Contract Amendment 1 with Carivon ROW Dickens AveRSA- 711s" 26(05
Contract Amendment No. 1
City of Miami Beach— ARRA Right -Of -Way Improvements- Dickens Avenue from 71St Street to
81st Street (ARRA Neighborhood No. 2 - North Shore)
Contractor: Carivon Construction Company
J.O.C. Contract No.: 363.00.PW.23-08/09
Amendment No.: 1
Term of Contract: 150 Calendar Days
Original Contract Amount: $703,488.04
The Contract between Carivon Construction Company (Contractor) and the City of Miami Beach
(City), which was last executed and signed by the parties of ku46<v i.26 ' s hereby amended as
follows:
1. The following language is to be added to the purchase order for Carivon Construction
Company:
a. NO LOCAL HIRING PREFERENCES
The City of Miami Beach informs Contractor that the City does not have a "Local Hiring
Preference Ordinance."
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 pecified 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.
2. The following additional documents shall be added to the Contract and original purchase
order
a. DBE Program Policy and Plan (see attached Exhibit "A" to this Amendment)
b. Executive Order 11246 — Equal Employment Opportunity (see attached Exhibit "B"
to this Amendment)
Page 1 of 7
scam d
c. Title VI / Non Discrimination Program (see attached Exhibit "C" to this
Amendment)
d. FHWA 1273- Required Contract Provision for Federal Aid Contracts and their strict
adherence (see attached Exhibit "D" to this Amendment)
e. Applicable Wage Rate Table (FL325, Modification 0, 3/12/10) (see attached Exhibit
"E" to this Amendment)
3. Record retention language in Contract is changed from 3 years to 5 years.
4. 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.
By the Contractor:
Name: =,�lcnPC-3-
ACCEPTANCE AND APPROVALS
i'l0C-* Title:
atureAuthorized Official) e
k ) (Dat
By the City of Miami Beach:
Name: Matti Herrera Bower
Mayor
_07).
l
Signa (Azed Official)
)
fo,tdmA._
ATTEST
Title: M atlar
V/16/ /
(Date)
Page 2 of 7
APPROVED AS TO
FORM & LANGUAGE
&F Ri:XECUIIONS
ttot note c' ,6\0\., Date
ATTACHMENT A - DBE PROGRAM POLICY AND PLAN
[PAGE INTENTIONALLY LEFT BLANK]
Page 3 of 7
•
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
*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) 0
The Floridabepartment 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.
Itis 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
l:. 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 tneet.49 CFR Part 26 eligibility standards are•
permitted to participate as DBEs; • • .
• 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 withal] 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 Florida and all
`of -the components of our organization. This statement will be distributed to DBE and non -DBE ,
- - s business communities that perform.work for us on USDOT-assisted contracts through mailouts to
all certified DBEs,. prime contractors and consultants. The Department s proposed DBE Policy •
Statement is found in 'Attachment 1 to this,prograin. '
2•
. Nondiscrimination. (§ 26.7) -
• The Department will never exclude anyperson 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.statell.us. in that capacity, Ms. Dillard is .
responsible for implementing all aspects of the DBE program and ensuring that the Department
coinplies with all provisions of 49 CFR Part 26. M. Dillard has direct, independent access to the,
Secretary of the Florida Department 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 foundin 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. • . .. 1 , . .
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
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
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 by.49 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
:Itis the policy of the Depa, tment to investigate the full extent of services offered by financial
institution's owned. and coritrolled•by socially and economically disadvantaged individuals in the
community, to make reasonable efforts to use .these institutions, and 16 encourage prime
•contractors on USDOT-assisted contracts to make use of these institutions. The Department has
contacted "thefollowing Agencies: .
FEDERAL DEPOSIT INSURANCE
CORPORATION (FDIC)
1201 W: PEACI-ITREE ST. NE .
SUITE 1800' " .
ATLANTA, GA 30309-4515
(404) 817-1300
W W W.FDIC.GOV
• LEON COUNTY WOMEN & MINORITY
BUSINESS ENTERPRISE PROGRAM (W/MBE) _ •
.• • LEON COUNTY COURTHOUSE .
SUITE 502
TALLAHASSEE, FL 32301
(850) 488-9962 - . •
BLACK BUSINESS INVESTMENT BOARD •
• 1711 S. GADSDEN ST.
TALLAHASSEE, FL 32301
(850) 487-4850 .
FLORIDA BANKERS ASSOCIATION
1001 THOMASVILLE RD.
TALLAHASSEE;••FL 32303
(850) 224-2265
To date we have identified the following such financial institutions:
HAMILTON BANK N.A.
3750 N.W. 87TH AVE.
MIAMI, FL 33178 .
(305)717-5536 .
PEOPLES BANK . FLORIDA A &,M UNIVERSITY
3275 N.W. 79THST. ' FEDERAL CREDIT UNION
MIAMI, FL 33147 - 1550 MELVIN ST;;
(305) 6964)700 • TALLAHASSEE, FL 32301
(850)222-4545 .
Information on the current availability of such institutions can be obtained from the DBE Liaison
Officer.
METRO SAVINGS • •
715 S. GOLDWIND AVE,
•ORLAND.O,'FL 32805
(407) 293-7320
Directory (§ 26.31)
!the Department maintains aDirectory identifying all firms eligible to participate as DBEsI. The
. Directory lists the frni'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 Directoryavailable as follows' by sending DBE Directories every month
to all prequalified contractors and consultants;. sending multiple copies ofthe DBE Directory
every month to each ofthe District Contract Compliance Officers for distribution to interested
coriti-actors and consultants in their geographic districts; and by sending current DBE Directories
• to interested parties who contact the Depar tmerrt's Equal Opportunity Office•requesting .copies of
the Directory. Interested parties may contact the Equal Opportunity. O-ffice at 605 Suwannee .
Street, MS -65, Tallahassee, Florida 32399, (850) 414-4747, to obtain•a current copy of the DBE
Directory.
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 Deparlment 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 paythent'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.conipleted 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 froth the Department.. Contractors are -required to certify payment to •
subcontractors prior to receipt of their nexttprogress 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•ofthis final payment froin the Department. :
•
The 'Department will require prompt payment by the prude 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 Department. 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 haying 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 Departient 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 theattention 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.I05; 337.16; -.and .
:339.0.805, Florida Statutes.
Attachments 4 - 9 are :copies of the regulations, provisions, arid 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'Depat tment'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 rriai.Ied to all certified
DBE companies. Copies of the goal publication are included in Attachment 10 to this Plan,
•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 ofDBEs 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 ofthe'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 longus at feast 51%' of the work was done by a'DBE.
Under 49 CFR.Patt 26, .all ofthese major components have changed. and potentially affects the '
-availability ofDBEs 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 ofthese proposed options for the current year"
• Federal Highway Administration (FHWA) "
The Department expects to let approximately $1.4 billion for Federal Fiscal Year 199972000. 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'througb 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 Deeember 2, 1.999. 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.
spebific goals on the individual'projects, but counting allparticipation of DBE subcontractors.. •
utilized by contractors. on projects. Race neutral under the consultant or professional services
• d
program wbnld be defineas 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 ofDBE subconsultants utilized by consultants on .projects.
Analysis of Goal for Federal Highway Administration
Meth od olo!v
J
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 Depat inuent 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
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 onedocumented 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-foliow.ing 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 oftbe Florida Transportation Builders Association
• The availability analysis provided the following. finding which was used.in step one of the goal •
setting methodology: 31% of allavailable 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 certifiedDBE DBE f rens. By'April 2000,
the Department had compiled a list of -127 firms who had elected not to:return to theDBE
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 -
Depaittuent 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.1.4-75, 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
certified DBEs. However, the researeh.of the DBE prequalified programs does indicate that in
order fot pfime construction contractors to bid on contracts over $250,000, they must be .
.prequalif ed 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 reqiired .of alt 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 $16.6M over a three year period,:the DepaitInnent 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, itis •estimated that
DBEs will be lost because of what will be perceived asintrusive 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 becausethey feel the amount of additional information they submit:is.notwarranted .., ' .•
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.overalI availability base was adjusted to a comparable percentage. The.
availability for subcontractorswas therefore calculated at 20%0
Historical datafrom the Department's Bid Analysis Management Systems supports subcontract
work to be 25% of dollars awarded. Usingthe 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%
Prime Contracting - The following. analysis was used. in calculating DBE prime contractor
availability.. . '
.WORK TYPE- - The Department considered the number of.prequalifed contractors based on the
factor. of "work type". in each "work type," a determination was :made ofthe 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 "worktypes". This percentage breakdown was then converted to
"work type" of actual lettings by the Depal.unent.•
.
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 connectionbetween
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 asprime-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.% 0 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 DBEsas asphalt prime contractors:. .032 x .274 = .009
.Drainage
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 = .0.3075 or 3.1%
• Step One Results:
Subcontractor Availability.
Prime Contractor Availability
5.0% ••
+3.1%
.Baseline Goal 8.1% = Rounded to 86/0 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 Depaiinient 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 iip,to :49% of its contract
to a non -DBE while still allowing the agency to report 100% ofthat 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 nori-
DBEs which under the•new regulations would, not be eligible for counting. •
•
Imnact 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 -1n 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 participationamount. 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 ambunt.
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 potentia] 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. •
• . Sirice•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 repotting 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.
Imnact 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 11.00% •
• 7.8%*
15
• Proposed DBE Goal
ELIMINATED ALTERNATIVES
8:00% (*The Department proposes..rounding to -8%)
In setting the. goal for the Department, itis 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 •abserit 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 Departmenthas-some 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 itpreparedfor the Department in 1993 for the Depa, ti-nent 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 •
Departments Districts, failed to consider contract data from theDepaitment 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, 7nc.,-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 - Analysis -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, theinformation necessary to complete
this analysis is not readily available to the Depa,t,,,ent 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 wilhgather 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 t� 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 Depa,lment 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
ahalysis 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 andmethodology and thatwas based on a disparity
study conducted specifically for their state, however,: that study was conducted over a 13 month
time period.
