H.A. Contracting Corp. Contract Amendment 7 /
Contract Amendment
Multi- Purpose
City of Miami Beach- ARRA Bridge Improvements- Sunset Drive II Bridge # 876708.
Contractor: H.A. Contracting Corp.
J.O.C. Contract No.: 298.00.PW.23 -08/09
Amendment No.: 1
Term of Contract: 150 Calendar Days
Original Contract Amount: $198,424.00
The contract between H.A. Contracting Corp. (Contractor) and the City of Miami Beach, which
was last executed and signed by the parties on /Yrwernbt'r 15" is hereby amended as follows:
1. The following language is to be added to the purchase order for H.A. Contracting Corp. to
do additional Bridge Work on the Sunset Drive II Bridge No 876708, ARRA 454:
a. NO LOCAL HIRING PREFERENCES
The City. of Miami Beach informs that the City does not have a "Local Hiring Preference
Ordinance," we allow any company who is qualified to bid on any projects which are
available and funded.
b. CHANGES IN FEDERAL LAW REGARDING SUBMISSION OF CERTIFIED
PAYROLLS : NO SSN OR EMPLOYEE ADDRESS
On December 19, 2008, the Federal Register announced a change to the reporting
requirements under the Davis -Bacon and Copeland Acts. This change specified that certified
payrolls submitted in conjunction with Federal -aid projects shall not include full social
security numbers and addresses of the employees included on the report. This change only
applies to contracts let after January 18, 2009.
To achieve compliance with the revised regulations contained in 29 CFR 3.5, all contracts let
on or after January 18, 2009, should be amended through supplemental agreement to specify
that full social security numbers and addresses are not to be reported on certified payrolls. A
unique identifying number is to be used to associate each employee to their full information,
which the employer must continue to maintain. The last four digits of the social security
number may be used for this purpose, or an employer internal number may be used. Contracts
let prior to January 18, 2009, are not affected and certified payrolls for those contracts are
required to include full social security numbers and addresses.
This memorandum serves as blanket approval to process this $0.00 change and should be
attached as an amendment.
Page 1 of 2
2. The additional' documents shall be adhered to original purchase order :
a. DBE Program Policy and Plan (see attached)
b. Executive Order 11246 — Equal Employment Opportunity (see attached)
c. Title VI / Non Discrimination Program (see attached)
d. FHWA 1273- Required Contract Provision for Federal Aid Contracts and their strict
adherence.
e. Applicable Wage Rate Table (FL325, Modification 0, 10/09/09)
3. Record retention Language in J.O.C. contract should be changed from 3 years to 5 years.
This document constitutes an amendment to the above numbered contract. All provisions of that contract,
except those which are explicitly changed above by this amendment shall remain in full force and effect.
ACCEPTANCE AND APPROVALS
By the C ntractor•
Name: �44. tivcw Title: czcs t l k
. ffLri
Sig• at e uthorized Official) (Date)
•
By the City of Miami Beach:
Name: Matti Herrera Bower j Title: Y
Mayor l
a �� 15 /t oak! g t a o 1'D
Sire (Authorized Of icial) (Date)
ATTEST APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
.:
kt.)(4 \(
ity ttorne D at
Page 2of2
Sc4
Contract Amendment
Multi- Purpose .
City of Miami Beach- ARRA Bridge Improvements- Sunset Drive I Bridge # 876707.
•
Contractor: H.A. Contracting Corp.
J.O.C. Contract No 297.00.PW.23 -08/09
Amendment No 1
Term of Contract: 150 Calendar Days
Original Contract Amount: $182,272.00
The
last executed contract between H.A. Contracting Corp. (Contractor) and the City of Miami Beach, which
uted and signed by the parties on 914Va /S 20l0 is hereby amended as follows:
1. The following language is to be added to the purchase order for H.A. Contracting Corp. to
do additional Bridge Work on the Sunset Drive I Bridge No 876707, ARRA 453:
a: NO LOCAL HIRING PREFERENCES
The City of Miami Beach informs that the City does not have a "Local Hiring Preference
Ordinance ", we allow any company who is qualified to bid on any projects which are
available and funded.
b. CHANGES IN FEDERAL LAW REGARDING SUBMISSION OF CERTIFIED
PAYROLLS : NO SSN OR EMPLOYEE ADDRESS
On December 19, 2008, the Federal Register announced a change to the reporting
requirements under the Davis -Bacon and Copeland Acts. This change specified that certified
payrolls submitted in conjunction with Federal -aid projects shall not include full social
security numbers and addresses of the employees included on the report. This change only
applies to contracts let after January 18, 2009:
To achieve compliance with the . revised regulations contained in 29 CFR 3.5, all contracts let
on or after January 18, 2009, should be amended through supplemental agreement to specify
that full social security numbers and addresses are not to be reported on certified payrolls. A
unique identifying number is to be used to associate each employee to their full information,
which the employer must continue to maintain. The last four digits of the social security
number may be used for this purpose, or an employer internal number may be used. Contracts
let prior to January 18, 2009, are not affected and certified payrolls for those contracts are -
required to include full social security numbers and addresses.
This memorandum serves as blanket approval to process this $0.00 change and should be
attached as an amendment. -
•
Page 1of2
. 2. The additional documents shall be adhered to original purchase order :
a. DBE Program Policy and Plan (see attached)
b. Executive Order 11246 — Equal Employment Opportunity (see attached)
c. Title VI / Non Discrimination Program (see attached)
d. FHWA 1273- Required Contract Provision for Federal Aid Contracts and their strict
adherence.
e. Applicable Wage Rate Table (FL325, Modification 0, 10/09/09)
3. Record retention Language in J.O.C. contract should be changed from 3 years to 5 years.
This document constitutes an amendment to the above numbered contract. All provisions of that contract,
except those which are explicitly changed above by this amendment shall remain in full force and effect.
` ACCEPTANCE AND APPROVALS
By the ntractor: A t�
Name: E.m. (Z A�NG o_T ' _ Title: a ES to e/u
. y
r '
V4& ., T
Sig • . o ized Officil) (Date)
By the City of Miami Beach:
Name: Matti Herrera Bower j Title: M CA
Mayor
/1 Neriew/360 119/0
1147-4 4 figna
Signat e (Authorized • fficial) . (Date)
— , .! - PAit CtUA__-. --
p t ATTEST '� APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
Cit ttorne Dat
Page 2 of 2 ee
Contract Amendment
Multi- Purpose
City of Miami Beach= ARRA Bridge Improvements- Sunset Drive II Bridge # 876708.
•
Contractor: • H.A. Contracting Corp.
J.O.C. Contract No.: 298.01.PW:23 -08/09
Amendment No 1
Term of Contract: 30 Calendar Days
Original Contract Amount: $37,209.80
The contract between H.A. Contracting Corp. (Contractor) and the City of Miami. Beach, which
was last executed and signed by the parties on Ate, I 20/d is hereby amended as follows:
1. The following language is to be added to the purchase order for H.A. Contracting Corp. to
do additional Bridge Work on the Sunset Drive II Bridge No 876708, ARRA 454:
a. NO LOCAL HIRING PREFERENCES
The City of Miami Beach informs that the City does not have a "Local Hiring Preference
Ordinance," we ,allow any company who is qualified to bid on any projects which are
available and funded.
b. CHANGES IN FEDERAL LAW REGARDING SUBMISSION OF CERTIFIED
PAYROLLS : NO SSN OR EMPLOYEE ADDRESS
On December 19, 2008, the Federal Register announced a change to the reporting
requirements under the Davis -Bacon and Copeland Acts. This change specified that certified
payrolls submitted in conjunction with Federal -aid projects shall not include full social '
security numbers and addresses of the employees included on the report. This change only
applies to contracts let after January 18, 2009.
To achieve compliance with the revised regulations contained in 29 CFR 3.5, all contracts let
on or after January 18, 2009, should be amended through supplemental agreement to specify
that full social security numbers and addresses are not to be reported on certified payrolls. A
unique identifying number is to be used to associate each employee to their full information,
which the employer must continue to maintain. The last four digits of the social security
number may be used for this purpose, or an employer internal number may be used. Contracts
let prior to January 18, 2009, are not affected and certified payrolls for those contracts are
required to include full social security numbers and addresses.
This memorandum serves as blanket approval to process this $0.00 change and should be
attached as an amendment.
Page 1 of 2
r
2. The additional documents shall be adhered to original purchase order:
a. DBE Program Policy and Plan (see attached)
b. Executive Order 11246 — Equal Employment Opportunity (see attached)
c. Title VI / Non Discrimination Program (see attached)
d. FHWA 1273- Required Contract Provision for Federal Aid Contracts and their strict
adherence.
e. Applicable Wage Rate Table (FL325, Modification 0, 10/09/09)
3. Record retention Language in J.O.C. contract should be changed from 3 years to 5 years.
This document constitutes an amendment to the above numbered contract. All provisions of that contract,
except those which are explicitly changed above by this amendment shall remain in full force and effect.
ACCEPTANCE AND APPROVALS
By the I ntractor: IIA
Name: , AC2E Title: rFR Gip% tie rJ
t O - 245 -
Sig iat re (`A iorized Of cial) (Date)
By the City of Miami Beach:
Name: ;Matti Herrera Bower I Title: - M a* or
Mayor
ori
Signat e (Authorized Official) (Date)
)(Atilt P aitatt
ATTEST APPROVED AS TO
FORM & LANGUAGE
& FON EXECUTION
City tto at
Page of If*
Contract Amendment
Multi- Purpose
City of Miami Beach- ARRA Bridge Improvements- Henedon Avenue Bridge # 876721.
Contractor: H.A. Contracting Corp.
J.O.C. Contract No.: 296.01.PW.23 -08/09
Amendment No.: 1
Term of Contract: 30 Calendar Days
Original Contract Amount: $20,357.56
•
The contract between H.A. Contracting Corp. (Contractor) and the City of Miami Beach, which
was last executed and signed by the parties on 71,19v. l S r 2 aW is hereby amended as follows:
1. The following language is to be added to the purchase order for H.A. Contracting to do
additional Bridge Work on the Henedon Bridge No. 876721, ARRA 339:
a. NO LOCAL HIRING PREFERENCES
The City. of Miami Beach informs that the City does not have a "Local Hiring Preference
Ordinance," we allow any company who is qualified to bid on any projects which are
available and funded.
b.. CHANGES IN FEDERAL LAW REGARDING SUBMISSION OF CERTIFIED
PAYROLLS : NO SSN OR EMPLOYEE ADDRESS
On December 19, 2008, the Federal Register announced 'a change to the reporting
requirements under the Davis -Bacon and Copeland Acts. This change specified that certified
payrolls" submitted in conjunction with Federal -aid projects shall not include full social
security numbers and addresses of the employees included on the report. This change only
applies to contracts let after January 18, 2009.
To achieve compliance with the revised regulations contained in 29 CFR 3.5, all contracts let
on or after January 18, 2009, should be amended through supplemental agreement to specify
that full social security numbers and addresses are not to be reported on certified payrolls. A
unique identifying number is to be used to associate each employee to their full information,
which the employer must continue to maintain. The last four digits of the social security
number may be used for this purpose, or an employer internal number may be used. Contracts
let prior to January 18, 2009, are not affected and certified payrolls for those contracts are
required to include full social security numbers and addresses.
This memorandum serves as blanket approval to process this $0.00 change and should be
attached as an amendment.
I_:1 PR UCT28 !M% :59
f
Page 1 of 2
2. The additional documents shall be adhered to original purchase order :
a. DBE Program Policy and Plan (see attached)
b. Executive Order 11246 — Equal Employment Opportunity (see attached)
c. Title VI / Non Discrimination Program (see attached)
d. FHWA 1273- Required Contract Provision for Federal Aid Contracts and their strict
adherence.
e. Applicable Wage Rate Table (FL325, Modification 0, 10/09/09)
3. Record retention Language in J.O.C. contract should be changed from 3 years to 5 years.
This document constitutes an amendment to the above numbered contract. All provisions of that contract,
except those which are explicitly changed above by this amendment shall remain in full force and effect.
ACCEPTANCE AND APPROVALS .
By the ontractor•
Name: t .wtcZi • LI Cpe L.A. ,.Li1. -. Title: ?2S % 1:70%-fl
/ „.---.t
1
' ..tea Id 2 . Ei" 2---1. ed
Signat e ( uthorized Ci fficial) (Date)
•
1
By the City of Miami Beach: .
Name: Matti Herrera Bower 1 Title: N C)4 r
Mayor I '
44 /_1 Atv .��,_ /5 goveriiileir ca?O /D
Signat e (Authorized •'ficial) (Date) ,
, n APPROVED AS TO .
:.�%� �: �L (. FORM & LANGUAGE
t+ ' - ATTEST: : & FOR EXECUTION
i ----.. 10c
t
ity • ttorney Date
1,'
Page 2 of 2
Contract Amendment
Multi- Purpose
City of Miami Beach— ARRA Bridge Improvements- Henedon Avenue Bridge # 876721.
Contractor: H.A. Contracting Corp.
J.O.C. Contract No.: 296.00.PW.23 -08/09
Amendment No.: 1
Term of Contract: 150 Calendar Days
Original Contract Amount: $ 164,006.00
The contract between H.A. Contracting Corp. (Contractor) and the City of Miami Beach, which
was last executed and signed by the parties on 7Iov. IS is hereby amended as follows:
1. The following language is to be added to the . purchase order for H.A. Contracting to do
additional Bridge Work on the Henedon Bridge No. 876721, ARRA 339:
a. NO LOCAL HIRING PREFERENCES
The City of Miami Beach informs that the City does not have a "Local Hiring Preference
Ordinance," we allow any company who is qualified to bid on any projects which are
available and funded.
b. CHANGES IN FEDERAL LAW REGARDING SUBMISSION OF CE RTIFIED
PAYROLLS : NO SSN OR EMPLOYEE ADDRESS
On December 19, 2008, the Federal Register announced a change to the reporting
requirements under the Davis -Bacon and Copeland Acts. This change specified that certified
payrolls submitted in conjunction with Federal -aid projects shall not include full social
security numbers and addresses of the employees included on the report. This change only
applies to contracts let after January 18, 2009.
To achieve compliance with the revised regulations contained in 29 CFR 3.5; all contracts let
on or after January 18, 2009, should be amended through supplemental agreement to specify
that full social security numbers and addresses are not to be reported on certified payrolls. A
unique identifying number is to be used to associate each employee to their full information,
which the employer must continue to maintain. The last four digits of the social security
number may be used for this purpose, or an employer internal number may be used. Contracts
let prior to January 18, 2009, are not affected and certified payrolls for those contracts are
required to include full social security numbers and addresses.
This memorandum serves as blanket approval to process this $0.00 change and should be
attached as an amendment.
Page 1 of 2
•
2. The additional documents shall be adhered to original purchase order :
a. DBE Program Policy and Plan (see attached)
b. Executive Order 11246 — Equal Employment. Opportunity (see attached)
• c. Title VI / Non Discrimination Program (see attached)
d. FHWA 1273 - -Required Contract Provision for Federal Aid Contracts and their strict
adherence.
e. Applicable Wage Rate Table (FL325, Modification 0, 10/09/09)
•
3. Record retention Language in J.O.C. contract should be changed from 3 years to 5 years.
This document constitutes an amendment to the above numbered contract. All provisions of that contract,
except those which are explicitly changed above by this amendment shall remain in full force and effect.
ACCEPTANCE AND APPROVALS
By the � p ntractor:
Name: H E.nI tZ A NGGW 11�— Title: ?'a Gst r.7 C
/ ` •
S gn s • ized Off (Date)
By the City of Miami Beach: IV
Name: Matti Herrera Bower 1 Title: a(?
Mayor
Signa, re (' uthori ed Of lcia1) (Date)
ti d., APPROVED AS TO
> ' - ATTEST . . FORM & LANGUAGE
& FOR EXECUTION
4111t ity ' t orney Date
Page2of2 44
•
t .
Contract Amendment
Multi- Purpose
, City of Miami Beach- ARRA Bridge Improvements- Sunset Drive I Bridge # 876707.
Contractor: H.A. Contracting Corp.
J.O.C. Contract No.: 297.01.PW.23 -08/09
Amendment No.:. 1
Term of Contract: 30 Calendar Days
Original Contract Amount: $69,828.71
The contract between H.A. Contracting Corp. (Contractor) and the City of Miami Beach, which
was last executed and signed by the parties on Abe, / r 2o10 is hereby amended as follows:
4
1. The following language is to be added to the purchase order for H.A. Contracting Corp. to
1 do additional Bridge Work on the Sunset Drive I Bridge No. 876707, ARRA 453:
•
a. NO LOCAL HIRING PREFERENCES
1 The City of Miami Beach informs that the City does not have a "Local. Hiring Preference
Ordinance," we allow any company who is qualified to bid on any projects which are
available and funded.
b. CHANGES IN FEDERAL LAW REGARDING SUBMISSION OF CERTIFIED
PAYROLLS : NO SSN OR EMPLOYEE ADDRESS
On December 19, 2008, the Federal Register announced a change to the reporting
requirements under the Davis -Bacon and Copeland Acts. This change specified that certified .
payrolls submitted in conjunction with Federal -aid projects shall not include full social
security numbers and addresses of the employees included on the report. This change only
applies to contracts let after January 18, 2009.
To achieve compliance with the revised regulations contained in 29 CFR 3.5, all contracts let
on or after January 18, 2009, should be amended through supplemental agreement to specify
that full social security numbers and addresses are not to be reported on certified payrolls. A
unique identifying number is to be used to associate each employee to their full information,
which the employer must continue to maintain. The last four digits of the social security
number may be used for this purpose, or an employer internal number may be used. Contracts
let prior to January 18, .2009, are not affected and certified payrolls for those contracts are
required to`, include full social security numbers and addresses.
This memorandum serves as blanket approval to process this $0.00 change and should be
attached as an amendment. .
•
- r
Page l of 2
•
2. The additional documents shall be adhered to original purchase order
a. DBE Program Policy and Plan (see attached)
b. Executive Order 11246 — Equal Employment Opportunity (see attached)
:
c. Title VI / Non Discrimination Program (see attached)
d. FHWA 1273- Required Contract Provision for Federal Aid Contracts and their strict
adherence.
4 e. Applicable Wage Rate Table (FL325, Modification 0, 10/09/09)
1
3. Record retention Language in J.O.C. contract should be changed from 3 years to 5 years.
This document constitutes an amendment to the above numbered contract. All provisions of that contract,
'except those which 'are explicitly changed above by this amendment shall remain in full force and effect.
1 ACCEPTANCE AND APPROVALS
i
1
By the C retractor•
Name: �E�1tz 1M l Q Title: P(Z�St QcN ,......._
:I, / , ' 1-ader
S gn to - • u •rized Ofncial) (Date)
i r
f
C .
t :
By the City of Miami Beach:
Matti Herrera Bower 1
Name: ' Mayor Tit le: r•
■
y M ay
Or
//_1!/: i� .. � �. IS gel/ uAire 2010
Signa re (Authorized 0 ficial) (Date)
{
' ti r c
,,„..... ‘, , ,
_,_.:.,..,_ , ATTEST ':; • APPROVED AS TO
:;, .`� FORM & LANGUAGE
& FOR EXECUTION
Page 2 of 2
,
City ' :rne; . f Date
1
.
GeneralDecision Number: FL08,0325 10/09/2009 FL325 '
State: Florida -
Construction Type: Highway •
County: Miami -Dade County in Florida.
HIGHWAY ;CONSTRUCTION PROJECTS ,
C
Modification Number Publication Date
0 10/09/2009
ELECO349 -008 08/31/2009
Rates Fringes
ELECTRICIAN $ 25.05- '7.56
1 .
ENGI0487 -018 01/01/2009
Rates Fringes •
.OPERATOR: Crane
•
All Tower Cranes (Must '
have 2 operators) Mobile,
Rail, Climbers, Static-
. Mount; All Cranes with
Boom Length 150 Feet &
Over (With or without jib) -
Friction, Hydro, Electric
oryOtherwise; Cranes 150
Tons & Over (Must have '2
operators); Cranes with 3
Drums (When 3rd drum is .
ri for work); Gantry
Overhead Cranes ;
.., Cranes Over 25 Tons but '
•
not more than 50 Tons ; '
Hydro /Friction Cranes; & ,
All Type of Flying Cranes;
Boom Truck $ 28.30 7.65 '
Cranes, with Boom Length
Less than 150 Feet (With "
or( without jib) :Hydro
' Cranes 25 Tons & Under, & .
Over 50 Tons; Boom Truck $ 27.57 7.'65 •
OPE Oiler $ 22.24 7.65 .
1R0NO272 006 10/01/2006 .
