity fails to issue a written statement,
paragraph (3) shall apply.
(2) (A) If the claimant disputes the public entity’s written response, or if the
public entity fails to respond to a claim issued pursuant to this section
within the time prescribed, the claimant may demand in writing an
informal conference to meet and confer for settlement of the issues in
dispute. Upon receipt of a demand in writing sent by registered mail
or certified mail, return receipt requested, the public entity shall
schedule a meet and confer conference within 30 days for settlement
of the dispute.
(B) Within 10 business days following the conclusion of the meet and
confer conference, if the claim or any portion of the claim remains in
dispute, the public entity shall provide the claimant a written statement
identifying the portion of the claim that remains in dispute and the
portion that is undisputed. Any payment due on an undisputed portion
of the claim shall be processed and made within 60 days after the
public entity issues its written statement. Any disputed portion of the
claim, as identified by the contractor in writing, shall be submitted to
nonbinding mediation, with the public entity and the claimant sharing
the associated costs equally. The public entity and claimant shall
mutually agree to a mediator within 10 business days after the
disputed portion of the claim has been identified in writing. If the
parties cannot agree upon a mediator, each party shall select a
mediator and those mediators shall select a qualified neutral third
party to mediate with regard to the disputed portion of the claim. Each
party shall bear the fees and costs charged by its respective mediator
in connection with the selection of the neutral mediator. If mediation is
unsuccessful, the parts of the claim remaining in dispute shall be
subject to applicable procedures outside this section.
(C) For purposes of this section, mediation includes any nonbinding
process, including, but not limited to, neutral evaluation or a dispute
review board, in which an independent third party or board assists the
parties in dispute resolution through negotiation or by issuance of an
evaluation. Any mediation utilized shall conform to the timeframes in
this section.
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ATTACHMENT 2
(D) Unless otherwise agreed to by the public entity and the contractor in
writing, the mediation conducted pursuant to this section shall excuse
any further obligation under Section 20104.4 to mediate after litigation
has been commenced.
(E) This section does not preclude a public entity from requiring arbitration
of disputes under private arbitration or the Public Works Contract
Arbitration Program, if mediation under this section does not resolve
the parties’ dispute.
(3) Failure by the public entity to respond to a claim from a contractor within the
time periods described in this subdivision or to otherwise meet the time
requirements of this section shall result in the claim being deemed rejected
in its entirety. A claim that is denied by reason of the public entity’s failure to
have responded to a claim, or its failure to otherwise meet the time
requirements of this section, shall not constitute an adverse finding with
regard to the merits of the claim or the responsibility or qualifications of the
claimant.
(4) Amounts not paid in a timely manner as required by this section shall bear
interest at 7 percent per annum.
(5) If a subcontractor or a lower tier subcontractor lacks legal standing to assert
a claim against a public entity because privity of contract does not exist, the
contractor may present to the public entity a claim on behalf of a
subcontractor or lower tier subcontractor. A subcontractor may request in
writing, either on his or her own behalf or on behalf of a lower tier
subcontractor, that the contractor present a claim for work which was
performed by the subcontractor or by a lower tier subcontractor on behalf of
the subcontractor. The subcontractor requesting that the claim be presented
to the public entity shall furnish reasonable documentation to support the
claim. Within 45 days of receipt of this written request, the contractor shall
notify the subcontractor in writing as to whether the contractor presented the
claim to the public entity and, if the original contractor did not present the
claim, provide the subcontractor with a statement of the reasons for not
having done so.
(e) The text of this section or a summary of it shall be set forth in the plans or
specifications for any public works project that may give rise to a claim under this
section.
(f) A waiver of the rights granted by this section is void and contrary to public policy,
provided, however, that (1) upon receipt of a claim, the parties may mutually agree
to waive, in writing, mediation and proceed directly to the commencement of a civil
action or binding arbitration, as applicable; and (2) a public entity may prescribe
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reasonable change order, claim, and dispute resolution procedures and
requirements in addition to the provisions of this section, so long as the contractual
provisions do not conflict with or otherwise impair the timeframes and procedures
set forth in this section.
(g) This section applies to contracts entered into on or after January 1, 2017.
(h) Nothing in this section shall impose liability upon a public entity that makes loans or
grants available through a competitive application process, for the failure of an
awardee to meet its contractual obligations.
(i) This section shall remain in effect only until January 1, 2027, and as of that date is
repealed, unless a later enacted statute, that is enacted before January 1, 2027,
deletes or extends that date.
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ATTACHMENT 2
Attachment 2: Caltrans LAPM Exhibit 12-G - Required Federal-Aid Contract
Language
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Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
14
EXHIBIT 12-G: REQUIRED FEDERAL-AID CONTRACT LANGUAGE
(For Local Assistance Construction Projects)
The following language must be incorporated into all Local Assistance Federal -aid construction contracts.
The following language, with minor edits, was taken from the Code of Federal Regulations.
MAINTAIN RECORDS AND SUBMIT REPORTS DOCUMENTING YOUR PERFORMANCE UNDER THIS
SECTION
1. DISADVANTAGED BUSINESS ENTERPRISES (DBE) ...................................................................................... 25
A. Nondiscrimination Statement ...................................................................................................................... 26
B. Contract Assurance ...................................................................................................................................... 26
C. Prompt Progress Payment ........................................................................................................................... 26
D. Prompt Payment of Withheld Funds to Subcontractors ........................................................................... 26
E. Termination and Replacement of DBE Subcontractors ............................................................................ 27
F. Commitment and Utilization ........................................................................................................................ 28
G. Running Tally of Attainments ...................................................................................................................... 29
H. Commercially Useful Function .................................................................................................................... 29
I. Use of Joint Checks...................................................................................................................................... 31
2. BID OPENING ...................................................................................................................................................... 31
3. BID RIGGING ....................................................................................................................................................... 31
4. CONTRACT AWARD ........................................................................................................................................... 31
5. CONTRACTOR LICENSE .................................................................................................................................... 31
6. CHANGED CONDITIONS .................................................................................................................................... 31
7. BEGINNING OF WORK, TIME OF COMPLETION AND LIQUIDATED DAMAGES ........................................ 32
8. BUY AMERICA ................................................................................................................................................... 33
9. QUALITY ASSURANCE .................................................................................................................................... 33
10. PROMPT PAYMENT .......................................................................................................................................... 34
11. FORM FHWA-1273 REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONTRACTS ........................... 34
12. FEMALE AND MINORITY GOALS .................................................................................................................... 49
13. TITLE VI ASSURANCES .................................................................................................................................... 50
14. FEDERAL TRAINEE PROGRAM ...................................................................................................................... 55
15. PROHIBITION OF CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE EQUIPMENT AND
SERVICES .......................................................................................................................................................... 56
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Required Federal-Aid Contract Language
15
1. DISADVANTAGED BUSINESS ENTERPRISES (DBE)
The contractor, subrecipient or subcontractor shall take necessary and reasonable steps to ensure that DBEs
have opportunity to participate in the contract (49 CFR 26). To ensure equal participation of DBEs provided in 49
CFR 26.5, the Agency shows a contract goal for DBEs. The prime contractor shall make work available to DBEs
and select work parts consistent with available DBE subcontractors and s uppliers.
The prime contractor shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that
they made adequate Good Faith Efforts (GFE) to meet this goal. An adequate GFE means that the bidder must
show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and
appropriateness to the objective, could reasonably be expected to meet the DBE goal.
If the DBE goal is not met, the contractor needs to complete and submit the DBE GFE documentation as
described in Local Assistance Procedures Manual (LAPM) Chapter 9, Section 9.8 within 5 (five) days of bid
opening.
It is the prime contractor’s responsibility to verify that the DBE firm is certified as a DBE on the date of bid opening
by using the California Unified Certification Program (CUCP) database and possesses the most specific available
North American Industry Classification System (NAICS) codes and Work Code applicable to the type of work the
firm will perform on the contract. Additionally, the prime contractor is responsible to document this verification by
printing out the CUCP data for each DBE firm. A list of DBEs certified by the CUCP can be found at:
https://dot.ca.gov/programs/civil-rights/dbe-search.
DBE participation will only count toward the California Department of Transportation’s federally mandated
statewide overall DBE goal if the DBE performs a commercially useful function under 49 CFR 26.55.
Credit for materials or supplies the prime contractor purchases from DBEs counts towards the goal in the
following manner:
100 percent counts if the materials or supplies are obtained from a DBE manufacturer.
60 percent counts if the materials or supplies are obtained from a DBE regular dealer.
Only fees, commissions, and charges for assistance in the procurement and delivery of materials or
supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49 CFR
26.55 defines "manufacturer" and "regular dealer."
The prime contractor receives credit towards the goal if they employ a DBE trucking company that performs a
commercially useful function as defined in 49 CFR 26.55(d) as follows:
The DBE must be responsible for the management and supervision of the entire trucking operation
for which it is responsible on a particular contract, and there cannot be a contrived arrangement for
the purpose of meeting DBE goals.
The DBE must itself own and operate at least one fully licensed, insured, and operational truck used
on the contract.
The DBE receives credit for the total value of the transportation services it provides on the Contract
using trucks it owns, insures, and operates using drivers it employs.
The DBE may lease trucks from another DBE firm, including an owner-operator who is certified as a
DBE. The DBE who leases trucks from another DBE receives credit for the total value of the
transportation services the lessee DBE provides on the Contract.
The DBE may also lease trucks from a non-DBE firm, including from an owner-operator. The DBE
that leases trucks equipped with drivers from a non-DBE is entitled to credit for the total value of
transportation services provided by non-DBE leased trucks equipped with drivers not to exceed the
value of transportation services on the contract provided by DBE-owned trucks or leased trucks with
DBE employee drivers. Additional participation by non -DBE owned trucks equipped with drivers
receives credit only for the fee or commission it receives as a result of the lease arrangement.
The DBE may lease trucks without drivers from a non-DBE truck leasing company. If the DBE
leases trucks from a non-DBE truck leasing company and uses its own employees as drivers, it is
entitled to credit for the total value of these hauling services.
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A lease must indicate that the DBE has exclusive use of and control over the truck. This does not
preclude the leased truck from working for others during the term of the lease with the consent of the
DBE, so long as the lease gives the DBE absolute priority for use of the leased truck. Leased trucks
must display the name and identification number of the DBE.
A. NONDISCRIMINATION STATEMENT
The contractor, subrecipient or subcontractor will never exclude any person from participation in, deny any
person the benefits of, or otherwise discriminate against anyone in connection with the award and performance
of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the
Local Agency components of the DBE Program Plan, the contractor, subrecipient or subcontractor will not,
directly, or through contractual or other arrangements, use criteria or methods of administration that have the
effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with
respect to individuals of a particular race, color, sex, or national origin.
B. CONTRACT ASSURANCE
Under 49 CFR 26.13(b): The contractor, subrecipient or subcontractor shall not discriminate on the basis of
race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable
requirements of 49 CFR 26 in the award and administration of federal-aid contracts. Failure by the contractor
to carry out these requirements is a material breach of this contract, which may result in the termination of this
contract or such other remedy as the recipient deems appropriate, which may in clude, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as non-responsible.
C. PROMPT PROGRESS PAYMENT
In accordance with California Business and Professions Code section 7108.5, the prime contractor or
subcontractor shall pay to any subcontractor, not later than seven days after receipt of each progress payment,
unless otherwise agreed to in writing, the respective amounts allowed the contractor on account of the work
performed by the subcontractors, to the extent of each subcontractor’s interest therein. In the event that there is
a good faith dispute over all or any portion of the amount due on a progress payment from the prime contractor
or subcontractor to a subcontractor, the prime contractor or subcontractor may withhold no more than 150 percent
of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action a nd shall
subject the licensee to a penalty, payable to the subcontractor, of 2 percent of the amount due per month for
every month that payment is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitl ed to his or her
attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in
addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non -
DBE subcontractors.
D. PROMPT PAYMENT OF WITHHELD FUNDS TO SUBCONTRACTORS
No retainage will be held by the Agency from progress payments due to the prime contractor. Prime
contractors and subcontractors are prohibited from holding retainage from subcontractors. Any delay or
postponement of payment may take place only for good cause and with the Agency’s prior written approval.
Any violation of these provisions shall subject the violating contractor or subcontractor to the penalties,
sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code
and Section 10262 of the California Public Contract Code. This requirement shall not be construed to limit or
impair any contractual, administrative or judicial rem edies, otherwise available to the contractor or
subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient
subcontractor performance and/or noncompliance by a subcontractor. This clause applies to both DBE and
non-DBE subcontractors.
Any violation of these provisions of Prompt Progress Payment and Prompt Payment of Withheld Funds to
Subcontractors shall subject the violating prime contractor or subcontractor to the penalties, sanctions and other
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Required Federal-Aid Contract Language
17
remedies specified therein. These requirements shall not be construed to limit or impair any contractual,
administrative, or judicial remedies otherwise available to the prime contractor or subcontractor in the event of a
dispute involving late payment or nonpayment by the prime contractor, deficient subcontract performance, or
noncompliance by a subcontractor.
E. TERMINATION AND REPLACEMENT OF DBE SUBCONTRACTORS
The prime contractor shall utilize the specific DBEs listed to perform the work and supply the materials for which
each is listed unless the contractor obtains the Agency’s written consent. The prime contractor shall not terminate
or replace a listed DBE for convenience and perform the work with their own forces or obtain materials from other
sources without prior written authorization from the Agency. Unless the Agency’s prior written consent is provided,
the contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the
listed DBE on the Exhibit 15-G Construction Contract DBE Commitment form, included in the Bid.
Termination of DBE Subcontractors
After a contract with a specified DBE goal has been executed, termination of a DBE may be allowed for the
following, but not limited to, justifiable reasons with prior written authorization from the Agency:
1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the
project.
2. The Local Agency stipulated that a bond is a condition of executing the subcontract and the listed
DBE fails to meet the Local Agency’s bond requirements.
3. Work requires a contractor's license and listed DBE does not have a valid license under Contractors
License Law, or is not properly registered with the California Department of Industrial Relations as a
public works contractor.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform
is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE is ineligible to work on the project because of suspension or debarment.
7. Listed DBE becomes bankrupt or insolvent or exhibits credit unworthiness.
8. Listed DBE voluntarily withdraws with written notice from the Contract
9. Listed DBE is ineligible to receive credit for the type of work required.
10. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the
Contract.