Analysisof 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
2
Previously Approved .Prolects
- 1 0% 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 projectwas 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 theanticipated additional funds will ,
be applied to that same contract. The contractor continues to be..bontractually 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 Departments 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 SO.
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 trainingthat 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.5310program 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 53.11 program..primarily consists of capital or operating expenses made by local governments
.or public transit provid'ers.. 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. 1t 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 firrns will be considered open to DBE goal setting
opportunities. - . .•
•
Estimated FTA Total.for FY 2000 - $11..033.5.72
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% ofnon-exempt dollars with DBEs under its new DBE
program.
Transit Vehicle Manufacturers (TVMI. (§ 26.49) • .
The Deparhnent 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.
Overall Goal Setting, Process
The Department submits its overall goal to USDOT On August 31.st 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
.• Departments 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'Oppbrtunity Office for 30 days following the date of the'notice, and 'informing
the public thatthe Department and USDOT will accept commentsbn the goals for 45 days from
the date of the notice., The.Department s goal forthe current year waspublished on the .
Department s inteinet web page at http:/twww.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.maybe.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 publicparticipation 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.FHWA:has 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% is based on goals which have been established on construction •
contracts and preference.points.which have been assigned to consulting proposals.
The Department estimates tliat, .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 Depaitinent .
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 thafdoes 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 thefollowing 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 access s to some database
:information gathered on previous projects .comparing commitment to actual utilization. ' •
For example, information was gathered fora 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 Depai tinent and contractors to meet DBE
goals outside of race conscious measures;
•
•
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 Depai tient and contractors to meet DBE goals outside of rare conscious
measures. ' • .
The Department reviewed its current non -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 •
Depai 1u!erit 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;ah:areas from 1994. through 1996.
• In 'July of 1996, it phased in the remaining recommended percentages .of 8% forNon
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:
199471995- Race Conscious • .Goal Actual
Construction •
Blacks . • • . $14,831,491 4% . 3.98%
• Non- Minority. Females • $31,454;945.. 4°A... -.8.44 %
Race Neutral
Construction.. .$ 1,704,285 0% • . 4.44%
•• '8% 16i86%
The Depait,uent 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.
• • -19.95-1996 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 Depa, triient 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 Departinent 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.ConsciousGoal 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 1.2%
goal, the Department expended an additional 2.3% over its goal. -
1998-1.999.. 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 Depalment 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 tithe 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 utilizationrand. 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 nondiscrimination 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 conseious 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' t� obtain bonding or
• • fnancing;
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
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 onmajor 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.: Irnplernenting a supportive services program to develop and improve immediate and long.
term business management, record-keeping and .financial arid 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 fines, 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 overallgoal which it does not
project being able to meet using race andgender 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
eachsuch 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....Beeause 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 3.1,1999 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 .and
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 .apercentage-of the total
amount of a USDOT assisted contract.-
The
ontract.
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.w.ith 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.Depaltt�,ent..
to measure and monitor DBE participation on federally funded contracts. This information will
• also. al low the Department to evaluate the numberof 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 irrthe 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 meetirigmay 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 .
Directorof 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
tomake 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 cornplete its
• work on a contract with another certified DBE, to the extent needed meet the contract goal.
Wewill 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 ofpayment/work until satisfactory action has been taken.
Utile 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 Administrative
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 prescribedby § 120.54,•Florida Statutes, to.amend Rule Chapter 14-78, Florida •
Administrative Code and adopt 49 CFR,Part 26..The Depai talent has commenced •
implementation of the certification requirements contained in 49 CFR Part 26 pending the
completion of the rule-making prooess .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.fl:us 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. 0
•
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 thatan Administrative
Law Judge ofthe:Division of Administrative Hearings (DOAH) will serve as.the decision maker
. in decertification proceedings which are contested by the DE, .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 •om 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 bur action pursuant to § 339.0805, Florida Statutes: . 0 .
Unified CertiicationProzram
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 UCPfor the .State of Florida and submit the agreerrient 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 Department has already dedicated
• staff to this project.
28
Certification Appeals
.•
• .. • '
.• Any firm or complainant may appeal our decision in a certification matter to the Dom tuient for
.referral of thepatter 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 apPealdecisionsaffecting.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 tbe Department and coirimence the administrative
hearing process prescribed by § 120.57, Florida Statutes, which is included in Attachment 19 to
this program. According to § 120.53,- 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 administrativellearing 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 Departmentof Transportation may accept or reject the recommended
order .as his Final Order. lf the DBE disagrees with the Department s Final Order, it may appeal
.•
the Final Order to the .FirstDistrict Court Of Appeal.
TTRecert ifications"
.•
We will review the eligibility of DBES that we certified tinder former part 23, to make sure that
they meet the standards of Subpart D ofpart 26. We will complete this review no later than three
years from the most recent certifiCatipn date of each firm. The Department has requested •
Personal Net Worth Statements, Statements of Social Disadvantage and updated specialty code
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 Departmentwill 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 subthit 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.ofthe firm s initial
certification. Each of the DBEs will be notified 120• days before the certification anniversary date
.on the third year that it must have its certification reviewed and renewed. These reviews will
include the following com:ponentsthe DBEs must complete a new Schedule A application for
certification with updated docuinentation concerning ownership, .size standards, gross.receipts,"
Social and econornic disadvantage. An on-site review of these firms will be'conducted on a case-
by-case basis as.deterrnined by the DBE Certification Manager. • .
Affidavit .of Continuing EIigib ilit�v
W.e require•aIl DBEs to inform us, in a written affidavit, of any change in its circumstances
affecting its ability to:meet size, disadvantagedstatus, ownership or control criteria of49.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 tosubmit, on the anniversary date of
their certification, an Affidavit of Continued Eligibiility with supporting'd'ocumentation. 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 certifredDBE firms ofthese 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
If a 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,
30
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-,fertified DBEs whose
eligibility under part 26 we review, to submit a statement of personal net worth. The Department_
hasalready requested PNW statements from the disadvantaged owners of all currently certified
DBEs and required new applicants to`subrnit 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 firms documentation of its size and'annual gross receipts. The Department will
request updated•PNW statements to track the economic disadvantaged status ofthe firm s
disadvantaged owners. •
A copy of the Department.s PNW statement anda worksheetto assist disadvantaged owners and
their spouses:to complete the PNW statements are included in Attachments .1:0- and 12 to,this
program.
-Information Collection and Reporting • 0
• • 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 oftheir bid submission. They will also be allowed,to submit the information with their,
.bids. The Department will -follow up on any infonnation •required under 49 CFR'Part 26 which
the contractor is notable to provide. When the.new software system is:acquired and
• implemented, the Depaltment 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 orUSDOT. This
reporting requirement also extends to any certified DBE subcontractor.
31
We will keep.a running tally of actual payments to DBE ±rrn .for work committed to them at the
time ofcontract 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 namesof subcontractors who have been paid and how much.
This form would have to be..sfgned by the contractor, with all.ofthe•statutory requirements •
enforced tortoise submissions: The Department will monitorthe 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 -dote byDBEs 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 Forrri4630; •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 r.
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'.
•
32
•
CHARLIE CRIST'
• GOVERNOR ..
POLICY
Florida Deparinient of Transportation
605 Suwannee Street
Tallahassee; FL 32399-0450
STEPHANIE G. KOPELOUSOS'•
SECRETARY. •
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 iri a rnondiscrirninatory environment: •
The objectives of the Disadvantaged Business Enterprise Program are to ensure nondiscrimination it
the awardand administration of contracts, ensure firms fully meet eligibility standards, help remove
• .barriers toparticipation, 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 eteps 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.dotstate.fl.us
ATTACHMENT B - EXECUTIVE ORDER 11246 — EOUAL EMPLOYMENT
OPPORTUNITY
[PAGE INTENTIONALLY LEFT BLANK]
Page 4 of 7
.Executive Order11246—.Equalemployment 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: •i
'Part 1 --Nondiscrimination in. Government Employment
[Part I superseded by Executive Order 1 t478 of Aug. 8, 1969, 34 FR 12985, 3
CFR, 1966-1970 Comp., P. 803] • • •
Part II --Nondiscrimination in .Employment •by Government Contractors 'and
• Subcontractors . .•
Sub.part:A--Duties of the Secretary of Labor
. Sec. 201. The Secretary of Labor shall be responsible for•the administration and:
enforcement.ofParts 11 and 111 of this Order. The Secretary shall.adopt such rules
and regulations and issue such orders'as.are deemed necessary -and appropriate
to achieve thep.urposes'of Parts 11 :and 111 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 sof race, color, religion, sex, or national origin. The .
contractorwill 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 qualifiedapplicants 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 hasa, collective bargaining agreementor other contract or.
understanding, a notice., to be prov..ided 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; 1.965,: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 inpart 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, arid such other sanctions may be imposed and remedies invoked as
provided in Executive Order No. 11:246 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 orpurchase order as may be directed by the
• • Secretary of Labor as a means of enforcing such provisions including sanctions
for noncompliance: Provided, however, thafin the event the 'contractor becomes .
involved in, or is threatened with, litigation with a subcontractor or vendor as a'
• result ofsuch direction, the contractor may request the United States to enter into
such litigation to protect the interests of the United States."' - •
[Sec. 2Q2 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:ih 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
contain such information es to the practices, policies, programs, and employment
policies., .programs; and employmentstatistics 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
ofthis 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.bf his Compliance Report, a statement in -
writing, signed by an authorized officer oragenton behalf of any labor union or
any agency referring workers or providing or supervising apprenticeship or other
training, with which the bidder or prospective. contractordeals,,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 theunion, 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 securesuch 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 1.2086 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 comm.ercial supplies or
raw materials; (3) involving iess'than specified amounts of money or specified:f
• '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 tb 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, 1.978 Comp., p. 230] • •
•
•
• Sec. 206. (a) The Secretary of Labor .may investigate the employment practices
of any Government contractor or subcontractor to determine whether orhot the
contractual provisions'specified in Section 202 o.f this Order.have been violated.