Rates Fringes
i
IRONWORKER, STRUCTURAL $ 26.70 6.43
i
{
SUFL2 0"09 -222 08/05/2009 .
Rates Fringes
CARPENTER, Including Formwork.- $ 15.50 2.19
. i
•
CEMENT MASON /CONCRETE FINISHER $ 15.00 8.64
HIGHWAY /PARKING LOT STRIPING:'
Operator'(St'riping Machine) $ 11.97 2.23
•
HIGHWAY %PARKING LOT STRIPING: -
Painter $ 14.38.. 1.73 • .
IRONWORKER,. REINFORCING $ 15.00 ' . 2.45 .
LABORER: Asphalt Raker $ 10.47 1.76 .- ,
' LABORER; Asphalt Shoveler $ 10.70 0.00
{ ,
'LABORER:..Common or General $ 10.01 3'.46
LABORER •Flagger............_ $ 11.00,. 3.79
LABORER: Grade Checker $ 10.50 0.55
LABORER:' Landscape and
Irrigation $ 9.98 0.00.
LABORER? Luteman $ • 10.32 , 0.00 .
i ,
''LABORER: Mason Tender -
Cement /Concrete $ 12.00 1.80
• LABORER; Pipelayer $ 16:00 - 0.00
•LABORER: Power Tool Operator ' •
,(Hand,Held Drills /Saws; _
Jackhammer and Power Saws .$ 10.00 2.30 •
OPERATOR: Asphalt Paver ..... .....$ 11.92 2.09 •
I .
OPERATOR: Asphalt Plant $ 12.20 0.00 .
OPERATOR: Asphalt Spreader $ 10.76 0.00 '
j
- .OPERATOR: Auger . $ 19•.40 0.,44 .
i
OPERATOR: Backhoe Loader •
Combo .' $ 18.00 1.39
• OPERATOR: Backhoe /Excavator $ 14.69 2.22
1
OPERATOR: Boom $ 16.61 '0.00 .
OPERATOR: Bulldozer $ 16.50 2.22
OPERATOR: Distributor $ 12.33 0.00
OPERATOR: Drill $ 13.00 1.59 '
OPERATOR: Grader /Blade $ 16.11 1.65 '
1
OPERATOR: Loader- $ .9.68 3.02
•
•
t .
OPERATOR: Mechanic $ 16.20 . 3.25 `
OPERATOR: Milling- Machine $ 11.50 1.68
OPERATOR: Oil Distributor $ 11..15 0.48 ,
• i
OPERATOR: Paver $ 12:85 0.00
,
.
OPERATO Piledriver" $ 14.50 . 2.16
- .OPERATOR: Roller $ 10.31 2.00
OPERATOR:- Scraper $ 12.31 1.83 ,
OPERATOR: Screed ' - $ 10.29 0.00 .
'
OPERATOR: Tractor..... $ 13.00 1.00
,
OPERATOR: . Trencher $ 12.56 . 0.22 .
_ PAINTER: Spray and Steel..'. $ 16.62 0.00
1
TRAFFICjSIGNALIZATION:
TrafficiSignal Installation $ 14.58 0.65 .
TRUCK DRIVER: 10 Yard Haul
,
Away Truck $ 12.50 0.00
.
TRUCK DRIVER: 3 Axle Truck $ 9.81 0.00:
I
TRUCK DRIVER: 4 Axle .Truck $ 13.33 0.00
.
'TRUCK DRIVER: Distributor $ 13.22. 2.01 •
i • TRUCK DRIVER: Dump Truck.. .... $ 10.29 4.25 . .
.
TRUCK DRIVER: Lowboy Truck $ 12.00, 0-.00 .
1
' TRUCK DRIVER: Material Truck: $ 13.15' 9.80,
TRUCK DRIVER: Tractor Haul
Truck $ 10.64 0 - .00
TRUCK DRIVER: Water Truck $ 1,0.50 . 0.00
TRUCK DRIVER •$ 9.76 0.34 .
i
. .WELDERSj- Receive rate prescribed for craft performing
• Operation to which welding is incidental.
1 .
`Unlisted classifications needed for work not included within,
the scope of the - .
classifications listed may be added after award only as • -
provided in the labor .
standards contract clauses (29-CFR 5.5(a)- (1)(ii))..
i
f.
In the listing above, the "SU" designation means that rates -
. listed under the
identifier do not reflect collectively bargained wage and
fringe benefit
rates. Other designations indicate unions whose rates have
been determined
to be prevailing. .
j
t WAGE DETERMINATION:APPEALS PROCESS
1.) Has there been an initial decision in' the matter? This can
'be: 1
•
* an'ex g
isting published wage, determination
,
* a survey underlying a wage determination .
* a Wage and Hour Division letter setting forth a position on
a;wage 1
determination matter -
* a conformance (additional classification and rate) ruling
• f.
On survey related matters, initial contact, including requests
for summaries
of surveys, should be with the Wage and Hour Regional Office
for theiarea in .
which the survey was conducted because those Regional Offices
have {
•
responsibility for the Davis -Bacon survey program. If the .
response from this .
initialicontact is not satisfactory, then the process described .
in 2.) and - .
3.) should be followed.
. With regard to any other matter not yet ripe for the formal °
' process!
described here, initial contact should be with the Branch of
Construction
Wage Determinations. Write to
[Branch of Construction Wage Determinations
Wage and Hour Division.
U.S. Department of Labor
; 200 Constitution Avenue, N.W. .
. • Washington, DC 20210
I .
2.) If the answer to the question in 1.) is yes,-then an --
interested party
r. (those'affected by the action) can request review and .
reconsideration from
the Wage-and Hour•Administrator (See 29 CFR Part 1.8 and 29 CFR
Part 7)
Write to:
'Wage and Hour Administrator .
•
U.S. Department of Labor
1200 Constitution Avenue, N.W. •
Washington, DC 20210
Therequest should be accompanied by , a full statement of the
interested
party' and by any information (wage payment data,
project•
description, area practice material, etc.) that the requestor
considers
relevant to the issue.
3.) If the decision of the Administrator is not favorable, an
•
interested •
• party may appeal directly to the Administrative Review Board
(formerly the
Wage Appeals Board). Write to:
•
:Administrative Review Board
U.S. Department of Labor •
• 200 Constitution Avenue, N.W.
;Washington, DC 20210
4.) All'decisions by the Administrative Review Board are final. •
• END OF GENERAL DECISION
•
•
•
•
•
•
•
•
•
•
•
Florida Department of Transportation
CHARLIE CRIST 605 Suwannee Street STEPHANIE C. KOPELOUSOS
GOVERNOR Tallahassee,' FL 32399 -0450 SECRETARY
POLICY Effective: July 19, 2007
Office: Equal Opportunity
Topic No.: 001 - 275 - 006 -1
•
TITLE VI / NONDISCRIMINATION PROGRAM
The Florida Department of Transportation will not discriminate on the basis of race, color, national origin, sex,
age, handicap/ disability or income status. No person may be treated unfavorably, excluded from participating
in or denied the benefits of any Department program or activity because of their race, color, national origin,
age, sex, handicap/ disability or income status. The Department will not retaliate against any person who
complains of discrimination or who participates in an investigation of discrimination. Department grant
recipients and contractors must comply with this policy.
Department civil rights and program area specialists must work closely to implement their mutual
nondiscrimination program responsibilities. Each Assistant Secretary, District Secretary, Florida's Turnpike
• Enterprise Executive Director, Director, Manager, and Section Head of the Department's major program areas
(Planning, Project Development/Environmental, Design, Right -of -Way, Construction, Maintenance, Public
Transportation, and Research), and each Department grant recipient and contractor, is responsible for
preventing discrimination and ensuring nondiscrimination in all of their programs and activities, whether those
programs and activities are federally assisted or not.
The Department's Equal Opportunity Office Manager is delegated the authority to develop, maintain,
implement, and monitor this policy as required by 23 Code of Federal Regulations (CFR) Part 200 and 49
CFR Part 21.
•
ott
Stephanie Kopelousos
Secretary
i •
REQUIRED CONTRACT PROVISIONS '
FEDERAL -AID CONSTRUCTION CONTRACTS
Page related subcontracts of $10,000 or more.)
I. General 1
. •
U. Nondiscrimination 1 1. Equal Employment Opportunity: Equal employment opportu-
III. Nonsegregated Facilities 3 nity (EEO) requirements not to discriminate and to take affirmative
IV. Payment of Predetermined Minimum Wage 3. action to assure equal opportunity as set forth under laws, executive .
V. Statements and Payrolls 5 orders, rules, regulations (28 CFR 35, 29 CFR 1630 and 41 CFR 60)
VI. Record of Materials, Supplies, and Labor , • 5 , and orders of the Secretary of Labor as modified by the provisions .
VII. Subletting or Assigning the Contract 5 prescribed herein, and imposed pursuant to 23 U.S.C. 140 shall
VIII Safety: Accident Prevention 6 constitute the EEO and specific affirmative action standards for the
IX. False Statements. Concerning Highway Projects 6 contractor's project activities under this contract. The Equal Opportu- .
X. Implementation of Clean Air Act and Federal nity Construction Contract Specifications set forth under 41 CFR 60-
Water Pollution Control Act 6 4.3 and the provisions of the American Disabilities Act of 1990 (42 .
XI. Certification Regarding Debarment, Suspension, U.S.C. 12101 et seg.) set forth under 28 CFR 35 and 29 CFR 1630
Ineligibility, and Voluntary Exclusion 6 are incorporated by reference in this contract. In the execution of this .
' XII. Certification Regarding Use of Contract Funds for contract, the contractor agrees to comply with the following minimum
Lobbying 8 specific requirement activities of EEO:
ATTACHMENTS - a. The contractor will work with the State highway agency
(SHA) and the Federal Government in carrying out EEO obligations
A. Employment Preference for Appalachian Contracts and in their review of his /her activities under the contract.
. . (included in Appalachian contracts only)
b. The contractor will accept as his operating policy the
I. GENERAL following statement:
1. These contract provisions shall apply to all work performed on "It is the °policy of this Company to assure that applicants are .
the contract by the contractor's own organization and with the employed, and that employees are treated during employment,
• assistance of workers under the contractor's immediate superinten- without regard to their race, religion, sex, color, national origin,
dence and to all work performed on the contract by piecework, station age or disability. Such action shall include: employment,
work, or by subcontract. upgrading, demotion, or transfer; recruitment or recruitment
. advertising: layoff or termination; rates of pay or other forms of
- • 2. Except as otherwise provided for in each section, the contractor compensation; and selection for training, including apprentice-
shall insert in each subcontract all of the stipulations contained in ship, preapprenticeship, and /or on- the -job training."
these Required Contract Provisions, and further require their
inclusion in any lower tier subcontract or purchase order that may,in 2. EEO Officer: The contractor will designate and make known
turn be made. The Required Contract Provisions shall not be to the SHA contracting officers an EEO Officer who will have the
incorporated by reference in any case. The prime contractor shall be responsibility for and must be capable of effectively administering and
responsible for compliance by any subcontractor or lower tier promoting an active contractor program of EEO and who must be - -
subcontractor with these Required Contract Provisions. assigned adequate authority and responsibility to do so.
3. A breach of any of the stipulations contained in these Required 3. Dissemination of Policy: All members of the contractor's staff '
Contract Provisions shall be sufficient grounds for termination of the who are authorized to hire, supervise, promote, and discharge
contract. employees, or who recommend such action, or who are substantially
involved in such action, will be made fully cognizant of, and will
4. A breach of the following clauses of the Required Contract implement, the contractor's EEO policy and contractual responsibili-
. • Provisions may also be grounds for debarment as provided in 29 ties to provide EEO in each grade and classification of employment.
CFR 5.12:. - • To ensure that the above agreement will be met, the following actions
will be taken as a minimum:
Section 1, paragraph 2;.
Section IV, paragraphs 1, 2, 3, 4, and 7; a. Periodic meetings of supervisory and personnel office
Section V, paragraphs 1 and 2a through 2g. 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
i 5. Disputes arising out of the labor standards provisions of Section EEO policy and its implementation will be reviewed and explained.
IV (except paragraph 5) and Section V of these Required Contract The meetings will be conducted by the EEO Officer.
• Provisions shall not be subject to the general disputes clause of this , .
contract. Such disputes shall be resolved in accordance with the • b. All new supervisory or personnel office employees will be
procedures of the U.S. Department of Labor (DOL) as set forth in 29 given a thorough indoctrination by the EEO Officer, covering all major
CFR 5, 6, and 7. Disputes within the meaning of this clause include
. disputes between the contractor (or any of its subcontractors) and the aspects of the contractor's EEO obligations within thirty days
contracting agency, the DOL, or the contractor's employees or their following their reporting for duty with the contractor.
representatives. - -
c. All personnel who are engaged in direct recruitment for the
6. Selection of Labor: During the performance of this contract, project will be instructed by the EEO Officer in the contractor's
. • the contractor shall not: procedures for locating and hiring minority group employees. ,
• - a. discriminate against labor from any other State, possession, d. Notices and posters setting forth the contractor's EEO policy
or territory of the United States (except for employment preference for will be placed in areas readily accessible to employees, applicants for
Appalachian contracts, when applicable, as specified in Attachment employment and potential employees. -
• A), or
e. The contractor's EEO policy and the procedures to imple-
_ . • b. employ convict labor for any purpose within the limits of the ment such policy will be brought to the attention of employees by
project unless it is labor performed by convicts who are on parole, means of meetings, employee handbooks, or other appropriate
- supervised release, or probation. means.
. 11. NONDISCRIMINATION • 4. Recruitment: When advertising for employees, the contractor
will include in all advertisements for employees the notation: "An
(Applicable to all Federal -aid construction contracts and to all Equal Opportunity Employer." All such advertisements will be placed
Form FHWA -1273 (Rev. 3 -94) Page 1
in publications having a large circulation among minority groups in the • minority groups and women within the unions, and to effect referrals
area from which the project work force would normally be derived. by such unions of minority and female employees. Actions by the •
contractor either directly or through a contractors association acting, .
a. The contractor will, unless precluded by a valid bargaining as agent will include the procedures set forth below:
• agreement, conduct systematic and direct recruitment through public
and private employee referral sources likely to yield qualified minority a. The contractor will use best efforts to develop, in coopera-
group applicants. To meet this requirement, the contractor will tion with the unions, joint training programs aimed toward qualifying
identify sources of potential minority group employees, and establish more minority group members and women for membership in the
with such identified sources procedures whereby minority group unions and increasing the skills of minority group employees and
applicants may be referred to the contractor for employment consider- . , women so that they may qualify for higher paying employment.
ation. "
b. The contractor will use best efforts to Incorporate an EEO
. b. In the event the contractor has a valid bargaining agreement clause into each union agreement to the end that such union will be •
. . providing for exclusive hiring hall referrals, he is expected to observe contractually bound to_refer applicants without regard to their race,
the provisions of that agreement to the extent that the system permits color, religion, sex, national origin, age or disability.
the contractor's compliance with EEO contract provisions. (The DOL
has held that where implementation of such agreements have the c. The contractor is to obtain information as to the referral
effect of discriminating against minorities or women, or obligates the practices and policies of the labor union except that to the extent
contractor to do the same, such implementation violates Executive such information is within the exclusive possession of the labor union
Order 11246, asamended.) . and such labor union refuses to furnish such information to the
contractor, the contractor shall so certify to the SHA and shall set
. c: The contractor will encourage his present employees to refer forth what efforts have been made to obtain such information.
minority group applicants for employment. 'Information and proce- .
' dures with regard to referring minority group applicants will be d. In the event the union is unable to provide the contractor
. ... discussed with employees. with a reasonable flow of minority and women referrals within the time
. limit set forth in the collective bargaining agreement, the contractor
5. Personnel Actions: Wages, working conditions, and employee will, through independent recruitment efforts, fill the employment
benefits shall be established and administered, and personnel actions vacancies without regard to race, color, religion, sex, national origin,
of every type, including hiring, upgrading, promotion, transfer, age or disability; making full efforts to obtain qualified and /or
• demotion, layoff, and termination, shall be taken without regard to qualifiable minority group persons and women. (The DOL has held
• race, color, religion, sex, national origin, • age or disability. . The that it shall be no excuse that the union with which the contractor has
following procedures shall be followed: a collective bargaining agreement providing for exclusive referral
- a. The contractor will conduct periodic inspections of project failed to refer minority employees.) In the event the union referral
. sites to insure that working conditions and employee facilities do not practice prevents the contractor from meeting the obligations
indicate discriminatory treatment of project site personnel. pursuant to Executive Order 11246, as amended, and these special
_ provisions, such contractor shall immediately notify the SHA. •
b. The contractor will periodically evaluate the spread ofWages "
paid within each classification to determine any evidence of discrimi- 8. Selection of Subcontractors, Procurement of Materials and .
natory wage practices. Leasing of Equipment: The contractor shall not discriminate on the
. grounds of race, color, religion, sex, national origin, age or disability
c. "The contractor will periodically review selected personnel in the selection and retention of subcontractors, including procure- -
actions in depth to determine whether there is evidence of discrimina- ment of materials and leases of equipment.
_ tion. Where evidence is found, the contractor will promptly take
corrective action, lithe review indicates that the discrimination may a. The contractor shall notify all potential subcontractors and
extend beyond' the actions reviewed, such corrective action shall suppliers of his/her EEO obligations under this contract.
include all affected persons.
. b. Disadvantaged business enterprises (DBE), as defined in 49 •
. d. The contractor will promptly investigate all complaints of CFR 23, shall have equal opportunity to compete for and perform
alleged discrimination made to the contractor in connection with his subcontracts which the contractor enters into pursuant to this .
obligations under this contract, will attempt to resolve such com- contract. The contractor will use his best efforts to solicit bids from
plaints, and will take appropriate corrective action within a reasonable and to utilize DBE subcontractors or subcontractors with meaningful .
- time. If the investigation indicates that the discrimination may affect minority group and female representation among their employees.
persons other than the complainant, such corrective action shall Contractors shall obtain lists of DBE construction firms from SHA
- include such other persons. Upon completion of each investigation, personnel.
the contractor will inform every complainant of all of his avenues of
• appeal. c. The contractor will use his best efforts to ensure subcontrac-
tor compliance with their EEO obligations.
6. Training and Promotion:
9. Records and Reports: The contractor shall keep such records
a. The contractor will assist in locating, qualifying, and as necessary to document compliance with the EEO requirements.
increasing the skills of minority group and women employees, and _ Such records shall be retained for a period of three years following
applicants for employment. completion of the contract work and shall be available at reasonable .
times and places for inspection by authorized representatives of the
b. Consistent with the contractor's work force requirements and SHA and the FHWA. -
as permissible under Federal and State regulations, the contractor
shall make full use of training programs, i.e., apprenticeship, and a. The records kept by the contractor shall document the
on- the -job training programs for the geographical area of contract following: •
performance. Where feasible, 25 percent of apprentices or trainees .
in each occupation shall be in their first year of apprenticeship or (1) The number of minority and non - minority group •
training. In the event a special provision for training is provided under members and women employed in each work classification on the •
this contract, this subparagraph will be superseded as indicated in the project; •
special provision. -
(2) The progress and efforts being made in cooperation
. c. The contractor will advise employees and applicants for with unions, when applicable, to increase employment opportunities
employment of available training programs and entrance require- for minorities and women;
. ments for each. "
(3) The progress and efforts being made in locating, hiring,
d. The contractor will periodically review the training and training, qualifying, and upgrading minority and female employees;
- • promotion potential of minority group and women employees and will and •
encourage eligible employees to apply for such training and promo-
tion. (4) The progress and efforts being made in securing the
. services of DBE subcontractors or subcontractors with meaningful
• 7. Unions: If the contractor relies in whole or in part upon unions minority and female representation among their employees.
as a source of employees, the contractor will use his /her best efforts •
to obtain the cooperation of such unions to increase opportunities for b. The contractors will submit an annual report to the SHA
Paget - Form FHWA -1273 (Rev. 3 -94) '
each July for the duration of the project, indicating the number of b. Laborers or mechanics performing work in more than one
minority, women, and non - minority group employees currently classification may be compensated at the rate specified for each
• engaged in each work classification required by the contract work, classification for the time actually worked therein, provided, that the
This information is to be reported on Form FHWA -1391. If on -the employer's payroll records accurately set forth the time spent in each
job training is being required by special provision, the contractor will classification in which work is performed.
be required to collect and report training data.
c. All rulings and interpretations of the Davis -Bacon Act and
' III. NONSEGREGATED FACILITIES related acts contained in 29 CFR 1, 3, and 5 are herein incorporated
. by reference in this contract. .