11. The Agency determines other documented good cause.
To terminate a DBE or to terminate a portion of a DBE's work, the contractor must use the following procedures:
1. Send a written notice to the DBE of Contractor’s intent to use other forces or material sources and include
one or more justifiable reasons listed above. Simultaneously send a copy of this written notice to the
Agency. The written notice to the DBE must request they provide any response within five (5) business
days to both the Contractor and the Agency by either acknowledging their agreement or documenting
their reasoning as to why the use of other forces or sources of materials should not occur.
2. If the DBE does not respond within 5 business days, Contractor may move forward with the request as if
the DBE had agreed to Contractor’s written notice.
3. Submit Contractor’s DBE termination request by written letter to the Agency and include:
One or more above listed justifiable reasons along with supporting documentation.
Contractor’s written notice to the DBE regarding the request, including proof of transmission and
tracking documentation of Contractor’s written notice
The DBE's response to Contractor’s written notice, if received. If a written response was not
provided, provide a statement to that effect.
The Agency shall respond in writing to Contractor’s DBE termination request within 5 business days.
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Replacement of DBE Subcontractors
After receiving the Agency’s written authorization of DBE termination request, the Contractor must obtain the
Agency’s written agreement for DBE replacement. The Contractor must find or demonstrate GFEs to find qualified
DBE replacement firms to perform the work to the extent needed to meet the DBE comm itment.
The following procedures shall be followed to request authorization to replace a DBE firm:
1. Submit a request to replace a DBE with other forces or material sources in writing to the Agency which
must include:
a. Description of remaining uncommitted work items made available for replacement DBE solicitation
and participation.
b. The proposed DBE replacement firm's business information, the work they have agreed to
perform, and the following:
Quote for bid item work and description of work to be performed
Proposed subcontract agreement and written confirmation of agreement to perform on the
Contract
Revised Subcontracting Request form
Revised Exhibit 15-G: Construction Contract DBE Commitment
2. If Contractor has not identified a DBE replacement firm, submit documentation of the Contractor’s GFEs
to use DBE replacement firms within 7 days of Agency's authorization to terminate the DBE. The
Contractor may request the Agency's approval to extend this submittal period to a total of 14 days.
Submit documentation of actions taken to find a DBE replacement firm, such as:
Search results of certified DBEs available to perform the original DBE work identified and/or other
work the Contractor had intended to self-perform, to the extent needed to meet the DBE
commitment
Solicitations of DBEs for performance of work identified
Correspondence with interested DBEs that may have included contract details and requirements
Negotiation efforts with DBEs that reflect why an agreement was not reached
If a DBE's quote was rejected, provide Contractor’s reasoning for the rejection, such as why the
DBE was unqualified for the work, or why the price quote was unreasonable or excessive
Copies of each DBE's and non-DBE's price quotes for work identified, as the Agency may contact
the firms to verify solicitation efforts and determine if the DBE quotes are substantially higher
Additional documentation that supports the GFE
The Agency shall respond in writing to the Contractor’s DBE replacement request within five (5) business days.
The Contractor must submit a revised Subcontracting Request form if the replacement plan is authorized by the
Agency.
F. COMMITMENT AND UTILIZATION
The Agency’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE
commitments reconcile to DBE utilization.
The bidder shall complete and sign Exhibit 15-G Construction Contract DBE Commitment included in the contract
documents regardless of whether DBE participation is reported. The bidder shall provide written confirmation from
each DBE that the DBE is participating in the Contract. LAPM Exhibit 9 -I: DBE Confirmation or equivalent form
and DBE’s quote must be submitted. The written confirmation must be submitted no later than 4pm on the 5th day
after bid opening. If a DBE is participating as a joint venture partner, the bidder shall submit a copy of the joint
venture agreement.
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If the DBE Commitment form, Exhibit 15-G, is not submitted with the bid, it must be completed and submitted by
all bidders to the Agency within five (5) days of bid opening. If the bidder does not submit the DBE Commitment
form within the specified time, the Agency will find the bidder’s bid nonresponsive.
The prime contractor shall use each DBE subcontractor as listed on Exhibit 15 -G: Construction Contract DBE
Commitment unless they receive written authorization for a termination or replacement from the Agency.
The Agency shall request the prime contractor to:
1. Notify the Resident Engineer or Inspector of any changes to its anticipated DBE participation
2. Provide this notification before starting the affected work
3. Maintain records including:
Name and business address of each 1st-tier subcontractor
Name and business address of each DBE subcontractor, DBE vendor, and DBE trucking
company, regardless of tier
Date of payment and total amount paid to each DBE (see Exhibit 9-F: Monthly Disadvantaged
Business Enterprise Payment)
If the prime contractor is a DBE contractor, they shall include the date of work performed by their own forces and
the corresponding value of the work.
Before the 15th of each month, the prime contractor shall submit a Monthly DBE Trucking Verification (LAPM
Exhibit 16-Z1) form.
If a DBE is decertified before completing its work, the DBE must notify the prime contractor in writing of the
decertification date. If a business becomes a certified DBE before completing its work, the business must notify
the prime contractor in writing of the certification date. The prime contractor shall submit the notifications. Upon
work completion, the prime contractor shall complete a Disadvantaged Business Enterprises (DBE) Certification
Status Change, Exhibit 17-O, form and submit the form within 30 days of contract acceptance.
Upon work completion, the prime contractor shall complete Exhibit 17-F Final Report – Utilization of
Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors and submit it within 90 days of contract
acceptance. The Agency will withhold $10,000 until the form is submitted. The Agency releases the withhold upon
submission of the completed form.
G. RUNNING TALLY OF ATTAINMENTS
For projects awarded on or after March 1, 2020, but before September 1, 2023:
After submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the
following month, the prime contractor/consultant must complete and email the Exhibit 9 -F: Disadvantaged
Business Enterprise Running Tally of Payments to business.support.unit@dot.ca.gov with a copy to local
administering agencies.
For projects that are awarded on or after September 1, 2023:
Exhibit 9-F is no longer required. Instead, by the 15th of the month following the month of any payment(s), the
prime contractor must now submit Exhibit 9-P to the Local Agency administering the contract. If the Contractor
does not make any payments to subcontractors, supplier(s) and/or manufacturers they must report “no payments
were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
H. COMMERCIALLY USEFUL FUNCTION
DBEs must perform a commercially useful function (CUF) under 49 CFR 26.55 when performing work or supplying
materials listed on the DBE Commitment form. The DBE value of work will only count toward the DBE commitment
if the DBE performs a CUF. A DBE performs a CUF when it is responsible for execution of the work on the contract
and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. If a
DBE does not perform or exercise responsibility for at least 30% of the total cost of its contract with its own work
force, or the DBE subcontracts a greater portion of the work of a contract than would be expected on the basis of
normal industry practice for the type of work involved, it will be presumed that the DBE is not performing a CUF.
Additionally, the DBE must also be responsible, with respect to materials and supplies used o n the contract, for
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negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and
paying for the material itself.
The Contractor must perform CUF evaluation for each DBE company working on a federal-aid contract, with or
without a DBE goal. Perform a CUF evaluation at the beginning of the DBE’s work, and continue to monitor the
performance of CUF for the duration of the project.
The Contractor must provide written notification to the AGENCY at least 15 days in advance of each DBE's initial
performance of work or supplying materials for the Contract. The notification must include the DBE's name, work
the DBE will perform on the contract, and the location, date, and time of where their work will take place.
Within 10 (ten) days of a DBE initially performing work or supplying materials on the contract, the Contractor shall
submit to the LPA the initial evaluation and validation of DBE performance of a CUF using the LAPM 9 -J:
Disadvantaged Business Enterprise Commercially Useful Function Evaluation. Include the following information
with the submittal:
Subcontract agreement with the DBE
Purchase orders
Bills of lading
Invoices
Proof of payment
The Contractor must monitor all DBE’s performance of CUF by conduc ting quarterly evaluations and validations
throughout their duration of work on the contract using the LAPM 9 -J: DBE Commercially Useful Function
Evaluation. The Contractor must submit to the AGENCY these quarterly evaluations and validations by the 5 th of
the month for the previous three (3) months of work.
The Contractor must notify the AGENCY immediately if the Contractor believes the DBE may not be performing
a CUF.
The AGENCY will verify DBEs performance of CUF by reviewing the initial and quarterly submissions of LAPM
9-J: DBE Commercially Useful Function Evaluation, submitted supporting information, field observations, and
through any additional AGENCY evaluations. The AGENCY must evaluate DBEs and their CUF performance
throughout the duration of a Contract. The AGENCY will provide written notice to Contractor and DBE at least
two (2) business days prior to any evaluation. The Contractor and DBE must participate in the evaluation. Upon
completing the evaluation, the AGENCY must share the evaluation r esults with the Contractor and DBE. An
evaluation could include items that must be remedied upon receipt. If the AGENCY determines the DBE is not
performing a CUF the Contractor must suspend performance of the noncompliant work.
The Contractor and DBEs must submit any additional CUF related records and documents within five (5)
business days of AGENCY’s request such as:
Proof of ownership or lease and rental agreements for equipment
Tax records
Employee rosters
Certified payroll records
Inventory rosters
Failure to submit required DBE Commercially Useful Function Evaluation forms or requested records and
documents can result in withholding of payment for the value of work completed by the DBE.
If the Contractor and/or the AGENCY determine that a listed DBE is not performing a CUF in performance of their
DBE committed work, immediately suspend performance of the noncompliant portion of the work. The AGENCY
may deny payment for the noncompliant portion of the work. The AGENCY will ask the Contractor to submit a
corrective action plan (CAP) to the AGENCY within five (5) days of the noncompliant CUF determination. The
CAP must identify how the Contractor will correct the noncompliance findings for the remaining portion of the
DBE's work. The AGENCY has five (5) days to review the CAP in conjunction with the prime contractor’s review.
The Contractor must implement the CAP within five (5) days of the AGENCY's approval. The AGENCY will then
authorize the prior noncompliant portion of work for the DBE's committed work.
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If corrective actions cannot be accomplished to ensure the DBE performs a CUF on the Contract, then the
Contractor may have good cause to request termination of the DBE.
I. USE OF JOINT CHECKS
A joint check may be used between the Contractor or lower -tier subcontractor and a DBE subcontractor
purchasing materials from a material supplier if the contractor obtains prior approval from the LPA for the
proposed use of joint check upon submittal of the LAPM 9 -K: DLA Disadvantaged Business Enterprises (DBE)
Joint Check Agreement Request form.
To use a joint check, the following conditions must be met:
All parties, including the Contractor, must agree to the use of a joint check
Entity issuing the joint check acts solely to guarantee payment
DBE must release the check to the material supplier
LPA must authorize the request before implementation
Any party to the agreement must provide requested documentation within 10 days of the LPA's request
for the documentation
Agreement to use a joint check must be short-term, not to exceed 1 year, allowing sufficient time
needed to establish or increase a credit line with the material supplier
A request for a joint check agreement may be initiated by any party.
If a joint check is used, the DBE remains responsible for all elements of 49 CFR 26.55(c)(1).
Failure to comply with the above requirements disqualifies DBE participation and results in no credit and no
payment to the Contractor for DBE participation.
A joint check may not be used between the Contractor or subcontrac tor and a DBE regular dealer, bulk material
supplier, manufacturer, wholesaler, broker, trucker, packager, manufacturer’s representative, or other persons
who arrange or expedite transactions.
2. BID OPENING The Agency publicly opens and reads bids at the time and place shown on the Notice to
Contractors.
3. BID RIGGING The U.S. Department of Transportation (DOT) provides a toll-free hotline to report bid rigging
activities. Use the hotline to report bid rigging, bidder collusion, and other fraudulent activities. The hotline
number is (800) 424-9071. The service is available 24 hours 7 days a week and is confidential and anonymous.
The hotline is part of the DOT's effort to identify and investigate highway construction contract fraud and abuse
and is operated under the direction of the DOT Inspector General.
4. CONTRACT AWARD If the Agency awards the contract, the award is made to the lowest responsible and
responsive bidder.
5. CONTRACTOR LICENSE The Contractor must be properly licensed as a contractor from contract award
through Contract acceptance (Public Contract Code §10164).
6. CHANGED CONDITIONS
A. Differing Site Conditions
1. During the progress of the work, if subsurface or latent physical conditions are encountered at the site
differing materially from those indicated in the contract or if unknown physical conditions of an unusual
nature, differing materially from those ordinarily encountered and generally recognized as inherent in
the work provided for in the contract, are encountered at the site, the party discovering such conditions
shall promptly notify the other party in writing of the specific differing conditions before the site is
disturbed and before the affected work is performed.
2. Upon written notification, the engineer will investigate the conditions, and if it is determined that the
conditions materially differ and cause an increase or decrease in the cost or time required for the
performance of any work under the contract, an adjustment, excluding anticipated profits, will be
made and the contract modified in writing accordingly. The engineer will notify the contractor of the
determination whether or not an adjustment of the contract is warranted.
3. No contract adjustment which results in a benefit to the contractor will be allowed unless the
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contractor has provided the required written notice.
4. No contract adjustment will be allowed under this clause for any effects caused on unchanged work.
[This provision may be omitted by the Local Agency, at their option.]
B. Suspensions of Work Ordered by the Engineer
1. If the performance of all or any portion of the work is suspended or delayed by the engineer in writing
for an unreasonable period of time (not originally anticipated, customary, or inherent to the construction
industry) and the contractor believes that additional compensation and/or contract time is due as a
result of such suspension or delay, the contractor shall submit to the engineer in writing a request for
adjustment within 7 calendar days of receipt of the notice to resume work. The request shall set forth
the reasons and support for such adjustment.
2. Upon receipt, the engineer will evaluate the contractor's request. If the engineer agrees that the cost
and/or time required for the performance of the contract has increased as a result of such suspension
and the suspension was caused by conditions beyond the control of and not the fault of the contractor,
its suppliers, or subcontractors at any approved tier, and not caused by weather, the engineer will
make an adjustment (excluding profit) and modify the contract in writing accordingly. The contractor
will be notified of the engineer's determination whether or not an adjustment of the contract is
warranted.
3. No contract adjustment will be allowed unless the contractor has submitted the request for adjustment
within the time prescribed.
4. No contract adjustment will be allowed under this clause to the extent that performance would have
been suspended or delayed by any other cause, or for which an adjustment is provided or excluded
under any other term or condition of this contract.
C. Significant Changes in the Character of Work
1. The engineer reserves the right to make, in writing, at any time during the work, such changes in
quantities and such alterations in the work as are necessary to satisfactorily complete the project. Such
changes in quantities and alterations shall not invalidate the contract nor release the surety, and the
contractor agrees to perform the work as altered.