Such investigation shall be conducted in accordance with the procedures
established by the Secretary of Labor: .S• •
(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 :F.R' 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, no. the Equal ErrmploymentOpportunity Commission, the
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:Goverriment designated by rule, regulation, br order of •
the Secretary, may hold such.hearings, public or private, as the Secretary may .
• deem advisable for compliance, enforcernent, 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 . .
recommending .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 .withoiut affording the contractor ari, opportunity ,
for a hearing. •
S.ubpartD--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 rnay:. -
. (1) Publish, -or cause toe 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 ofthe
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 ormaterial
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 offalse 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 -
.employm:ent 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 com.pliarice.• • .
approved by the Secretary of Labor. •
:(6) .Provide that anycontracting 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)-Purspant to.rules and regulations prescribed by.the Secretary of Labor, the
Secretary shall make reasonable efforts, within areasonable time limitation, to
secure compliance with the contract. provisions of this Order by methods bf .
conference, conciliation,, mediation, and persuasion before proceedings shall be
instituted under subsection (a)(2) of this Section,'or before a contract shall, be
cancelled or;terminated in whole or in part under subsection (a)(5) of'this.
Section. 0
•
[Sec. 209 amended by Executive Order 12086 of Oct. 5, 1978; 43 FR4650.1., 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 bythe 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 not 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 submit '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] 0 • •
• Subpart .E --Certificates of Merit •
Sec. 2.13. The Secretary of Labor may provide for issuance of a United States •
Government Certificate.of Merit to employers or Tabor 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 thejudgment 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.frorn any reporting requirements imposed
under or pursuant to this Order if such employer, labor unipn, 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 a ssjstance'.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 suchgrant, 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. 2301
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 II 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 anapplicant for Federal
assistance or, as determined by agency regulation; other program participant,
with respect to whom. an application for "any grant, contract, foan,yinsurance, 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 oftabor 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 ap"piicant'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 partthe 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 caseshall action' be taken with. respect to an applicant pursuant to
clause (T) or (2) of subsection (b) without notice and opportunity for hearing..
[Sec. 303 amended by Executive Order 12086 of Oct. 5, 1978, 43 F.R-46501, 3
CFR, 1978 Comp., pi 230] . •
Sec. 304... Any.executive department or agency which imposes by rule, •
regulation, or order requirements of nondiscrirrmination"in employment, other than
requirements imposed pursuant to this Order, may delegate to the Secretary of
ATTACHMENT C - TITLE VI / NON DISCRIMINATION PROGRAM
[PAGE INTENTIONALLY LEFT BLANK]
Page 5 of 7
•
CHARLIE CRIST
GOVERNOR
•'POLICY
Florida. Department of Transportation
605 Suwannee Street STEPHANIE C. KOPELOUSOS •
SECRETARY
Tallahassee:FL 32399-0450
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, excludedfrom 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 pglicy.as required by.23 Code of Federal Regulations (CFR) Part 200 and 49 -
CFR Part 21. .
Stephanie . Kopelousos
.. Secretary -
ATTACHMENT D - FHWA 1273- REOUIRED CONTRACT PROVISION FOR FEDERAL
AID CONTRACTS
[PAGE INTENTIONALLY LEFT BLANK]
Page 6 of 7
REQUIRED CONTRACT PROVISIONS
FEDERAL -AID CONSTRUCTION CONTRACTS
Page
I. General 1
• U. Nondiscrimination 1 -
III. Nonsegregated Facilities
W. Payment of Predetermined Minimum Wage
V: Statements and Payrolls
VI. Record of Materials, Supplies, and Labor,
VII. Subletting or Assigning the Contract
VIII. Safety: Accident Prevention
. IX. False Statements.Concerning Highway Projects
X, •Implementation of Clean Air Act and Federal
Water Pollution Control Act
XI. Certification Regarding Debarment, Suspension,
Ineligibility, and Voluntary Exclusion
XII. Certification Regarding Use of Contract Funds for
Lobbying
ATTACHMENTS
• Employment Preference for Appalachian Contracts
(included in Appalachian contracts only)
-related subcontracts of $10,000 or more.)
1. Equal EmploymentOpportunity: Equal employment opportu-
' 3 nity (EEO) requirements not to discriminate and to take affirmative
3. action to assure equal opportunity as set forth under laws, executive
5 orders, .rules, regulations (28 CFR 35, 29 CFR 1630 and 41 CFR 60)
5 , and orders of the Secretary of Labor as modified by the provisions
5 . prescribed herein, and imposed pursuant to 23 U.S.C. 140 shall
6 constitute the EEO and specific affirmative action standards for the
6 contractors project activities underthis contract. The Equal Opportu-
nity Construction Contract Specifications set forth under 41 CFR 60-
6 43 and the provisions of the American Disabilities Act of 1990 (42
U.S.C. 12101 et seg.) set forth under 28 CFR 35 and 29 CFR 1630
6 are incorporated by reference in this contract. In the execution.of this
contract, the contractor agrees to comply with the following minimum
8 specific requirement activities of EEO: '
-a. The contractor will work with the State highway agency
(SHA) and the Federal Government in carrying out EEO obligations
and in their review of his/her activities under the contract.
b. The contractor will accept as his operating policy the
fallowing statement:
•
"It is the' policy of this Company to assure that applicants are
employed, and that employees are treated during employment,
without regard to their race, religion, sex, color, national origin,
age or disability. Such action shall include: employment,
upgrading, demotion, or transfer, recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of
.compensation; and selection for training, including apprentice-
ship, preapprenticeshiri,'and/or on-the-job training."
2. EEO Officer: The contractor will designate and make known
to the SHA contracting officers an EEO Officer who Will have the
responsibility for and must be capable of effectively administering and
promoting an active contractor program of EEO and who must be
assigned adequate authority and responsibility to do so. •
3. Dissemination of Policy: All members of the contractor's staff
who are authorized to hire, supervise, promote, and discharge
employees, or who recommend such action, or who are substantially
involved in such action, will be made. fully cognizant of, and will
implement, the contractors EEO policy and contractual responsibili-
ties to provide EEO-ineach grade and classification of employment.
To ensure that the above agreement will be met, the following actions
will be taken as a minimum: .
a. Periodic meetings of supervisory and personnel office
employees will be conducted before the start of work and then not
less often than once every six months, at which time the contractor's
EEO policy and its implementation will be reviewed and explained.
The meetings will be conducted by the EEO Officer. -
- b. All new supervisory or personnel office employees will be
,given a thorough indoctrination by the EEO Officer, covenng all major
aspects of the contractor's :EEO obligations within thirty days
following their reporting for duty with the contractor. •
c. All personnel who are engaged in direct recruitment for the
project will be instructed by the EEO Officer in the contractors
procedures for locating and hiring minority group employees. .
d. Notices and posters setting forth the contractor's EEO policy
will be placed in areas readily accessible to employees, applicants for
employment and potential employees. •
e. The contractor's EEO policy and the procedures.to'imple-
ment such policy will be brought to the attention of employees by
means of meetings, employee handbooks, or other appropriate
means.
I. GENERAL
•
1. These contract provisions shall apply to all work performed on
the contract by the contractor's own organization and with. the
assistance of workers under the contractor's immediate superinten-
dence and to all work performed on the contract by piecework, station
work, br by subcontract.
. 2. Except as otherwise provided for in each section, the contractor
shall insert in each. subcontract all of the stipulations contained in
these Required Contract Provisions, and further require their
. inclusion in any lower tier subcontract or purchase order thatmay.in.
turn be. made. The Required Contract Provisions shall not be
. incorporated by reference in any case. The prime contractor shall be
responsible for compliance by any subcontractor or lower tier
subcontractor with these Required Contract Provisions.
3. A breach of any of the stipulations contained in these Required
Contract Provisions shall be sufficient grounds for termination of the
contract.
• 4. A breach of the following clauses of the Required Contract
Provisions may also be grounds for debarment as provided in 29
CFR 5.12:- •
Section I, paragraph 2;.
Section IV, paragraphs 1, 2, 3, 4, and 7;
. Section V, paragraphs 1 and 2a through 2g.
5. Disputes arising out of the labor standards provisions of Section
IV (except paragraph 5) and Section V of these Required Contract
Provisions shall not be subject to the general disputes clause of this
contract. Such disputes shall be resolved in accordance with the
procedures of the U.S. Department of Labor (DOL) as set forth in 29
CFR 5, 6, and 7. Disputes within the meaning of this clause include
• disputes between the contractor (or any of its subcontractors) and the
contracting agency, the DOL, or the contractor's employees or their
representatives, •-
6. Selection of Labor. During the performance of this contract,
• the contractor shall not: •
. a, discriminate.against laborfrom any other State, possession,.
or territory of the United States (except for employment preference for
• Appalachian contracts, when applicable, as specified in Attachment
;A),or .
• b. employ convict labor for any purpose within the limits of the
project unless it is labor performed by convicts who are on parole,
supervised release, or probation..