(Applicable to all Federal -aid construction contracts and to all
related subcontracts of $10,000 or more.) 2. Classification:
a. • By submission of this bid, the execution of this contract or a. The SHA contracting officer shall require that any class of
- subcontract, or the consummation of this material supply agreement • laborers or mechanics employed under the contract, which is not
or purchase order, as appropriate, the bidder, Federal -aid construc- listed in the wage determination, shall be classified in conformance
tion contractor, subcontractor, material supplier, or vendor, as with the wage determination.
appropriate, certifies that the firm does not maintain or provide for its
employees any segregated facilities at any of its establishments, and b. The contracting officer shall approve an additional classifica-
that the firm does not permit its employees to perform their services tion, wage rate and fringe benefits only when the following criteria
at any location, under its control, where segregated facilities are have been met:
• maintained. The firm agrees that a breach of this certification is a •
violation of the EEO provisions of this contract. The firm further (1) the work to be performed by the additional classifica-
certifies that no employee will be denied access to adequate facilities tion requested is not performed by a classification in the wage
on the basis of sex or disability. determination;
• b. As used in this certification, the term "segregated facilities" _ (2) the additional classification is utilized in the area by the
. means any waiting rooms, work areas, restrooms and washrooms, construction industry;
restaurants and other eating areas, timeclocks, locker rooms, and
other storage or dressing areas, parking lots, drinking fountains, (3) the proposed wage rate, including any bona fide fringe
recreation or entertainment areas, transportation, and housing benefits, bears a reasonable relationship to the wage rates contained
. • facilities provided for employees which are segregated by explicit in the wage determination; and
directive, or are, in fact, segregated on the basis of race, color,
religion, national origin, age or disability, because of habit, local (4) with respect to helpers, when such a classification
custom, or otherwise. The only exception will be for the disabled , prevails in the area in which the work is performed.
when the demands for accessibility override (e.g. disabled parking).
c. If the contractor or subcontractors, as appropriate, the
•
. • c. The contractor agrees that it has obtained or will obtain laborers and mechanics (if known) to be employed in the additional
identical certification from proposed subcontractors or material classification or their representatives, and the contracting officer
suppliers prior to award of subcontracts or consummation of material agree on the classification and wage rate (including the amount
supply •agreements of $10,000 or more and that it will retain such designated for fringe benefits where appropriate), a report of the
certifications in its files. action taken shall be sent by the contracting officer to the DOL, -
. Administrator of the Wage and Hour Division, Employment Standards
IV. PAYMENT OF PREDETERMINED MINIMUM WAGE Administration, Washington, D.C. 20210. The Wage and Hour
Administrator, or an authorized representative, will approve, modify,
(Applicable to all Federal -aid construction contracts exceeding or disapprove every additional classification action within 30 days of
$2,000 and to all related subcontracts, except for projects located on receipt and so advise the contracting officer or will notify the contract- .
' roadways classified as local roads or rural minor collectors, which are ing officer within the 30-day period that additional time is necessary.
exempt.)
d. In the event the contractor or subcontractors, as appropri-
1. General: ate, the laborers or mechanics to be emp in the additional
classification or their representatives, and the contracting officer do
a. All mechanics and laborers employed or working upon the not agree on the proposed classification and wage rate (including the
site of the work will be paid unconditionally and not less often than • amount designated for fringe benefits, where appropriate), the
once a week and without subsequent deduction or rebate on any contracting officer shall refer the questions, including the views of all
account [except such payroll deductions as are permitted by . interested parties and the recommendation of the contracting officer,
regulations (29 CFR 3) issued by the Secretary of Labor under the to the Wage and Hour Administrator for determination. Said
Copeland Act (40 U.S.C. 276c)] the full amounts of wages and bona Administrator, or an authorized representative, will issue a determina-
. - fide fringe benefits (or cash equivalents thereof) due at time of tion within 30 days of receipt and so advise the contracting officer or
• payment. The payment shall be computed at wage rates not less will notify the contracting officer within the 30 -day period. that .
than those contained in the wage determination of the Secretary of • additional time is necessary
• Labor ( hereinafter "the wage determination ") which is attached hereto
' and made. a part hereof, regardless of any contractual relationship e. The wage rate (including fringe benefits where appropriate) ,
which may be alleged to exist between the contractor or its subcon- - determined pursuant to paragraph 2c or 2d of this Section IV shall be
' tractors and such laborers and mechanics. The wage determination paid to all workers performing work in the additional classification
• • (including any additional classifications and wage rates conformed from the first day on which work is performed in the classification.
under paragraph 2 of this Section IV and the DOL poster (\NH -1321) , , .
or Form FHWA -1495) shall be posted at all limes by the contractor 3. Payment of Fringe Benefits:
and its subcontractors at the site of the work in a prominent and
accessible place where it can be easily seen by the workers. For the a. Whenever the minimum wage rate prescribed in the contract
. . purpose of this Section, contributions made or costs reasonably for a class of laborers or mechanics includes a fringe benefit which
anticipated for bona fide fringe benefits under Section 1(b)(2) of the is not expressed as an hourly rate, the contractor or subcontractors, •
Davis -Bacon Act (40 U.S.C. 276a) on behalf of laborers ormechanics as appropriate, shall either pay the benefit as stated in the wage
• are considered wages paid to such laborers or mechanics, subject to determination or shall pay another bona fide fringe benefit or an
the provisions of Section IV, paragraph 3b, hereof. Also, for the - hourly case equivalent thereof.
purpose of this Section, regular contributions made or costs incurred
. for more than a weekly period (but not less often than quarterly) b. If the contractor or subcontractor, as appropriate, does not
under plans, funds, or programs, which cover the particular weekly make payments to a trustee or other third person, he /she may . .
period, are deemed to be constructively made or incurred during such consider as a part of the wages of any laborer or mechanic the
weekly period. Such laborers and mechanics shall be paid the amount of any costs reasonably anticipated in providing bona fide
appropriate wage rate and fringe benefits on the wage determination fringe benefits under a plan or program, provided, that the Secretary
for the classification of work actually performed, without regard to of Labor has found, upon the written request of the contractor, that
' skill, except as provided in paragraphs 4 and 5 of this Section IV. 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. .
Form FHWA -1273 (Rev. 3 -94) Page 3
•
4. Apprentices and Trainees (Programs of the U.S. DOL) and Di determines that there is an apprenticeship program associ- •
. Helpers: ated with the corresponding journeyman -level wage rate on the wage
. determination which provides for Tess than full fringe benefits for
a. Apprentices: apprentices, in which case such trainees shall receive the same
fringe benefits as apprentices.
(1) Apprentices will be permitted to work at less than the
predetermined rate for the work they performed when they are (4) In the event the Employment and Training Administra- '
employed pursuant to and individually registered in a bona fide tion withdraws approval of a training program, the contractor or
• apprenticeship program registered with the DOL, Employment and subcontractor will no longer be permitted to utilize trainees at less
Training Administration, Bureau of Apprenticeship and Training, or than the applicable predetermined rate for the work performed until
. with a State apprenticeship agency recognized by the Bureau, or if a . an acceptable program is approved.
person is employed in his /her first 90 days of probationary employ- ,
ment as an apprentice in such an apprenticeship program, who is not c. Helpers: ,
individually registered in the program, but who has been certified by
. the Bureau of Apprenticeship and Training or a State apprenticeship Helpers will be permitted to work on a project if the helper ,
agency (where appropriate) to be eligible for probationary employ- classification is specified and defined on the applicable wage
-merit as an apprentice. tice. determination or is approved pursuant to the conformance procedure .
. set forth in Section IV.2. Any worker listed on a payroll at a helper
"(2) The allowable ratio of apprentices to journeyman -level wage rate, who is not a helper under a approved, definition, shall be -
• employees on the job site in any craft classification shall not be paid not less than the applicable wage rate on the wage determina-
greater than the ratio permitted to the contractor as to the entire work tion for the classification of work actually performed.
force under the registered program. Any employee listed on a payroll •
at an apprentice wage rate, who is not registered or otherwise 5. Apprentices and Trainees (Programs of the U.S, DOT):
. employed as stated above, shall be paid not less than the applicable . •
wage rate listed in the wage determination for the classification of Apprentices and trainees working under apprenticeship and skill
work actually performed. In addition, any apprentice performing work. training programs which have been certified by the Secretary of • .
. on the job site in excess of the ratio permitted under the registered Transportation as promoting EEO in connection with Federal -aid ,
program shall be paid not less than the applicable wage rate on the highway construction programs are not subject to the requirements
• wage determination for the work actually performed. Where a . - of paragraph 4 of this Section IV. The straight time hourly wage rates
-*contractor or subcontractor is performing construction on a project in for apprentices and trainees under such programs will be established •
a locality other than that in which its program is registered, the ratios by the particular programs. The ratio of apprentices and trainees to
and wage rates (expressed in percentages of the journeyman -level . journeymen shall not be greater than permitted by the terms of the
. hourly rate) specified in the contractors or subcontractor's registered particular program.
program shall be observed.
6. Withholding:
(3) Eve apprentice must be paid at not less than the rate
. specified in the registered program for the apprentice's level of The SHA shall upon its own action or upon written request of
progress, expressed as a percentage of the journeyman -level hourly an authorized representative of the DOL withhold, or cause to be .
rate specified in the applicable wage determination. Apprentices • withheld, from the contractor or subcontractor under this contract or
- shall be paid fringe benefits in accordance with the provisions of the any other Federal contract with the same prime contractor, or any -
apprenticeship program. If the apprenticeship program does not • other Federally- assisted contract subject to Davis -Bacon prevailing •
. specify fringe benefits, apprentices must be paid the full amount of wage requirements which is held by the same prime contractor, as
fringe benefits listed on the wage determination for the applicable much of the accrued payments or advances as may be considered •
classification. If the Administrator for the Wage and Hour Division necessary to pay laborers and mechanics, including apprentices, .
determines that a different practice prevails for the applicable trainees, and helpers, employed by the contractor or any subcontrac-
- apprentice classification, fringes shall be paid in accordance with that tor the full amount of wages required by the contract. In the event,of
determination. failure to pay any laborer or mechanic, including any apprentice, ".
. trainee, or helper, employed or working on the site of the work, all or
(4) In the event the Bureau of Apprenticeship and Training, - part of the wages required by the contract, the SHA contracting officer
or a S tate apprenticeship agency recognized by the Bureau, with- may, after written notice to the contractor, take such action as maybe
draws approval of an apprenticeship . program, the contractor or necessary to cause the suspension of any further payment, advance, •
subcontractor will no longer be permitted to utilize apprentices at less or guarantee of funds until such violations have
than the - applicable predetermined rate for the comparable work -
. performed by regular employees until an acceptable program is 7. Overtime Requirements:
approved. -
No contractor or subcontractor contracting for any part of the
b. Trainees: contract work which may require or involve the employment of
laborers, mechanics, watchmen, or guards (including apprentices, .
(1) Except as provided in 29 CFR 5.16, trainees will not be trainees, and helpers described in paragraphs 4 and 5 above) shall ,
permitted to work at less than the predetermined rate for the work require or permit any laborer, mechanic, watchman, or guard in. any,
' . performed unless they are employed pursuant to and individually • workweek in which he/she is employed on such work, to work in
registered in a program which has received prior approval, evidenced excess of 40 hours in such workweek unless such laborer, mechanic,
by formal certification by the DOL, Employment and Training watchman, or guard receives compensation at a rate not less than
Administration. - one -and- one -half times his /her basic rate of pay for all hours worked
in excess of 40 hours in such workweek. .
(2) The ratio of trainees to journeyman -level employees on
the job site shall not be greater than permitted under the plan 8. Vi olation: .
approved by the Employment and Training Administration. Any .
• . • employee listed on payroll at a trainee rate who is not registered • Liability for Unpaid Wages;" Liquidated Damages: In the event •
and-participating in a training plan approved by the Employment and ' of any violation of the clause set forth in paragraph 7 above, the .
Training Administration shall be paid not less than the applicable contractor and any subcontractor responsible thereof shall be liable
•
wage rate on the wage determination for the classification of work to the affected employee for his /her unpaid wages. In addition, such
actually performed. In addition, any trainee performing work on the contractor and subcontractor shall be liable to the United States (in
' job site in excess of the ratio permitted under the registered program the case of work done under contract for the District of Columbia or
shall be paid. not less than the applicable wage rate on the wage a territory, to such District or to such territory) for liquidated damages.
- determination for the work actually performed. • . Such liquidated damages shall be computed with respect to each
individual laborer, mechanic, watchman, or guard employed in
(3) Every trainee must be paid at not less than the rate violation of the clause set forth" in paragraph 7, in the sum of $10 for
• specified in the approved program for his /her level of progress, each calendar day on which such employee was required or permit-
. expressed as a percentage of the journeyman -level hourly rate ted to work in excess of the standard work week of 40 hours without
specified in the applicable wage determination. Trainees shall be payment of the overtime wages required by the clause set forth in
paid fringe benefits in accordance with the provisions of the trainee paragraph 7.
program. - If the trainee program does not mention .fringe benefits,
' trainees shall be paid the full amount of fringe benefits listed on the 9: Withholding for Unpaid Wages and Liquidated Damag
wage determination unless the Administrator of the Wage and Hour
Page4 - • • Form FHWA -1273 (Rev. 3 -94)
•
•
The SHA shall upon its own action or upon written request of any either directly or indirectly from the full wages eamed, other than
authorized representative of the DOL withhold, or cause to be permissible deductions as set forth in the Regulations, 29 CFR 3;
withheld, from any monies payable on account of work performed by -
the contractor or subcontractor under any such contract or any other (3) that each laborer or mechanic has been paid not less
• Federal contract with the same prime contractor, or any other that the applicable wage rate and fringe benefits or cash equivalent
Federally- assisted contract subject to the Contract Work Hours and • for the classification of worked performed, as specified in the
Safety Standards Act, which is held by the same prime contractor, applicable wage determination incorporated into the contract. '
. such sums as may be determined to be necessary to satisfy any .
liabilities of such contractor or subcontractor for unpaid wages and e. The weekly submission of a properly executed certification
• • ' liquidated damages as provided in the clause set forth in paragraph set forth on the reverse side of Optional Form WH -347 shall satisfy -
- 8 above. the requirement for submission of the "Statement of Compliance" .
required by paragraph 2d of this Section V.
V. STATEMENTS AND PAYROLLS
f. The falsification of any of the above certifications may
• . (Applicable to all Federal -aid construction contracts exceeding subject the contractor to civil or criminal prosecution under 18 U.S.C.
. $2,000 and to all related subcontracts, except for projects located on 1001 and 31 U.S.C. 231. .
roadways classified as local roads or rural collectors, which are
exempt.) g. The contractor or subcontractor shall make the records
. . required under paragraph 2b of this Section V available for inspec- -
1. Compliance with Copeland Regulations (29 CFR 3): - tion, copying or transcription by authorized representatives of the .
. SHA, the FHWA, or the DOL, and shall permit such representatives _
The contractor shall comply with the Copeland Regulations of the to interview employees during working hours on the job. If, the
Secretary of Labor which are herein incorporated by reference. contractor or subcontractor fails to submit the required records to,
make them available, the SHA, the FHWA, the DOL, or all may, after .
.- 2. Payrolls and Payroll Records: written notice to the contractor, sponsor, applicant, or owner, take
such actions as may be necessary to cause the suspension of any _
a. Payrolls and basic records relating thereto shall be further payment, advance, or guarantee of funds. Furthermore,
maintained by the contractor and each subcontractor during the failure to submit the required records upon request or to make such
course of the work and preserved for a period of 3 years from the records available may be grounds for debarment action pursuant to
date of completion of the contract for all laborers, mechanics, 29 CFR 5.12.- _ •
apprentices, trainees, watchmen, helpers, and guards working at the •
. site of the work. VI. RECORD OF MATERIALS, SUPPLIES, AND LABOR
. b. The payroll records shall contain the name, social security 1 -. Oh all Federal -aid contracts on the National Highway System,
number, and address of each such employee; his or her correct except those which provide solely for the installation of protective
. classification; hourly rates of wages paid (including rates of contribu- devices at railroad grade crossings, those which are constructed on
tions or costs anticipated for bona fide fringe benefits or cash a force account or direct labor basis, highway beautification contracts;
equivalent thereof the types described in Section 1(b)(2)(B) of the and contracts for which the total final construction cost for roadway
Davis Bacon Act); daily and weekly number of hours worked; and bridge is less than $1,000,000 (23 CFR 635) the contractor shall:
deductions made; and actual wages paid. In addition, for Appala= -
chian contracts, the payroll records shall contain a notation indicating a. Become familiar with the list of specific materials and
whether the employee does, or does not, normally reside in the labor supplies contained in Form FHWA -47, "Statement of Materials and
- - • • area as defined in Attachment A, paragraph 1. Whenever the . Labor Used by Contractor of Highway Construction Involving Federal
Secretary of Labor, pursuant to Section IV, paragraph 3b, has found Funds," prior to the commencement of work under this contract.
that the wages of any laborer or mechanic include the amount of any .
• • - costs reasonably anticipated in providing benefits under a plan or b. Maintain a record of the total cost of all,, materials: and
. program in Section 1(b)(2)(B) of the Davis Bacon Act, the supplies - purchased for and incorporated in the work, and also of the -
. contractor and each subcontractor shall maintain records which show quantities of those specific . materials and supplies listed on Form
. that the commitment to provide such benefits is enforceable, that the FHWA -47, and in the units shown on Form FHWA -47.
plan or program is financially responsible, that the plan or program
has been communicated in writing to the laborers or mechanics c.. Furnish, upon the completion of the contract, to the SHA
• affected, and show the cost anticipated - or the actual cost incurred in resident engineer on Form FHWA -47 together with the data required '
` providing benefits. Contractors or subcontractors employing - in, paragraph 1b relative to materials and supplies, a final labor
apprentices or trainees under approved programs shall maintain summary of all contract work indicating the total hours worked and
written evidence of the registration of apprentices and trainees, and the total amount eamed.
- ratios and wage rates prescribed in the applicable programs.
. 2. At the prime contractor's option, either a single report covering
c. Each contractor and subcontractor shall furnish, each week all contract work or separate reports for the contractor and for each •
. in which any contract -work is performed, to the SHA resident subcontract shall be submitted.
engineer a payroll of wages paid each of its employees (including - •
apprentices, trainees, and helpers, described in Section IV, para- VII. SUBLETTING OR ASSIGNING THE CONTRACT • .
graphs 4 and 5, and watchmen and guards engaged on work during
• . the preceding weekly payroll period). The payroll submitted shall set 1. The contractor shall perform with its own organization contract
out accurately and completely all of the information required to be • work amounting to not less than 30 percent (or a greater percentage
maintained under paragraph 2b of this Section V. This information if specified elsewhere in the contract) of the total original contract
may be submitted in any form desired. Optional Form WH -347 is • price, excluding any specialty items designated by the State.
available for this purpose and may be purchased from the Superin- Specialty items may be performed by subcontract and the amount of .
tendent of Documents (Federal stock number 029- 005 - 0014 -1), U.S. any such specialty items performed may be deducted from the total
• Government Printing Office, Washington, D.C. 20402. The prime , original contract price before computing the amount of work required
contractor is responsible for the submission of copies of payrolls by " to be performed by the contractor's own organization (23 CFR 635).
all subcontractors. •
• • a. "Its own organization" shall be construed to include only
d. Each payroll submitted shall be accompanied by a "State- workers employed and paid directly by the prime contractor and
ment of Compliance," signed by the contractor or subcontractor or " equipment owned or rented by, the prime contractor, with or without
his /her agent who pays or supervises the payment of the persons - , operators. Such term does not include employees or equipment of
employed under the contract and shall the following: .
(1) that the payroll for the payroll period contains the-
information required to be maintained under paragraph 2b of this .
Section V and that such information is correct and complete;
(2) that such laborer or mechanic (including • each helper, - -
apprentice, and trainee) employed on the contract during the payroll
period has been paid the full weekly wages earned, without rebate,
either directly or indirectly, and that no deductions have been made - .
Form FHWA -1273 (Rev. 3-94) _ Page 5
a subcontractor, assignee, or agent of the prime contractor. 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
b. "Specialty Items" shall be construed to be limited to work • in connection with the submission of plans, maps, specifications,
. that requires highly specialized knowledge, abilities, orequipmentnot contracts, or costs of construction on any highway or related project
, : ordinarily available in the type of contracting organizations qualified submitted for approval to the Secretary of Transportation; or
•• and expected to bid on the contract as a whole and in general are to
• • • be limited to minor components of the overall contract. Whoever knowingly makes any false statement, false representa-
. .tion, false report or false claim with respect to the character, quality,
2. The contract amount upon which the requirements set forth in quantity, or cost of any work performed or to be performed, or .