2. If the alterations or changes in quantities significantly change the character of the work under the
contract, whether such alterations or changes are in themselves significant changes to the character
of the work or by affecting other work cause such other work to become significantly different in
character, an adjustment, excluding anticipated profit, will be made to the contract. The basis for the
adjustment shall be agreed upon prior to the performance of the work. If a basis cannot be agreed
upon, then an adjustment will be made either for or against the contractor in such amount as the
engineer may determine to be fair and equitable.
3. If the alterations or changes in quantities do not significantly change the character of the work to be
performed under the contract, the altered work will be paid for as provided elsewhere in the contract.
4. The term “significant change” shall be construed to apply only to the following circumstances:
When the character of the work as altered differs materially in kind or nature from that involved
or included in the original proposed construction; or
When a major item of work, as defined elsewhere in the contract, is increased in excess of 125
percent or decreased below 75 percent of the original contract quantity. Any allowance for an
increase in quantity shall apply only to that portion in excess of 125 percent of original contract
item quantity, or in case of a decrease below 75 percent, to the actual amount of work
performed.
7. BEGINNING OF WORK, TIME OF COMPLETION AND LIQUIDATED DAMAGES
The Contractor shall begin work within 15 calendar days after the issuance of the Notice to Proceed.
This work shall be diligently prosecuted to completion before the expiration of 140 WORKING DAYS beginning on
the fifteenth calendar day after the date shown on the Notice to Proceed.
The Contractor shall pay to the City of Arroyo Grande the sum of $3,600 per day, for each and every calendar
days’ delay in finishing the work in excess of the number of working days prescribed above.
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8. BUY AMERICA
Buy America Requirements apply to steel and iron, manufactured products, and construction materials
permanently incorporated into the project.
Steel and Iron Materials
All steel and iron materials must be melted and manufactured in the United States except:
1. Foreign pig iron and processed, pelletized, and reduced iron ore may be used in the domestic production
of the steel and iron materials [60 Fed Reg 15478 (03/24/1995)];
2. If the total combined cost of the materials produced outside the United States does not exceed the
greater of 0.1 percent of the total contract amount or $2,500, materials produced outside the United
States may be used if authorized.
Furnish steel and iron materials to be incorporated into the work with certificates of compliance and certified mill
test reports. Mill test reports must indicate where the steel and iron were melted and manufactured. All melting
and manufacturing processes for these materials, including an application of a coating, must occur in the United
States. Coating includes all processes that protect or enha nce the value of the material to which the coating is
applied.
Manufactured Products
Iron and steel used in precast concrete manufactured products must meet the requirements of the above section
(Steel and Iron Materials) regardless of the amount used. Iron and steel used in other manufactured products must
meet the requirements of the above section (Steel and Iron Materials) if the weight of steel and iron components
constitute 90 percent or more of the total weight of the manufactured product.
Construction Materials
Buy America requirements apply to the following construction materials that are or consist primarily of:
1. Non-ferrous metals
2. Plastic and polymer-based products such as:
2.1 Polyvinylchloride
2.2 Composite Building Materials
3. Glass
4. Fiber optic cable (including drop cable)
5. Optical fiber
6. Lumber
7. Engineered Wood
8. Drywall
All manufacturing processes for these materials as defined in 2 CFR 184.6 must occur in the United States.
Where one or more of these construction materials have been combined by a manufacturer with other materials
through a manufacturing process, Buy America requirements do not apply unless otherwise specified.
Furnish construction materials to be incorporated into the work with certificates of compliance with each project
delivery. Manufacturer’s certificate of compliance must identify where the construction material was
manufactured and attest specifically to Buy America compliance.
All manufacturing processes for these materials must occur in the United States. Buy
America requirements do not apply to the following:
1. Tools and construction equipment used in performing the work
2. Temporary work that is not incorporated into the finished project
9. QUALITY ASSURANCE
The Local Agency uses a Quality Assurance Program (QAP) to ensure a material is produced to comply with
the Contract. The Local Agency may examine the records and reports of tests the prime contractor performs
if they are available at the job site. Schedule work to allow time for QAP.
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10. PROMPT PAYMENT
A. FROM THE AGENCY TO THE CONTRACTORS
The Local Agency shall make all project progress payment within 30 days after receipt of an undisputed and
properly submitted payment request from the Contractor on a construction contract. If the Local Agency fails
to pay promptly, the Local Agency shall pay interest to the Contractor, which accrues at the rat e of 10 percent
per annum on the principal amount of a money judgment remaining unsatisfied and pro -rated as necessary.
Upon receipt of the payment request, the Local Agency shall act in accordance with both of the following:
1. The Local Agency shall review each payment request as soon as feasible after receipt to verify it is a
proper payment request.
2. The Local Agency must return any payment request deemed improper by the Local Agency to the
Contractor as soon as feasible, but not later than seven (7) days, after receipt. A request returned
pursuant to this paragraph shall include documentation setting forth in writing the reasons why it is
an improper payment request.
B. SUBMITTAL OF EXHIBIT 9-P
For projects awarded on or after September 1, 2023:
The Contractor must submit Exhibit 9-P to the Local Agency administering the contract by the 15th of the
month following the month of any payment(s). If the Contractor does not make any payments to
subcontractors, supplier(s) and/or manufacturers they must report “no payments were made to subs this
month” and write this visibly and legibly on Exhibit 9-P.
The Local Agency must verify all Exhibit 9-P information, monitor compliance with prompt payment
requirements for DBE and non-DBE firms, and address any shortfall to the DBE commitment and prompt
payment issues until the end of the project. The Local Agency must email a copy of Exhibit 9 -P to
DBE.Forms@dot.ca.gov before the end of the month after receiving the Exhibit 9-P from the Contractor.
11. FORM FHWA-1273 REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONTRACTS
[The following 12 pages must be physically inserted into the contract without modification.
Excluding ATTACHMENT A - EMPLOYMENT AND MATERIALS PREFERENCE FOR APPALACHIAN
DEVELOPMENT HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS ROAD CONTRACTS]
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FHWA-1273 -- Revised October 23, 2023
REQUIRED CONTRACT
PROVISIONS FEDERAL-AID
CONSTRUCTION CONTRACTS
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I. General
II. Nondiscrimination
III. Non-segregated Facilities
IV. Davis-Bacon and Related Act Provisions
V. Contract Work Hours and Safety Standards Act
Provisions
VI. Subletting or Assigning the Contract
VII. Safety: Accident Prevention
VIII. False Statements Concerning Highway Projects
IX. Implementation of Clean Air Act and Federal Water
Pollution Control Act
X. Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion
XI. Certification Regarding Use of Contract Funds for
Lobbying
XII. Use of United States-Flag Vessels:
ATTACHMENTS
A. Employment and Materials Preference for Appalachian
Development Highway System or Appalachian Local Access
Road Contracts (included in Appalachian contracts only)
I. GENERAL
1. Form FHWA-1273 must be physically incorporated in each
construction contract funded under title 23, United States
Code, as required in 23 CFR 633.102(b) (excluding
emergency contracts solely intended for debris removal). The
contractor (or subcontractor) must insert this form in each
subcontract and further require its inclusion in all lower tier
subcontracts (excluding purchase orders, rental agreements
and other agreements for supplies or services). 23 CFR
633.102(e).
The applicable requirements of Form FHWA-1273 are
incorporated by reference for work done under any purchase
order, rental agreement or agreement for other services. The
prime contractor shall be responsible for compliance by any
subcontractor, lower-tier subcontractor or service provider. 23
CFR 633.102(e).
Form FHWA-1273 must be included in all Federal-aid design-
build contracts, in all subcontracts and in lower tier subcontracts
(excluding subcontracts for design services, purchase orders,
rental agreements and other agreements for supplies or
services) in accordance with 23 CFR 633.102. The design-
builder shall be responsible for compliance by any
subcontractor, lower-tier subcontractor or service provider.
Contracting agencies may reference Form FHWA-1273 in
solicitation-for-bids or request-for-proposals documents,
however, the Form FHWA-1273 must be physically incorporated
(not referenced) in all contracts, subcontracts and lower-tier
subcontracts (excluding purchase orders, rental agreements and
other agreements for supplies or services related to a
construction contract). 23 CFR 633.102(b).
2. Subject to the applicability criteria noted in the following
sections, these contract provisions shall apply to all work
performed on the contract by the contractor's own organization
and with the assistance of workers under the contractor's
immediate superintendence and to all work performed on the
contract by piecework, station work, or by subcontract. 23 CFR
633.102(d).
3. A breach of any of the stipulations contained in these
Required Contract Provisions may be sufficient grounds for
withholding of progress payments, withholding of final
payment, termination of the contract, suspension / debarment
or any other action determined to be appropriate by the
contracting agency and FHWA.
4. Selection of Labor: During the performance of this contract,
the contractor shall not use convict labor for any purpose
within the limits of a construction project on a Federal-aid
highway unless it is labor performed by convicts who are on
parole, supervised release, or probation. 23 U.S.C. 114(b).
The term Federal-aid highway does not include roadways
functionally classified as local roads or rural minor collectors.
23 U.S.C. 101(a).
II. NONDISCRIMINATION (23 CFR 230.107(a); 23 CFR Part
230, Subpart A, Appendix A; EO 11246)
The provisions of this section related to 23 CFR Part 230,
Subpart A, Appendix A are applicable to all Federal-aid
construction contracts and to all related construction
subcontracts of $10,000 or more. The provisions of 23 CFR Part
230 are not applicable to material supply, engineering, or
architectural service contracts.
In addition, the contractor and all subcontractors must comply
with the following policies: Executive Order 11246, 41 CFR Part
60, 29 CFR Parts 1625-1627, 23 U.S.C. 140, Section 504
of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794),
Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C.
2000d et seq.), and related regulations including 49 CFR Parts
21, 26, and 27; and 23 CFR Parts 200, 230, and 633.
The contractor and all subcontractors must comply with: the
requirements of the Equal Opportunity Clause in 41 CFR 60-
1.4(b) and, for all construction contracts exceeding $10,000,
the Standard Federal Equal Employment Opportunity
Construction Contract Specifications in 41 CFR 60-4.3.
Note: The U.S. Department of Labor has exclusive authority to
determine compliance with Executive Order 11246 and the
policies of the Secretary of Labor including 41 CFR Part 60, and
29 CFR Parts 1625-1627. The contracting agency and the
FHWA have the authority and the responsibility to ensure
compliance with 23 U.S.C. 140, Section 504 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and
Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C.
2000d et seq.), and related regulations including 49 CFR Parts
21, 26, and 27; and 23 CFR Parts 200, 230, and 633.
The following provision is adopted from 23 CFR Part 230,
Subpart A, Appendix A, with appropriate revisions to conform to
the U.S. Department of Labor (US DOL) and FHWA
requirements.
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1. Equal Employment Opportunity: Equal Employment
Opportunity (EEO) requirements not to discriminate and to
take affirmative action to assure equal opportunity as set forth
under laws, executive orders, rules, regulations (see 28 CFR
Part 35, 29 CFR Part 1630, 29 CFR Parts 1625-1627, 41 CFR
Part 60 and 49 CFR Part 27) and orders of the Secretary of
Labor as modified by the provisions prescribed herein, and
imposed pursuant to 23 U.S.C. 140, shall constitute the EEO
and specific affirmative action standards for the contractor's
project activities under this contract. The provisions of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et
seq.) set forth under 28 CFR Part 35 and 29 CFR Part 1630
are incorporated by reference in this contract. In the execution
of this contract, the contractor agrees to comply with the
following minimum specific requirement activities of EEO:
a. The contractor will work with the contracting agency and
the Federal Government to ensure that it has made every
good faith effort to provide equal opportunity with respect to all
of its terms and conditions of employment and in their review
of activities under the contract. 23 CFR 230.409 (g)(4) & (5).
b. The contractor will accept as its operating policy the
following statement:
"It is the policy of this Company to assure that applicants are
employed, and that employees are treated during employment,
without regard to their race, religion, sex, sexual orientation,
gender identity, color, national origin, age or disability. Such
action shall include: employment, upgrading, demotion, or
transfer; recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship, pre-
apprenticeship, and/or on-the-job training."
2. EEO Officer: The contractor will designate and make
known to the contracting officers an EEO Officer who will have
the responsibility for and must be capable of effectively
administering and promoting an active EEO program and who
must be assigned adequate authority and responsibility to do
so.
3. Dissemination of Policy: All members of the contractor's
staff who are authorized to hire, supervise, promote, and
discharge employees, or who recommend such action or are
substantially involved in such action, will be made fully
cognizant of and will implement the contractor's EEO policy
and contractual responsibilities to provide EEO in each grade
and classification of employment. To ensure that the above
agreement will be met, the following actions will be taken as a
minimum:
a. Periodic meetings of supervisory and personnel office
employees will be conducted before the start of work and then
not less often than once every six months, at which time the
contractor's EEO policy and its implementation will be
reviewed and explained. The meetings will be conducted by
the EEO Officer or other knowledgeable company official.
b. All new supervisory or personnel office employees will be
given a thorough indoctrination by the EEO Officer, covering
all major aspects of the contractor's EEO obligations within
thirty days following their reporting for duty with the contractor.
c. All personnel who are engaged in direct recruitment for
the project will be instructed by the EEO Officer in the
contractor's procedures for locating and hiring minorities and
women.
d. Notices and posters setting forth the contractor's EEO
policy will be placed in areas readily accessible to employees,
applicants for employment and potential employees.
e. The contractor's EEO policy and the procedures to
implement such policy will be brought to the attention of
employees by means of meetings, employee handbooks, or
other appropriate means.
4. Recruitment: When advertising for employees, the
contractor will include in all advertisements for employees the
notation: "An Equal Opportunity Employer." All such
advertisements will be placed in publications having a large
circulation among minorities and women in the area from
which the project work force would normally be derived.
a. The contractor will, unless precluded by a valid
bargaining agreement, conduct systematic and direct
recruitment through public and private employee referral
sources likely to yield qualified minorities and women. To
meet this requirement, the contractor will identify sources of
potential minority group employees and establish with such
identified sources procedures whereby minority and women
applicants may be referred to the contractor for employment
consideration.
b. In the event the contractor has a valid bargaining
agreement providing for exclusive hiring hall referrals, the
contractor is expected to observe the provisions of that
agreement to the extent that the system meets the contractor's
compliance with EEO contract provisions. Where
implementation of such an agreement has the effect of
discriminating against minorities or women, or obligates the
contractor to do the same, such implementation violates
Federal nondiscrimination provisions.
c. The contractor will encourage its present employees to
refer minorities and women as applicants for employment.
Information and procedures with regard to referring such
applicants will be discussed with employees.