11. NONDISCRIMINATION '
(Applicable -to all Federal -aid construction contracts and to all
• Form FHWA-1273 (Rev. 3-94)
4. Recruitment: When advertising for employees, the contractor
will include in all advertisements for employees the notation: "An
Equal Opportunity Employer." All such advertisements will be placed
•
•
Page 1
• in publications having a.large circulation among minority groups in the
area from which the project work force would normally be derived.
a. The contractor will, unless precluded by a valid bargaining
agreement, conduct systematic and direct recruitment through public
and•private employee referral sources likely to yield qualified minority
• • group applicants. To meet. this requirement, the contractor will
identify sources of potential minority group employees, and establish
with .such identified sources procedures whereby minority group
applicants may be referred to the contractor for employment consider-
ation.
onsideration.
b. In the event the contractor has a valid bargaining agreement
• . providing for exclusive hiring hall referrals, he is expected to observe
..the provisions of that agreement to the extent that the system permits
the contractor's compliance with EEO contract provisions. (The DOL
has held .that where implementation of such agreements have the
effect of discriminating against minorities or women, or obligates the
contractor to do the same, such implementation violates Executive
Order 11246, as.amended.)
c. -The contractor will encourage his present employees to refer
minority group applicants for employment. 'Information and proce-
dures with regard to referring minority group .applicants will be
discussed with employees.
5. Personnel Actions: Wages, working conditions, and employee
benefits shall be established and administered, and personnel actions
of -every type, including hiring, upgrading, promotion, transfer,
demotion, layoff, and termination, shall be taken without regard to
race, color, religion, sex, national origin, •age or disability. .The
following procedures shall be followed:
a. The contractor will conduct periodic inspections of project
sites to insure that working conditions and employee facilities do not
indicate discriminatory treatment of project site personnel.
•
b. The contractor will periodically evaluate the spread of wages
paid within each classification to determine any evidence of discrimi-
natory.wage practices.
c. • The contractor will periodically review selected personnel
actions in depth to determine whether there is evidence of discrimina-
tion, Where evidence is found, the contractor will promptly lake
corrective action. If the review indicates that the discrimination may
-- • extend beyond' the actions reviewed, such corrective action shall
include all affected persons.
•
d. The contractor will promptly investigate all complaints. of
. alleged discrimination made to the contractor in connection with his
obligations under this contract, will attempt to resolve such.com-
plaints, and will take appropriate corrective action within a reasonable
- time, If the investigation indicates that the discrimination may affect
• persons other than the complainant, such corrective action shall
include such other persons. Upon completion of -each investigation,
the contractor will inform every complainant of all of his avenues of
appeal.
6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and
increasing the skills of minority group and.women employees, and
• applicants for employment.
b. Consistent with.the contractor's work force requirements and
as permissible under Federal and State regulations, the contractor
shall make full use of training programs, i.e., apprenticeship, and
• on-the-job training programs for the geographical area of contract
performance. Where feasible, 25 percent of apprentices or trainees
in each occupation shall be in their first year of apprenticeship or
training. In the event a special provision for training is provided under
this contract, this subparagraph will be superseded as Indicated in the
special provision. •
c. The contractor will advise employees and applicants for
employment of available training programs and entrance require-
ments for each:
d. The contractor will periodically review the training and
• promotion potential of minority group and women employees and will
encourage eligible employees to apply for such training and promo-
tion.
•
7. Unions: if the contractor relies in whole or in part upon unions
as a source ofempioyees, the contractor will use his/her best efforts
to obtain the cooperation of such unions to increase opportunities for
Page 2
minority groups and women within the unions, and to effect referrals
by such unions of minority and female employees. Actions by the •
contractor either directly or through a contractor's assoclatlon acting..
as agent will include the procedures set forth below:
a. The contractor will use best efforts to develop, in coopera-
tion with the unions, joint training programs aimed toward qualifying
more minority group members and.women for membership in the
unions and increasing the skills of minority group employees and
women so that they may qualify for higher paying employment.
b. The contractor will use best efforts to Incorporate an EEO
clause Into each union agreement to the end that such union will be
contractually bound to -refer applicants without regard to their race,
color, religion, sex, national origin, age or disability.
c. The contractor is to obtain information as to the referral
practices and policies of the labor union except that to the extent
• such information is within the exclusive possession of the labor union
and such labor union refuses to furnish such information to the
contractor, the contractor shall so certify to the SHA and shall set
forth what efforts have been made to obtain such information.
•
d. In the event the union Is unable to provide the contractor
with a reasonable now of minority and women referrals within the time
limit set forth in the collective bargaining agreement, the contractor
will, through independent recruitment efforts, fill the employment
vacancies without regard to race, color, religion, sex, national origin,
age or disability; •making full efforts to obtain qualified and/or
qualifiable minority group persons and women. (The DOL has held
that It shall be no excuse that the union with which the contractor has
a collective bargaining agreement providing for exclusive referral
failed to refer minority employees.) In the event the union referral
practice prevents the contractor from meeting the obligations
pursuant to Executive Order 11246, as amended, and these special
provisions, such contractor shall immediately notify the SHA. .
•
8. Selection of S ubcontractors, Procurement of Materials and
Leasing of Equipment: The contractor shall net discriminate on the
grounds of race, color, religion, sex, national origin, age or disability
in the selection and retention of subcontractors, including procure-
ment of materials and leases of equipment.
a. The contractor shall notify all potential subcontractors and
suppliers of his/her EEO obligations under this contract.
b. Disadvantaged business enterprises (DBE), as defined in49
CFR 23, shall have equal opportunity to compete for and perform
subcontracts which the contractor enters into pursuant to this
contract. The contractor will use his best efforts to solicit bids from
and to utilize DBE subcontractors or subcontractors with meaningful
minority group and female representation among their employees.
Contractors shall obtain lists of DBE construction firms from SI -IA.
personnel.
c. The contractor will use his best efforts to ensure subcontrac-
tor compliance with their EEO obligations.
9. Records.and Reports: The contractor shall keep such records
as necessary to document compliance with the EEO requirements.
Such records shall be retained for a period of three years following
completion of the contract work and shall beavaiiable at reasonable
times and .places for inspection by authorized representatives of the
SHA and the FHWA.
a. The records kept by the contractor shall document the
following:
•
(1) The number of minority and non -minority group
members and women employed in each work classification on the
project;
(2) The progress and efforts being made in cooperation
with unions, when applicable, to increase employment opportunities •
for minorities and women; .
(3) The progress and efforts being made in locating, hiring,
training, qualifying. and upgrading minority and female employees;
and
(4) The progress and efforts being made in securing the
services of DBE subcontractors or subcontractors with meaningful
minority and female representation among their employees.
b. The contractors will submit an' annual report to the SHA
Form FHWA-1273 (Rev. 3-94)
each July for the duration of the project, indicating the number of
minority, women, and non -minority group employees currently
engaged In each work classification required by the contract work.
This information Is to be reported on Form FHWA-1391. If an -the
job training is being required by special provision, the contractor will
be required to collect and report training data.
• III. NONSEGREGATED FACILITIES
(Applicable to all Federal -aid construction contracts and to all
related subcontracts of $1Q000 or more.) •
a. •By submission of this bid, the execution of this contract or
subcontract, or the consummation of this material supply agreement
or.purchase order, as appropriate, the bidder, Federal -aid construc-
tion contractor, subcontractor, material supplier, or vendor, as •
appropriate, certifies that the firm does not maintain or provide for its
employees any segregated facilities at any of its establishments, and
that the firm does not permit its employees to perform their services
at any location, under its control, where' segregated facilities are
maintained. The firm agrees•that a breach of this certification is a
violation of the EEO provisions of this contract. The firm further
certifies that no employee will be denied access to adequate facilities
on the basis of sex or disability.
b. As used in this certification, the term "segregated facilities"
means any wafting rooms, work areas, restrooms and washrooms,
restaurants and other eating areas, timeclocks, locker rooms, and.
other storage or .dressing areas, parking lots, drinking fountains,
recreation or entertainment areas, transportation, and housing
facilities provided for employees which are• segregated by explicit
• directive, or are, .in fact, segregated on the basis of race, color, •
religion,. national origin, age or disability, because of habit,• local
custom, or otherwise. The only exception will be for the disabled
when the demands for accessibility override (e.g. disabled parking).
c. The contractor agrees that it has obtained or will obtain
identical Certification from proposed subcontractors or material
• suppliers prior to award of subcontracts or consummation of material
• supply. agreements of $10,000 or more and that it will retain such
certifications in its files.. ,
IV. PAYMENT OF PREDETERMINED MINIMUM WAGE
(Applicable to all Federal -aid construction contracts exceeding
$2,000 and.to all related subcontracts, except for projects located on
roadways classified as local roads or rural minor collectors, which are
exempt)
1. General: •
a. All mechanics and laborers employed or working upon the
.site of the work will be paid unconditionally and not less often than
once a .week and without subsequent deduction or rebate, on' any
account [except such payroll deductions as are permitted by .
regulations (29 CFR 3) issued by the Secretary of Labor under the
Copeland Act (40 U.S.C. 276c)] the full amounts of wages and bona
fide fringe benefits (or cash equivalents thereof) due at time of
payment The payment shall be computed at wage rates not less
than those contained in the wage. determination of the Secretary of
Labor (hereinafter "the wage determinatioh") which is attached hereto
and made. a part hereof, regardless of any contractual relationship
which may be alleged to exist between the contractor or its subcon-
tractors and such laborers and mechanics. The wage determination
(including any additional classifications and wage rates conformed
under paragraph 2 of this Section IV and the DOL poster (WH -1321)
or Form FHWA-1495) shall be posted at alt -times by the contractor
and Its subcontractors at the site of the work in a prominent and
accessible place where it can be easily seen by the workers. For the
. purpose of this Section, contributions made or costs reasonably
anticipated for bona fide fringe benefits under Section 1(b)(2) of the
Davis -Bacon Act (40 U.S.C. 276a) on behalf of laborers or mechanics
are considered wages paid to such laborers or mechanics, subject to
• the provisions of Section IV, paragraph 3, hereof. Also, for the
purpose of this Section, regular contributions made or costs incurred
for more than a weekly period (but not less often than quarterly)
under plans, funds, or programs, which cover the particular weekly
period, are deemed to be constructively made or incurred during such
weekly period. Such laborers and mechanics shall be paid the
appropriate wage rate and fringe benefits on thewage determination
for the classification of work actually performed, without regard to
•skill, except as provided in paragraphs 4 and 5 of this Section IV.