. paragraph 1 of Section VU is computed includes the cost of material materials fumished or to be fumished, in connection with the
and manufactured products which are to be purchased or produced construction of any highway or related project approved by the . .
. by the contractor under the contract provisions. Secretary of Transportation; or
. 3. The contractor shall furnish (a) a competent superintendent or Whoeverknowingly makes any false statement orfalserepresenta-
supervisor who is employed by the firm, has full authority to direct tion as to material fact in any statement, certificate, or report
performance of the work in accordance with the contract require- submitted pursuant to provisions of the Federal -aid Roads Act
ments; and is in charge of all construction operations (regardless of approved July 1, 1916, (39 Stat. 355), as amended and supple-
who performs the work) and (b) such other of its own organizational mented;
resources (supervision, management, and engineering services) as
the SHA contracting officer determines is necessary to assure the Shall be fined not more that $10,000 or imprisoned not more than
• • performance of the contract. 5 years or both."
' 4. No portion of the contract shall be sublet, assigned or otherwise X. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL
disposed of except with the written consent of the SHA contracting WATER POLLUTION CONTROL ACT
officer, or authorized representative, and such consent when given
- shall not be construed to relieve the contractor of any responsibility (Applicable to all Federal -aid construction contracts and to all related
for the fulfillment of the contract. Written consent will be given only subcontracts of $100,000 or more.)
• after the SHA has assured that each subcontract is evidenced in • •
writing and that it contains all pertinent provisions and requirements By submission of this bid or the execution of this contract, or
of the prime contract. subcontract, as appropriate, the bidder, Federal -aid construction
contractor, or subcontractor, as appropriate, will be deemed to have
VIII. SAFETY: ACCIDENT PREVENTION stipulated as follows: .
1. In the performance of this contract the contractor shall comply , 1. That any facility that is or will be utilized in the performance of this
• with all applicable Federal, State, and local laws governing safety, • contract, unless such contract is exempt under the Clean Air Act, as
health, and sanitation (23 CFR 635). The contractor shall provide all amended (42 U.S.C. 1857 et seq., as amended by Pub.L. 91 -604), .
safeguards, safety devices and protective equipment and take any and under the Federal Water Pollution Control Act, as amended (33
other needed actions as it determines, or as the SHA contracting U.S.C. 1251 et seg.., as amended by Pub.L. 92 -500), Executive Order
. officer may determine, to be reasonably necessary to protect the life 11738, and regulations in implementation thereof (40 CFR 15) is not •
. and health of employees on the job and the safety of the public and listed, on the date of contract award, on the U.S. Environmental
to protect property in connection with the performance of the work Protection Agency (EPA) List of Violating Facilities pursuant to 40 ,
covered by the contract. CFR 15.20. ,
2. It is a condition of this contract, and shall be made a condition 2. That the kiln agrees to comply and remain in compliance with all
of each subcontract, which the contractor enters into pursuant to this the requirements of Section 114 of the Clean Air Act and Section 308
contract, that the contractor and any subcontractor shall not permit of the Federal Water Pollution Control Act and all regulations and •
. any employee, in performance of the contract, to work in surround- guidelines listed thereunder.
ings or under conditions which are unsanitary, hazardous or danger- .
ous to his /her health or safety, as determined under construction 3. That the firm shall promptly notify the SHA of the receipt of any
- safety and health standards (29 CFR 1926) promulgated by the communication from the Director, Office of Federal Activities, EPA,
Secretary of Labor, in accordance with Section 107 of the Contract indicating that a facility that is or will be utilized for the contract is
- Work Hours and Safety Standards Act (40 U.S.C. 333). under consideration to be listed on the EPA List of Violating Facilities. ,
3. Pursuant to 29 CFR 1926.3, it is a condition of this contract that 4. That the firm agrees to` include or cause to be included the
the Secretary of Labor or authorized representative thereof, shall requirements of paragraph 1 through 4 of this Section X in every
• have right of entry to any site of contract performance to inspect or nonexempt subcontract, and further agrees to take such action as the
investigate the matter of compliance with the construction safety and government may direct as a means of enforcing such requirements. '
health standards and to carry out the duties of the Secretary under .
- - Section 107 of the Contract Work Hours and Safety Standards Act • • XI. CERTIFICATION-REGARDING DEBARMENT, SUSPENSION,
` (40 U.S.C. 333). - INELIGIBILITY AND VOLUNTARY EXCLUSION
IX. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS 1. Instructions for Certification - Primary Covered Transac-
. tions: .
In order to assure high quality and durable construction in confor- -
. miry with approved plans and specifications and a high degree of • (Applicable to all Federal -aid contracts - 49 CFR 29)
reliability on statements and representations made by engineers, -
contractors, suppliers, and workers on Federal -aid highway projects, a. By signing and submitting this proposal, the prospective .
• it is essential that all persons with the project perform their primary participant is providing the certification set out below. , ,
' - functions as carefully, thoroughly, and honestly as possible. Willful
falsification, distortion, or misrepresentation with respect to any facts b. The inability of a person to provide the certification set out
-
. related to the project is a violation of Federal law. To prevent any below will not necessarily result in denial of participation in this
misunderstanding regarding the seriousness of these and similar covered transaction. The prospective participant shall submit an
- acts, the following notice shall be posted on each Federal -aid explanation of why it cannot provide the certification set out below. •
highway project (23 CFR 635) in one or more places where it is The certification or explanation will be considered in connection with
readily available to all persons concerned with the project: the department or agency's determination whether to enter into this
transaction. However, failure of the prospective primary participant .
NOTICE TO ALL PERSONNEL ENGAGED ON FEDERAL -AID to furnish a certification or an explanation shall disqualify such a
. • HIGHWAY PROJECTS person from participation in this transaction.
18 U.S.C. 1020 reads as follows: c. The certification in this clause is a material representation
. of fact upon which reliance was placed when the department or
"Whoever, being an officer, agent, or employee of the United agency determined to enter into this transaction. If it is later deter-
States, or of any State or Territory, or whoever, whether a person, mined that the prospective primary participant knowingly rendered an
association, firm, or corporation, knowingly makes any false state- erroneous certification, in addition to other remedies available to the •
m ent, false representation; or false report as to the character, quality, F Government, the department or agency may terminate this
` eases Form FHWA -1273 (Rev. 3 -94)
•
transaction for cause of default. Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion -- Primary Covered Transactions
d. The prospective primary participant shall provide immediate
written notice to the department or agency to whom this proposal is 1. The prospective primary participant certifies to the best of its
submitted if any time the prospective primary participant learns that knowledge and belief, that it and its principals:
its certification was erroneous when submitted or has become
erroneous by reason of changed circumstances. a. Are not presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from covered
e. The terms "covered transaction," "debarred," "suspended," transactions by any Federal department or agency;
"ineligible," "lower tier covered transaction," "participant," 'person,"
"primary covered transaction," " principal,' "proposal," and "voluntarily b. Have not within a 3 -year period preceding this proposal
excluded," as used in this clause, have the meanings set out in the been convicted of or had a civil judgement rendered against them for
Definitions and Coverage sections of rules implementing Executive commission of fraud or a criminal offense in connection with obtain -
Order 12549. You may contact the department or agency to which ing, attempting to obtain, or performing a public (Federal, State or
this proposal is submitted for assistance in obtaining a copy of those local) transaction or contract under a public transaction; violation of
regulations. Federal or State antitrust statutes or commission of embezzlement,
theft, forgery, bribery, falsification or destruction of records, making
f. The prospective primary participant agrees by submitting this false statements, or receiving stolen property;
proposal that, should the proposed covered transaction be entered
into, it shall not knowingly enter into any lower tier covered transac- c. Are not presently indicted for or otherwise criminally or civilly
tion with a person who is debarred, suspended, declared ineligible, charged by a governmental entity (Federal, State or local) with
or voluntarily excluded from participation in this covered transaction, commission of any of the offenses enumerated in paragraph 1 b of
unless authorized by the department or agency entering into this this certification; and
transaction.
d. Have not within a 3 -year period preceding this applica-
g. The prospective primary participant further agrees by tion /proposal had one or more public transactions (Federal, State or
submitting this proposal that it will include the clause titled " Certifica- local) terminated for cause or default.
tion Regarding Debarment, Suspension, Ineligibility and Voluntary
Exclusion -Lower Tier Covered Transaction," provided by the 2. Where the prospective primary participant is unable to certify to
department or agency entering into this covered transaction, without any of the statements in this certification, such prospective participant
modification, in all lower tier covered transactions and in all solicita- shall attach an explanation to this proposal.
lions for lower tier covered transactions. •
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 2. Instructions for Certification - Lower Tier Covered Transac-
excluded from the covered transaction, unless it knows that the • . tions:
certification is erroneous. A participant may decide the method and
frequency by which it determines the eligibility of its principals. Each (Applicable,to all subcontracts, purchase orders and other lower
participant may, but is not required to, check the nonprocurement tier transactions of $25,000 or more - 49 CFR 29)
portion of the "Lists of Parties Excluded From Federal Procurement
• or Nonprocurement Programs" (Nonprocurement List) which is a. By signing and submitting this proposal, the prospective
compiled by the General Services Administration. lower tier is providing the certification set out below.
i. Nothing contained in the foregoing shall be construed to b. The certification in this clause is a material representation
require establishment of a system of records in order to render in. of fact upon which reliance was placed when this transaction was
good faith the certification required by this clause. The knowledge entered into. If it is later determined that the prospective lower tier
and information of participant is not required to exceed that which is participant knowingly rendered an erroneous certification, in addition
normally possessed by a prudent person in the ordinary course of to other remedies available to the Federal Government, the depart-
business dealings. ment, or agency with which this transaction originated may pursue
available remedies, including suspension and /or debarment.
J. Except for transactions authorized under paragraph f of
these instructions, if a participant in a covered transaction knowingly c. The prospective lower tier participant shall provide immedi-
enters into a lower tier covered transaction with a person who is ate written notice to the person to which this proposal is submitted if
suspended, debarred, ineligible, or voluntarily excluded from at any time the prospective lower tier participant learns that its
participation in this transaction, in addition to other remedies available certification was erroneous by reason of changed circumstances.
to the Federal Government, the department or agency may terminate
this transaction for cause or default. d. The terms "covered transaction, "debarred," "suspended," ,
"ineligible," "primary covered transaction," "participant," "person,"
"principal," "proposal," and "voluntarily excluded," as used in this
clause, have the meanings set out in the Definitions and Coverage
sections of rules implementing Executive Order 12549. You may
contact the person to which this proposal is submitted for assistance
in obtaining a copy of those regulations.
• 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.
f. The prospective lower tier participant further agrees by
submitting this proposal that it will include this clause titled "Certifica-
- tion 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.
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 may decide the method and
Form FHWA -1273 (Rev. 3-94) Page 7
frequency by which it determines the eligibility of its principals. Each XII. CERTIFICATION REGARDING USE OF CONTRACT FUNDS
participant may, but is not required to, check the Nonprocurement FOR LOBBYING
List.
(Applicable to all Federal -aid construction contracts and to all
h. Nothing contained in the foregoing shall be construed to related subcontracts which exceed $100,000 - 49 CFR 20)
require establishment of a system of records in order to render in •
good faith the certification required by this clause. The knowledge 1. The prospective participant certifies, by signing and submitting
and information of participant is not required to exceed that which is this bid or proposal, to the best of his or her knowledge and belief,
normally possessed by a prudent person in the ordinary course of that:
business dealings.
a. No Federal appropriated funds have been paid or will be
I. Except for transactions authorized under paragraph e of paid, by or on behalf of the undersigned, to any person for influencing
these instructions, if a participant in a covered transaction knowingly or attempting to influence an officer or employee of any Federal
enters into a lower tier covered transaction with a person who is • agency, a Member of Congress, an officer or employee of Congress,
suspended, debarred, ineligible, or voluntarily excluded from or an employee of a Member of Congress in connection with the
participation in this transaction, in addition to other remedies available awarding of any Federal contract, the making of any Federal grant,
to the Federal Government, the department or agency with which this the making of any Federal loan, the entering into of any cooperative
transaction originated may pursue available remedies, including agreement, and the extension, continuation, renewal, amendment, or
suspension and /or debarment. 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
Certification Regarding Debarment, Suspension, Ineligibility to influence an officer or employee of any Federal agency, a Member
and Voluntary Exclusion- -Lower Tier Covered Transactions: of Congress, an officer or employee of Congress, or an employee of
a Member of Congress in connection with this Federal contract, grant,
1. The prospective lower tier participant certifies, by submission of loan, or cooperative agreement, the undersigned shall complete and
this proposal, that neither it nor its principals is presently debarred, submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in
suspended, proposed for debarment, declared ineligible, or volun- accordance with its instructions.
tarily excluded from participation in this transaction by any Federal
department or agency. 2. This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
2. Where the prospective lower tier participant is unable to certify Submission of this certification is a prerequisite for making or entering
to any of the statements in this certification, such prospective into this transaction Imposed by 31 U.S.C. 1352. Any person who
participant shall attach an explanation to this proposal. 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 his or her
bid or proposal that he or she 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.
•
•
•
• ' Page a Form FHWA -1273 (Rev. 3 -94)
ATTACHMENT A - EMPLOYMENT PREFERENCE FOR (c) the date on which he estimates such employees will be required, `
APPALACHIAN CONTRACTS and (d) any other pertinent information required by the State Employ -
(Applicable to Appalachian contracts only.) ment Service to complete the job order form. The job order may be .
placed with the State Employment Service in writing or by telephone.
1. During the performance of this contract, the contractor under- If during the course of the contract work, the information submitted by -
taking to do work which is, or reasonably may be, done as on -site the contractor in the original job order is substantially modified, he
work, shall give preference to qualified persons who regularly reside shall promptly notify the State Employment Service.
• in the labor area as designated by the DOL wherein the contract work
• is situated, or the subregion, or the Appalachian counties of the State 3. The contractor shall give full consideration to all qualified job
wherein the contract work is situated, except: applicants referred to him by the State Employment Service. The
contractor is not required to grant employment to any job applicants •
a. To the extent that qualified persons regularly residing in who, in his opinion, are not qualified to perform the classification of
the area are' not available. work required. •
b. For the reasonable needs of the contractor to employ 4. If, within 1 week following the placing of a job order by the
supervisory or specially experienced personnel necessary to assure contractor with the State Employment Service, the State Employment
an efficient execution of the contract work. Service is unable to refer any qualified job applicants to the contrac-
tor, or less than the number requested, the State Employment
c. For the obligation of the contractor to offer employment to Service will forward a certificate to the contractor indicating the
present or former employees as the result of a lawful collective unavailability of applicants. Such certificate shall be made a part of
' bargaining contract, provided that the number of nonresident persons the contractor's permanent project records. Upon receipt of this
employed under this subparagraph 1c shall not exceed 20 percent of certificate, the contractor may employ persons who do not normally
the total number of employees employed by the contractor on the reside in the labor area to fill positions covered by the certificate,
. contract work, except as provided in subparagraph 4 below. notwithstanding the provisions of subparagraph 1c above. '
2. The contractor shall place a job order with the State Employ- 5. The contractor shall include the provisions of Sections 1
ment Service indicating (a) the classifications- of the laborers, through 4 of this Attachment A in every subcontract for work which is,
_ mechanics and other employees required to perform the contract or reasonably may be, done as on -site work.
• work, (b) the number of employees required in each classification,
•
•
fr
Form FHWA -1273 (Rev. 3 -94) Page 9
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FINAL •
STATE OF FLORIDA
•
DEPARTMENT OF TRANSPORTATION
DISADVANTAGED BUSINESS ENTERPRISE
PROGRAM PLAN
JUNE 6, 2000
Equal Opportunity Office
605 Suwannee Street, MS 65 '
Tallahassee, Florida 32399
Phone: (850) 414 -4747 .
1
FLORIDA" DEPARTMENT OF TRANSPORTATION
DISADVANTAGED BUSINESS ENTERPRISE PROGRAM
Definitions of Terms
The terms used in this program have the meanings defined in 49 CFR § 26.5.
Objectives/Policy Statement ( §§ 26.1, 26.23)
The Florida Department of Transportation (Department) has established a Disadvantaged
Business Enterprise (DBE) Program in accordance with regulations of the U. S. Department of
- Transportation (USDOT), 49 CFR Part 26. The Department has received federal financial
assistance from the U.S. Department of Transportation (USDOT), and as a condition of receiving,
this assistance, the Department has signed an assurance that it will comply with 49 CFR Part 26.
It is the policy of the Department to ensure that DBEs, as defined in 49 CFR Part 26, have an
equal opportunity to receive and participate in USDOT- assisted contracts. It is also our policy --
1. To ensure nondiscrimination in the award and administration of USDOT assisted
contracts;
2. To create a level playing field on which DBEs can compete fairly for USDOT
assisted contracts;
3. To ensure that the DBE Program is narrowly tailored in accordance with
applicable law;
4. To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are
permitted to participate as DBEs;
5. • To help remove barriers to the participation of DBEs in USDOT assisted
contracts; and;
6. To assist the development of firms so that they can compete successfully in the
market place outside the DBE Program.
The Manager of the Department s Equal Opportunity Office has been designated as the DBE
Liaison Officer. In that capacity, the Manager of the Department s Equal Opportunity Office is
responsible for implementing all aspects of the DBE program. Implementation of the DBE
program is accorded the same priority as compliance with all other legal obligations incurred by
the Department in its financial assistance agreements with the USDOT.
Once the policy statement is signed, the Department will disseminate it to the Executive •
Committee, the Florida Transportation Commission, the Governor of the State of F- lorida and all
of the components of our organization. This statement will be distributed to DBE and non -DBE ,
business communities that perform work for us on USDOT- assisted contracts through =flouts to
all certified DBEs, prime contractors and consultants. The Department s proposed DBE Policy
Statement is found in Attachment 1 to this program.
2
Nondiscrimination. (§ 26.7)
The Department 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 on the basis of race, color, sex, or national origin.
In administering its DBE program, the Department 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 with respect to
individuals of a particular race, color, sex, or national origin.
DBE Program Updates (§ 26.21)
As authorized, we will continue to carry out this program until all funds from USDOT financial
assistance have been expended. We will provide to USDOT updates representing significant
changes in the program.
Quotas (§ 26.43)
We do not use quotas in any way in the administration of this DBE Program.
DBE Liaison Officer (DBELO) (§ 26.25)
We have designated the following individual as our DBE Liaison Officer ( DBELO): Ruth B.
Dillard, Manager, Equal Opportunity Office, 605 Suwannee Street, MS 65, Tallahassee, Florida
32399, (850) 4. 14- 4747, www .ruth.dillard @dot.state.fi.us. In that capacity, Ms. Dillard is
responsible for implementing all aspects of the DBE program and ensuring that the Department
complies with all provisions of 49 CFR Part 26. Ms. Dillard has direct, independent access to the
- Secretary of the Florida Depai tn►ent of Transportation concerning DBE Program matters. The
Equal Opportunity Office has four sections responsible for administration: Reports and Records
Management; Contract Compliance; DBE Certification; and Equal Employment
Opportunity /Affirmative Action. The organization chart displaying the DBELO's position in the
organization is found in Attachment 2 to this program.
The DBELO is responsible for developing, implementing and monitoring the DBE program, in
coordination with other" appropriate" officials. Duties and responsibilities include the following:
1. Gather and report statistical data and other information as required by USDOT.
2. Work with the Departments Office of the General Counsel as required in
reviewing third party contracts and purchase requisitions for compliance with this
program. i
3. . Work with all departments to set overall annual goals.
4. Work with the Contracts Administration Office to ensure that bid notices and
requests for proposals are available to DBEs in a timely manner.
5. Identify contract and procurement opportunities so that DBE goals are included in
solicitations (both race - neutral methods and contract specific goals) and monitor
results.
6. Analyze the Department s progress toward goal attainment and identifiy ways to
3
improve progress.
7. Advise the Secretary of the Florida Department of Transportation and the
Department s Executive Committee on matters impacting DBE policy and
achievement.
8. Participate with the legal counsel and project director to determine contractor
compliance with good faith efforts.
9. Provide DBEs with information and assistance in preparing bids, obtaining bonding
and insurance.
10. Plan and participate in DBE training seminars.
11. Certify DBEs according to the criteria set by USDOT and will act as liaison to the
Uniform Certification Process in Florida.
12. Provide outreach to DBEs and community organizations to advise them of
contracting opportunities.
13. Maintain the Department s updated directory of certified DBEs.
The Assistant Manager is responsible for the following duties with respect to administration of the
DBE program:
1. Develop processes and procedures for gathering and reporting statistical data and other
information as required by USDOT and the Department, including all new requirements
under the federal regulations.