5. Personnel Actions: Wages, working conditions, and
employee benefits shall be established and administered, and
personnel actions of every type, including hiring, upgrading,
promotion, transfer, demotion, layoff, and termination, shall be
taken without regard to race, color, religion, sex, sexual
orientation, gender identity, national origin, age or disability.
The following procedures shall be followed:
a. The contractor will conduct periodic inspections of project
sites to ensure that working conditions and employee facilities
do not indicate discriminatory treatment of project site
personnel.
b. The contractor will periodically evaluate the spread of
wages paid within each classification to determine any
evidence of discriminatory wage practices.
c. The contractor will periodically review selected personnel
actions in depth to determine whether there is evidence of
discrimination. Where evidence is found, the contractor will
promptly take corrective action. If the review indicates that the
discrimination may extend beyond the actions reviewed, such
corrective action shall include all affected persons.
d. The contractor will promptly investigate all complaints of
alleged discrimination made to the contractor in connection
with its obligations under this contract, will attempt to resolve
such complaints, and will take appropriate corrective action
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within a reasonable time. If the investigation indicates that the
discrimination may affect persons other than the complainant,
such corrective action shall include such other persons. Upon
completion of each investigation, the contractor will inform every
complainant of all of their avenues of appeal.
6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and
increasing the skills of minorities and women who are
applicants for employment or current employees. Such efforts
should be aimed at developing full journey level status
employees in the type of trade or job classification involved.
b. Consistent with the contractor's work force requirements
and as permissible under Federal and State regulations, the
contractor shall make full use of training programs (i.e.,
apprenticeship and on-the-job training programs for the
geographical area of contract performance). In the event a
special provision for training is provided under this contract,
this subparagraph will be superseded as indicated in the
special provision. The contracting agency may reserve
training positions for persons who receive welfare assistance
in accordance with 23 U.S.C. 140(a).
c. The contractor will advise employees and applicants for
employment of available training programs and entrance
requirements for each.
d. The contractor will periodically review the training and
promotion potential of employees who are minorities and
women and will encourage eligible employees to apply for
such training and promotion.
7. Unions: If the contractor relies in whole or in part upon
unions as a source of employees, the contractor will use good
faith efforts to obtain the cooperation of such unions to
increase opportunities for minorities and women. 23 CFR
230.409. Actions by the contractor, either directly or through a
contractor's association acting as agent, will include the
procedures set forth below:
a. The contractor will use good faith efforts to develop, in
cooperation with the unions, joint training programs aimed
toward qualifying more minorities and women for membership
in the unions and increasing the skills of minorities and women
so that they may qualify for higher paying employment.
b. The contractor will use good faith efforts to incorporate an
EEO clause into each union agreement to the end that such
union will be contractually bound to refer applicants without
regard to their race, color, religion, sex, sexual orientation,
gender identity, national origin, age, or disability.
c. The contractor is to obtain information as to the referral
practices and policies of the labor union except that to the
extent such information is within the exclusive possession of
the labor union and such labor union refuses to furnish such
information to the contractor, the contractor shall so certify to
the contracting agency and shall set forth what efforts have
been made to obtain such information.
d. In the event the union is unable to provide the contractor
with a reasonable flow of referrals within the time limit set forth
in the collective bargaining agreement, the contractor will,
through independent recruitment efforts, fill the employment
vacancies without regard to race, color, religion, sex, sexual
orientation, gender identity, national origin, age, or disability;
making full efforts to obtain qualified and/or qualifiable
minorities and women. The failure of a union to provide
sufficient referrals (even though it is obligated to provide
exclusive referrals under the terms of a collective bargaining
agreement) does not relieve the contractor from the
requirements of this paragraph. In the event the union referral
practice prevents the contractor from meeting the obligations
pursuant to Executive Order 11246, as amended, and these
special provisions, such contractor shall immediately notify the
contracting agency.
8. Reasonable Accommodation for Applicants /
Employees with Disabilities: The contractor must be familiar
with the requirements for and comply with the Americans with
Disabilities Act and all rules and regulations established
thereunder. Employers must provide reasonable
accommodation in all employment activities unless to do so
would cause an undue hardship.
9. Selection of Subcontractors, Procurement of Materials
and Leasing of Equipment: The contractor shall not
discriminate on the grounds of race, color, religion, sex, sexual
orientation, gender identity, national origin, age, or disability in
the selection and retention of subcontractors, including
procurement of materials and leases of equipment. The
contractor shall take all necessary and reasonable steps to
ensure nondiscrimination in the administration of this contract.
a. The contractor shall notify all potential subcontractors,
suppliers, and lessors of their EEO obligations under this
contract.
b. The contractor will use good faith efforts to ensure
subcontractor compliance with their EEO obligations.
10. Assurances Required:
a. The requirements of 49 CFR Part 26 and the State
DOT’s FHWA-approved Disadvantaged Business Enterprise
(DBE) program are incorporated by reference.
b. The contractor, subrecipient or subcontractor shall not
discriminate on the basis of race, color, national origin, or sex
in the performance of this contract. The contractor shall carry
out applicable requirements of 49 CFR part 26 in the award
and administration of DOT-assisted contracts. Failure by the
contractor to carry out these requirements is a material breach
of this contract, which may result in the termination of this
contract or such other remedy as the recipient deems
appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as non-
responsible.
c. The Title VI and nondiscrimination provisions of U.S.
DOT Order 1050.2A at Appendixes A and E are incorporated
by reference. 49 CFR Part 21.
11. Records and Reports: The contractor shall keep such
records as necessary to document compliance with the EEO
requirements. Such records shall be retained for a period of
three years following the date of the final payment to the
contractor for all contract work and shall be available at
reasonable times and places for inspection by authorized
representatives of the contracting agency and the FHWA.
a. The records kept by the contractor shall document the
following:
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(1) The number and work hours of minority and non-
minority group members and women employed in each work
classification on the project;
(2) The progress and efforts being made in cooperation
with unions, when applicable, to increase employment
opportunities for minorities and women; and
(3) The progress and efforts being made in locating, hiring,
training, qualifying, and upgrading minorities and women.
b. The contractors and subcontractors will submit an annual
report to the contracting agency each July for the duration of
the project indicating the number of minority, women, and non-
minority group employees currently engaged in each work
classification required by the contract work. This information is
to be reported on Form FHWA-1391. The staffing data should
represent the project work force on board in all or any part of
the last payroll period preceding the end of July. If on-the-job
training is being required by special provision, the contractor
will be required to collect and report training data. The
employment data should reflect the work force on board during
all or any part of the last payroll period preceding the end of
July.
III. NONSEGREGATED FACILITIES
This provision is applicable to all Federal-aid construction
contracts and to all related construction subcontracts of more
than $10,000. 41 CFR 60-1.5.
As prescribed by 41 CFR 60-1.8, 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, sexual orientation, gender identity, or national origin cannot
result. The contractor may neither require such segregated use
by written or oral policies nor tolerate such use by employee
custom. The contractor's obligation extends further to ensure
that its employees are not assigned to perform their services at
any location under the contractor's control where the facilities
are segregated. The term "facilities" includes waiting rooms,
work areas, restaurants and other eating areas, time clocks,
restrooms, washrooms, locker rooms and other storage or
dressing areas, parking lots, drinking fountains, recreation or
entertainment areas, transportation, and housing provided for
employees. The contractor shall provide separate or single-user
restrooms and necessary dressing or sleeping areas to assure
privacy between sexes.
IV. DAVIS-BACON AND RELATED ACT PROVISIONS
This section is applicable to all Federal-aid construction
projects exceeding $2,000 and to all related subcontracts and
lower-tier subcontracts (regardless of subcontract size), in
accordance with 29 CFR 5.5. The requirements apply to all
projects located within the right-of-way of a roadway that is
functionally classified as Federal-aid highway. 23 U.S.C. 113.
This excludes roadways functionally classified as local roads or
rural minor collectors, which are exempt. 23 U.S.C. 101.
Where applicable law requires that projects be treated as a
project on a Federal-aid highway, the provisions of this subpart
will apply regardless of the location of the project. Examples
include: Surface Transportation Block Grant Program projects
funded under 23 U.S.C. 133 [excluding recreational trails
projects], the Nationally Significant Freight and Highway
Projects funded under 23 U.S.C. 117, and National Highway
Freight Program projects funded under 23 U.S.C. 167.
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.
1. Minimum wages (29 CFR 5.5)
a. Wage rates and fringe benefits. All laborers and
mechanics employed or working upon the site of the work (or
otherwise working in construction or development of the
project under a development statute), will be paid
unconditionally and not less often than once a week, and
without subsequent deduction or rebate on any account
(except such payroll deductions as are permitted by
regulations issued by the Secretary of Labor under the
Copeland Act (29 CFR part 3)), the full amount of basic hourly
wages and bona fide fringe benefits (or cash equivalents
thereof) due at time of payment computed at rates not less
than those contained in the wage determination of the
Secretary of Labor which is attached hereto and made a part
hereof, regardless of any contractual relationship which may
be alleged to exist between the contractor and such laborers
and mechanics. As provided in paragraphs (d) and (e) of 29
CFR 5.5, the appropriate wage determinations are effective by
operation of law even if they have not been attached to the
contract. Contributions made or costs reasonably anticipated
for bona fide fringe benefits under the Davis-Bacon Act (40
U.S.C. 3141(2)(B)) on behalf of laborers or mechanics are
considered wages paid to such laborers or mechanics, subject
to the provisions of paragraph 1.e. of this section; also, regular
contributions made or costs incurred for more than a weekly
period (but not less often than quarterly) under plans, funds, or
programs which cover the particular weekly period, are
deemed to be constructively made or incurred during such
weekly period. Such laborers and mechanics must be paid the
appropriate wage rate and fringe benefits on the wage
determination for the classification(s) of work actually
performed, without regard to skill, except as provided in
paragraph 4. of this section. Laborers or mechanics performing
work in more than one classification may be compensated at
the rate specified for each classification for the time actually
worked therein: Provided, That the employer's payroll records
accurately set forth the time spent in each classification in
which work is performed. The wage determination (including
any additional 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
its subcontractors at the site of the work in a prominent and
accessible place where it can be easily seen by the workers.
b. Frequently recurring classifications. (1) In addition to wage
and fringe benefit rates that have been determined to be
prevailing under the procedures set forth in 29 CFR part 1, a
wage determination may contain, pursuant to § 1.3(f), wage
and fringe benefit rates for classifications of laborers and
mechanics for which conformance requests are regularly
submitted pursuant to paragraph 1.c. of this section, provided
that:
(i) The work performed by the classification is not
performed by a classification in the wage determination for
which a prevailing wage rate has been determined;
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(ii) The classification is used in the area by the
construction industry; and
(iii) The wage rate for the classification bears a reasonable
relationship to the prevailing wage rates contained in the
wage determination.
(2) The Administrator will establish wage rates for such
classifications in accordance with paragraph 1.c.(1)(iii) of this
section. Work performed in such a classification must be paid
at no less than the wage and fringe benefit rate listed on the
wage determination for such classification.
c. Conformance. (1) The contracting officer must require that
any class of laborers or mechanics, including helpers, which is
not listed in the wage determination and which is to be
employed under the contract be classified in conformance with
the wage determination. Conformance of an additional
classification and wage rate and fringe benefits is appropriate
only when the following criteria have been met:
(i) The work to be performed by the classification
requested is not performed by a classification in the wage
determination; and
(ii) The classification is used in the area by the
construction industry; and
(iii) The proposed wage rate, including any bona fide fringe
benefits, bears a reasonable relationship to the wage rates
contained in the wage determination.
(2) The conformance process may not be used to split,
subdivide, or otherwise avoid application of classifications
listed in the wage determination.
(3) If the contractor and the laborers and mechanics to be
employed in the classification (if known), or their
representatives, and the contracting officer agree on the
classification and wage rate (including the amount designated
for fringe benefits where appropriate), a report of the action
taken will be sent by the contracting officer by email to
DBAconformance@dol.gov. The Administrator, or an
authorized representative, will approve, modify, or disapprove
every additional classification action within 30 days of receipt
and so advise the contracting officer or will notify the
contracting officer within the 30–day period that additional time
is necessary.
(4) In the event the contractor, the laborers or mechanics to
be employed in the classification or their representatives, and
the contracting officer do not agree on the proposed
classification and wage rate (including the amount designated
for fringe benefits, where appropriate), the contracting officer
will, by email to DBAconformance@dol.gov, refer the
questions, including the views of all interested parties and the
recommendation of the contracting officer, to the Administrator
for determination. The Administrator, or an authorized
representative, will issue a determination within 30 days of
receipt and so advise the contracting officer or will notify the
contracting officer within the 30–day period that additional time
is necessary.
(5) The contracting officer must promptly notify the
contractor of the action taken by the Wage and Hour Division
under paragraphs 1.c.(3) and (4) of this section. The contractor
must furnish a written copy of such determination to each
affected worker or it must be posted as a part of the wage
determination. The wage rate (including fringe benefits where
appropriate) determined pursuant to paragraph 1.c.(3) or (4) of
this section must 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.
d. Fringe benefits not expressed as an hourly rate.
Whenever the minimum wage rate prescribed in the contract
for a class of laborers or mechanics includes a fringe benefit
which is not expressed as an hourly rate, the contractor may
either pay the benefit as stated in the wage determination or
may pay another bona fide fringe benefit or an hourly cash
equivalent thereof.
e. Unfunded plans. If the contractor does not make
payments to a trustee or other third person, the contractor may
consider as part of the wages of any laborer or mechanic the
amount of any costs reasonably anticipated in providing bona
fide fringe benefits under a plan or program, Provided, That
the Secretary of Labor has found, upon the written request of
the contractor, in accordance with the criteria set forth in
§ 5.28, 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.
f. Interest. In the event of a failure to pay all or part of the
wages required by the contract, the contractor will be required
to pay interest on any underpayment of wages.