. Form FHWA-1273 (Rev. 3-94)
b. Laborers or mechanics performing work in more than one
classification may be compensated at the rate specified for each
classification for the time actually worked therein,. provided, that the
employer's payroll records accurately set forth the.time spent in each
classification in which work is performed.
c. All rulings and interpretations of the Davis -Bacon Act and
related acts contained in 29 CFR 1, 3, and 5 are herein incorporated
by reference in this contract.
2. Classification:.
a. The SHA contracting officer shall require that any class of
laborers or mechanics. employed under the contract, which isnot
listed in the wage determination, shall be classified in conformance
with the wage determination.
b. The contracting officer shall approve an additional classifica-
tion, wage rate and fringe benefits only when the following criteria
have been met:
•
(1) the work to be performed by the additional classifica-
tion requested is not performed by a classification in • the wage
determination;
•
(2) the additional classification is utilized In the area by the
construction industry;
. (3) the proposed wage rate, including any bona fide fringe
benefits, bears a reasonable relationship to the wage rates contained
in the wage determination; and • .
(4) with respect to helpers, when such a classification
prevails in the area in which the work is performed.
c. If the contractor or subcontractors, as appropriate, the
laborers and mechanics (if known) to be employed in the additional
classification or their representatives, and the contracting officer
agree on the classification and wage rate (including the amount
designated for fringe benefits where appropriate); a report of the
action taken shall be sent by the contracting officer to the DOL, .
Administrator of the wageandHour.Division, Employment Standards .
Administration, Washington, D.C. 20210. The Wage and Hour
Administrator, or an authorized representative, will approve, modify,
or disapprove.every additional classification action.wfthin 30 days of
receipt and so advise the contracting officer or will notify the contract-
ing officer within the 30 -day period that additional time is necessary.
d. In the event the contractor or subcontractors, as appropri-
ate, the laborers' or mechanics to be employed in the additional
classification or their representatives, and the contracting officer do
not agree on the proposed classification and wage rate (including the
amount designated for fringe benefits, where appropriate), the
contracting officer shall refer the questions, including the views of all
interested parties and the recommendation of the contracting officer, •
to the Wage and Hour Administrator for determination. Said
Administrator, or an authorized representative, will issue a determina-
tion within 30 days of receipt and so advise the contracting officer or
will notify the contracting officer within the 30 -day period. that .
• additional time is necessary .
e. The wage rate (including fringe benefits where appropriate)
determined.pursuant to paragraph 2c or 2d of this Section IV shall be
paid to allworkers performing work in the•additional classification
from the•first day on which work is performed in the classification. • •
3. Payment of Fringe Benefits: . •
. a. Wheneverthe minimum wage rate prescribed In the contract
for a class of•laborers or.mechanics includes a fringe benefit which
is not expressed as an hourly rate, the contractor or subcontractors,
as appropriate,. shall either pay the benefit as stated in the wage
determination or shall pay another bona fide fringe benefit or .an
hourly case equivalent thereof.
b. If the contractor or subcontractor, as appropriate, does not
make payments to a trustee or other third person, he/she may .
consider as a part of the wages of any laborer or mechanic the
amount of any costs reasonably anticipated in providing bona fide
• fringe benefits under.a plan or program, provided, that the Secretary
of Labor has found, upon the written request of the contractor, that
the applicable standards of the Davis -Bacon Act have been met. The
Secretary of Labor may require the contractor to set aside in a
separate account assets for the meeting of obligations under the plan
or.program.
Page 3
4. Apprentices and Trainees ,(Programs of the U.S. DOL) and
Helpers:•
'
a. Apprentices:
•
(1) Apprentices will be permitted•to work at less than the
predetermined rate for the work they, performed when they are
•employed pursuant to and' individually registered in a bona fide
apprenticeship program registered with the DOL, Employment and
Training Administration, Bureau of Apprenticeship and Training, or
with a State apprenticeship agency recognized by the Bureau, or ifa
.person is employed in his/her first 90 days of probationary employ-
ment as an apprentice In such an apprenticeship program, who is not
individually registered in the program, but who has been certified by
. the Bureau of Apprenticeship and Training or a State apprenticeship
agency (where appropriate) to be eligible for probationary employ-
•ment as an apprentice.
•(2) The allowable ratio of apprentices to journeyman -level
employees on the Job site in any craft classification shall not be
• greater than the ratio permitted to the contractor as to the entire work
force under the registered program. Any employee listed on a payroll
at an apprentice wage rate, who is not registered or otherwise
employed as stated above, shall be paid not less than the applicable
• wage rate listed in the wage .determination for the classification of
: work actually performed. in addition, any apprentice performing work..
. on the job site in excess of the ratio permitted under the registered
program shall be paid not less than the applicable wage rate on the
wage determination for the work actually performed. Where a
-contractor or subcontractor is performing construction on a project in
a locality other than that in which its program is registered, the ratios
and wage rates (expressed in percentages of°the joumeyman-level
hourly rate) specified in the contractor's or subcontractor's registered '
program shall be observed.
• (3) Every apprentice must be paid at not less than the•rate
specified in the .registered program for the apprentice's level of
. progress, expressed as a.percentage of the joumeyman-level hourly
rate specified. in the applicable wage" determination. Apprentices
• shall be paid fringe benefits in accordance with the provisions of the
. • apprenticeship program. If the apprenticeship program does not
. . specify fringe benefits, apprentices must be paid the full amount of
fringe benefits listed on the wage determination for the applicable
.classification._ If the Administrator for the Wage and Hour Division
:determines that. a different practice prevails for the 'applicable
. apprentice classification, fringes shall be paid in accordance with that
determination. •
(4) In the event the Bureau•of Apprenticeship and Training,
. - or a 'State apprenticeship agency recognized. by the Bureau, with-
draws approval of an apprenticeship, program, the contractor -or
.subcontractorwillno longer be permitted to utilize apprentices at less
than' the -applicable predetermined rate for the comparable work
.performed, by regular employees until an acceptable program is
approved. .
b. Trainees:
• (1) 'Except as provided in 29 CFR 5.16, trainees will not be
permitted to work at less .than the predetermined. rate for the work
performed unless they are employed pursuant to and individually
registered ina program which has receivedpriorapproval, .evidenced
by formal certification by the DOL, Employment and Training
Administration. •
•
(2) The ratio of trainees to journeyman -level employees.on
the job site shall not be. greater than permitted under' the plan
approved by the Employment and Training Administration. Any
employee listed on'the payroll at a trainee rate who is not registered
and•participatino in.a training plan. approved by the Employment and
Training' Administration. shall be paid not less than the applicable
wage rate on the•wage determination for the classification of work
• actually performed. In addition, any trainee performing work on the
job site. in excess of the ratio permitted under the registered program
shall be paid.nol less than the applicable wage rate on the wage
determination for the work actually performed.
•
(3) Every trainee must • be paid at not less than the rate
specified in the approved program for his/her level of progress,
expressed as a percentage of the journeyman -level hourly rate
specified in the applicable wage•determination. Trainees shall be.
paid fringe benefits in accordance with the provisions of the trainee-
program.
raineeprogram. • If the trainee program does not mention. fringe benefits,
trainees shall be paid the full amount of fringe benefits listed on the
wage determination unless the Administrator of the Wage and Hour
Page 4
Division determines that there is an. apprenticeship program associ-
ated with the corresponding•journeyman-levet wage rate on the wage .
determination which provides for less than full fringe benefits for
apprentices, in which case such trainees shall receive the• same
•.fringebeneftts as apprentices. '
. (4) In the event•the Employment and Training Administra-
tion withdraws approval of a training program, the contractor or
subcontractor will no longer be permitted. to utilize trainees at Tess
than the applicable predetermined rate for the work performed. until •
an acceptable program is approved.
c. Helpers: ,
Helpers will be' permitted to work an a project if the.helper
classification is' specified and defined on the applicable wage
determination or is approved pursuant to the conformance procedure
set forth in Section iV.2. Any worker listed on a payroll at a helper
wage rate, who •is not a helper under a approved definition, shall be •
paid not•less than the applicable wage rate on the wage determina-
tion for the classification of work actually performed. •
5. Apprentices and Trainees (Programs of.the U.S. DOT): •
Apprentices and trainees working under apprenticeship and skill . • • • .
'training programs which 'have .been certified by the Secretary of
Transportation as promoting EEO in connection with Federal -aid
highway construction programs are not subject to the requirements
of paragraph 4 of this Section IV. The straight time hourly wage rates
for apprentices and trainees under such -programs will be established
by the particular programs. The ratio of apprentices and trainees'to
joumeymenshail•not be greater than permitted by the terms of•the •
particular program.
6. Withholding: •
The SHA shall upon its own action or upon written request of
an authorized •representative of the DOL withhold, or cause to be
withheld, from the contractor or subcontractor under this contract or
any •other'Federal contract with the •same prime contractor, .or 'any
other:Federally-assisted contract subject to Davis -Bacon prevailing .
wage requirements which is held by the same prime contractor, as
much of the accrued payments or advances as may be considered
necessary to pay laborers• and mechanics, .including apprentices,
" trainees; andhetpers, employed bythe contractor or any subcontrac-
tor the full amount of wages required by thecontract. In the event,of -
failure to pay 'any laborer, or mechanic, including any apprentice,
trainee, or helper, employed or working oh the site of the work, all'or
part of the wages required bythe contract, the SHA contracting officer
may, after written notice to the contractor, take such action as may be
necessary to cause the suspension of any further payment, advance,
or guarantee of.funds'until such violations have•ceased.