2. Provide DBEs with information and assistance in preparing bids, obtaining bonding
financial assistance and insurance.
3. Plan and participate in DBE training seminars and workshops.
4. Maintain the Department's updated directory of certified DBEs.
5. Administer and coordinate the Department's DBE Supportive Service Program providing
assistance in the form of managerial and technical training and providing outreach to
DBEs and community organizations.
6. Serve as a liaison with DBEs and prime contractors.
7. Administer a special Native American Outreach Program to attract Native American
businesses, address training needs and identify contracting opportunities.
The DBE Certification Manager is responsible for the following duties with respect to
administration of the DBE program:
1. Ensure all applications for DBE certification are timely processed pursuant to Rule
Chapter 14 -78, Florida Administrative Code.
2. Develop polices, procedures, rules and guidelines for DBE certification.
3. Chair the DBE Certification Committee and make recommendations to the Manager,
Equal Opportunity Office concerning certification of applicants as DBEs.
4. Timely assign DBE applications to the DBE Certification staff and coordinate on site
reviews.
5. Timely review Personal Net Worth Statements and gross receipts, evaluate a firm s
continued eligibility to participate in the DBE program, and make recommendations to the
DBE Certification Committee and the Manager of the Equal Opportunity Office to
commence decertification proceedings if the firm no longer satisfies eligibility criteria.
6. Timely notify certified DBEs to submit updated size standard, gross receipts and personal
net worth statements annually on the anniversary date of the firm s initial certification as a
4
DBE.
7. Coordinate with the Department s Office of General Counsel on all DBE certification
hearings.
8. Supervise the DBE Certification staff and provide guidance on certification
issues.
The Contract Compliance Manager reports directly to the Manager of the Equal Opportunity
Office. The Contract Compliance Manager s responsibilities include:
1. Develop policies, procedures, rules and guidelines for use in conducting comprehensive
EEO compliance reviews on Department projects.
2. Maintain current information on regulations and laws concerning compliance with Federal
and State DBE programs.
3. Provide District personnel with the necessary guidance, technical assistance and training
on compliance issues. Project compliance is the responsibility of the District offices.
4. Monitor District compliance efforts by performing Quality Assurance Reviews (QARs) of
all District Compliance Offices and select Resident Compliance Offices and /or CEI firms
5. Assist in investigations of non- compliance allegations.
6. Act as a liason between the Department, the Federal Highway Administration (FHWA)
and contractors in compliance matters.
7. Assist with overall goal setting for the Department and determine if the Department will
achieve this goal using race- neutral, race conscious methods or a combination of both.
Federal Financial Assistance Agreement Assurance (§ 26.13)
The Department will sign the following assurance, applicable to all USDOT- assisted contracts and
their administration.
The Department shall not discriminate on the basis of race, color, national origin,
or sex in the award and performance of any USDOT assisted contract or in the
administration of its DBE Program or the requirements of 49 CFR part 26. The
• recipient shall take all necessary and reasonable steps under 49 CFR part 26 to
ensure nondiscrimination in the award and administration of USDOT assisted
contracts. The recipient's DBE Program, as required by49 CFR part 26 and as
approved by USDOT, is incorporated by reference in this agreement.
Implementation of this program is a legal obligation and failure to carry out its
terms shall be treated as a violation of this agreement. Upon notification to the
Department of its failure to carry out its approved program, the Department may
impose sanctions as provided for under part 26 and may, in appropriate cases, refer
the matter for enforcement under 18 U.S.C. 1001 and /or the Program Fraud Civil
Remedies Act of 1986 (31 U.S.C. 3801 et seq.).
5
DBE Financial Institutions
It is the policy of the Department to investigate the full extent of services offered by financial
institutions owned and controlled by socially and economically disadvantaged individuals in the
community, to make reasonable efforts to use these institutions, and to encourage prime
contractors on USDOT- assisted contracts to make use of these institutions. The Department has
contacted the following Agencies:
FEDERAL DEPOSIT INSURANCE BLACK BUSINESS INVESTMENT BOARD
CORPORATION (FDIC) 1711 S. GADSDEN ST.
1201 W. PEACHTREE ST. NE TALLAHASSEE, FL 32301
SUITE 1800 (850) 487 -4850
ATLANTA, GA 30309 -4515
(404) 817 -1300
W W W.FDIC.GOV
LEON COUNTY WOMEN & MINORITY FLORIDA BANKERS ASSOCIATION
BUSINESS ENTERPRISE PROGRAM (W/MBE) 1001 THOMASVILLE RD.
LEON COUNTY COURTHOUSE TALLAHASSEE, FL 32303
SUITE 502 (850) 224 -2265
TALLAHASSEE, FL 32301
(850) 488-9962
To date we have identified the following such financial institutions:
METRO SAVINGS HAMILTON BANK N.A.
715 S. GOLDWIND AVE. 3750 N.W. 87TH AVE.
ORLANDO, FL 32805 MIAMI, FL 33178
(407) 293 -7320 (305) 717 -5536
PEOPLES BANK FLORIDA A & M UNIVERSITY
3275 N.W. 79TH ST. FEDERAL CREDIT UNION
MIAMI, FL 33147 1550 MELVIN ST.
(305) 696 -0700 TALLAHASSEE, FL 32301
(850) 222 -4545
Information on the current availability of such institutions can be obtained from the DBE Liaison
Officer.
Directory (§ 26.31)
The Department maintains a Directory identifying all firms eligible to participate as DBEs. The
Directory lists the firm's name, address, telephone number, date of most recent certification, and
the type of work the firm has been certified to perform as a DBE. We revise the Directory
monthly. We make the Directory available as follows: by sending DBE Directories every month
to all prequalified contractors and consultants; sending multiple copies of the DBE Directory
every month to each ofithe District Contract Compliance Officers for distribution to interested
contractors and consultants in their geographic districts; and by sending current DBE Directories
to interested parties who contact the Department s Equal Opportunity Office • requesting copies of
the Directory. Interested parties may contact the Equal Opportunity. Office at 605 Suwannee
Street, MS 65, Tallahassee, Florida 32399, (850) 414 -4747 to obtain current copy of the DBE
Directory.
6
The Directory may be found in Attachment 3 to this program document.
Overconcentration (§ 26.33)
Since the new regulations were published in February, 1999, the Department has received
information raising the issue of overconcentration in the areas of geotechnical work and
surveying. At this point, the Department has established the criteria for identifying
overconcentration in a particular area as written notification from a contractor or consultant to
the Department with specific statements of injury as defined in 49 CFR Part 26.
The Department has solicited input and has received requests from the industry to participate in a
task team to review the issues relating to overconcentration of firms in the geotechnical and
surveying areas. Once the task team has completed its findings and recommendations, the
Department will issue its finding of whether overconcentration exists. If the Department
determines that overconcentration does exist, it will make recommendations as to how the issue
will be addressed in a race conscious program. Those recommendations will be submitted to
USDOT for approval.
Business Development Programs (§ 26.35)
The Department does not currently propose a Business Development component of its DBE Plan.
Required Contract Clauses ( §§ 26.13, 26.29)
Contract Assurance
We will ensure that the following clause is placed in every USDOT- assisted contract and
subcontract:
The contractor 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 USDOT 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.
Prompt Payment
The Department currently has statutory requirements which state the following:
(A) Every contract let by the department for the performance of work shall contain a
provision requiring the prime contractor, before receipt of any progress payment under the
provisions of such contract, to certify that the prime contractor has disbursed to all
subcontractors and suppliers having an interest in the contract their pro rata shares of the
payment out of previous progress payments received by the prime contractor for all work
completed and materials furnished in the previous period, less any retainage withheld by
• the prime contractor pursuant to an agreement with a subcontractor, as approved by the
Department for payment. The department shall not make any such progress payment
before receipt of such certification, unless the contractor demonstrates good cause for not
making any such required payment and furnishes written notification of any such good
cause to both the department and the affected subcontractors, and suppliers.
(B) Every contract let by the Department for the performance of work shall
contain a provision requiring the prime contractor, within 30 days of receipt of the
final progress payment or any other payments received thereafter except the final
payment to pay all subcontractors and suppliers having an interest in the contract
their pro rata shares of the payment for all work completed and materials
furnished, unless the contractor demonstrates good cause for not making any such
required payment and furnishes written notification of any such good cause to both
the Department and the affected subcontractors or suppliers within such 30 -day
period...
.These requirements are mandated by §§ 337.11 (10)(a) and (b), Florida Statutes. While § _
337.11(10)(a), Florida Statutes, addresses progress payments to subcontractors throughout the
life of a contract, § 337.11(10)(b), Florida Statutes, addresses the final payment to the
subcontractors upon completion and final acceptance of the project. Neither the Department nor
the industry have interpreted or enforced § 337.11(10)(a) to require payment of pro rata shares
of progress payments to subcontractors within 30 days after the prime contractor receives this
progress payment from the Department. Contractors are required to certify payment to
subcontractors prior to receipt of their next progress payment.
. Both the Department and the industry have interpreted and enforced §337.11(10)(b) as requiring
prime contractors to pay the pro rata shares of the final payment to subcontractors within 30 days
, of the receipt of this final payment from the Department.
The Department will require prompt payment by the prime contractor of both progress and final
payments to subcontractors within 30 days of being paid by the Department in compliance with 49
CFR Part 26. The Department will further comply with 49 CFR Part 26.49 and have a
contractual provision in its contracts with prime contractors which states that contractors will be
required to pay subcontractors both progress and final payments within 30. days of being paid by
the Depai anent. Thirty days will be used since the Department pays on a 30 day cycle for billings
received. The Department will seek amendments to these statutes if deemed necessary by the
General Counsel's Office.
The Department will begin working on implementation of this provision in October of 1999 and
will implement a monitoring process of the information on a monthly basis.
8
The Department will further comply with 49 CFR Part 26.29 of the federal regulations by
requiring prompt payment to all subcontractors at all tiers.
Retainage
The Department will also comply with 49 CFR Part 26.29 and have a contractual provision in its
contracts with prime contractors which states that contractors will return retainage payment to all
subcontractors within 30 days after the subcontractor s work has been deemed satisfactorily
completed. Satisfactory completion will be determined by the Department. However it is noted
that approval of the Department s Plan will be predicated on not having a broad permission of a
. testing and maintenance provision. The inclusion of work item specific test and maintenance
provisions will be submitted to FHWA for approval prior to implementation:
As the Department revises Rule Chapter 14 -78, 'Florida Administrative Code, to implement this
Plan and 49 CFR Part 26, enforcement of this requirement will be addressed in the Rule as well as
in the statute, as deemed necessary by the General Counsel's Office.
Monitoring and Enforcement Mechanisms (§ 26.37)
We will bring to the attention of the USDOT any false, fraudulent, or dishonest conduct in
connection with the program, so that USDOT can take the steps (e.g., referral to the Department
of Justice for criminal prosecution, referral to the USDOT Inspector General, action under
suspension and debarment or Program Fraud and Civil Penalties rules) provided in § 26.109. We
also will consider similar action under our own legal authorities, including responsibility
determinations in future contracts, removal of firms from the prequalified bidders and consultants
lists or revocation of DBE certification if applicable, pursuant to §§ 337.105; 337.16; and
339.0805, Florida Statutes.
Attachments 4 - 9 are copies of the regulations, provisions, and contract remedies available to us
in the events of non- compliance with the DBE regulation by a participant in our procurement
activities.
Overall Goals (§ 26.45)
Amount of goal .
The Department's proposed overall goal for FY 2000 is 8 %. The detailed exemptions for Federal
Aviation Administration and Federal Transit Administration are listed in specified sections below.
The goal was published on the Department s Internet Website and was provided through a
faxback system, whereby individuals could call in, input their fax number and have the goal
information faxed directly to their fax machine. The goal was also published in The Tallahassee
Democrat and The Capitol Outlook, a minority focused newspaper. The location of the goal
-• information was also included in all of the Personal Net Worth Statements mailed to all certified
DBE companies. Copies of the goal publication are included in Attachment 10 to this Plan.
9
Florida Department of Transportation
The DBE program as defined in 49 CFR Part 23 provided a liberal definition of DBEs qualified to
participate in the program. The policy of the program under that definition also provided for the
maximum participation of DBEs which required goals to be set on projects where there were
subcontracting opportunities and DBEs were available to work in those specialty areas and in the
geographical area. Another major component of the program s goal attainment was the method
of counting and reporting DBE participation which allowed for the total DBE contract to count
toward the DBE goal as long as at least 51% of the work was done by a DBE.
Under 49 CFR Part 26, all of these major components have changed and potentially affects the
availability of DBEs in Florida s market area. In reviewing the options provided by USDOT for
the calculation of the overall DBE goal and reviewing the data available, Florida has eliminated
utilization of these proposed options for the current year.
Federal Highway Administration (FHWA)
The Department expects to let approximately $1.4 billion for Federal Fiscal Year 1999 - 2000. The
proposed 8% DBE goal equates to $112 million.
Method of Attainment
Florida will implement a race neutral program beginning January 1, 2000. Prior to that date, the
Department proposes to review the construction projects for October through November using
the same goal setting methodology as is currently used. October 1, 1999 begins the new federal
fiscal year. Lettings are scheduled for October 27, 1999 and December 2, 1999. Proposals . for
professional and contractual services due from October through December would be evaluated
using preference points.
Race neutral under the construction program would be defined as not setting race or gender
specific goals on the individual projects, but counting all participation of DBE subcontractors
utilized by contractors on projects. Race neutral under the consultant or professional services
program would be defined as not assigning race or gender preference points on projects for prime
consultants who were either DBEs or who utilized DBEs for a certain percentage of work but
counting all participation of DBE subconsultants utilized by consultants on projects.
Analysis of Goal for Federal Highway Administration
Methodology
Step One - The Department utilized a two tier calculation process in determining availability.
Subcontracting - The following analysis was used in calculating subcontractor availability.
In 1997 the Department commissioned a Disparity Study for the purpose of determining if
disparity and discrimination existed in the Department's market area and if a program was needed
to remedy identified discrimination. The disparity study included an availability analysis of DBE
10 `
businesses which are available to participate as subcontractors on Department state- funded
projects. The availability analysis is relevant to the market area for federal funded construction
projects and therefore is one documented source of information for the Department to establish
the availability of DBE's in the transportation industry.
The availability of construction firms was based on the following composition:
-Firms prequalified by the Department
- Firms listed on the Department's DBE vendor list
- Contractors and subcontractors who were utilized by the Department during the study period
- Construction firms that are members of the Florida Transportation Builders Association
The availability analysis provided the following finding which was used in step one of the goal
setting methodology: 31% of all available subcontractors were DBEs.
Personal Net Worth - A new regulation regarding Personal Net Worth (PNW) has been added to
the criteria of being a qualified DBE. The disadvantaged owner(s) of DBE firms must have a
PNW of $750,000 or less in order to be considered economically disadvantaged. Company
owners are allowed to deduct their primary residence and their business to calculate PNW. The
Department examined the resources available for calculating this financial criteria.
Prequalification was examined to determine the extent of information available for consideration.
In October of 1999 the Department had approximately 1100 certified DBE firms. By April 2000,
the Department had compiled a list of 127 firms who had elected not to return to the DBE
program. There had been 14 new firms certified in the same time period for a net loss of 113
firms. This was an increase of firms not reapplying for the same time period the previous year of
62. None of the 113 firms have "returned to the program.
Construction: Prequalification of construction firms is governed by § 337.14, Florida
Statutes, and Rule Chapter 14 -22, Florida Administrative Code. While applicant firms are
required to submit audited financial statements pursuant to the statutes and regulations governing
. prequalification, these statements apply to the applicant firm itself. These statements do not
include personal financial information for each of any such firms' owners. Therefore, the
Department does not have a pre- existing database of personal net worth information for
prequalified road construction contractors.
Consultants:. Prequalification of consultant firms which provide professional services to
the Department is governed by § 337.105, Florida Statutes, and Rule Chapter 14-75, Florida
Administrative Code. While applicant firms are required to submit audited statements of their
indirect costs, these audits only apply to the applicant firm. These statements do not include
personal financial information for each of the firms' owners. Therefore, the Department does not
have a pre- existing database of personal net worth information for prequalified consultants. It
should be noted that professional services are defined in § 287.055, Florida Statutes, as
architecture, professional engineering, landscape architecture, or registered surveying and
mapping. Such professional services do not include contractual services such as bridge tending,
security guards, reprographics, janitorial services, etc. There are no Prequalification requirements
set forth by the statutes or the Florida Administrative Code for such contractual services. .
The Department therefore does not have specific information on the PNW of its currently
11
certified DBEs. However, the research of the DBE prequalified programs does indicate that in
order for prime construction contractors to bid on contracts over $250,000, they must be
prequalified by the Department pursuant to §337.14, Florida Statutes, and Rule Chapter 14 -22,
Florida Administrative Code. Consultants have two types of prequalification. Technical
prequalification is required of all consultants in particular categories such as surveying or
geotechnical engineering. As required by Florida law, the second type of prequalification is
administrative which requires all companies with contracts over $250,000 to be prequalified.
In the construction program, with a small business definition allowing gross receipts to
average between $7.5M and $1 6.6M over a three year period, the Department has 42 prequalified
DBE prime contractors. In Fiscal Year 1998/1999, this group of 42. DBE prime contractors
received approximately $5M in prime contracts. A conservative estimate is that 50% of DBE
primes will exceed the new $750,000 PNW cap. Therefore, it is estimated that the potential loss
of these contractors to the Department in DBE dollars would be $2.5M annually. " Although the
gross receipts cap is less for DBE consultants, the potential for loss based on PNW is also an
issue in the consulting category.
Additional DBEs Who Will Be Lost - In addition to the above, it is estimated that
DBEs will be lost because of what will be perceived as intrusive requirements of the new
regulations. This includes the requirement of the spouse s PNW information and the proof of the
irrevocable transfer of assets where there is legal authority for joint ownership. DBEs may also
be lost because they feel the amount of additional information they submit :isnot warranted
compared to the benefits they derive from the program.
Based on current information available regarding the number of DBEs which have been lost from
the DBE program, the overall availability base was adjusted to a comparable percentage. The,
availability for subcontractors was therefore calculated at 20 %.
Historical data from the Department's Bid Analysis Management Systems supports subcontract
work to be 25% of dollars awarded. Using the availability analysis, the Department calculated its
proposed goal based on approximately 20% of the dollars awarded to subcontractors being
awarded to DBE subcontractors. This is represented by the following calculation:
.20x.25 =.05or5 ° /a
• Prime Contracting - The following analysis was used in calculating DBE prime contractor
availability.
WORK TYPE - The Department considered the number of prequalified contractors based on the
factor of "work type ". In each "work type," a determination was made of the percentage of
prequalified DBE prime contractors. This calculation was made based on a comparison of all
prequalified prime contractors to all Department prequalified contractors.
The Department's Production Management Office sampled a seven month letting period. 'A
calculation was completed of the amount of work (based on the dollar volume of lettings) let in .
construction in each of the "work types ". This percentage breakdown was then converted to
"work type" of actual lettings by the Department.
Using those two percentages, the percentage of work available to prequalified DBE prime
12
•
contractors using "work type" was calculated. This analysis makes a direct connection between
the volume of work available and -percentage of available DBE prime. contractors.
Bridge
26.8% of the planned 99/00 letting
3.4% of DBE prime contractors
Expected -awards to DBEs as prime bridge contractors: .034 x .268 = .009
Grading
13.5% of the planned 99/00 letting
5.6% of DBE prime contractors
Expected awards to DBEs as prime grading contractors: .056 x .135 = .008
, Flexible Base
_ 8.5% of the planned 99/00 letting
5% of DBE prime contractors
Expected awards to DBEs as flexible base prime contractors: .05 x .085 = ".004
Cement
4.2% of the planned 99/00 letting
4.3% of DBE prime contractors
Expected awards to DBEs as cement prime contractors: .043 x .042 = .002 .
Asphalt ,
27.4% of planned 99/00 letting
3.2% DBE. prime contractors
Expected awards to DBEs as asphalt prime contractors: .032 x .274 = .009
D rainage
16.3% of planned 99/00 letting
5.6% DBE prime contractors
Expected awards to DBEs as drainage prime contractors: .056 x .163 = .009
TOTAL 4.1%
The Department then weighted the DBE. prime contractor availability. Since 25% was noted as
total work available for subcontracotrs, 75% was weighted as total work available for prime
contractors.