2. Withholding (29 CFR 5.5)
a. Withholding requirements. The contracting agency may,
upon its own action, or must, upon written request of an
authorized representative of the Department of Labor, withhold
or cause to be withheld from the contractor so much of the
accrued payments or advances as may be considered
necessary to satisfy the liabilities of the prime contractor or any
subcontractor for the full amount of wages and monetary relief,
including interest, required by the clauses set forth in this
section for violations of this contract, or to satisfy any such
liabilities required by any other Federal contract, or federally
assisted contract subject to Davis-Bacon labor standards, that
is held by the same prime contractor (as defined in § 5.2). The
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
subject to Davis-Bacon labor standards requirements 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 contractor liability
for which the funds were withheld. In the event of a
contractor's failure to pay any laborer or mechanic, including
any apprentice or helper working on the site of the work all or
part of the wages required by the contract, or upon the
contractor's failure to submit the required records as discussed
in paragraph 3.d. of this section, the contracting agency may
on its own initiative and after written notice to the contractor,
take such action as may be necessary to cause the
suspension of any further payment, advance, or guarantee of
funds until such violations have ceased.
b. Priority to withheld funds. The Department has priority to
funds withheld or to be withheld in accordance with paragraph
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2.a. of this section or Section V, paragraph 3.a., or both, over
claims to those funds by:
(1) A contractor's surety(ies), including without limitation
performance bond sureties and payment bond sureties;
(2) A contracting agency for its reprocurement costs;
(3) A trustee(s) (either a court-appointed trustee or a U.S.
trustee, or both) in bankruptcy of a contractor, or a contractor's
bankruptcy estate;
(4) A contractor's assignee(s);
(5) A contractor's successor(s); or
(6) A claim asserted under the Prompt Payment Act, 31
U.S.C. 3901–3907.
3. Records and certified payrolls (29 CFR 5.5)
a. Basic record requirements (1) Length of record retention.
All regular payrolls and other basic records must be
maintained by the contractor and any subcontractor during the
course of the work and preserved for all laborers and
mechanics working at the site of the work (or otherwise
working in construction or development of the project under a
development statute) for a period of at least 3 years after all
the work on the prime contract is completed.
(2) Information required. Such records must contain the
name; Social Security number; last known address, telephone
number, and email address of each such worker; each
worker's correct classification(s) of work actually performed;
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 40 U.S.C.
3141(2)(B) of the Davis-Bacon Act); daily and weekly number
of hours actually worked in total and on each covered contract;
deductions made; and actual wages paid.
(3) Additional records relating to fringe benefits. Whenever
the Secretary of Labor has found under paragraph 1.e. of this
section that the wages of any laborer or mechanic include the
amount of any costs reasonably anticipated in providing
benefits under a plan or program described in 40 U.S.C.
3141(2)(B) of the Davis-Bacon Act, the contractor must
maintain records which show that the commitment to provide
such benefits is enforceable, that the plan or program is
financially responsible, and that the plan or program has been
communicated in writing to the laborers or mechanics affected,
and records which show the costs anticipated or the actual
cost incurred in providing such benefits.
(4) Additional records relating to apprenticeship. Contractors
with apprentices working under approved programs must
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.
b. Certified payroll requirements (1) Frequency and method
of submission. The contractor or subcontractor must submit
weekly, for each week in which any DBA- or Related Acts-
covered work is performed, certified payrolls to the contracting
agency. The prime contractor is responsible for the submission
of all certified payrolls by all subcontractors. A contracting
agency or prime contractor may permit or require contractors to
submit certified payrolls through an electronic system, as long
as the electronic system requires a legally valid electronic
signature; the system allows the contractor, the contracting
agency, and the Department of Labor to access the certified
payrolls upon request for at least 3 years after the work on the
prime contract has been completed; and the contracting agency
or prime contractor permits other methods of submission in
situations where the contractor is unable or limited in its ability to
use or access the electronic system.
(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
section, except that full Social Security numbers and last
known addresses, telephone numbers, and email addresses
must not be included on weekly transmittals. Instead, the
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
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
Division website at https://www.dol.gov/sites/dolgov/files/WHD/
legacy/files/wh347/.pdf or its successor website. It is not a
violation of this section for a prime contractor to require a
subcontractor to provide full Social Security numbers and last
known addresses, telephone numbers, and email addresses to
the prime contractor for its own records, without weekly
submission by the subcontractor to the contracting agency.
(3) Statement of Compliance. Each certified payroll
submitted must be accompanied by a “Statement of
Compliance,” signed by the contractor or subcontractor, or the
contractor's or subcontractor's agent who pays or supervises
the payment of the persons working on the contract, and must
certify the following:
(i) That the certified payroll for the payroll period contains
the information required to be provided under paragraph 3.b.
of this section, the appropriate information and basic records
are being maintained under paragraph 3.a. of this section,
and such information and records are correct and complete;
(ii) That each laborer or mechanic (including each helper
and apprentice) working on the contract during the payroll
period has been paid the full weekly wages earned, without
rebate, either directly or indirectly, and that no deductions
have been made either directly or indirectly from the full
wages earned, other than permissible deductions as set
forth in 29 CFR part 3; and
(iii) That each laborer or mechanic has been paid not less
than the applicable wage rates and fringe benefits or cash
equivalents for the classification(s) of work actually
performed, as specified in the applicable wage determination
incorporated into the contract.
(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
submission of the “Statement of Compliance” required by
paragraph 3.b.(3) of this section.
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(5) Signature. The signature by the contractor,
subcontractor, or the contractor's or subcontractor's agent
must be an original handwritten signature or a legally valid
electronic signature.
(6) Falsification. The falsification of any of the above
certifications may subject the contractor or subcontractor to
civil or criminal prosecution under 18 U.S.C. 1001 and 31
U.S.C. 3729.
(7) Length of certified payroll retention. The contractor or
subcontractor must preserve all certified payrolls during the
course of the work and for a period of 3 years after all the work
on the prime contract is completed.
c. Contracts, subcontracts, and related documents. The
contractor or subcontractor must maintain this contract or
subcontract and related documents including, without
limitation, bids, proposals, amendments, modifications, and
extensions. The contractor or subcontractor must preserve
these contracts, subcontracts, and related documents during
the course of the work and for a period of 3 years after all the
work on the prime contract is completed.
d. Required disclosures and access (1) Required record
disclosures and access to workers. The contractor or
subcontractor must make the records required under
paragraphs 3.a. through 3.c. of this section, and any other
documents that the contracting agency, the State DOT, the
FHWA, or the Department of Labor deems necessary to
determine compliance with the labor standards provisions of
any of the applicable statutes referenced by § 5.1, available for
inspection, copying, or transcription by authorized
representatives of the contracting agency, the State DOT, the
FHWA, or the Department of Labor, and must permit such
representatives to interview workers during working hours on
the job.
(2) Sanctions for non-compliance with records and worker
access requirements. If the contractor or subcontractor fails to
submit the required records or to make them available, or
refuses to permit worker interviews during working hours on
the job, the Federal agency may, after written notice to the
contractor, sponsor, applicant, owner, or other entity, as the
case may be, that maintains such records or that employs
such workers, take such action as may be necessary to cause
the suspension of any further payment, advance, or guarantee
of funds. Furthermore, failure to submit the required records
upon request or to make such records available, or to permit
worker interviews during working hours on the job, may be
grounds for debarment action pursuant to § 5.12. In addition,
any contractor or other person that fails to submit the required
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
proceeding under 29 CFR part 6 any of the required records
that were not provided or made available to WHD. WHD will
take into consideration a reasonable request from the
contractor or person for an extension of the time for
submission of records. WHD will determine the
reasonableness of the request and may consider, among other
things, the location of the records and the volume of
production.
(3) Required information disclosures. Contractors and
subcontractors must maintain the full Social Security number
and last known address, telephone number, and email address
of each covered worker, and must provide them upon request
to the contracting agency, the State DOT, the FHWA, the
contractor, or the Wage and Hour Division of the Department of
Labor for purposes of an investigation or other compliance
action.
4. Apprentices and equal employment opportunity (29 CFR
5.5)
a. Apprentices (1) Rate of pay. Apprentices will be permitted
to work at less than the predetermined rate for the work they
perform when they are employed pursuant to and individually
registered in a bona fide apprenticeship program registered
with the U.S. Department of Labor, Employment and Training
Administration, Office of Apprenticeship (OA), or with a State
Apprenticeship Agency recognized by the OA. A person who is
not individually registered in the program, but who has been
certified by the OA or a State Apprenticeship Agency (where
appropriate) to be eligible for probationary employment as an
apprentice, will be permitted to work at less than the
predetermined rate for the work they perform in the first 90
days of probationary employment as an apprentice in such a
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
permitted to use apprentices at less than the applicable
predetermined rate for the work performed until an acceptable
program is approved.
(2) Fringe benefits. Apprentices must be paid fringe benefits
in accordance with the provisions of the apprenticeship
program. If the apprenticeship program does not specify fringe
benefits, apprentices must be paid the full amount of fringe
benefits listed on the wage determination for the applicable
classification. If the Administrator determines that a different
practice prevails for the applicable apprentice classification,
fringe benefits must be paid in accordance with that
determination.
(3) Apprenticeship ratio. The allowable ratio of apprentices to
journeyworkers on the job site in any craft classification must
not be greater than the ratio permitted to the contractor as to
the entire work force under the registered program or the ratio
applicable to the locality of the project pursuant to paragraph
4.a.(4) of this section. Any worker listed on a payroll at an
apprentice wage rate, who is not registered or otherwise
employed as stated in paragraph 4.a.(1) of this section, must
be paid not less than the applicable wage rate on the wage
determination for the classification of work actually performed.
In addition, any apprentice performing work on the job site in
excess of the ratio permitted under this section must be paid
not less than the applicable wage rate on the wage
determination for the work actually performed.
(4) Reciprocity of ratios and wage rates. Where a contractor
is performing construction on a project in a locality other than
the locality in which its program is registered, the ratios and
wage rates (expressed in percentages of the journeyworker's
hourly rate) applicable within the locality in which the
construction is being performed must be observed. If there is
no applicable ratio or wage rate for the locality of the project,
the ratio and wage rate specified in the contractor's registered
program must be observed.
b. Equal employment opportunity. The use of apprentices
and journeyworkers under this part must be in conformity with
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the equal employment opportunity requirements of Executive
Order 11246, as amended, and 29 CFR part 30.
c. Apprentices and Trainees (programs of the U.S. DOT).
Apprentices and trainees working under apprenticeship and
skill training programs which have been certified by the
Secretary of Transportation as promoting EEO in connection
with Federal-aid highway construction programs are not subject
to the requirements of paragraph 4 of this Section IV. 23 CFR
230.111(e)(2). The straight time hourly wage rates for
apprentices and trainees under such programs will be
established by the particular programs. The ratio of apprentices
and trainees to journeyworkers shall not be greater than
permitted by the terms of the particular program.
5. Compliance with Copeland Act requirements. The
contractor shall comply with the requirements of 29 CFR part
3, which are incorporated by reference in this contract as
provided in 29 CFR 5.5.
6. Subcontracts. The contractor or subcontractor must insert
FHWA-1273 in any subcontracts, along with the applicable
wage determination(s) and such other clauses or contract
modifications as the contracting agency may by appropriate
instructions require, and a clause requiring the subcontractors
to include these clauses and wage determination(s) in any
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
the event of any violations of these clauses, the prime
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
of lower-tier subcontractors, and may be subject to debarment,
as appropriate. 29 CFR 5.5.
7. Contract termination: debarment. A breach of the
contract clauses in 29 CFR 5.5 may be grounds for termination
of the contract, and for debarment as a contractor and a
subcontractor as provided in 29 CFR 5.12.
8. Compliance with Davis-Bacon and Related Act
requirements. All rulings and interpretations of the Davis-
Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5
are herein incorporated by reference in this contract as
provided in 29 CFR 5.5.
9. Disputes concerning labor standards. As provided in 29
CFR 5.5, disputes arising out of the labor standards provisions
of this contract shall not be subject to the general disputes
clause of this contract. Such disputes shall be resolved in
accordance with the procedures of the Department of Labor
set forth in 29 CFR parts 5, 6, and 7. Disputes within the
meaning of this clause include disputes between the contractor
(or any of its subcontractors) and the contracting agency, the
U.S. Department of Labor, or the employees or their
representatives.
10. Certification of eligibility. a. By entering into this contract,
the contractor certifies that neither it nor any 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 40
U.S.C. 3144(b) or § 5.12(a).
b. No part of this contract shall be subcontracted to any
person or firm ineligible for award of a Government contract by
virtue of 40 U.S.C. 3144(b) or § 5.12(a).
c. The penalty for making false statements is prescribed in
the U.S. Code, Title 18 Crimes and Criminal Procedure, 18
U.S.C. 1001.
11. Anti-retaliation. It is unlawful for any person to discharge,
demote, intimidate, threaten, restrain, coerce, blacklist, harass,
or in any other manner discriminate against, or to cause any
person to discharge, demote, intimidate, threaten, restrain,
coerce, blacklist, harass, or in any other manner discriminate
against, any worker or job applicant for:
a. Notifying any contractor of any conduct which the worker
reasonably believes constitutes a violation of the DBA, Related
Acts, this part, or 29 CFR part 1 or 3;
b. Filing any complaint, initiating or causing to be initiated
any proceeding, or otherwise asserting or seeking to assert on
behalf of themselves or others any right or protection under the
DBA, Related Acts, this part, or 29 CFR part 1 or 3;
c. Cooperating in any investigation or other compliance
action, or testifying in any proceeding under the DBA, Related
Acts, this part, or 29 CFR part 1 or 3; or
d. Informing any other person about their rights under the
DBA, Related Acts, this part, or 29 CFR part 1 or 3.
V. CONTRACT WORK HOURS AND SAFETY STANDARDS
ACT
Pursuant to 29 CFR 5.5(b), the following clauses apply to any
Federal-aid construction contract in an amount in excess of
$100,000 and subject to the overtime provisions of the Contract
Work Hours and Safety Standards Act. These clauses shall be
inserted in addition to the clauses required by 29 CFR 5.5(a) or
29 CFR 4.6. As used in this paragraph, the terms laborers and
mechanics include watchpersons and guards.
1. Overtime requirements. No contractor or subcontractor
contracting for any part of the contract work which may require
or involve the employment of laborers or mechanics shall
require or permit any such laborer or mechanic in any
workweek in which he or she is employed on such work to
work in excess of forty hours in such workweek unless such
laborer or mechanic receives compensation at a rate not less
than one and one-half times the basic rate of pay for all hours
worked in excess of forty hours in such workweek. 29 CFR
5.5.
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
subcontractor responsible therefor shall be liable for the
unpaid wages and interest from the date of the underpayment.
In addition, such contractor and subcontractor shall be liable to
the United States (in the case of work done under contract for
the District of Columbia or a territory, to such District or to such
territory), for liquidated damages. Such liquidated damages
shall be computed with respect to each individual laborer or
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mechanic, including watchpersons and guards, employed in
violation of the clause set forth in paragraph 1. of this section,
in the sum currently provided in 29 CFR 5.5(b)(2)* for each
calendar day on which such individual was required or
permitted to work in excess of the standard workweek of forty
hours without payment of the overtime wages required by the
clause set forth in paragraph 1. of this section.