7. Overtime Requirements:
No contractor or subcontractor contracting for any part of the
contract work which may require or involve the employment of
laborers, mechanics, watchmen, or guards "(including apprentices,
trainees, and helpers described in paragraphs 4 and 5 above) shall
require or permit any laborer, mechanic, watchman, or guard in. any,
workweek in which he/she is employed on such work, to work in
excess of 40 hours In such workweek unless such laborer, mechanic,
watchman, or guard receives compensation at a rate not less than
one -and -one-half times his/her basic•rate of pay for all hours worked
in excess of 40 hours in such workweek..
8. Violation: -
. Liability forUnpaid Wages; LiquidatedDamages: In the event
of any violation of the clause set forth in paragraph 7 above; the
contractor and any subcontractor responsible thereof shall be liable
to the affected employee for his/her unpaid wages. In addition, such
contractor and subcontractor shall be liable to the United States (in:
the case of work done under contract for the District of Columbia or
a territory, to such District or to such territory) for liquidated damages.
Such liquidated damages shall be computed with respect to each
individual laborer, mechanic, watchman; or guard employed in
violation of the clause set forth'in paragraph 7, in the sum of $10 for
each calendar day on which such employee was required orpermit-
ted to work in excess of the standard work week of 40 hours without
payment of the overtime wages required by the clause set' forth in
paragraph 7.•
• -
9: Withholding for Unpaid Wages and•Liquidated Damages:
•
Form FHWA-1273 (Rev. 3-94)
• The SHA shall upon its own action or upon written request of any
authorized representative of the DOL withhold, or cause to be
withheld, from any monies payable on account of Work performed by
the contractor or subcontractor under.any such contract or any other
Federal contract with the same •prime contractor, or any other
Federally -assisted contract subject to the Contract Work Hours and
Safety Standards Act, which is held. by .the same: prime contractor,
such sums as may be determined to be necessary to satisfy any
liabilities of.such contractor or subcontractor for unpaid wages and
liquidated damages as provided in the clause set forth in paragraph
8 above.•
.
V. STATEMENTS AND PAYROLLS ••
(Applicable to all Federal -aid construction contracts .exceeding
$2,000 and to all related subcontracts, except for projects located on
roadways classified as local roads or rural collectors, which are •
eiempt.)
1. Compliance with Copeland Regulations (29 CFR 3): -
• The contractor shall comply with the Copeland Regulations of the
• Secretary of Labor which are herelh incorporated -by reference.
•
• 2.. -Payrolls and'Payroli Records:
a. Payrolls •and basic records relating. thereto shall be
maintained by the contractor and- each subcontractor during .the
'course of the. work and preserved for a period, of 3 years from the
date of completion of the contract for all laborers, mechanics,
apprentices, trainees, watchmen, helpers, and guards working at the •
site of the work.
•
.b. • The payroll records shall contain the name, social security
• number, and address of each such employee; his or her correct•.
classification; hourly rates of wages paid (including rates of contribu-
- tions or costs anticipated for bona fide fringe benefits or cash
equivalent thereof the types described in Section 1(b)(2)(B) of the
• Davis Bacon Act); daily and weekly number of hours worked;
deductions made; and actual wages paid. •In addition, for Appala=
chian contracts, the payroll records shall contain a, notation indicating
whether the employee does, or does not, normally reside in the labor
area as defined in Attachment A, paragraph 1. Whenever the .
Secretary of Labor, pursuant to Section IV, paragraph 36, has found
- that the wages of.any taborer or.mechanic include the amount of any .
- costs reasonabiy anticipated in providing benefits under a plan or
. program described•in.Section 1(b)(2)(B) of the=Davis Bacon Act, the' .
contractor and each subcontractor shall maintain records which show
that the commitment to provide such benefits is enforceable, that the
plan or program is financially responsible, that the .plan orprogram
• has been communicated in writing to the laborers or mechanics
• affected, and show the cost anticipated:or the'actual cost incurred In .
providing benefits: Contractors or. subcontractors employing .
... apprentices or trainees under approved programs shall maintain
written. evidence of -the registration of apprentices and trainees, and
ratios and wage rates prescribed in the applicable programs.
c. Each contractor and subcontractor shall furnish, each week
' in .which any contract work is performed, to the SHA resident •
engineer apayroll of wages paid each of its employees (including
apprentices; trainees, and helpers, described in Section IV, para-
graphs 4 and 5, and watchmen and guards engaged on work -during
the preceding weekly payroll period). The.payroll submitted shall set •
out accurately and completely all of the information required to be
maintained under paragraph 2b of. this Section V. This information.
may be submitted in any form desired. •Optional Form WH -347 is
;available . for this -purpose and may be purchased from the Superin-
tendent of Documents (Federal stock number 029-005-0014-1), U.S. •
Government Printing Office, Washington, D.C. 20402. The prime ,
contractor is responsible for the submission of copies of payrolls by
all subcontractors.
•
d. Each payroll submitted shall be accompanied by a "State-
. ment of Compliance," signed •by the contractor or subcontractor or .
his/her agent who pays or.supervises'the payment of the persons '
employed under the contract and shall certify the following:
(1) that the payroll for the .payroll. period contains the- -
information required to be maintained under paragraph 2b of this •
SectionV and that such information is correct and complete;
• (2) that such.labdrer ormechanic (including -each helper, --
.
apprentice, and trainee) employed on the contract during the payroll
period has been paid the full weekly wages eamed, without rebate,
either directly or indirectly, and that no deductions have been made
Form FHWA-1273 (Rev. 3-94)
either directly or indirectly. from the full wages earned, other than
permissible deductions as set. forth in the Regulations, 29 CFR 3;
•- (3) that each laborer or mechanic has been paid •
not less •
that the applicable wage rate and fringe benefits or cash equivalent . •
• for the classification of worked performed, 'as specified in the
applicable wage determination -incorporated into the contract, ' ,
• • e. The weekly submission of a properly executed certification ,
set forth on the reverse side of Optional Form WH -347 shall satisfy
the requirement for submission. of the "Statement of Compliance"
required by paragraph 2d of this Section V.
f. The falsification of any. of the above certifications may
subject the contractor to civil or criminal prosecution under 18 U.S.C.
1001 and 31 U.S.C. 231. •
g. The contractor or subcontractor shall make the records
required under paragraph' 2b of this. Section V available for inspec-
tion, copying, or transcription by authorized representatives of the
SHA, the FHWA, or the DOL, and shall permit such representatives
to interview, employees during working hours on the job. If, the
contractor or subcontractor fails to submit the required records -Cr to,
make them available, the SHA, the FHWA, the•DOL, or all may, after •
written notice to the contractor, sponsor, applicant, or owner, take •
such actions as may be necessary to cause the suspension of any
further .payment, advance, or guarantee of funds. Furthermore,
failure to submit the required records upon•request or to make such •
records.available may be grourids for debarment action pursuant to ,
29 CFR 5.12.•
VI., RECORD OF MATERIALS, SUPPUES, AND LABOR .
1.. Oh all Federal -aid contracts on the National Highway System;
except those which provide solely for the installation of protective
devices at railroad grade crossings, those which are constructed on
a force account or direct labor basis, highwaybeautification contracts;
and contracts for which the total final construction cost for roadway
and bridge is less than $1,000,000 (23 CFR 635) the contractor shad:
a. Become familiar with the list of .specific• materials • and .
supplies contained in Form FHWA-47, "Statement of Materials. and
.Labor Used byContractor of•Highway Construction Involving Federal
Funds," prior to -the commencement of work under this contract.
b. Maintain a record of the total cost of all, materials; and
supplies•purchased for and incorporated in the work, and also of the
quantities of those specifrc.materials and supplies listed on Form
FHWA-47, and in the units shown on Form FHWA-47.
c. Furnish, upon the completion of the contract, to the SHA
resident engineer on Form FHWA-47 together with the data required •
..in. paragraph 1b relative to materials and supplies, a final labor
summary of all contract work indicating the total hours worked and
the total amount earned..
• 2. At the prime contractor's:option, either a•single report covering
all contract work or separate'reports for the contractor and for each
subcontract shall be submitted. •
VIL SUBLETTING OR ASSIGNING THE CONTRACT
. 1. The contractor shall perform with Its own organization contract
work amounting to•not less than 30 percent (or a greater percentage
if specified elsewhere in the contract) of the total original contract
price, excluding, any specialty items designated by the State.
Specialty items may be performed by subcontract and the amount of
any such specialty items performed may' be deducted from the total
original contract price before computing the amount of work required
to be performed by the contractor's own organization (23.CFR 635). •
a. "Its own organization" shall be construed to include only •
workers employed and paid directly by•the prime contractor and
equipment owned or rented by.the prime contractor, with or without
operators. Such term does not•include employees or equipment of
•
Page 5
a subcontractor, assignee, or agent of the prime contractor.
•
b. "Specialty Items" shall be construed to be limited to work
that•requires highly specialized knowledge, abilities, or equipment.not
- ordinarily available in the type of contracting organizations qualified
.• and expected to bid on the contract as a whole and In general are to
• • be limited to minor components of the overall contract.
• 2. The contract amount upon which the requirements set forth iri
'paragraph 1 of -Section VII is computed includes the cost of material •
and manufactured products which are to be purchased or produced
by the contractor under the contract provisions.
3. The contractor shall furnish (a) a competent superintendent or
supervisor who is employed by the firm, has full authority to direct
performance of the work in accordance with the contract require-
• ments, and Is in charge of all construction operations (regardless of
. who performs the work) and (b) such other of its own organizational
resources (supervision, management, and. engineering services) as
the SHA.contracting officer determines is necessary to assure the
performance of the contract.
4. No pPortion of the contract shall be sublet, assigned -or otherwise
disposed of except with the written consent of the SHA contracting
officer, or authorized- representative, and such consent when given
shall notbe construed to relieve the contractor of any responsibility
for the fulfillment of the -contract. Written consent will be given only
after the SHA has assured that each subcontract is evidenced in
writing and that It contains all pertinent provisions and requirements
of the prime contract.