.041 x .75 _ .03075 or 3.1%
13
•
•
Step One Results:
Subcontractor Availability 5.0 %. •
Prime Contractor Availability +3.1%
Baseline Goal 8.1% = Rounded to 8% availability
The results of Step One indicate that 8% is a valid baseline goal under current rules and processes
for the determination of availability.
Step Two - In the second tier of its calculation process, the Department assessed the impact of
specific factors requiring narrowly tailoring of the DBE program.
Impact to Goal
1. Counting Work Which Is Subcontracted By a Subcontractor /Subconsultant to
Non -DBEs- Under 49 CFR Part 23, a DBE was allowed to subcontract up to 49% of its contract
to a non -DBE while still allowing the agency to report 100% of that amount as DBE
participation. Under 49 CFR Part 26, only the amount of work actually performed by the DBE or
the amount subcontracted to another DBE may be counted and reported toward DBE
participation. The Department conservatively estimates that 25% was subcontracted to non-
DBEs which under the new regulations would not be eligible for counting.
Impact to Goal
Work Subcontracted to Non -DBE Second Tier Contractors
5% to Subcontractors
DBEs subcontracted to non -DBEs 25 %
.05..x .25 = 1.25 or 1.3%
•
Subcontract work impact to baseline goal: less 1.3%
2. Trucking - In addition to losing participation based on the above counting issues, the new
trucking provisions will eliminate a significant amount of participation. Under the new
regulations, the work done by independent owner /operators who are not certified as DBEs will
not be able to contribute to the DBE 's participation amount. The new regulations also require
that trucks owned by the DBE must be operating on the project for DBE credit to be given. The
Department is unable to ascertain the specific dollar amount of the impact of this change through
accessible information; therefore, it will not attempt to assign a specific impact amount.
However, it has been determined through industry and Department comments that trucking will
be a major factor in DBE participation. A number of industry comments from DBEs as well as
prime contractors are included in the transcripts of the DBE statewide meetings which are
available for review.
• 14
Under the new reporting and tracking requirements, this information should be more available
next year for review and to make any necessary adjustments to the Department s overall DBE
- participation goal.
Impact to Goal
At this time, data is unavailable to support the specific calculation loss.
3. Over Concentration - Another change which has the potential to impact the goal is the
issue of over concentration. Under 49 CFR Part 26, when the Department determines that DBE
firms are so over concentrated in a certain type of work as to unduly burden the opportunity of
non -DBE firms to participate in this type of work, the Department must devise appropriate
measures to address this over concentration.
To date, this issue has been raised with the Department in the areas of geotechnical work
and surveying. The impact and findings are unclear at this point. However, since the Department
has been put on notice regarding these areas, it is raised as a potential issue affecting the goal.
Since an amount, nor potential remedies, if the allegation is substantiated, are available, the
Department will not assign an estimate to this potential factor, but will include it in the previous
potential factors. Section 26.33 of the Department's DBE Plan explains this issue in more detail
and explains how this issue will be addressed.
Impact to Goal
At this time, data is unavailable to support the specific calculation loss.
4. Under Reporting Utilization - The issue of under reporting practices has been reviewed
in the goal setting process. Reports from industry as well as past comparisons of some utilization
commitments compared to actual utilization support that contractors are using DBEs more than is
actually reported. The industry reports that DBEs are often used and not reported to the
Department for the purpose of counting toward the DBE participation goal. With the new
reporting system in place, ALL DBE primes, subcontractors and subconsultants will be reported
and this participation will count toward the Department's overall goal and increase the
Department s ability to meet the new goal through race neutral means.
Impact to Goal
1% - comparisons of actual to reported and anecdotal
Under reporting impact to baseline goal: plus 1.00%
SUMMARY
Baseline Goal: 8.1%
Goal Adjustments:
Non DBE Subcontracting ' 1.3%
Under Reporting Utilization +1.00%
7.8 %*
15
Proposed DBE Goal 8:00% ( *The Department proposes rounding to 8 %)
ELIMINATED ALTERNATIVES
In setting the goal for the Department, it is required that the goal setting process is begun by
determining a base figure for the relative availability of DBEs. The overall goal must be based on
demonstrable evidence of the availability of ready, willing and able DBEs relative to all businesses
ready, willing and able to participate on USDOT - assisted contracts. The goal must reflect the
determination of the level of DBE participation expected absent the effect of discrimination. The
Department has reviewed the alternatives listed in 49 CFR Part 26 and eliminated them for the
current year based on the following reasons.
Setting Goals - Analysis - Alternative 1
Use DBE directories and Census Bureau Data. Determine the number of ready, willing
and able DBEs in your market from your DBE directory. Using the Census Bureau s
County Business Pattern (CBP) data base, determine the number of all ready, willing and
able businesses available in your market that perform work in the same SIC codes. Divide
-the number of DBEs by the number of all businesses to derive a base figure for the relative ,
availability of DBEs in your market.
The Department has concerns with this methodology which will require extensive evaluation
prior to possible utilization. Similar methodology was used by MGT of America, Inc. in a
disparity study it prepared for the Department in 1993 for the Department s DBE program for
wholly state funded contracts. During the Phillips & Jordan, Inc., court challenge, the court
stated the analysis was not narrowly tailored to the actual geographic locations within the
Department s Districts, failed to consider contract data from the Department s Central Office and
the Districts, failed to identify how firms were categorized in various SIC codes and failed to -
adequately explain if DBE firms were double and triple counted in the SIC codes. The court in
Phillips & Jordan, Inc., implied the methodology employed in that disparity study was flawed for
these reasons. •Because there was an .adverse: court ruling specifically related to the Department,
this methodology will not be utilized until a review of the court decision, current court opinions
and other options are explored. That process will take longer than the time allocated by FHWA
for a program to be developed.
Setting Goals - Analy - Alternative 2
Use a bidders list. Determine the number of DBEs that have bid or quoted on your
USDOT- assisted prime contracts or subcontracts in the previous year Determine the
number of all businesses that have bid or quoted on prime or subcontracts in the same time
period. Divide the number of DBE bidders and quoters by the number for all businesses to
derive a base figure for the relative availability of DBEs in your market.
While this analysis would be more likely to withstand the strict scrutiny analysis under the Phillips
& Jordan, Inc., and Adarand Constructors, Inc., decisions, the information necessary to complete
thi's'analysis is not readily available to the Department through its contracting offices. Without
this data, any goals set under this approach would, be vulnerable to constitutional challenges or
16
•
possibly deemed arbitrary and capricious. The Department, prime contractors, prime consultants,
DBE subcontractors nor DBE subconsultants have retained this information. A complete bidder s
list would require obtaining information on all successful and unsuccessful prime bidders and all of
their successful and unsuccessful subcontractors. The Department will implement a process to
gather bidder information under the new program. Initially, the Department will gather and
monitor this information manually until a new computer program is acquired and implemented to
electronically gather this data.
Setting Goals - Analysis - Alternative 3
Use data from a disparity study. Use a percentage figure derived from data in a valid,
applicable disparity study.
The Department is unable to develop a DBE goal based on data from a disparity study because no
study has been performed which examines contractor utilization on federally funded contracts.
Although Florida has a recently completed disparity study conducted by MGT of America, Inc.,
that study only focused on non - federally funded contracts.
The Department has also reviewed the fact that while there are a number of other disparity studies
that have been conducted in the state of Florida, none have focused on federal construction
contracts.
Setting Goals Analysis Alternative 4
Use the goal of another USDOT recipient. If another USDOT recipient in the same, or
substantially similar, market has set an overall goal in compliance with this rule, you may
use that goal as a base figure for your goal.
The Department is not aware of other USDOT recipients in the same or substantially similar
markets. Because this is a new .process, other states are still trying to determine the extent of
their information and there is insufficient time to review what they have gathered and do an
analysis to compare their market with the market of the Department.
However, a poll was conducted of the former Region 4 states and as of July 19, 1999, of the
•
seven southern states, North Carolina, South Carolina, Tennessee, Kentucky, Alabama, nor
.Mississippi had their goals and methodologies completed, reviewed and adopted by their agency
heads. Only Georgia had an approved goal and methodology and that was based on a disparity
study conducted specifically for their state; however, that study was conducted over a 13 month
time period.
Analysis of Goal for Federal Aviation Administration (FAA)
The Department s overall goal for FY 2000 is the following:
*In reviewing the anticipated dollars for FY 2000 from the FAA, the Department has determined
that no dollars are anticipated for new projects.
*0 Dollars for Fiscal Year 2000
17
Previously Approved Projects
10% for Project: Florida Aviation System Plan (FASP) (From previous approved contract)
36% for Project: Statewide Airport = Storm Water Study (From previous approved contract)
Method of Attainment
The Department anticipates receiving additional funds for the FASP. Project, but no commitments
have been received from FAA as of the September 1999. This project was submitted to FAA for
approval in 1998 with a 10% DBE goal. That goal was approved: The contract is not completed
and the anticipated additional funds will be applied to that same contract. The contractor
continues to be contractually liable for the 10% goal.
The Department anticipates receiving an additional $500,000 in fiscal year 2000 for the Storm
Water Study. This project was submitted to FAA for approval in 1998 with a 36% DBE goal.
That goal was approved. ' The contract is not completed and the anticipated additional funds will
be applied to that same contract. The contractor continues to be contractually liable for the 36%
- goal..
The Department does not anticipate receiving any funds in fiscal year 2000 which are not already
committed to those projects. Therefore there can be no analysis for goal setting. If new funds
become available, the Department will complete the methodology process pursuant to 49 CFR
Part 26 and submit the analysis and proposed goal to the FAA for review and approval.
Analysis of Goal for Federal Transit Administration (FTA)
The Department s overall goal for Fiscal Year 2000 is the following: 8% of the federal financial
assistance we will expend in USDOT- assisted contracts exclusive of FTA funds to be used for the
purchase of transit vehicles and of other exempt services.
The Department expects to let $11,033,673 this fiscal year. • Because of the nature of the
expenditures for the various categories, it is uncertain about the specific amount of dollars which .
will be eligible for DBE'goal setting opportunities.
Method of Attainment
•
The following is a summary of the method we used to calculate this goal:
The Department reviewed and evaluated the following Federal programs for which we have to
- 'report progress to the Federal Transit Administration: 5303, 5310, 5311 and 5313(b).
5303 ' The estimated funds for FY 2000 in this category are $0.
• It was noted that 5303 program dollars are allocated to Metropolitan Planning Organizations
(MPOs). Because MPOs report directly to the FHWA and capture transit expenditures, those
dollars were not counted as potential DBE expenditures. FTA has explained during training that if
FTA dollars are captured by another entity, they may be deemed as exempt from the Department's
18
calculations of potential DBE goals. Those dollars were not calculated in the base FTA dollars.
5310 - The estimated funds for FY 2000 in this category are $4,613,044.
The. 5310 program primarily consists of vehicle purchases made by private, nonprofit transit
providers. All other capital costs are considered towards potential DBE contracting. The review
concluded that traditionally those other capital costs consisted of purchases of radios and
computer purchases. Approximately 97% of those expenditures have historically been used for
vehicle purchases. Vehicle purchases are exempt based on the above stated information relating
to manufacturers.
5311 The estimated funds for FY 2000 in this category are $5,797,875.
The 5311 program primarily consists of capital or operating expenses made by local governments
or public transit providers. Vehicle purchases are allowed under this program also. The review
concluded that traditionally these funds have been used for administration and labor costs, which
- are exempt from assigning DBE goals. It is noted that if the provider were to change what has
been done historically and contract the transportation service with a private business, the contract
would become open to DBE goal setting opportunity.
5313(b) The estimated funds for FY 2000 in this category are $611,543.
The 5313(b) program primarily consists of funding for statewide transit planning. Contracts
entered into with Universities are exempt from DBE reporting requirements in this program.
However, any contracts with private consulting firms will be considered open to DBE goal setting
opportunities. .
Estimated FTA Total for FY 2000 - $11,033,5
In reviewing the historical data, the Department anticipates being able to achieve approximately
10% of DBE participation. Based on the dollars which must be exempted from the FTA
programs and the new DBE program certification and reporting criteria, the Department
anticipates being able to expend 8% of non-exempt dollars with DBEs under its new DBE
program.
Transit Vehicle Manufacturers (TVM) (§ 26.49)
The Department will require each transit vehicle manufacturer, as a condition of being authorized
to bid or propose on FTA- assisted transit vehicle procurements, to certify that it has complied
with the requirements of this section. Alternatively, the Department may, at its discretion and
with FTA approval, establish project - specific goals for DBE participation in the procurement of
transit vehicles in lieu of the TVM complying with this element of the program. •
•
19
Overall Goal Setting Process
The Department submits its overall goal to USDOT on August 31st of each year except
September 1, 1999, and in cases where the Department submits a project goal.
Before establishing the overall goal each year, the Department will consult with minority,
women s and general contractor groups, community organizations and other officials or
organizations to obtain information concerning the availability of disadvantaged and non-
disadvantaged businesses, the effects of discrimination on opportunities for DBEs, and the
Department s efforts to establish a level playing field for the participation of DBEs.
Following this consultation, we will publish a notice of the proposed overall goal, informing the
public that the proposed goal and its rationale are available for inspection during normal business
hours at the Equal Opportunity Office for 30 days following the date of the notice, and informing
the public that the Department and USDOT will accept comments on the goals for 45 days from
the date of the notice. The. Department s goal for the current year was published on the
Department s internet web page at http: / /www.dot.state.fl.us, as well as in following newspapers:
The Tallahassee Democrat and The Capitol Outlook. Normally we will issue this notice by June
1 of each year. The notice must include addresses to which comments may be sent and addresses
(including offices and websites) where the proposal may be reviewed.
Our overall goal submission to USDOT will include a summary of information and comments
received during this public participation process and our responses.
We will begin using our overall goal on October 1 of each year, unless we have received other
instructions from USDOT. •
Breakout of Estimated Race - Neutral and Race - Conscious Participation
Under its method of attainment (pg. 9) Florida has proposed that construction projects and
consulting proposals from October 1, 1999 through December 31, 1999 be evaluated for goal
setting opportunities. Beginning January 1, 2000, the Department would begin a race neutral
program. FHWAhas requested that the contracts for which goals were set be assessed a race
• conscious participation amount.
The Department estimates that, in meeting the overall goal of 8 %, we will obtain 1% from race
conscious participation. This 1 %o is based on goals which have been established on construction
contracts and preference . points which have been assigned to consulting proposals.
The Department estimates that, in meeting our overall goal of 8 %, we will obtain 7% from race- .
neutral participation.
Based upon industry and Department comparatives and input from DBEs, the Department .
estimates it can achieve 7% of its overall goal using only race neutral means. Since we will use
race conscious strategies prior to January 1, 2000, and we will track and report actual race-
neutral and race - conscious participation separately. For reporting purposes, race- neutral DBE •
participation includes, but is not necessarily limited to, the following: DBE participation through
a prime contract which a DBE obtains through customary competitive procurement procedures;
20
DBE participation through a subcontract on a prime contract that does not carry a DBE goal;
DBE participation on a prime contract exceeding a contract goal; and DBE participation through
a subcontract from a prime contractor that did not consider a firm's DBE status in making the
award.
In proposing to meet 7% of its 8% goal through race neutral means beginning January 1, 2000,
the Department considered the following information:
1. The Department has reviewed its available construction and consultant contracts reporting
information comparing commitment dollars versus actual dollars paid to DBEs. FHWA
has allowed states the option of choosing either commitment or actual utilization
reporting. Like most states,. Florida reports the prime contractor and prime consultants
commitments to use DBEs. However, the Department did have acces s to some database
information gathered on previous projects comparing commitment to actual utilization.
For example, information was gathered for a public records request in which it was noted
that there were DBE payments which exceeded amounts listed on the initial DBE
utilization forms. Another example•was information regarding DBE utilization on
consultant contracts. A review was completed of consultant contracts which indicated
additional instances where prime consultants expended more than the 10% goal for which
most prime consultants received preference points.
This information supports the ability of the Department and contractors to meet DBE
goals outside of race conscious measures.
2. The Department reviewed its DBE utilization from 1989 through 1993 on non federally
• funded contracts during which its state DBE program was suspended. The suspension of
Florida s state DBE program was based on the legal decision of Cone vs. Florida
Department of Transportation in which the court stated that the use of race conscious
measures must be supported by specific findings of disparity by the Legislature before
implementing those race conscious measures. During that time period, the Department set
no goals on non federally funded contracts, nor was there any attempt in the outreach area
to encourage the use of DBEs on those particular contracts. However, the Department
still recorded the following amounts as expenditures to DBEs on non federally funded
contracts:
1989 -1990 $ 9,361,316 6.5%
1990 -1991 $18,508,469 6.9%
1991 -1992 $18,783,253 5.34%
1992 -1993 $18,858,178 6.57%
The Department therefore averaged 6.3% of documented DBE participation during a time
period when goals were not being assigned to projects. This information supports the
ability of the Department and contractors to meet DBE goals outside of race conscious
measures.
3. The Department reviewed its current now federally funded program. Based on a
completed disparity study, the Department reimplemented a state program. In January
1994, the Department s districts were allowed to voluntarily begin setting goals on non
21
federally funded projects. In July of 1994, which began a new state fiscal year, the
Department required each district to review all non federally funded contracts for goal
setting opportunities under the guidelines of the disparity study. The Department phased
in its program as recommended by setting 4% goals for all areas from 1994 through 1996.
In July of 1996, it phased in the remaining recommended percentages of 8% for .:Non-
minority females and 4% for Blacks in the construction program. Since the program has
been in place, the Department has achieved the following with targeted DBEs through
race conscious means and has achieved DBE participation through race neutral means
with other. DBEs who either obtained contracts as primes under the low bid system or
who were used by primes as subcontractors for which no DBE credit was given:
1994 -1995 Race Conscious Goal Actual
Construction
Blacks $14,831,491 4% 3.98%
Non-Minority Females $31,454,945 4% 8.44 %
Race Neutral
Construction $ 1,704,285 0% 4.44%
8% 16.86%
The Department exceeded its 8% expenditure goal by 8.86 %. No efforts were being made
by the Department during that time period to solicit race neutral participation.
1995 -1996 Race Conscious Goal Actual
Construction
Blacks $23,486,408 4%
4.41%
- Non- Minority Females $45,608,286 4% 8.57%
Race Neutral
Construction $ 581,309 0% .1 1 %
8% 13.09%
The Department exceeded its.8% expenditure goal by 5.09 %. No efforts were being made
by the Department during that time period to solicit race neutral participation.
1996 -1997 Race Conscious Goal Actual
Construction
Blacks $16,954,200 4% 4.44%
Non- Minority Females $36,125,191 8% 9.46%
Race Neutral
Construction $ 801,430 0% .21%
12% 14.11%
22
' With an 8% goal, the Department would have exceeded its goal by 6.11%. With a 12%
goal, the Department expended an additional 2.11% over its goal.
1997 -1998 Race. Conscious Goal Actual
Construction
Blacks $ 9,359,374 4% 1.93%
Non- Minority Females $53,210,383 8% 10.96%
Race Neutral
Construction $ 6,850,859 0% 1.41%
12% 14.30%
With an 8% goal, the Department would have exceeded its goal by 6.3 %. With a 12%
goal, the Department expended an additional 2.3% over its goal.
•
1998 -1999. Race Conscious •:Goal Actual
Construction
• Blacks $21,156,622 4% 4.62%
Non- Minority Females $34,246,740 8% 6.90%
Race Neutral
Construction . $2,037,373 0% .41%
12% 11.93%
With an 8% goal, the Department would have exceeded its goal by 3.9 %. The
Department met its 12% goal expenditures.
This information supports the ability of the Department and contractors to meet DBE
goals outside of race conscious measures. Whether the State's DBE program had goals or
no goals, the utilization of DBEs remained somewhat consistent.
During the time period the Department's goal was 8 %, which is the Department's currently .
proposed federal DBE goal, it did 16.86% and 13.09 %, which was 8.86% and 5.09 %,"
respectively, above the goal. When the goal increased to 12% overall the utilization
remained consistent, which supports that the goals themselves were not overriding factor
in DBE utilization and expenditures. The Department has found that greatly deviating
DBE utilization amounts are linked primarily to non -goal oriented factors such as lack of
available DBEs based on prior work comments, limited DBEs in particular work specialty
areas needed for contracts let and bonding ability. (See achievement for Blacks in
Construction at 1.93% in 1997 -1998 and for Non minority Females in 1998 -1999 during
which their DBE expenditure was 6.9 %.). The time period of.1994 -1999 supports race
neutral participation at a level of 6 -7 %.
4. The Department considered the pledges of support it has received by its external
construction and consulting customers as well as all of its internal staff to monitor the race
neutral program and to keep its primary goals of the programs six objectives as a priority.