* $31 as of January 15, 2023 (See 88 FR 88 FR 2210) as may
be adjusted annually by the Department of Labor, pursuant to
the Federal Civil Penalties Inflation Adjustment Act of 1990.
3. Withholding for unpaid wages and liquidated damages
a. Withholding process. The FHWA or the contracting
agency may, upon its own action, or must, upon written
request of an authorized representative of the Department of
Labor, withhold or cause to be withheld from the contractor so
much of the accrued payments or advances as may be
considered necessary to satisfy the liabilities of the prime
contractor or any subcontractor for any unpaid wages;
monetary relief, including interest; and liquidated damages
required by the clauses set forth in this section on this
contract, any other Federal contract with the same prime
contractor, or any other federally assisted contract subject to
the Contract Work Hours and Safety Standards Act that is held
by the same prime contractor (as defined in § 5.2). The
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
subject to the Contract Work Hours and Safety Standards Act
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
contractor liability for which the funds were withheld.
b. Priority to withheld funds. The Department has priority to
funds withheld or to be withheld in accordance with Section IV
paragraph 2.a. or paragraph 3.a. of this section, or both, over
claims to those funds by:
(1) A contractor's surety(ies), including without limitation
performance bond sureties and payment bond sureties;
(2) A contracting agency for its reprocurement costs;
(3) A trustee(s) (either a court-appointed trustee or a U.S.
trustee, or both) in bankruptcy of a contractor, or a contractor's
bankruptcy estate;
(4) A contractor's assignee(s);
(5) A contractor's successor(s); or
(6) A claim asserted under the Prompt Payment Act, 31
U.S.C. 3901–3907.
4. Subcontracts. The contractor or subcontractor must insert
in any subcontracts the clauses set forth in paragraphs 1.
through 5. of this section and a clause requiring the
subcontractors to include these clauses in any lower tier
subcontracts. The prime contractor is responsible for
compliance by any subcontractor or lower tier subcontractor
with the clauses set forth in paragraphs 1. through 5. In the
event of any violations of these clauses, the prime 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 of lower- tier
subcontractors, and associated liquidated damages and may be
subject to debarment, as appropriate.
5. Anti-retaliation. It is unlawful for any person to discharge,
demote, intimidate, threaten, restrain, coerce, blacklist, harass,
or in any other manner discriminate against, or to cause any
person to discharge, demote, intimidate, threaten, restrain,
coerce, blacklist, harass, or in any other manner discriminate
against, any worker or job applicant for:
a. Notifying any contractor of any conduct which the worker
reasonably believes constitutes a violation of the Contract
Work Hours and Safety Standards Act (CWHSSA) or its
implementing regulations in this part;
b. Filing any complaint, initiating or causing to be initiated
any proceeding, or otherwise asserting or seeking to assert on
behalf of themselves or others any right or protection under
CWHSSA or this part;
c. Cooperating in any investigation or other compliance
action, or testifying in any proceeding under CWHSSA or this
part; or
d. Informing any other person about their rights under
CWHSSA or this part.
VI. SUBLETTING OR ASSIGNING THE CONTRACT
This provision is applicable to all Federal-aid construction
contracts on the National Highway System pursuant to 23 CFR
635.116.
1. The contractor shall perform with its own organization
contract 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 price before computing the amount of work
required to be performed by the contractor's own organization
(23 CFR 635.116).
a. The term “perform work with its own organization” in
paragraph 1 of Section VI refers to workers employed or
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
subcontractor or lower tier subcontractor, agents of the prime
contractor, or any other assignees. The term may include
payments for the costs of hiring leased employees from an
employee leasing firm meeting all relevant Federal and State
regulatory requirements. Leased employees may only be
included in this term if the prime contractor meets all of the
following conditions: (based on longstanding interpretation)
(1) the prime contractor maintains control over the
supervision of the day-to-day activities of the leased
employees;
(2) the prime contractor remains responsible for the quality
of the work of the leased employees;
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(3) the prime contractor retains all power to accept or
exclude individual employees from work on the project; and
(4) the prime contractor remains ultimately responsible for
the payment of predetermined minimum wages, the
submission of payrolls, statements of compliance and all
other Federal regulatory requirements.
b. "Specialty Items" shall be construed to be limited to work
that requires highly specialized knowledge, abilities, or
equipment not ordinarily available in the type of contracting
organizations qualified and expected to bid or propose on the
contract as a whole and in general are to be limited to minor
components of the overall contract. 23 CFR 635.102.
2. Pursuant to 23 CFR 635.116(a), the contract amount upon
which the 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. Pursuant to 23 CFR 635.116(c), 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
(supervision, management, and engineering services) as the
contracting officer determines is necessary to assure the
performance of the contract.
4. No portion of the contract shall be sublet, assigned or
otherwise disposed of except with the written consent of the
contracting officer, or authorized representative, and such
consent when given shall not be construed to relieve the
contractor of any responsibility for the fulfillment of the
contract. Written consent will be given only after the
contracting agency has assured that each subcontract is
evidenced in writing and that it contains all pertinent provisions
and requirements of the prime contract. (based on long-
standing interpretation of 23 CFR 635.116).
5. The 30-percent self-performance requirement of paragraph
(1) is not applicable to design-build contracts; however,
contracting agencies may establish their own self-performance
requirements. 23 CFR 635.116(d).
VII. SAFETY: ACCIDENT PREVENTION
This provision is applicable to all Federal-aid construction
contracts and to all related subcontracts.
1. In the performance of this contract the contractor shall
comply 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 equipment and take any other needed actions as it
determines, or as the contracting officer may determine, to be
reasonably necessary to protect the life and health of
employees on the job and the safety of the public and to
protect property in connection with the performance of the
work covered by the contract. 23 CFR 635.108.
2. It is a condition of this contract, and shall be made a
condition of each subcontract, which the contractor enters into
pursuant to this contract, that the contractor and any
subcontractor shall not permit any employee, in performance
of the contract, to work in surroundings or under conditions
which are unsanitary, hazardous or dangerous to his/her
health or safety, as determined under construction safety and
health standards (29 CFR Part 1926) promulgated by the
Secretary of Labor, in accordance with Section 107 of the
Contract Work Hours and Safety Standards Act (40 U.S.C.
3704). 29 CFR 1926.10.
3. Pursuant to 29 CFR 1926.3, it is a condition of this contract
that the Secretary of Labor or authorized representative
thereof, shall have right of entry to any site of contract
performance to inspect or investigate the matter of compliance
with the construction safety and health standards and to carry
out the duties of the Secretary under Section 107 of the
Contract Work Hours and Safety Standards Act (40 U.S.C.
3704).
VIII. FALSE STATEMENTS CONCERNING HIGHWAY
PROJECTS
This provision is applicable to all Federal-aid construction
contracts and to all related subcontracts.
In order to assure high quality and durable construction in
conformity with approved plans and specifications and a high
degree of reliability on statements and representations made by
engineers, contractors, suppliers, and workers on Federal- aid
highway projects, it is essential that all persons concerned with
the project perform their functions as carefully, thoroughly, and
honestly as possible. Willful falsification, distortion, or
misrepresentation with respect to any facts related to the project
is a violation of Federal law. To prevent any misunderstanding
regarding the seriousness of these and similar acts, Form
FHWA-1022 shall be posted on each Federal-aid highway
project (23 CFR Part 635) in one or more places where it is
readily available to all persons concerned with the project:
18 U.S.C. 1020 reads as follows:
"Whoever, being an officer, agent, or employee of the United
States, or of any State or Territory, or whoever, whether a
person, association, firm, or corporation, knowingly makes any
false statement, false representation, or false report as to the
character, quality, quantity, or cost of the material used or to be
used, or the quantity or quality of the work performed or to be
performed, or the cost thereof in connection with the submission
of plans, maps, specifications, contracts, or costs of
construction on any highway or related project submitted for
approval to the Secretary of Transportation; or
Whoever knowingly makes any false statement, false
representation, false report or false claim with respect to the
character, quality, quantity, or cost of any work performed or to
be performed, or materials furnished or to be furnished, in
connection with the construction of any highway or related
project approved by the Secretary of Transportation; or
Whoever knowingly makes any false statement or false
representation as to material fact in any statement, certificate,
or report submitted pursuant to provisions of the Federal-aid
Roads Act approved July 11, 1916, (39 Stat. 355), as amended
and supplemented;
Shall be fined under this title or imprisoned not more than 5
years or both."
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IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL
WATER POLLUTION CONTROL ACT (42 U.S.C. 7606; 2
CFR 200.88; EO 11738)
This provision is applicable to all Federal-aid construction
contracts in excess of $150,000 and to all related
subcontracts. 48 CFR 2.101; 2 CFR 200.327.
By submission of this bid/proposal or the execution of this
contract or subcontract, as appropriate, the bidder, proposer,
Federal-aid construction contractor, subcontractor, supplier, or
vendor agrees to comply with all applicable standards, orders or
regulations issued pursuant to the Clean Air Act (42 U.S.C.
7401-7671q) and the Federal Water Pollution Control Act, as
amended (33 U.S.C. 1251-1387). Violations must be reported to
the Federal Highway Administration and the Regional Office of
the Environmental Protection Agency. 2 CFR Part 200,
Appendix II.
The contractor agrees to include or cause to be included the
requirements of this Section in every subcontract, and further
agrees to take such action as the contracting agency may
direct as a means of enforcing such requirements. 2 CFR
200.327.
X. CERTIFICATION REGARDING DEBARMENT,
SUSPENSION, INELIGIBILITY AND VOLUNTARY
EXCLUSION
This provision is applicable to all Federal-aid construction
contracts, design-build contracts, subcontracts, lower-tier
subcontracts, purchase orders, lease agreements, consultant
contracts or any other covered transaction requiring FHWA
approval or that is estimated to cost $25,000 or more – as
defined in 2 CFR Parts 180 and 1200. 2 CFR 180.220 and
1200.220.
1. Instructions for Certification – First Tier Participants:
a. By signing and submitting this proposal, the prospective
first tier participant is providing the certification set out below.
b. The inability of a person to provide the certification set out
below will not necessarily result in denial of participation in this
covered transaction. The prospective first tier participant shall
submit an explanation of why it cannot provide the certification
set out below. The certification or explanation will be
considered in connection with the department or agency's
determination whether to enter into this transaction. However,
failure of the prospective first tier participant to furnish a
certification or an explanation shall disqualify such a person
from participation in this transaction. 2 CFR 180.320.
c. The certification in this clause is a material representation
of fact upon which reliance was placed when the contracting
agency determined to enter into this transaction. If it is later
determined that the prospective participant knowingly rendered
an erroneous certification, in addition to other remedies
available to the Federal Government, the contracting agency
may terminate this transaction for cause of default. 2 CFR
180.325.
d. The prospective first tier participant shall provide
immediate written notice to the contracting agency to whom
this proposal is submitted if any time the prospective first tier
participant learns that its certification was erroneous when
submitted or has become erroneous by reason of changed
circumstances. 2 CFR 180.345 and 180.350.
e. The terms "covered transaction," "debarred,"
"suspended," "ineligible," "participant," "person," "principal,"
and "voluntarily excluded," as used in this clause, are defined
in 2 CFR Parts 180, Subpart I, 180.900-180.1020, and 1200.
“First Tier Covered Transactions” refers to any covered
transaction between a recipient or subrecipient of Federal
funds and a participant (such as the prime or general contract).
“Lower Tier Covered Transactions” refers to any covered
transaction under a First Tier Covered Transaction (such as
subcontracts). “First Tier Participant” refers to the participant
who has entered into a covered transaction with a recipient or
subrecipient of Federal funds (such as the prime or general
contractor). “Lower Tier Participant” refers any participant who
has entered into a covered transaction with a First Tier
Participant or other Lower Tier Participants (such as
subcontractors and suppliers).
f. The prospective first tier participant agrees by submitting
this proposal that, should the proposed covered transaction be
entered into, it shall not knowingly enter into any lower tier
covered transaction with a person who is debarred,
suspended, declared ineligible, or voluntarily excluded from
participation in this covered transaction, unless authorized by
the department or agency entering into this transaction. 2
CFR 180.330.
g. The prospective first tier participant further agrees by
submitting this proposal that it will include the clause titled
"Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion-Lower Tier Covered Transactions,"
provided by the department or contracting agency, entering
into this covered transaction, without modification, in all lower
tier covered transactions and in all solicitations for lower tier
covered transactions exceeding the $25,000 threshold. 2 CFR
180.220 and 180.300.
h. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it
knows that the certification is erroneous. 2 CFR 180.300;
180.320, and 180.325. A participant is responsible for
ensuring that its principals are not suspended, debarred, or
otherwise ineligible to participate in covered transactions. 2
CFR 180.335. To verify the eligibility of its principals, as well
as the eligibility of any lower tier prospective participants, each
participant may, but is not required to, check the System for
Award Management website (https://www.sam.gov/). 2 CFR
180.300, 180.320, and 180.325.
i. Nothing contained in the foregoing shall be construed to
require the establishment of a system of records in order to
render in good faith the certification required by this clause.
The knowledge and information of the prospective participant
is not required to exceed that which is normally possessed by
a prudent person in the ordinary course of business dealings.
j. Except for transactions authorized under paragraph (f) of
these instructions, if a participant in a covered transaction
knowingly enters into a lower tier covered transaction with a
person who is suspended, debarred, ineligible, or voluntarily
excluded from participation in this transaction, in addition to
other remedies available to the Federal Government, the
department or agency may terminate this transaction for cause
or default. 2 CFR 180.325.
* * * * *
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2. Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion – First Tier
Participants:
a. The prospective first tier participant certifies to the best of
its knowledge and belief, that it and its principals:
(1) Are not presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from
participating in covered transactions by any Federal
department or agency, 2 CFR 180.335;.
(2) Have not within a three-year period preceding this
proposal been convicted of or had a civil judgment rendered
against them for commission of fraud or a criminal offense in
connection with obtaining, attempting to obtain, or performing
a public (Federal, State, or local) transaction or contract under
a public transaction; violation of Federal or State antitrust
statutes or commission of embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false
statements, or receiving stolen property, 2 CFR 180.800;
(3) Are not presently indicted for or otherwise criminally or
civilly charged by a governmental entity (Federal, State or
local) with commission of any of the offenses enumerated in
paragraph (a)(2) of this certification, 2 CFR 180.700 and
180.800; and
(4) Have not within a three-year period preceding this
application/proposal had one or more public transactions
(Federal, State or local) terminated for cause or default. 2
CFR 180.335(d).