VIII. SAFETY: ACCIDENT PREVENTION
• . 1. In the performance of this contract the contractor shall comply
With all applicable Federal, State, and local laws governing safety,
health, and sanitation (23 CFR 635). The contractor shall provide all
safeguards, safety.devices and protective equipment and take any
other needed actions as it determines, or as the. SHA contracting
officer may determine, to be reasonably necessary to protect the life
. and health of employees on the job.and the safety'of the public and
to protect property in connection with the performance of the work
,covered by the contract.
2. it is a condition of. this contract, and shall be made a condition
of each subcontract, which the contractor enters into pursuant to this
contract, that the contractor and any subcontractor shall not permit
any employee, in performance of the contract, to work in surround-
ings or under.conditions which are unsanitary, hazardous or danger=
.ous to his/her health or safety, as determined under construction
safety and health standards (29 CFR 1926) promulgated by the
• Secretary of Labor, in accordance with Section 107 of the Contract
Work -Hours and Safety Standards Act (40 U.S.C. 333).
3. Pursuant to 29 CFR 1926.3, -it is a condition of this contract that
'the Secretary of Labor or authorized representative thereof, shall
' have right of entry to any site of contract performance to inspect or
investigate the matter of compliance with the construction safety and
health standards and to carry out the duties of the Secretary under
Section 107- of the Contract Work Hours and Safety Standards Act
(40 U.S.C. 333). . •
•
IX. FALSE -STATEMENTS CONCERNING HIGHWAY PROJECTS
In order to assure high quality and durable construction in confor-
mity with approved plans and specifications and a high degree of
reliability on statements and representations made by engineers,
contractors, suppliers, and workers on Federal -aid highway projects,
-it is essential that all personsconcemed-with the project perform their
functions as carefully,'thoroughly, and honestly as possible. Willful
• falsification, distortion, or misrepresentation with respect to any facts
related to the project is .a violation of Federal law. To prevent any
'misunderstanding regarding the seriousness of these and similar
acts, the following notice shall -be posted on each Federal -aid
. highway project (23 CFR 635) in one or more places where It is
readily available to all persons concerned with the project:
NOTICE TO ALL PERSONNEL ENGAGED ON FEDERAL -AID
' HIGHWAY PROJECTS
18 U.S.C. 1020 reads as follows:
Whoever, being an officer, agent,- or employee of the United- •
States, or of any State or Territory, or whoever, whether a person,
association, firm, or corporation, knowingly makes any false state-
ment, false representation, or false report as to the character, quality,
Page 6
'quantity, 'or cost of the material used or to be used, or the quantity or
quality of the work performed or to be performed, or the cost thereof
in 'connection with the submission of plans, maps, specifications,
contracts, or costs of construction on any highway or related project
submitted for approval to the Secretary of Transportation; or •
Whoever knowingly makes any false statement, false representa•
-
tion, false•report or false claim with respect to the character, -quality,
quantity, or cost of -any work 'performed or to be performed, or .
materials furnished or to be furnished, in connection with the
construction of any highway or related project approved by the .'
• Secretary of Transportation; or' .
Whoeverknowingiymakes anyfalse statement or false representa-.
tion as to material fact' in _any statement, certificate, or report
submitted pursuant to provisions of the Federal -aid Roads Act •
approved July 1, 1916, (39 Stat. 355), as amended and supple-
mented; ,
•
Shall be fined not more that $10,000 or imprisoned not more ,than
5 years or both." . . •
•
K.. IMPLEMENTATION OF CLEAN AiR ACT AND FEDERAL .
WATER POLLUTION CONTROL ACT •
(Applicable to alt Federal -aid construction contracts and to.alt related
subcontracts of $100,000 or more.) •
By submission of this -bid or the •execution of this contract, or
subcontract, -as appropriate, the bidder, Federal -aid construction
contractor, or subcontractor, as appropriate, wilt be deemed to have
stipulated as follows:
•
1. 'That any facility that is or will be utilized.in the performance of this
contract, unless such contract is exempt under the Clean Air Act, as
amended (42 U.S.C. 1857 et seq. as amended by Pub.L. 91-604), .
and -under the Federal Water Pollution Control Act, as amended (33
U.S.C:1251 et s�ce :, as amended by Pub.L. 92-500), Executive Order
. 11738, and regulations in impiernentationthereof (40 CFR 15) is not
listed, on the date .of contract award, on the U.S. Environmental
Protection Agency (EPA) List of Violating Facilities pursuant to 40
CFR.15.20. • ,
•
2. That the firm agrees to comply and remain in compliance with -alt
the requirements of Section 114 of the Clean Air Act and Section 308
of the Federal Water Pollution Control Act and all regulations- and
guidelines listed thereunder. - .
•
3. That' the firm shall promptly notify the SHA of the receipt bf any
communication from the Director: Office bf Federal Activities, EPA,
indicating that a facility that is or will -be -utilized for the contract is
under consideration to be listed on the'EPA List of Violating Facilities:
4. That the. fine agrees to' include or cause to be -included the
requirements of paragraph 1 .through 4 of this Section X in every
nonexempt subcontract, and further agrees to take -such action as the
• government may direct as a means of enforcing such requirements.
XI, CERTIFICATION•REGARDINGDEBARMENT, SUSPENSION,
INELIGIBILITY AND VOLUNTARY EXCLUSION
1. Instructions for Certification - PrimaryCovered Transac-
tions: •
(Applicable'toalIFederal-aid contracts - 49 CFR 29) .
a. By signing and submitting this proposal, the prospective .
primary participant is providing the certification set out below. ,
• b. The inability of a person to provide the certification set out
below will -not necessarily result in denial of participation in this
covered transaction. The, prospective participant shall submit an
explanation of why It cannot provide the certification set out-betow.
The certification or explanation will be considered in connection with
the department or agency's determination whether to enter into thls
transaction. However, failure of the prospective primary participant
to furnish .a certification or an explanation shall disqualify such a
person from :participation in this transaction.
c. The certification in this clause is a material representation
of fact upon' which reliance was placed when the department or
agency determined -to enter into this -transaction. If it is later deter- -
mined that the prospective primary participant knowingly rendered an
erroneous certification, in addition to other remedies available to the
Federal Government, the department or agency may terminate this .
Form FHWA-1273 (Rev. 3-94)
transaction for cause of default.
d. The prospective primary participant shall provide immediate
written notice to the department or agency to whom this proposal is
submitted if any time the prospective primary participant learns that
its certification was erroneous when submitted or has become
erroneous by reason of changed -circumstances.
e. The terms "covered transaction," "debarred," "suspended,"
"ineligible," lower tier covered transaction," "participant," 'person,"
"primary covered transaction,""principal,""proposal," and "voluntarily
excluded," as used in thls clause, have the meanings set out in the
Definitions and Coverage sections of rules implementing Executive
Order 12549. You may contact the department or agency to which
this proposal is submitted for assistance in obtaining a copy of those
regulations.
f. The prospective primary. 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 transac-
tion with a person who is debarred, suspended, declared ineligible,
or voluntarily excluded from participation in this covered transaction,
unless authorized by the department or agency entering into this
transaction.
g. The prospective primary participant further agrees by
submitting this proposal that it will include the clause titled "Certifica-
tion Regarding Debarment, Suspension, ineligibility and Voluntary
Exclusion -Lower Tier Covered Transaction," provided by the
department or agency entering into this covered transaction, without
modification, in all lower tier covered transactions and in al solicits- •
tions 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
excluded from the covered transaction, unless it knows that the
certification is erroneous. A participant may decide the method and
frequency by which it determines the eligibility of its principals. Each •
participant may, but is not required to, check the nonprocurement
portion of the "Lists of Parties Excluded From Federal Procurement
or Nonprocurement Programs" (Nonprocurement List) which is
compiled by the General Services Administration.
i. Nothing contained in the foregoing shall be construed to
require establishment of a system of records in order to render in.
good faith the certification required by this clause.. The knowledge
and information of participant is not required to exceed that which is
normally possessed by a prudent person in the ordinary course of
business dealings.
J. Except for transactions authorized under paragraph f of
these instructions, if a participant in a covered transaction knowingly
enters .into a lower tier covered transaction with a person who is
suspended, debarred, ineligible, or voluntarily excluded from
participation in this transaction, in addition to other remedies available
to the Federal Government, the department or agency may terminate
this transaction for cause or default.
Form FHWA-1273 (Rev. 3-94)
Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion --Primary Covered Transactions
1. The prospective primary participant certifies to the best of Its
knowledge and belief, that it and its principals:
a. Are not presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from covered
transactions by any Federal department or agency;
b. Have not within a 3 -year period preceding this proposal
been convicted of or had a civil judgement rendered against them for
commission of fraud or a criminal offense in connection with obtain-
ing, attempting to obtain, or performing a public (Federal, State or
local) transaction or contract under a public transaction; violation of
Federal or State antitrust statutes or commission of embezzlement,
theft, forgery, bribery, falsification or destruction of records, making
false statements, or receiving stolen property;
c. Are not presently indicted for or otherwise criminally or civilly
charged by a governmental entity (Federal, State or local) with
commission of any of the offenses enumerated in paragraph ib of
this certification; and
d. Have not within a 3 -year period preceding this applica-
tion/proposal had one or more public transactions (Federal, State or
local) terminated for cause or default.
2. Where the prospective primary participant is unable to certify to
any of the statements in this certification, such prospective participant
shall attach an explanation to this proposal. -
2. Instructions for Certification - Lower Tier Covered Transac-
• tions:
(Applicable,to ail subcontracts, purchase orders and other lower
tier transactions of $25;000 or more - 49 CFR 29)
a. By signing and submitting this proposal, the prospective
lower tier is providing the certification set out below.
b. The certification in this clause is a material representation
of fact upon which reliance was placed when this transaction was
entered into. If itis later determined that the prospective lower tier
participant knowingly rendered an erroneous certification, in addition
to other remedies available to the Federal Govemment, the depart-
ment, or agency with which this transaction originated may pursue
available remedies, including suspension and/or debarment.
c. The prospective lower tier participant shall provide immedi-
ate written notice to the person to which this proposal is submitted if
at any time the prospective lower tier participant teams that its
certification' was erroneous by reason of changed circumstances.