Title VI has also been discussed with contractors and will be integrated into the
Department s training components. This training will reiterate the Assurances of the
23
Department and its contractors to ensure nondiscrimin in all phases of its contracting
under Title VI.
This information supports the ability of the Department and contractors to meet DBE
goals outside of race conscious measures.
The Department will meet the maximum feasible portion of its overall goal by using race- neutral
means of facilitating DBE participation. The Department will use the following race- neutral
means to increase DBE participation:
1. Arranging solicitations, times for the presentation of bids, quantities, specifications and
delivery schedules in ways that facilitate DBE and other small business participation;
2. Providing assistance in overcoming limitations such as inability to obtain bonding or
financing;
3. Providing technical and managerial assistance and other services in:
a. Reading plans and specifications
b. Identifying jobs comparable to the DBE s work specialties
c. Preparing bid packages
d. Scheduling
e. Completing take off estimates
f. Marketing
g. Setting up books to track revenues and expenses
h. Interpreting financial statements
I: Completing applications for loans or bonding
4. Carrying out information and communication programs on contracting procedures and
specific contract opportunities. These information and communication programs may include, but
are not limited to:
a. Annually, the Department will provide all small businesses which have bid on
contracts during the last fiscal year a summary on major policy manuals or important changes in
contracting procedures;
b. The Department shall supply the same information to all firms applying for DBE
' . certification;
c. The Department shall provide a summary of key DBE policies to persons
responsible for contracting activities in the Department s Central Office and Districts;
d. The Department shall provide DBEs with job listings and listings of the potential
prime bidders.
5. Implementing a supportive services program to develop and improve immediate and long
term business management, record- keeping and financial and accounting capabilities for DBEs
and other small businesses.
6. Providing services to help DBEs and other small businesses improve long term
development, increase opportunities to participate in a variety of kinds of work, handle
increasingly significant projects and achieve eventual self sufficiency. These services may include
but are not limited to:
24
a. Providing semi - annual workshops for newly certified businesses to explain
contracting and business processes; -
b. Conducting conferences at least six (6) times a year in order to bring together
DBEs, the Department and prime contractors.
7. Establishing a program to assist new and start-up firms, particularly in fields in which DBE -
participation has been historically low.
Contract Goals (§ 26.51)
The Department may use contract goals to meet any portion of the overall goal which it does not
project being able to meet using race and gender neutral means. The purpose of establishing
contract goals is so that, over the period to which the overall goal applies, the goals will
cumulatively result in meeting any portion of the overall goal that is not projected to be met
through the use of race and gender neutral means.
In utilizing the goal setting method, we will establish contract goals only on those USDOT
assisted contracts that have subcontracting possibilities. We need not establish a contract goal on
every such contract, and the size of the contract goals will be adapted to the circumstances of
each such contract. Factors which will be taken into consideration are type and,location of work,
availability of DBEs to perform that particular type of work and subcontracting opportunities on
the contract.
The Department anticipated having its DBE program approved by October 1, 1999. Because of
the advertisement process, projects to be let through December will have been published.
Therefore projects let from October through December of 1999 will be evaluated under the goal
setting strategies listed above. Consultant proposals will also be evaluated under race and gender
conscious criteria through December of 1999. Letters of Interest due to the Department through
December 31, 1999 will be evaluated for preference points based on utilization of DBEs.
Beginning January 1, 2000, the Department's DBE program will be implemented through race and
gender neutral means. Prime Contractors and prime consultants will submit voluntary
commitments and actual expenditures with DBEs.
The Department currently has project review processes in place for construction and consulting
projects. Those processes, i.e., Goal Setting Committee and the district planning review, will
remain as mechanisms for monitoring the results of the race and gender neutral program. The
- purpose of keeping these processes is to have a baseline of comparison for potential
subcontracting opportunities for DBEs. The Department also plans to use this as a component of
its outreach program. Each project goal will be set separately. If projected DBE subcontracting
opportunities are exceeded or not met, the contracting participants can be contacted to . try to
determine the factors involved.
The Department will express the contract goal or potential goal as a percentage of the total
amount of a USDOT assisted contract.-
The Department does not anticipate using any race or gender conscious means of obtaining DBE
participation other than, contract goals if race and gender neutral means are deemed insufficient
25
for attaining DBE participation.
Good Faith Efforts (§ 26.53)
Information to be submitted
The Department treats bidder /proposers compliance with good faith efforts requirements as a
matter of responsiveness. However, under the Department s race neutral program which will be
effective. January 1, 2000, a bid will not be rejected as non- responsive based on DBE information.
Bidders will, however, be required to submit DBE utilization information. The Department will
also request that contractors maintain Good Faith Efforts documentation to allow the Department
to measure and monitor DBE participation on federally funded contracts. This information will
also allow the Department to evaluate the number of ready, willing, available and able DBEs for
future goal setting.
Each solicitation for which a contract goal has been established will require the bidders /proposers
to submit the following information within the time frames established by Rule 14- 78.003, Florida
Administrative Code, which is currently within three days of the bid submission:
1. The names and addresses of DBE firms that will participate in the contract;
2. A description of the work that each DBE will perform;
3. The dollar amount of the participation of each DBE firm participation;
4. Written and signed documentation of commitment to use a DBE subcontractor
whose participation it submits to meet a contract goal;
5. Written and signed confirmation from the DBE that it is participating in the •
contract as provided in the prime contractor's commitment; and,
6. If the contract goal is not met, evidence of good faith efforts.
Demonstration of good faith efforts
The obligation of the bidder /offeror is to make good faith efforts. The bidder /proposer can
demonstrate that it has done so either by meeting the contract goal or documenting good faith
efforts. Examples of good faith efforts are found in Appendix A to part 26.
The following personnel are responsible for determining whether a bidder /proposer who has not
met the contract goal has documented sufficient good faith efforts to be regarded as responsive:
this responsibility will be handled by the Department s Contract Compliance Manager for the
initial good faith efforts review.
We will ensure that all information is complete and accurate and adequately documents the
bidder /offeror's good faith efforts before we commit to the performance of the contract by the
bidder /offeror.
26
Administrative Reconsideration
Within 48 hours of determining whether good faith efforts have been met, the State Contract
Compliance Manager of the Equal Opportunity Office will notify the contractor of the initial
finding and will further inform the contractor of the date, time and place of the Central Office
Good Faith Efforts Reconsideration Committee meeting. A bidder /offeror may or may not
choose to attend the meeting. Those bidders /offerors electing to attend the meeting may do so in
person or by teleconference. The Good Faith Efforts Reconsideration Committee will review all
good faith efforts findings: This Committee will be comprised of a Chairperson, appointed by the
Director of Administration, the Manager of the Equal Opportunity Office, a representative from
the Construction Office and two alternates. The Committee will make the final recommendation
to the Technical Review Committee taking into consideration the findings of the Contract
Compliance Manager. The Technical Review Committee will follow its procedure in reviewing
the recommendations regarding the project. The Award Committee will follow its procedure in
reviewing the recommendations regarding the project.
The good faith efforts and reconsideration guidelines will be established and implemented as of
January 1, 2000. A task team consisting of industry and Department personnel will be established
to make recommendations to the Department.
Good Faith Efforts when a DBE is replaced on a contract
Where goal or preference points have been assigned to projects, we will require a contractor to
make good faith efforts to replace a DBE that is terminated or has otherwise failed to complete its
work on a contract with another certified DBE, to the extent needed to meet the contract goal.
We will require the prime contractor or prime consultant to notify the District Compliance
- Manager immediately of the DBE's inability or unwillingness to perform and provide reasonable
documentation. Replacing a DBE because of the DBE's inability or unwillingness to perform
requires the signature of the District Compliance Manager or other individuals as delegated by the
appropriate District Secretary.
In this situation, we will require the prime contractor to obtain our prior approval of the substitute
DBE and to provide copies of new or amended subcontracts, or documentation of good faith
efforts. If the contractor fails or refuses to comply in the time specified, our contracting office
will issue an order stopping all or part of payment /work until satisfactory action has been taken.
If the contractor still fails to comply, the District Construction Engineer may issue a notice of
default.
Counting DBE Participation (§ 26.55)
. We will count DBE participation toward overall and contract specific goals as provided. in 49
CFR §26.55.
Certification ( §§ 26.61- 26.91)
The Department will use the certification standards of Subpart D of Part 26 and the certification
procedures of Subpart E of part 26 as adopted by Rule Chapter 14 -78, Florida Adrninistrative
Code, to determine the eligibility of firms to participate as DBEs in USDOT- assisted contracts.
27
To be certified as a DBE, a firm must meet all certification eligibility standards. We will make our
certification decisions based on the facts as a whole. The Department will initiate the rule - making
process prescribed by § 120.54, Florida Statutes, to amend Rule Chapter 14 -78, Florida
Administrative Code and adopt 49 CFR Part 26. The Department has commenced
implementation of the certification requirements contained in 49 CFR Part 26 pending the
completion of the rule- making process as authorized by Chapter 120, Florida Statutes.
Process
Our certification application form and documentation requirements are found in Attachments 11
- 19 to this plan. This documentation includes proposed drafts of: a Schedule A, a Personal Net
Worth Statement, a Statement of Social Disadvantage, a Personal Net Worth Worksheet, an On-
Site Review Checklist, a certification checklist, the Departments revised DBE certification
procedure; and an Affidavit of Continued Eligibility. These forms remain in a draft form pending
approval of the Department s DBE Plan and completion of the Department s form approval
process.
For information about the certification process or to apply for certification, firms should contact:
Ruth B. Dillard, Manager, Equal Opportunity Office, 605 Suwannee Street, MS 65, Tallahassee,
Florida 32399, (850) 414 -4747; E -mail: www.ruth.dillard @dot.state.fLus or John Goodeman,
DBE Certification Consultant, 605 Suwannee Street, MS 65, Tallahassee, Florida 32399, (850)
414 -4747, E -Mail: www .john.goodeman @dot.state.fl.us.
In the event we propose to remove a DBE's certification, we will follow procedures consistent
with § 26.87, Rule 14- 78.008, Florida Administrative Code, and Chapter 120, Florida Statutes.
To ensure separation of functions in a decertification, we have determined that an Administrative
Law Judge of the Division of Administrative Hearings (DOAH) will serve as the decision maker
in decertification proceedings which are contested by the DBE, . pursuant to § 120.57, Florida
Statutes. " We have established an administrative "firewall" to ensure that the Administrative Law
Judge of the Division of Administrative Hearings will not have participated in any way in the
decision to commence a decertification proceeding against the firm. The Division of
Administrative Hearings is a separate agency from the Department. Administrative Law Judges
of the Division of Administrative Hearings are rotated on each case pending before it.
If we deny a firm's application or decertify it, it may not reapply until six months have passed
from our action pursuant to § 339.0805, Florida Statutes.
Unified Certification Program
As required under 26.81, the Department and all other DOT recipients who certify DBEs, will
participate in a Unified Certification Program. Within three years of January 29, 1999, the
Department and other recipients in the State of Florida will endeavor to sign an agreement
establishing the UCP for the State of Florida and submit the agreement to the Secretary of the
USDOT for approval.
The Department will take the lead with other municipal, local and county DBE programs to
develop and implement a Uniform Certification Program. The Depatttnent has already dedicated
staff to this project.
28
•
Certification Appeals
Any firm or complainant may appeal our decision in a certification matter to the Department for
referral of the matter to the Division of Administrative Hearings for resolution or to USDOT.
Such appeals may be sent to:
Mr. James Myers
Clerk of Agency Proceedings
Florida Department of Transportation
605 Suwannee Street, MS 58
Tallahassee, Florida 32399 -0458
or
Department of Transportation
Office of Civil Rights
Certification Appeals Branch
400 7th Street, SW, Room 2104
Washington, DC 20590
We will promptly implement any USDOT certification appeal decisions affecting the eligibility of
DBEs for our USDOT- assisted contracting (e.g., certify a firm if USDOT has determined that our
denial of its application was erroneous).
DBEs may also appeal certification decisions to the Department and commence the administrative
hearing process prescribed by § 120.57, Florida Statutes, which is included in Attachment 19 to
this program. According to § 120.57, Florida Statutes, a DBE may request a formal or informal
administrative hearing if it decides to challenge a certification decision. The Department s Office
of General Counsel treats all hearing requests from DBEs as requests for formal hearing and
refers these requests to the Division of Administrative Hearings for an Administrative Law Judge
to be assigned to and preside over the case. In the administrative hearing process, each party may
present its case to the Administrative Law Judge and submit proposed recommended orders. The
Administrative Law Judge enters a recommended order and each party may file objections to the
recommended order. After considering the recommended order and any objections to that order,
the Secretary of the Florida Department of Transportation may accept or reject the recommended
order as his Final Order. If the DBE disagrees with the Department s Final Order, it may appeal
the Final Order to the First District Court of Appeal_
"Recertifications"
We will review the eligibility of DBEs that we certified under former part 23, to make sure that
they meet the standards of Subpart D of part 26. We will complete this review no later than three
years from the most recent certification date of each firm. The Department has requested
Personal Net Worth Statements, Statements of Social Disadvantage and updated specialty code
1 requests from each DBE currently certified by the Department. When the Department receives all
of the requested information and determines a DBE satisfies the eligibility criteria set forth in 49
CFR Part 26, the Department will grant a three -year certification to the DBE. This three year
• 29
certification will run from the expiration date currently listed for the DBE in the Department s
DBE Directory. If a firm fails to submit the requested information or if it submits information
which reflects the firm is no longer eligible to participate in the DBE program, the Department
will commence decertification proceedings. Approximately one- third of all Personal Net Worth
statements and Social and Economic Disadvantage requests have been received and are being
reviewed. A second mailout will be sent out. With DBE companies being allowed 45 days from
receipt of the request to submit the information.
For firms that we have certified or reviewed and found eligible under part 26, we will again
review their eligibility every three years on or before the anniversary . date of the firm s initial
certification. Each of the DBEs will be notified 120 days before the certification anniversary date
on the third year that it rnust have its certification reviewed and renewed. These reviews will
include the following components: the DBEs must complete a new Schedule A application for
certification with updated documentation concerning ownership, size standards, gross receipts,
social and economic disadvantage. An on -site review of these firms will be conducted on a case -
by -case basis as determined by the DBE Certification Manager.
Affidavit of Continuing Eligibility
We require all DBEs to inform us, in a written affidavit, of any change in its circumstances
affecting its ability to meet size, disadvantaged status, ownership or control criteria of 49 CFR
part 26, and Rule Chapter 14 -78, Florida Administrative Code, or of any material changes in the
information provided with the DBE's application for certification.
We will also require all owners of all DBEs we have certified to submit, on the anniversary date of
their certification, an Affidavit of Continued Eligibility with supporting documentation. A copy of
this Affidavit of Continued Eligibility is included in Attachment 18 to this program.
We require DBEs to submit this affidavit with documentation of the firm's size and gross receipts
and updated Personal Net Worth Statements for each of the firm s Disadvantaged Owners and
their spouses.
We will notify all currently certified DBE firms of these obligations 120 days before the
anniversary date of the firm s initial certification by certified letter. This notification will inform
DBEs that to submit the "no change" affidavit, their owners must swear or affirm that they meet
all .regulatory requirements of part 26, including personal net worth. Likewise, if a firm's owner
• knows or should know that he or she, or the firm, fails to meet a part 26 eligibility requirement
(e.g., personal net worth), the obligation to submit a notice of change applies.
Notices of Change
Ifa certified DBE experiences a change in ownership affecting the 51 percent majority ownership,
and control of the firm by the disadvantaged owners on record with the Department, the DBE
must submit a notice of this change to the Department. If the DBE fails to timely file this notice
of change, the Department shall commence decertification proceedings pursuant to Rule 14-
78.008, Florida Administrative Code.
A DBE shall also timely notify the Department of any change in address, telephone number,
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• contact person for the firm, change in the firm s officers, or change in the firm s name so that the
Department may properly update this information for its DBE Directory.
Personal Net Worth
We will require all disadvantaged owners of applicant firms and currently- certified DBEs whose
eligibility under part 26 we review, to submit a statement of personal net worth. The Department
has already requested PNW statements from the disadvantaged owners of all currently certified
DBEs and required new applicants to submit PNW statements with their initial applications for
certification. The Department will require updated PNW statements from the firm s
disadvantaged owners and their spouses annually with the firm s Affidavit of Continued Eligibility
along with the firm s documentation of its size and annual gross receipts. The Department will
request updated PNW statements to track the economic disadvantaged status of the firm s
disadvantaged owners.
A copy of the Department s PNW statement and a worksheet to assist disadvantaged owners and
their spouses to complete the PNW statements are included in Attachments 10 and 12 to this
program.
Information Collection and Reporting
Bidders List
The Department will create a bidders list, consisting of information about all DBE and non -DBE
firms that bid or quote on USDOT- assisted contracts. The purpose of this requirement is to allow
use of the bidders list approach to calculating overall goals. The bidders list will include the
name, address, DBE /non -DBE status, age, and annual gross receipts of firms. A sample of the
form is attached for manual submission by contractors. A copy of the Department's database
format is also included.
We will collect this information in the following ways:
Until a new software system is procured and installed, the Department will manually collect this
information through contract clauses, requiring all bidders to report the names and addresses of
firms furnishing them quotes. The information will be requested from all prime contractors within
three days of their bid submission. They will also be' allowed to submit the information with their
bids. The Department will follow up on any information required under 49 CFR Part 26 which
the contractor is notable to provide. When the new software system is acquired and
implemented, the Department will electronically collect this data. The Department will begin
gathering this information with the October 1999 bid letting.
Monitoring Payments to DBEs
We will require prime contractors to maintain records and documents of payments to DBEs for
three years following the performance of the contract. These records will be available for
inspection upon request by any authorized representative of the Department or USDOT. This
reporting requirement also extends to any certified DBE subcontractor.
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We will keep a running tally of actual payments to DBE firms for work committed to them at the
time of contract award. Florida proposes to utilize its monthly payment certifications from
contractors. Currently contractors submit the certifications for their monthly progress payments:
The Department proposes to add the names of subcontractors who have been paid and how much.
This form would have to be signed by the contractor with all of the statutory requirements
enforced for false submissions. The Department will monitor the contractor information through
sampling with subcontractors on a regular basis and a full review upon the discovery of
inconsistent information. The Department further proposes a monitoring process which will
include project personnel monitoring the work done by DBEs to ascertain DBE credit.
We will perform interim audits of contract payments to DBEs. The audit will review payments to
DBE subcontractors to ensure that the actual amount paid to DBE subcontractors equals or
exceeds the dollar amounts stated in the schedule of DBE participation.
Reporting to USDOT
We will report DBE participation to USDOT as follows:
We will submit annually USDOT Form 4630, as modified for use by FAA recipients.
We will report DBE participation on a quarterly basis, using USDOT Form 4630. These reports
will reflect payments actually made to DBEs on USDOT assisted contracts.
Confidentiality •
We will safeguard from disclosure to third parties information that may reasonably be regarded as
• confidential business information, consistent with Federal, state, and local law. Pursuant to §
339.0805, Florida Statutes, all information submitted by applicant firms with their applications for
certification and affidavits of continued eligibility, including their personal net worth statements,
are confidential and exempt from the requirements of Florida s public records laws. A copy of §
339.0805, Florida Statutes, is included in Attachment 6 to -this program.
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Florida Department of Transportation
CHARLIE CRIST 605 Suwannee Street STEPHANIE C. KOPELOUSOS
GOVERNOR SECRETARY -
Tallahassee, FL 32399 -0450
POLICY Effective: July 19, 2007
• Office: Equal Opportunity
Topic No: 001- 275 -015 -j
DISADVANTAGED BUSINESS ENTERPRISE UTILIZATION
•
References: Sections 337.125, 337.137, 339.0805, Florida Statutes
Sections 20.23(3)(a), 334.048(3), Florida Statutes
Rule Chapter 14 -78, Florida Administrative Code
49. Code of Federal Regulation Part 26
Disadvantaged Business Enterprise Program Plan
It is the policy of the Florida Department of Transportation that disadvantaged business enterprises;
as defined by 49 Code of Federal Regulations Part 26, shall have an opportunity to participate in
the performance of Department contracts in a nondiscriminatory environment.
The objectives of the Disadvantaged Business Enterprise Program are to ensure nondiscrimination in
the award and administration of contracts, ensure firms fully meet eligibility standards, help remove
barriers to participation, create a level playing field, and assist in the development of a firm so it can
compete successfully outside of the program.
The Department, its grant recipients, contractors, consultants, and suppliers shall take all necessary
and' reasonable steps to ensure that disadvantaged business enterprises have an opportunity to
compete for and perform the contract work of the Department in a nondiscriminatory environment.