(5) Are not a corporation that has been convicted of a felony
violation under any Federal law within the two-year period
preceding this proposal (USDOT Order 4200.6 implementing
appropriations act requirements); and
(6) Are not a corporation with any unpaid Federal tax liability
that has been assessed, for which all judicial and
administrative remedies have been exhausted, or have lapsed,
and that is not being paid in a timely manner pursuant to an
agreement with the authority responsible for collecting the tax
liability (USDOT Order 4200.6 implementing appropriations act
requirements).
b. Where the prospective participant is unable to certify to
any of the statements in this certification, such prospective
participant should attach an explanation to this proposal. 2
CFR 180.335 and 180.340.
* * * * *
3. Instructions for Certification - Lower Tier Participants:
(Applicable to all subcontracts, purchase orders, and other
lower tier transactions requiring prior FHWA approval or
estimated to cost $25,000 or more - 2 CFR Parts 180 and
1200). 2 CFR 180.220 and 1200.220.
a. By signing and submitting this proposal, the prospective
lower tier participant is providing the certification set out below.
b. The certification in this clause is a material representation
of fact upon which reliance was placed when this transaction
was entered into. If it is later determined that the prospective
lower tier participant knowingly rendered an erroneous
certification, in addition to other remedies available to the
Federal Government, the department, or agency with which
this transaction originated may pursue available remedies,
including suspension and/or debarment.
c. The prospective lower tier participant shall provide
immediate written notice to the person to which this proposal is
submitted if at any time the prospective lower tier participant
learns that its certification was erroneous by reason of
changed circumstances. 2 CFR 180.365.
d. The terms "covered transaction," "debarred,"
"suspended," "ineligible," "participant," "person," "principal,"
and "voluntarily excluded," as used in this clause, are defined
in 2 CFR Parts 180, Subpart I, 180.900 – 180.1020, and 1200.
You may contact the person to which this proposal is
submitted for assistance in obtaining a copy of those
regulations. “First Tier Covered Transactions” refers to any
covered transaction between a recipient or subrecipient of
Federal funds and a participant (such as the prime or general
contract). “Lower Tier Covered Transactions” refers to any
covered transaction under a First Tier Covered Transaction
(such as subcontracts). “First Tier Participant” refers to the
participant who has entered into a covered transaction with a
recipient or subrecipient of Federal funds (such as the prime or
general contractor). “Lower Tier Participant” refers any
participant who has entered into a covered transaction with a
First Tier Participant or other Lower Tier Participants (such as
subcontractors and suppliers).
e. The prospective lower tier participant agrees by
submitting this proposal that, should the proposed covered
transaction be entered into, it shall not knowingly enter into
any lower tier covered transaction with a person who is
debarred, suspended, declared ineligible, or voluntarily
excluded from participation in this covered transaction, unless
authorized by the department or agency with which this
transaction originated. 2 CFR 1200.220 and 1200.332.
f. The prospective lower tier participant further agrees by
submitting this proposal that it will include this clause titled
"Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion-Lower Tier Covered Transaction,"
without modification, in all lower tier covered transactions and
in all solicitations for lower tier covered transactions exceeding
the $25,000 threshold. 2 CFR 180.220 and 1200.220.
g. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it
knows that the certification is erroneous. A participant is
responsible for ensuring that its principals are not suspended,
debarred, or otherwise ineligible to participate in covered
transactions. To verify the eligibility of its principals, as well as
the eligibility of any lower tier prospective participants, each
participant may, but is not required to, check the System for
Award Management website (https://www.sam.gov/), which is
compiled by the General Services Administration. 2 CFR
180.300, 180.320, 180.330, and 180.335.
h. Nothing contained in the foregoing shall be construed to
require establishment of a system of records in order to render
in good faith the certification required by this clause. The
knowledge and information of participant is not required to
exceed that which is normally possessed by a prudent person
in the ordinary course of business dealings.
i. Except for transactions authorized under paragraph e of
these instructions, if a participant in a covered transaction
knowingly enters into a lower tier covered transaction with a
person who is suspended, debarred, ineligible, or voluntarily
excluded from participation in this transaction, in addition to other
remedies available to the Federal Government, the department or
agency with which this transaction originated may pursue available
remedies, including suspension and/or debarment. 2 CFR 180.325.
* * * * *
4. Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion--Lower Tier Participants: Page 179 of 282
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a. The prospective lower tier participant certifies, by submission of
this proposal, that neither it nor its principals:
(1) is presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from participating in
covered transactions by any Federal department or agency, 2 CFR
180.355;
(2) is a corporation that has been convicted of a felony violation
under any Federal law within the two-year period preceding this
proposal (USDOT Order 4200.6 implementing appropriations act
requirements); and
(3) is a corporation with any unpaid Federal tax liability that has
been assessed, for which all judicial and administrative remedies
have been exhausted, or have lapsed, and that is not being paid in a
timely manner pursuant to an agreement with the authority
responsible for collecting the tax liability. (USDOT Order 4200.6
implementing appropriations act requirements)
b. Where the prospective lower tier participant is unable to certify
to any of the statements in this certification, such prospective
participant should attach an explanation to this proposal.
* * * * *
XI. CERTIFICATION REGARDING USE OF CONTRACT FUNDS
FOR LOBBYING
This provision is applicable to all Federal-aid construction contracts
and to all related subcontracts which exceed
$100,000. 49 CFR Part 20, App. A.
1. The prospective participant certifies, by signing and
submitting this bid or proposal, to the best of his or her
knowledge and belief, that:
a. No Federal appropriated funds have been paid or will be paid, by
or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of any Federal agency, a
Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with the awarding of
any Federal contract, the making of any Federal grant, the making of
any Federal loan, the entering into of any cooperative agreement, and
the extension, continuation, renewal, amendment, or modification of
any Federal contract, grant, loan, or cooperative agreement.
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
cooperative agreement, the undersigned shall complete and submit
Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance
with its instructions.
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
U.S.C. 1352. Any person who fails to file the required certification shall
be subject to a civil penalty of not less than
$10,000 and not more than $100,000 for each such failure.
3. The prospective participant also agrees by submitting its bid or
proposal that the participant shall require that the language of this
certification be included in all lower tier subcontracts, which exceed
$100,000 and that all such recipients shall certify and disclose
accordingly.
XII. USE OF UNITED STATES-FLAG VESSELS:
This provision is applicable to all Federal-aid construction contracts,
design-build contracts, subcontracts, lower-tier subcontracts, purchase
orders, lease agreements, or any other covered transaction. 46 CFR Part
381.
This requirement applies to material or equipment that is acquired for a
specific Federal-aid highway project. 46 CFR
381.7. It is not applicable to goods or materials that come into inventories
independent of an FHWA funded-contract.
When oceanic shipments (or shipments across the Great Lakes) are
necessary for materials or equipment acquired for a specific Federal-aid
construction project, the bidder, proposer, contractor, subcontractor, or
vendor agrees:
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 extent such vessels are available at fair and reasonable
rates for United States-flag commercial vessels. 46 CFR 381.7.
2. To furnish within 20 days following the date of loading for shipments
originating within the United States or within 30 working days following
the date of loading for shipments originating outside the United States,
a legible copy of a rated, ‘on-board’ commercial ocean bill-of-lading in
English for each shipment of cargo described in paragraph (b)(1) of this
section to both the Contracting Officer (through the prime contractor in
the case of subcontractor bills-of-lading) and to the Office of Cargo and
Commercial Sealift (MAR-620), Maritime Administration, Washington,
DC 20590. (MARAD requires copies of the ocean carrier's (master) bills
of lading, certified onboard, dated, with rates and charges. These bills
of lading may contain business sensitive information and therefore may
be submitted directly to MARAD by the Ocean Transportation
Intermediary on behalf of the contractor). 46 CFR 381.7.
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12. FEMALE AND MINORITY GOALS
To comply with Section II, "Nondiscrimination," of "Required Contract Provisions Federal -Aid Construction
Contracts," the following are for female and minority utilization goals for Federal -aid construction contracts and
subcontracts that exceed $10,000:
The nationwide goal for female utilization is 6.9 percent.
The goals for minority utilization (45 Fed Reg 65984 (10/3/1980)) are as follows:
MINORITY UTILIZATION GOALS
Economic
Area
Goal
(Percent)
174 Redding CA:
Non-SMSA (Standard Metropolitan Statistical Area) Counties:
CA Lassen; CA Modoc; CA Plumas; CA Shasta; CA Siskiyou; CA Tehama
6.8
175
Eureka, CA
Non-SMSA Counties:
CA Del Norte; CA Humboldt; CA Trinity
6.6
176
San Francisco-Oakland-San Jose, CA:
SMSA Counties:
28.9 7120 Salinas-Seaside-Monterey, CA
CA Monterey
7360 San Francisco-Oakland
CA Alameda; CA Contra Costa; CA Marin; CA San Francisco; CA San Mateo
25.6
7400 San Jose, CA 19.6 CA Santa Clara, CA
7485 Santa Cruz, CA
CA Santa Cruz 14.9
7500 Santa Rosa
CA Sonoma 9.1
8720 Vallejo-Fairfield-Napa, CA
CA Napa; CA Solano 17.1
Non-SMSA Counties:
CA Lake; CA Mendocino; CA San Benito
23.2
177
Sacramento, CA:
SMSA Counties:
6920 Sacramento, CA
CA Placer; CA Sacramento; CA
Yolo Non-SMSA Counties
CA Butte; CA Colusa; CA El Dorado; CA Glenn; CA Nevada; CA Sierra; CA Sutter; CA
Yuba
16.1
14.3
178
Stockton-Modesto, CA:
SMSA Counties:
5170 Modesto, CA 12.3
CA Stanislaus
8120 Stockton, CA
CA San Joaquin
24.3
Non-SMSA Counties
CA Alpine; CA Amador; CA Calaveras; CA Mariposa; CA Merced; CA Tuolumne
19.8
179
Fresno-Bakersfield, CA
SMSA Counties:
19.1
26.1
0680 Bakersfield, CA
CA Kern
2840 Fresno, CA
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CA Fresno
Non-SMSA Counties:
CA Kings; CA Madera; CA Tulare
23.6
180
Los Angeles, CA:
SMSA Counties:
0360 Anaheim -Santa Ana-Garden Grove, CA 11.9
CA Orange
4480 Los Angeles-Long Beach, CA 28.3
CA Los Angeles
6000 Oxnard-Simi Valley-Ventura, CA
CA Ventura
6780 Riverside-San Bernardino-Ontario, CA
21.5
19.0
CA Riverside; CA San Bernardino
7480 Santa Barbara-Santa Maria-Lompoc, CA 19.7
CA Santa Barbara
Non-SMSA Counties
CA Inyo; CA Mono; CA San Luis Obispo
24.6
181
San Diego, CA:
SMSA Counties
16.9 7320 San Diego, CA
CA San Diego 18.2 Non-SMSA Counties
CA Imperial
For the last full week of July during which work is performed under the contract, the prime contractor and each
non material-supplier subcontractor with a subcontract of $10,000 or more must complete Form FHWA PR-1391
(Appendix C to 23 CFR 230). Submit the forms by August 15.
13. TITLE VI ASSURANCES
The U.S. Department of Transportation Order No.1050.2A requires all federal-aid Department of Transportation
contracts between an agency and a contractor to contain Appendix A and E. Appendix B only requires inclusion
if the contract impacts deeds effecting or recording the transfer of real property, structures, or improvements
thereon, or granting interest therein. Appendices C and D only require inclusion if the contract impacts deeds,
licenses, leases, permits, or similar instruments entered into by the recipient.
APPENDIX A
During the performance of this Agreement, the contractor, for itself, its assignees and successors
in interest (hereinafter collectively referred to as CONTRACTOR) agrees as follows:
a. Compliance with Regulations: CONTRACTOR shall comply with the regulations relative to
nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code
of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to
as the REGULATIONS), which are herein incorporated by reference and made a part of this
agreement.
b. Nondiscrimination: CONTRACTOR, with regard to the work performed by it during the
AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, religion,
age, or disability in the selection and retention of sub-applicants, including procurements of
materials and leases of equipment. CONTRACTOR shall not participate either directly or indirectly
in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices
when the agreement covers a program set forth in Appendix B of the Regulations.
c. Solicitations for Sub-agreements, Including Procurements of Materials and Equipment: In all
solicitations either by competitive bidding or negotiation made by CONTRACTOR for work to be
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performed under a Sub- agreement, including procurements of materials or leases of equipment,
each potential sub-applicant or supplier shall be notified by CONTRACTOR of the
CONTRACTOR’S obligations under this Agreement and the Regulations relative to
nondiscrimination on the grounds of race, color, or national origin.
d. Information and Reports: CONTRACTOR shall provide all information and reports required by the
Regulations, or directives issued pursuant thereto, and shall permit access to its books, record s,
accounts, other sources of information, and its facilities as may be determined by the recipient or
FHWA to be pertinent to ascertain compliance with such Regulations or directives. Where any
information required of CONTRACTOR is in the exclusive posses sion of another who fails or
refuses to furnish this information, CONTRACTOR shall so certify to the recipient or FHWA as
appropriate, and shall set forth what efforts CONTRACTOR has made to obtain the information.
e. Sanctions for Noncompliance: In the event of CONTRACTOR’s noncompliance with the
nondiscrimination provisions of this agreement, the recipient shall impose such agreement
sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
i. withholding of payments to CONTRACTOR under the Agreement within a reasonable
period of time, not to exceed 90 days; and/or
ii. cancellation, termination or suspension of the Agreement, in whole or in part.
f. Incorporation of Provisions: CONTRACTOR shall include the provisions of paragraphs (1) through
(6) in every sub-agreement, including procurements of materials and leases of equipment, unless
exempt by the Regulations, or directives issued pursuant thereto.
CONTRACTOR shall take such action with respect to any sub-agreement or procurement as the recipient
or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance,
provided, however, that, in the event CONTRACTOR becomes involved in, or is threatened with, litigation
with a sub-applicant or supplier as a result of such direction, CONTRACTOR may request the recipient
enter into such litigation to protect the interests of the State, and, in addition, CONTRACTOR may request
the United States to enter into such litigation to protect the interests of the United S tates.