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 forassistance
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 thal the
certification is erroneous. A participant may decide the method and
Page 7
frequency by which it determines the eligibility of its principals. Each
participant may, but is not required to, check the Nonprocurement
List.
h. Nothing contained In the foregoing shall be construed to
require establishment of a system of records in order to render in
good faith the certification required by this clause. The knowledge
and information of participant is nat required to exceed that which is
normally possessed by a prudent person in the ordinary course of
business dealings.
I. Except for transactions authorized under paragraph e of
these instructions, if a participant in a covered transaction knowingly
enters .Into a lower tier covered transaction with a person who is
suspended, debarred, ineligible, or voluntarily excluded from
participation In this transaction, in addition to other remedies.available
to the Federal Government, the department or agency with which this
transaction originated may pursue available remedies, including
suspension and/or debarment.
Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion --Lower Tier Covered Transactions:
1. The prospective lower tier participant certifies, by submission of
this proposal, that neither It nor Its principals is presently debarred,
suspended, proposed for debarment, declared ineligible, or volun-
tarily excluded from participation in this transaction by any Federal
department or agency.
2. Where the prospective lower tier participant is unable to certify
to any of the statements In this certification, such prospective
participant shall attach an explanation to this proposal.
Page B .
XII. CERTIFICATION REGARDING USE OF CONTRACT FUNDS
FOR LOBBYING
•
(Applicable to all Federal -aid construction contracts and to all
related subcontracts which exceed $100,000 - 49 CFR 20)
1. The prospective participant certifies, by signing and submitting
this bid or proposal, to the best of his or her knowledge and belief,.
that:
a. No Federal appropriated funds have been paid or will be
paid, by or ori behalf of the undersigned, to any person for influendng
or attempting to influende an officer or employee of any Federal
agency, a Member of Congress, an officer or employee of Congress,
or an employee of a Member of Congress in connection with the
awarding of any Federal contract, the making of any Federal grant,
the making of any Federal loan, the entering into of any cooperative.
agreement, and the extension, continuation, renewal, amendment, or
modification of any Federal contract, grant, loan, or cooperative
agreement.
b. If any funds other than Federal appropriated funds have
been paid or will be paid to any person for influencing or attempting
to influence an officer or employee of any Federal agency, a Member
of Congress, an officer or employee of Congress, or an employee of
a Member of Congress in connection with this Federal contract, grant,
loan, or cooperative agreement, the undersigned shall complete and
submit Standard Form -LLL, 'Disclosure Form to Report Lobbying," in
accordance with its instructions.
2. This certification is a material representation of fact upon which
reliance was placed when this tra nsaction was made or entered into.
Submission of this certification is a prerequisite for making or entering
into this transaction Imposed by 31 U.S.C. 1352. Any person who
fails to the 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 participantalso 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.
Form FHWA-1273 (Rev. 3-94)
ATTACHMENT A-EMPLOYMENT•PREFERENCEFOR
• APPALACHIAN CONTRACTS •
(Applicable to Appalachian contracts only.)
1.. During the performance of this contract, the contractor under-
taking to do work whichis,•or•reasonably may be, done as on-site
work, shall give preference to qualified persons who regularly reside
• in the labor area.as designated by the DOL wherein the contract work
is situated, or the subregion, or the Appalachian counties of the Stale
wherein the contract work is situated, except: '
•
a.. To the extent that qualified persons regularly residing.in
the area are'not available.
•
• b. :For the reasonable. ieeds of the contractor to employ
supervisory orspeciallyexperienced personnel necessary to assure
an efficient execution of the contract work:
C. For the obligation of the contractor to offer employment to
• present .or former. employees as .the result of a lawful collective
bargaining contract, provided that the number of nonresident persons
• employed under this subparagraph 1c shall not exceed 20 percent of
the total number of employees employed by the contractor on the
contract:Work, except as provided in subparagraph 4 below.
2. The contractor shall place a job order with the State Employ:
ment• Service indicating •(a) the classifications- of the laborers,
mechanics and other employees required to perform the contract •
work, (b) the number of employees required in each classification,
Forth FHWA-1273 (Rev. 3-94)
(c) the date on which he estimates such-empioyees'will berequired,
and (d) any other pertinent Information required by the State Employ-
ment Service to complete the job order form. The job order may.be
placed with the State Employment Service In writing or by telephone.
if during the course of the contract work, the information submitted by
the contractor in the original job order is substantially modified, he
shall promptly notify the State Employment Service.
•
31 The contractor shall give full consideration to at qualified job
applicants referred to him by the State Employment Service. The
contractor is not required. to grant employment to any job applicants
. who, in his opinion, are not qualified to perform the classiticcation•of
work required. ' •
•
4. If; within 1 week following the placing of a job order by the
contractor with the State•Employment Service, the State Employment
Service is unable to refer any qualified job applicants to the contrac-
tor, or less than the number requested, the State Employment
Service will forward a certificate to the contractor Indicating the
unavailability of applicants. Such 'Certificate shall be made a part of
the contractor's permanent project records. Upon receipt of this
'certificate, the contractor may employ persons who do not normally
reside in the labor area to fill positions covered by the certificate,
notwithstanding the -provisions 'of subparagraph 1c above. '
5. The contractor shall Include. the provisions of Sections .1
through 4 of this Attachment A in every subcontract for work which is,
• or reasonably may be, done as on-site work. ••
Page 9
ATTACHMENT E - APPLICABLE WAGE RATE TABLE (FL325, MODIFICATION 0,
3/12/10)
[PAGE INTENTIONALLY LEFT BLANK]
Page 7 of 7
General Decision Number: FL100325 03/12/2010 FL325
Superseded General Decision Number: FL20080325
State: Florida
Construction Type: Highway
County: Miami -Dade County in Florida.
HIGHWAY CONSTRUCTION PROJECTS
Modification Number Publication Date
0 03/12/2010
ELEC0349-008 08/31/2009
Rates
Fringes
ELECTRICIAN $ 25.05 7.56
* ENGI0487-018 01/01/2010
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
or Otherwise; Cranes 150
Tons & Over (Must have 2
operators); Cranes with 3
Drums (When 3rd drum is
rigged for work); Gantry &
Overhead Cranes; Hydro
Cranes Over 25 Tons but
not more than 50 Tons ;
Hydro/Friction Cranes; &
All Type of Flying Cranes;
Boom Truck $ 28.30 8.78
Cranes with Boom Length
Less than 150 Feet (With
or without jib); Hydro
Cranes 25 Tons & Under, &
Over 50 Tons; Boom Truck$ 27.57 8.78
OPERATOR: Oiler $ 22.24 8.78
IRON0272-006 10/01/2006
Rates
Fringes
IRONWORKER, STRUCTURAL $ 26.70 6.43
SUFL2009-222 08/05/2009
Rates Fringes
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Page 2 of 5
CARPENTER, Including Formwork....$ 15.50 2.19
CEMENT MASON/CONCRETE FINISHER...$ 15.00 8.64
HIGHWAY/PARKING LOT STRIPING:
Operator (Striping 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
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
OPERATOR: Asphalt Plant $ 12.20 0.00
OPERATOR: Asphalt Spreader $ 10.76 0.00
OPERATOR: Auger $ 19.40 0.44
OPERATOR: Backhoe Loader
Combo $ 18.00 1.39
OPERATOR: Backhoe/Excavator $ 14.69 2.22
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
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Page 3 of 5
OPERATOR: Loader $ 9.68 3.02
OPERATOR: Mechanic $ 16.20 3.25
OPERATOR: Milling Machine $ 11.50 1.68
OPERATOR: Oil Distributor $ 11.15 0.48
OPERATOR: Paver $ 12.85 0.00
OPERATOR: 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
TRAFFIC SIGNALIZATION:
Traffic Signal 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
TRUCK DRIVER: 4 Axle Truck $ 13.33 0.00
TRUCK DRIVER: Distributor $ 13.22 2.01
TRUCK DRIVER: Dump Truck $ 10.29 4.25
TRUCK DRIVER: Lowboy Truck $ 12.00 0.00
TRUCK DRIVER: Material Truck$ 13.15 9.80
TRUCK DRIVER: Tractor Haul
Truck $ 10.64 0.00
TRUCK DRIVER: Water Truck $ 10.50 0.00
TRUCK DRIVER $ 9.76 0.34
WELDERS - Receive rate prescribed for craft performing
operation to which welding is incidental.
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
http://www.wdol.gov/wdol/scafiles/davisbacon/FL325.dvb 02/04/2011
standards contract clauses (29 CFR 5.5(a)(1)(ii)).
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.
WAGE DETERMINATION APPEALS PROCESS
1.) Has there been an initial decision in the matter? This can
be:
*
*
a
an existing published wage deteLmination
a survey underlying a wage determination
a Wage and Hour Division letter setting forth a position on
wage
determination matter
a conformance (additional classification and rate) ruling
On survey related matters, initial
for summaries
of surveys, should be with the
for the area in
which the survey was conducted
have
responsibility for the Davis -Bacon survey program. If the
response from this
initial contact is not satisfactory, then the process described
in 2.) and
3.) should be followed.
contact, including
Wage and Hour Regional
because those Regional
requests
Office
Offices
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
2.) If the answer to the question in 1.) is yes, then an
interested party
(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:
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Page 4 of 5
02/04/2011
Wage and Hour Administrator
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210
The request should be accompanied by a full statement of the
interested
party's position 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
Page 5 of 5
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