No grant recipient, contractor, consultant, or supplier shall discriminate on the basis of race, color,
sex, or national origin in the award and performance of its contracts.
Stephanie . Kopelousos
Secretary
www.dot.state.fl.us
Executive Order 11246- -Equal employment opportunity
Source: The provisions of Executive Order 11246 of Sept. 24, 1965, appear at
30 FR 12319,12935, 3 CFR, 1964-1965 Comp., p. 339, unless otherwise noted.
Under and by virtue of the authority vested in me as President of the United
States by the Constitution and statutes of the United States, it is ordered as
follows:
Part I-- Nondiscrimination in. Government Employment
[Part I superseded by Executive Order 11478 of Aug. 8, 1969, 34 FR 12985, 3
CFR, 1966 -1970 Comp., P. 803]
•
Part II -- Nondiscrimination in Employment by Government Contractors and
Subcontractors
Subpart A -- Duties of the Secretary of Labor
Sec. 201. The Secretary of Labor shall be responsible for the administration and
enforcement, of Parts II and III of this Order. The Secretary shall.adopt such rules
and regulations and issue such orders as are deemed necessary and appropriate
to achieve the purposes °of Parts II and III of this Order.
[Seca 201 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, 1978 Comp., p. 230]
Subpart B Contractors' Agreements
Sec. 202. Except in contracts exempted in accordance with Section 204 of this
Order, all Government contracting agencies shall include in every Government
contract hereafter entered into the following provisions:
• "During the performance of this contract, the contractor agrees as follows:
"(1) The contractor will not discriminate against any employee or applicant for
- - employment because of race, color, religion, sex, or national origin. The
contractor will take affirmative action to ensure that applicants are employed, and
that employees are treated during employment, without regard to their race,
color, religion, sex or national origin. Such action shall include, but not be limited
to the following: 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. The contractor
• agrees to post-in conspicuous places, available to employees and applicants for
employment, notices to be provided by the contracting officer setting forth the
provisions of this nondiscrimination clause.
"(2) The contractor will, in all solicitations or advertisements for employees
placed by or on behalf of the contractor, state that all qualified applicants will
receive consideration for employment without regard to race, color, religion, sex
or national origin.
"(3) The contractor Will send to each labor union or representative of workers with
which he has a, collective bargaining agreement or other contract or
understanding, a notice, to be provided by the agency contracting officer,
advising the labor union or workers' representative of the contractor's
commitments under Section 202 of Executive Order No. 11246 of September 24,
1965, and shall post copies of the notice in conspicuous places available to
employees and applicants for employment.
"(4) The contractor will comply with all provisions of Executive Order No. 11246
of Sept. 24, 1965, and of the rules, regulations, and relevant orders of the
Secretary of Labor.
"(5) The contractor will furnish all information and reports required by Executive
Order No. 11246 of September 24, 1965, and by the rules,. regulations, and
orders of the Secretary of Labor, or pursuant thereto, and will permit access to
his books, records, and accounts by the contracting agency and the Secretary of
Labor for purposes of investigation to ascertain compliance with such rules,
regulations, and orders.
"(6) In the event of the contractor's noncompliance with the nondiscrimination
clauses of this contract or with any of such rules, regulations, or orders, this
. contract may be cancelled,terminated.or suspended in whole or in part and the
contractor may be declared ineligible for further Government contracts in
accordance with procedures authorized in Executive Order No. 11246 of Sept.
24, 1965, and such other sanctions may be imposed and remedies invoked as
provided in Executive Order No. 11246 of September 24, 1965, or by rule,
regulation, or order of the Secretary of Labor, or as otherwise provided by law.
"(7) The contractor will include the provisions of paragraphs (1) through (7) in
every subcontract or purchase order unless exempted by rules, regulations, or
orders of the Secretary of Labor issued pursuant to Section 204 of Executive
Order No. 11246 of September 24, 1965, so that such provisions will be binding
upon each subcontractor or vendor. The contractor will take such action with
respect to any subcontract or purchase order as may be directed by the
- Secretary of Labor as a means of enforcing such provisions including sanctions
for noncompliance: Provided, however, thatin the event the contractor becomes
involved in, or is threatened with, litigation with a subcontractor or vendor as a
result of such direction, the contractor may request the United States to enter into
such litigation to protect the interests of the United States."
• [Sec. 202 amended by Executive Order 11375 of Oct. 13, 1967, 32 FR 14303, 3
CFR, 1966 -1970 Comp., p. 684; Executive Order 12086 of Oct. 5, 1978, 43 FR
46501, 3 CFR, 1978 Comp., p. 230]
Sec. 203. (a) Each contractor having a contract containing the provisions
prescribed in Section 202 shall file, and shall cause each of his subcontractors to
-file, Compliance Reports with the contracting agency or the Secretary of Labor as
may be directed. Compliance Reports shall be filed within such times and shall
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•
contain such information as to the practices, policies, programs, and employment
policies, programs, and employment statistics of the contractor and each
subcontractor, and shall be in such form, as the Secretary of Labor may
prescribe.
(b) Bidders or prospective contractors or subcontractors may be required to state
whether they have participated in any previous contract subject to the provisions
of this Order, or any preceding similar Executive order, and in that event to •
submit, on behalf of themselves and their proposed subcontractors, Compliance
Reports priorto or as an initial part of their bid or negotiation of a contract.
(c) Whenever the contractor or subcontractor has a collective bargaining
agreement or other contract or understanding with a labor union or an agency .
referring workers or providing or supervising apprenticeship or training for such
workers, the Compliance Report shall include such information as to such labor
union's or agency's practices and policies affecting compliance as the Secretary
of Labor may prescribe: Provided, That to the extent such information is within
the exclusive possession of a labor union or an agency referring workers or
providing or supervising apprenticeship or training and such labor union or
agency shall refuse to furnish such information to the contractor, the contractor
shall so certify to the Secretary. of Labor as part of its Compliance Report and
shall set forth what efforts he has made to obtain such information.
(d) The. Secretary of Labor may direct that any bidder or prospective contractor or
subcontractor shall submit, as part of his Compliance Report, a statement in
writing, signed by an authorized officer or agent on behalf of any labor union or
- any agency referring workers or providing or supervising apprenticeship or other
training, with which the bidder or prospective contractor deals, with supporting
information, to the effect that the signer's practices and policies do not
• discriminate on the grounds of race, color, religion, sex or national origin, and
that the signer either will affirmatively cooperate in the implementation of the
• policy and provisions of this order or that it consents and agrees that recruitment,.
employment, and the terms and conditions of employment under the proposed
contract shall be in accordance with the purposes and provisions of the order. In
the event that the union, or the agency shall refuse to execute such a statement,
the Compliance Report shall so certify and set forth what efforts have been made
to secure such a statement and such additional factual material as the Secretary
of Labor may require.
[Sec. 203 amended by Executive Order 11375 of Oct. 13, 1967, 32 FR 14303, 3 '
CFR, 1966 -1970 Comp., p. 684.; Executive Order 12086 of Oct. 5, 1978, 43 FR
46501, 3 CFR, 1978 Comp., p. 230] ,
Sec. 204. The Secretary of Labor may, when he deems that special
• circumstances in the national interest so require, exempt a contracting agency
from the requirement of including any or all of the provisions of Section 202 of
this Order in any specific contract, subcontract, or purchase order. The Secretary
of Labor may, by rule or regulation, also exempt certain classes of contracts,
subcontracts, or purchase orders (1) whenever work is to be or has been
•
•
performed outside the United States and - no recruitment of workers within the. -
limits of the United States is involved; (2) for standard commercial supplies or
raw materials; (3) involving less than specified amounts of money or specified
numbers of workers; or (4) to the extent that they involve subcontracts below a
specified tier. The Secretary of Labor may also provide, by rule, regulation, or
order, for the exemption of facilities of a contractor which are in all respects
separate and distinct from activities of the contractor related to the performance
of the contract: Provided, That such an exemption will not interfere with or
impede the effectuation of the purposes of this Order: And provided further, That
in the absence of such an exemption all facilities shall be covered by the
provisions of this Order.
Subpart C--Powers and Duties of the Secretary of Labor and the
Contracting Agencies •
Sec. 205. The Secretary of Labor shall be responsible for securing compliance
by all Government contractors and subcontractors with this Order and any
implementing rules or regulations. All contracting agencies shall comply with the
terms of this Order and any implementing rules, regulations, or orders of the
Secretary of Labor. Contracting agencies shall cooperate with the Secretary of
Labor and shall furnish such information and assistance as the Secretary may
require.
[Sec. 205 amended by Executive Order 12086. of Oct. 5, 1978, 43 FR 46501, 3
CFR, 1978 Comp., p. 230]
Sec. 206. (a) The Secretary of Labor may investigate the employment practices
of any Government contractor or subcontractor to determine whether or not the
contractual provisions•specified in Section 202 of this Order have been violated.
Such investigation shall be conducted in accordance with the procedures
established by the Secretary of Labor.
(b) The Secretary of Labor may receive and investigate complaints by employees •
or prospective employees of a Government contractor or subcontractor which
allege discrimination contrary to the contractual provisions specified in Section
202 of this Order. •
[Sec. 206 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
• ,CFR, 1978 Comp., p. 230]
Sec. 207. The Secretary of Labor shall use his best efforts, directly and through
interested Federal, State, and local agencies, contractors, and all other available
instrumentalities to cause any labor union engaged in work under Government
contracts or any agency referring workers or providing or supervising
apprenticeship or training for or in the course of such work to cooperate in the
implementation of the purposes of this Order. The Secretary of Labor shall, in
appropriate cases, notify the Equal Employment Opportunity Commission, the .
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,:z
•
•
•
Department of Justice, or other appropriate Federal agencies whenever it has
reason to believe that the practices of any such labor organization or agency
violate Title VI or Title VII of the Civil Rights Act of 1964 or other provision of
Federal law.
[Sec. 207 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, 1978 Comp., p. 230]
•
Sec. 208. (a) The Secretary of Labor, or any agency, officer, or employee in the
executive branch of the Government designated by rule, regulation, or order of
the Secretary, may hold such hearings, public or private, as the Secretary may
deem advisable for compliance, enforcement, or educational purposes.
(b) The Secretary of Labor may hold, or cause to be held, hearings in
accordance with Subsection (a) of this Section prior to imposing, ordering, or
recomrriending the imposition of penalties . and sanctions under this Order. No
order for debarment of any contractor from further Government contracts under
Section 209(a)(6) shall be made without affording the contractor an opportunity
for a hearing.
Subpart D -- Sanctions and Penalties
Sec. 209. (a) In accordance with such rules, regulations, or orders as the
Secretary of Labor may issue or adopt, the Secretary may:
(1) Publish, or cause to be published, the names of contractors or unions
which it has concluded have complied or have failed to comply with the
provisions of this Order or of the rules, regulations, and orders of the •
Secretary of Labor.
(2) Recommend to the Department of Justice that, in cases in which there
is substantial or material violation or the threat of substantial or material
violation of the contractual provisions set forth in Section 202 of this Order,
appropriate proceedings be brought to enforce those provisions, including
the enjoining, within the limitations of applicable law, of organizations,
individuals, or groups who prevent directly or indirectly, or seek to prevent
directly or indirectly, compliance with the provisions of this Order.
(3) Recommend to the Equal Employment Opportunity Commission or the
Department of Justice that appropriate proceedings be instituted under
Title VII of the Civil Rights Act of 1964.
(4) Recommend to the Department of Justice that criminal proceedings be
brought for the furnishing of false information to any contracting agency or
to the Secretary of Labor as the case may be.
(5) After consulting with the contracting agency, direct the contracting
agency to cancel, terminate, suspend, or cause to be cancelled,
terminated, or suspended, any contract, or any portion or portions thereof,
for failure of the contractor or subcontractor to comply with equal
employment opportunity provisions of the contract. Contracts may be •
cancelled, terminated, or suspended absolutely or continuance of
•
•
• contracts may be conditioned upon a program for future compliance
approved by the Secretary of Labor.
(6) Provide that any agency shall refrain from entering - into
further contracts, or extensions or other modifications of existing contracts,
with any noncomplying contractor, until such contractor has satisfied the
Secretary of Labor that such contractor has established and will carry out
personnel and employment policies in compliance with the provisions - of
• this Order.
(b) Pursuant to rules and regulations prescribed by the Secretary of Labor, the
Secretary shall make reasonable efforts, within a reasonable time limitation, to
- secure compliance with the contract provisions of this Order by methods of
conference, conciliation, mediation, and persuasion before proceedings shall be
• • instituted under subsection (a)(2) of this Section, before a contract shall be
cancelled or terminated in whole or in part under subsection (a)(5) of this
' Section.
[Sec. 209 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, 1978 Comp., p. 230]
•
Sec. 210. Whenever the Secretary of Labor makes a determination under
Section 209, the Secretary shall promptly notify the appropriate agency. The
agency shall take the action directed by the Secretary and shall report the results
of the action it has taken to the Secretary of. Labor within such time as the
• Secretary shall specify. If the contracting agency fails to take the action directed
•
within thirty days, the Secretary may take the action directly.
[Sec. 210 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 -
CFR, 1978 Comp., p. 230]
Sec. 211. If the Secretary shall so direct, contracting agencies shall n_ of enter into
• contracts with any bidder or prospective contractor unless the bidder or
prospective contractor has satisfactorily complied with the provisions of this
Order or submits a program for compliance acceptable to the Secretary of Labor.
•
[Sec. 211 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, 1978 Comp., p. 230]
Sec. 212. When a contract has been cancelled or terminated under Section
209(a)(5) or a contractor has been debarred from further Government contracts
under Section 209(a)(6) of this Order, because of noncompliance with the
contract provisions specified in Section 202 of this Order, the Secretary of Labor
shall promptly notify the Comptroller General of the United States.
[Sec. 212 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, . 1978 Comp., p. 230]
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Subpart E -- Certificates of Merit
•
Sec. 213. The Secretary of Labor may provide for issuance of a United States
Government Certificate of Merit to employers or labor unions, or other agencies
which are or may hereafter be engaged in work under Government contracts, if
- the Secretary is satisfied that the personnel and employment practices of the
employer, or that the personnel, training, apprenticeship, membership, grievance
and representation, upgrading, and other practices and policies of the labor union
or other agency conform to the purposes and provisions of this Order.
Sec. 214. Any Certificate of Merit may at any time be suspended or, revoked by
the Secretary of Labor if the holder thereof, in the judgment of the Secretary, has
failed to comply with the provisions of this Order.
Sec. 215. The Secretary of Labor may provide for the exemption of any
employer, labor union, or other agency from any reporting requirements imposed
under or pursuant to this Order if such employer, labor union, or other agency,
has been awarded a Certificate of Merit which has not been suspended or
revoked.
Part III -- Nondiscrimination Provisions in Federally Assisted Construction
Contracts
Sec. 301. Each executive department and agency which administers a program
involving Federal financial assistance shall require as a condition for the approval
of any grant, contract, loan, insurance, or guarantee thereunder, which may
. involve a construction contract, that the applicant for Federal assistance
undertake and agree to incorporate; or cause to be incorporated, into all
construction contracts paid for in whole or in part with funds obtained from the
Federal Government or borrowed on the credit of the Federal Government
pursuant to such grant, contract, loan, insurance, or guarantee, or undertaken
pursuant to any Federal program involving such grant, contract, loan, insurance,
or guarantee, the provisions prescribed for Government contracts by Section 202
of this Order or such modification thereof, preserving in substance the .
contractor's obligations thereunder, as may be approved by the Secretary of
Labor, together with such additional provisions as the Secretary deems
appropriate to establish and protect the interest of the United States in the
enforcement of those obligations. Each such applicant shall also undertake and
agree (1) to assist and cooperate actively with the Secretary of Labor in obtaining
the compliance of contractors and subcontractors with those contract provisions
and with the rules, regulations 'and relevant orders of the Secretary, (2) to obtain
and to furnish to the Secretary of Labor such information as the Secretary may
require for the supervision of such compliance, (3) to carry out-sanctions and
penalties for violation of such obligations imposed upon contractors and
subcontractors by the,Secretary of Labor pursuant to Part II, Subpart D, of this
Order, and (4) to refrain from entering into any contract subject to this Order, or
•
•
extension or other modification of such a contract with a contractor debarred from
Government contracts under Part 11, Subpart D, of this Order.
[Sec. 301 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, 1978 Comp., p. 230]
Sec. 302. (a) "Construction contract" as used in this Order means any contract
for the construction, rehabilitation, alteration, conversion, extension, or repair of
buildings, highways, or other improvements to real property.
(b) The provisions of Part I1 of this Order shall apply to such construction
contracts, and for purposes of such application the administering department or
agency shall be considered the contracting agency referred to therein.
(c) The term "applicant" as used in this Order means an applicant for Federal
assistance or, as determined by agency regulation, other program participant,
with respect to whom an application fora ny grant, contract, Ioan, or
guarantee is not finally acted upon prior to the effective date of this Part, and it
includes such an applicant after he becomes a recipient of such Federal
assistance.
Sec. 303. (a) The Secretary of Labor shall be responsible for obtaining the
compliance of such applicants with their undertakings under this Order. Each
administering department and agency is directed to cooperate with the Secretary -
of Labor and to furnish the Secretary such information and assistance as the
Secretary may require in the performance of the Secretary's functions under this
Order.
(b) In the event an applicant fails and refuses to comply with the applicant's
undertakings pursuant to this Order, the Secretary of Labor may, after consulting
with the administering department or agency, take any or all of the following
actions: (1) direct any administering department or agency to cancel, terminate,
or suspend in whole or in part the agreement, contract or other arrangement with
such applicant with respect to which the failure or refusal occurred; (2) direct any
administering department or agency to refrain from extending any further
assistance to the applicant under the program with respect to which the failure or
refusal occurred until satisfactory assurance of future compliance . has been
received by the Secretary of Labor from such applicant; and (3) refer the case to
the Department of Justice or the Equal Employment Opportunity Commission for
appropriate law enforcement or other proceedings.
(c) In no case shall action be taken with respect to an applicant pursuant to
clause (1) or (2) of subsection (b) without notice and opportunity for hearing.
[Sec. 303 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 -
CFR, 1978 Comp., p. 230]
Sec. 304. Any executive department or agency which imposes by rule,
regulation, or order requirements of nondiscrimination in employment, other than
requirements imposed pursuant to this Order, may delegate to the Secretary of
•
Labor by agreement such responsibilities with respect to compliance standards,
reports, and procedures as would tend to bring the administration of such
requirements into conformity with the administration of requirements imposed
under this Order: Provided, That actions to effect compliance by recipients of
• Federal financial assistance with requirements imposed pursuant to Title VI of
the Civil Rights Act of 1964 shall be taken in conformity with the procedures and
limitations prescribed in Section 602 thereof and the regulations of the .
administering department or agency' issued thereunder.
Part IV -- Miscellaneous
Sec. 401. The Secretary of Labor may delegate to any officer, agency, or
employee in the Executive branch of the Government, any function or duty of the
Secretary under Parts II and III of this Order.
[Sec. 401 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3
CFR, .1978 Comp., p. 230]
Sec. 402. The Secretary of Labor shall provide administrative support for the
execution of the program known as the "Plans for Progress."
Sec. 403. (a) Executive Orders Nos. 10590 (January 19, 1955), 10722 (August 5,.
1957), 10925 (March 6, 1961), 11114 (June 22, 1963), and 11162 (July 28,
1964), are hereby superseded and the President's Committee on Equal
Employment_ Opportunity established by Executive Order No. 10925 is hereby
• abolished. 'All records and property in the custody of the Committee shall be
transferred to the Office of Personnel Management and the Secretary of Labor,
as appropriate.
(b) Nothing in this Order shall be deemed to relieve any person of any obligation
assumed or imposed under or pursuant to any Executive Order superseded by
this Order. All rules, regulations, orders, instructions, designations, and other 0
directive's issued by the President's Committee on Equal Employment
Opportunity and those issued by the heads of various departments or agencies
under or pursuant to any of the Executive orders superseded by this Order, shall,
to the extent that they are not inconsistent with this Order, remain in full force and
effect unless and until revoked or superseded by appropriate authority.
References in such directives to provisions of the superseded orders shall be
deemed to be references to the comparable provisions of this Order.
[Sec. 403 amended by Executive Order 12107 of Dec. 28, 1978, 44 FR 1055, 3
CFR, 1978 Comp., p. 264]
Sec. 404. The General Services Administration shall take appropriate action to
revise the standard Government contract forms to accord with the provisions of
. this Order and of the `rules and regulations of the Secretary of Labor.
Sec. 405. This Order shall become effective thirty days after the date of this
Order.
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