APPENDIX B
CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY
The following clauses will be included in deeds effecting or recording the transfer of real property,
structures, or improvements thereon, or granting interest therein from the United States pursuant to the
provisions of Assurance 4:
NOW THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition
that the recipient will accept title to the lands and maintain the project constructed thereon in acc ordance
with Title 23 U.S.C., the regulations for the administration of the preceding statute, and the policies and
procedures prescribed by the FHWA of the U.S. Department of Transportation in accordance and in
compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of
Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted
programs of the U.S. Department of Transportation pertaining to and effectuating the provisions of Title VI
of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release,
quitclaim and convey unto the recipient all the right, title and interest of the U.S. Department of
Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto the recipient and its successors forever,
subject, however, to the covenants, conditions, restrictions and reservat ions herein contained as follows,
which will remain in effect for the period during which the real property or structures are used for a purpose
for which Federal financial assistance is extended or for another purpose involving the provision of similar
services or benefits and will be binding on the recipient, its successors and assigns. The recipient, in
consideration of the conveyance of said lands and interest in lands, does hereby covenant
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and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person will
on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits
of, or be otherwise subjected to discrimination with regard to any facility located wh olly or in part on, over,
or under such lands hereby conveyed [,] [and]* (2) that the recipient will use the lands and interests in lands
and interest in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49,
Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part
21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation,
Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended[,
and (3) that in the event of breach of any of the above-mentioned non-discrimination conditions, the
Department will have a right to enter or re-enter said lands and facilities on said lands, and that above
described land and facilities will thereon revert to and vest in and become the absolute property of the U.S.
Department of Transportation and its assigns as such interest existed prior to this instruction].*
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary
in order to make clear the purpose of Title VI.)
APPENDIX C
CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE
ACTIVITY, FACILITY, OR PROGRAM
The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered
into by the recipient pursuant to the provisions of Assurance 7(a):
A. The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal
representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby
covenant and agree [in the case of deeds and leases add “as a covenant running with the land”] that:
1. In the event facilities are constructed, maintained, or otherwise operated on the property
described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S. Department of
Transportation activity, facility, or program is extended or for another purpose involving the provision
of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.) will maintain and
operate such facilities and services in compliance with all requirements imposed by the Acts and
Regulations (as may be amended) such that no person on the grounds of race, color, or national
origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to
discrimination in the use of said facilities.
B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above Non-
discrimination covenants, the recipient will have the right to terminate the (lease, license, permit, etc.) and
to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the (lease ,
license, permit, etc.) had never been made or issued.*
C. With respect to a deed, in the event of breach of any of the above Non -discrimination covenants, the
recipient will have the right to enter or re-enter the lands and facilities thereon, and the above described
lands and facilities will there upon revert to and vest in and become the absolute property of the recipient
and its assigns.*
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary
to make clear the purpose of Title VI.)
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APPENDIX D
CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER THE
ACTIVITY, FACILITY OR PROGRAM
The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements
entered into by the recipient pursuant to the provisions of Assurance 7(b):
A. The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal
representatives, successors in interest ,and assigns, as a part of the consideration hereof, does hereby
covenant and agree (in the case of deeds and leases add, “as a covenant running with the land”) that (1)
no person on the ground of race, color, or national origin, will be excluded from participation in, denied the
benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction
of any improvements on, over, or under such land, and the furnishings of services thereon, no person on
the ground of race, color, or national origin, will be excluded from participation in, denied the benefits or, or
otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.) will use the
premises in compliance with all other requirements imposed by or pursuant to the Acts and Regulations,
as amended, set forth in this Assurance.
B. With respect to (licenses, leases, permits, etc.) in the event of breach of any of the above of the above
Non-discrimination covenants, the recipient will have the right to terminate the (license, permits, etc., as
appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and hold the s ame
as if said (license, permit, etc., as appropriate) had never been made or issued.*
C. With respect to deeds, in the event of breach of any of the above Non-discrimination covenants, the
recipient will there upon revert to and vest in and become the absol ute property of the recipient and its
assigns.
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary
to make clear the purpose of Title VI.)
APPENDIX E
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest
(hereinafter referred to as the “contractor”) agrees to comply with the following non-discrimination statutes
and authorities, including, but not limited to:
Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination
on the basis of race, color, national origin); and 49 CFR Part 21.
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. §
4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of
Federal or Federal-aid programs and projects);
• Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex;
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits
discrimination on the basis of disability); and 49 CR Part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination
on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits
discrimination based on race, creed, color, national origin, or sex);
• The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and
applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section
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504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to
include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether
such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of
disability in the operation of public entities, public and private transportation systems, places of public
accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by
Department of Transportation regulations 49 C.F.R. parts 37 and 38;
• The Federal Aviation Administration’s Non-discrimination statute (49 U.S.C. § 47123) (prohibits
discrimination on the basis of race, color, national origin, and sex);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations, which ensures discrimination against minority populations by discouraging
programs, policies, and activities with disproportionately high and adverse human health or
environmental effects on minority and low-income populations;
• Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and
resulting agency guidance, national origin discrimination includes d iscrimination because of limited
English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to
ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating
because of sex in education programs or activities (20 U.S.C. 1681 et seq).
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Federal Trainee Program Special Provisions (to be used when applicable)
14. FEDERAL TRAINEE PROGRAM
For the Federal training program, the number of trainees or apprentices is 0.
This section applies if a number of trainees or apprentices is shown on the Notice to Bidders.
As part of the prime contractor’s equal opportunity affirmative action program, provide on-the-
job training to develop full journeymen in the types of trades or job classifications involved.
The prime contractor has primary responsibility for meeting this training requirement.
If the prime contractor subcontracts a contract part, they shall determine how many trainees or
apprentices are to be trained by the subcontractor. Include these training requirements in each
subcontract.
Where feasible, 25 percent of apprentices or trainees in each occupation must be in their 1st year
of apprenticeship or training.
Distribute the number of apprentices or trainees among the work classifications on the basis of the
prime contractor’s needs and the availability of journeymen in the various classifications within a
reasonable recruitment area.
Before starting work, the prime contractor shall submit to the City of Arroyo Grande:
1. Number of apprentices or trainees to be trained for each classification
2. Training program to be used
3. Training starting date for each classification
The prime contractor shall obtain the City of Arroyo Grande approval for this submitted information
before the prime contractor starts work. The City of Arroyo Grande credits the prime contractor for
each apprentice or trainee the prime contractor employs on the job who is currently enrolled or
becomes enrolled in an approved program.
The primary objective of this section is to train and upgrade minorities and women toward
journeyman status. The prime contractor shall make every effort to enroll minority and women
apprentices or trainees, such as conducting systematic and direct recruitment through public and
private sources likely to yield minority and women apprentices or trainees, to the extent they are
available within a reasonable recruitment area and show that they have made the efforts. In
making these efforts, the prime contractor shall not discriminate against any applicant for training.
The prime contractor shall not employ as an apprentice or trainee an employee:
1. In any classification in which the employee has successfully completed a training
course leading to journeyman status or in which the employee has been employed as
a journeyman
2. Who is not registered in a program approved by the US Department of
Labor, Bureau of Apprenticeship and Training
The prime contractor shall ask the employee if the employee has successfully completed a training
course leading to journeyman status or has been employed as a journeyman. The prime contractor’s
records must show the employee's answers to the questions.
In the training program, the prime contractor shall establish the minimum length and training type
for each classification. The City of Arroyo Grande and FHWA approves a program if one of the
following is met:
1. It is calculated to:
Meet the equal employment opportunity responsibilities
Qualify the average apprentice or trainee for journeyman status in the
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classification involved by the end of the training period
2. It is registered with the U.S. Department of Labor, Bureau of Apprenticeship and Traini ng, and it
is administered in a way consistent with the equal employment responsibilities of Federal -aid
highway construction contracts
The prime contractor shall obtain the State's approval for their training program before they start
work involving the classification covered by the program.
The prime contractor shall provide training in the construction crafts, not in clerk -typist or
secretarial-type positions. Training is allowed in lower level management positions such as office
engineers, estimators, and timekeepers if the training is oriented toward construction applications.
Training is allowed in the laborer classification if significant and meaningful training is provided and
approved by the division office. Off-site training is allowed if the training is an integral part of an
approved training program and does not make up a significant part of the overall training.
The City of Arroyo Grande reimburses the prime contractor 80 cents per hour of training given an
employee on thiscontract under an approved training program:
1. For on-site training
2. For off-site training if the apprentice or trainee is currently employed on a Federal-
aid project and prime contractor does at least one of the following:
a. Contribute to the cost of the training
b. Provide the instruction to the apprentice or trainee
c. Pay the apprentice's or trainee's wages during the off -site training period
3. If the prime contractor complies with this section.
Each apprentice or trainee must:
1. Begin training on the project as soon as feasible after the start of work involving the
apprentice's or trainee's skill
2. Remain on the project as long as training opportunities exist in the apprentice's or
trainee's work classification or until the apprentice or trainee has completed the
training program
Furnish the apprentice or trainee a:
1. Copy of the training plan approved by the U.S. Department of Labor or a training plan
for trainees approved by both Caltrans and FHWA
2. Certification showing the type and length of training satisfactorily completed
Maintain records and submit reports documenting contractor's performance under this section.
15. PROHIBITION OF CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE
EQUIPMENT AND SERVICES
In response to significant national security concerns, the agency shall check th e prohibited
vendor list before making any telecommunications and video surveillance purchase because
recipients and subrecipients of federal funds are prohibited from obligating or expending loan
or grant funds to:
Procure or obtain;
Extend or renew a contract to procure or obtain; or
Enter into a contract (or extend or renew a contract) to procure or obtain equipment,
services, or systems that uses covered telecommunications equipment or services
as a substantial or essential component of any system, or as critical technology as
part of any system.
The prohibited vendors (and their subsidiaries or affiliates) are:
Huawei Technologies Company;
ZTE Corporation;
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Hytera Communications Corporation;
Hangzhou Hikvision Digital Technology Company;
Dahua Technology Company; and
Subsidiaries or affiliates of the above-mentioned companies.
In implementing the prohibition, the agency administering loan, grant, or subsidy programs shall
prioritize available funding and technical support to assist affected businesses, institutions and
organizations as is reasonably necessary for those affected entities to transition from covered
communications equipment and services, to procure replacement equipment and services, and to
ensure that communications service to users and customers is sustained.
The contractors should furnish telecommunications and video surveillance equipment with a
certificate of compliance. The certificate must state telecommunications and video surveillance
equipment was not procured or obtained from manufacturers identified in the above list.
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Attachment 3: Federal Wage Rates
Federal Wage Rates are not physically incorporated into this contract advertising package
but the applicable federal wage rates can be found on the State of California Department
of Industrial Relations website at:
https://www.dir.ca.gov/OPRL/DPreWageDetermination.htm
The final contract documents signed by the City and the contractor will physically include
the current federal wage rates.
-- END OF CONTRACT --
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PAYMENT BOND (FOR LABOR AND MATERIAL)
KNOW ALL MEN BY THESE PRESENTS:
That we, , as Principal, and
as Surety, are held and firmly bound unto the City of Arroyo Grande, in the sum of
Dollars
($ ) lawful money of the United States, for the payment of which sum,
well and truly to be made, we bind ourselves, jointly and severally, firmly by these
presents.
The condition of the above obligation is such that whereas said Principal has been
awarded and is about to enter into a written contract with the City of Arroyo Grande for
the work described in CONTRACT DOCUMENTS FOR T HE CONSTRUCTION OF,
“THE RETROFIT OF SWINGING BRIDGE OVER ARROYO GRANDE CREEK, PW
2021-06”, which is attached hereto, made a part hereof, and to which reference is hereby
made for all particulars, and is required by said City to give this bond in connection with
the execution of said contract;
NOW THEREFORE, if said Principal, as Contractor in said contract, or Principal's
Subcontractor, fail to pay any of the persons referred to in Section 3181 of the Civil Code
of the State of California for labor performed, skills or other necessary services bestowed,
site improvement made, equipment leased, or appliances, equipment implements,
machinery, materials, power, provender, provisions, teams, or trucks furnished or used
in, upon, for, or about the performance of the work contracted to be done, or for amounts
due under the employment Insurance Act with respect to work or labor performed by any
such claimant, said Surety shall pay for the same. In an amount not exceeding the sum
specified above; and if suit is brought upon this bond, a reasonable attorney's fee to be
fixed by the court. This bond is pursuant to the provisions of Ch 7 Div 3, Pt 4, Tit 15, of
the Civil Code of the State of California, and shall insure to the benefit of any of the
persons referred to in said Civil Code Section 3181, as it now exists or may hereafter be
amended, so as to give a fight of action to such persons or their assigns in any suit brought
upon this bond. No premature payment by said City to said Principal shall exonerate any
Surety unless the City Council of said City shall have actual notice that such payment is
premature at the time and it is ordered by said Council, and then only to the extent that
such payment shall result in loss to such Surety, but in no event more than the amount of
such premature payment.
It is agreed, that any alterations in the work to be done, or increase or decrease of the
material to be furnished, which may be made pursuant to the terms of said contract shall
not in any way release either the Principal or Surety hereunder, nor shall any extension
of time granted under the provisions of said contract release either the Principal or Surety,
and notice of such alterations or extensions of the contract is hereby waived by the surety.
WITNESS our hands this day of , 20 .
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Surety Principal
ALL SIGNATURES MUST BE WITNESSED BY NOTARY (Attach appropriate jurats)
-- END OF PAYMENT BOND --
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FAITHFUL PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
That we, , as Principal, and
as Surety, are held and firmly bound unto the City of Arroyo Grande, in the sum of
Dollars
($ ) lawful money of the United States, for the payment of which sum,
well and truly to be made, has been awarded and is about to enter into a written contract
with the City of Arroyo Grande for the work described in the CONTRACT DOCUMENTS
FOR THE CONSTRUCTION OF THE “RETROFIT OF SWINGING BRIDGE OVER
ARROYO GRANDE CREEK, PW 2021-06” which is attached hereto, made a part hereof,
and to which reference is hereby made for all particulars, and is required by said City to
give this bond in connection with the execution of said contract;
NOW, THEREFORE, if said Principal shall well and truly do and perform all of the
covenants and obligations of said contract on Principal's part to be done and performed
at the times and in the manner specified therein, then this obligation shall be null and
void, otherwise it shall be and remain in full force and effect. No premature payment by
said City to said Principal shall exonerate any Surety unless the City Council of said City
shall have actual notice that such payment is premature at the time it is ordered by said
Council, and then only to the extent that such payment shall result in loss to such Surety,
but in no event more than the amount of such premature payment.
It is agreed, that any alterations in the work to be done, or increase or decrease of the
material to be furnished, which may be made pursuant to the terms of said contract shall
not in any way release either the Principal or Surety hereunder, nor shall any extensions
of time granted under the provisions of said contract release either the principal or surety,
and notice of such alterations or extensions of the contract is hereby waived by the Surety.
WITNESS our hands this day of , 20 .
Surety Principal
ALL SIGNATURES MUST BE WITNESSED BY NOTARY (Attach appropriate jurats)
-- END OF FAITHFUL PERFORMANCE BOND --
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