HomeMy Public PortalAbout6.b. Arboricutral Services Agreement with Green Dreams Paradise Corp_Contract No. XX-XX Page 1 of 21
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE VILLAGE OF KEY BISCAYNE
AND
GREEN DREAMS PARADISE CORPORATION
THIS AGREEMENT (this “Agreement”) is made effective as of the day of
, 2024 (the “Effective Date”), by and between the VILLAGE OF
KEY BISCAYNE, FLORIDA, a Florida municipal corporation, (the “Village”), and GREEN
DREAMS PARADISE CORPORATION, a Florida profit corporation (the “Contractor”).
WHEREAS, the Village issued Invitation to Bid No. 2023-17 (the “ITB”) for
arboricultural tree trimming services (the “Services,” as further defined below); and
WHEREAS, in response to the ITB, the Contractor submitted a bid (the “Bid”) for the
Services, which is incorporated herein by reference; and
WHEREAS, on February 13, 2024, the Village Council approved Resolution No. 2024-
10, selecting and awarding a contract to the Contractor based on the Contractor ’s Bid for the
Services; and
WHEREAS, the Village desires to engage the Contractor to perform the Services and
provide the deliverables as specified below.
1. Scope of Services.
1.1. The Contractor shall provide the Services in accordance with the Scope of Work/Technical
Specifications attached hereto as Exhibit “A” and incorporated herein by reference (the
“Services”). The Village may modify the schedule of Services set forth in Exhibit “A.”
1.2. Upon written request by the Village, the Contractor shall perform Additional Services,
including Emergency Services or Supplemental Services, in accordance with Exhibit “A.”
1.2.1. The Contractor shall perform the Emergency Services for disaster debris removal
in compliance and in accordance with Section 28 of this Agreement. In providing the
Emergency Services for disaster debris removal, the Contractor shall also perform or
assist the Village in performing the following eligibility tasks:
1.2.1.1. Damage Categorization. Contractor shall properly group all Emergency
Services for disaster debris removal in accordance with FEMA’s damage
categories.
1.2.1.2. Eligibility Inspections. Contractor and the Village and/or the Village’s
Disaster Debris Monitoring Team will inspect each load to verify that the
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contents are in accordance with the accepted definition of eligible debris, as set
out in the FEMA Guidelines.
1.2.1.3. Eligibility Determinations. If any load is suspected to contain material that
does not conform to the definition of eligible debris, the load will be ordered to
be deposited at another landfill, receiving facility or at a special location at the
Temporary Debris Storage and Reduction Site (“TDSRS”) identified by the
Village.
1.3. The Contractor shall furnish all reports, documents, and information obtained pursuant to
this Agreement, and recommendations during the term of this Agreement (hereinafter
“Deliverables”) to the Village.
2. Term/Commencement Date.
2.1. The term of this Agreement shall be from the Effective Date through three (3) years
thereafter, unless earlier terminated in accordance with Paragraph 8. Additionally, the
Village Manager may renew this Agreement for two (2) additional one-year periods on
the same terms as set forth herein upon written notice to the Contractor.
2.2. Contractor agrees that time is of the essence and Contractor shall complete the Services
within the term of this Agreement, unless extended by the Village Manager.
3. Compensation and Payment.
3.1. Compensation for Services provided by Contractor shall be in accordance with the unit
pricing and rates as set out in the Rate Schedule attached hereto as Exhibit “B.”
Compensation for Services shall be in an amount not to exceed $199,400.00 for calendar
years 2024, 2026, and 2028, and $212,920.00 for calendar years 2025 and 2027.
3.2. Contractor shall deliver an invoice to Village no more often than once per month detailing
Services completed and the amount due to Contractor under this Agreement. Fees shall be
paid in arrears each month, pursuant to Contractor’s invoice, which shall be based upon the
percentage of work completed for each task invoiced. The Village shall pay the Contractor
in accordance with the Florida Prompt Payment Act after approval and acceptance of the
Services by the Village Manager.
3.3. Contractor’s invoices must contain the following information for prompt payment:
3.3.1. Name and address of the Contractor;
3.3.2. Purchase Order number;
3.3.3. Contract number;
3.3.4. Date of invoice;
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3.3.5. Invoice number (Invoice numbers cannot be repeated. Repeated invoice numbers
will be rejected);
3.3.6. Name and type of Services;
3.3.7. Timeframe covered by the invoice; and
3.3.8. Total value of invoice.
Failure to include the above information will result in the delay of payment or rejection of
the invoice. All invoices must be submitted electronically to payables@keybiscayne.fl.gov.
4. Subcontractors.
4.1. The Contractor shall be responsible for all payments to any subcontractors and shall
maintain responsibility for all work related to the Services.
4.2. Contractor may only utilize the services of a particular subcontractor with the prior written
approval of the Village Manager, which approval may be granted or withheld in the
Village Manager’s sole and absolute discretion.
5. Village’s Responsibilities.
5.1. Village shall make available any maps, plans, existing studies, reports, staff and
representatives, and other data pertinent to the Services and in possession of the Village,
and provide criteria requested by Contractor to assist Contractor in performing the
Services.
5.2. Upon Contractor’s request, Village shall reasonably cooperate in arranging access to
public information that may be required for Contractor to perform the Services.
6. Contractor’s Responsibilities; Representations and Warranties.
6.1. The Contractor shall exercise the same degree of care, skill and diligence in the
performance of the Services as is ordinarily provided by a Contractor under similar
circumstances. If at any time during the term of this Agreement or within two (2) years
from the completion of this Agreement, it is determined that the Contractor’s Deliverables
or Services are incorrect, not properly rendered, defective, or fail to conform to Village
requests, the Contractor shall at Contractor’s sole expense, immediately correct its
Deliverables or Services.
6.2. The Contractor hereby warrants and represents that at all times during the term of this
Agreement it shall maintain in good standing all required licenses, certifications and permits
required under Federal, State and local laws applicable to and necessary to perform the
Services for Village as an independent contractor of the Village. Contractor further warrants
and represents that it has the required knowledge, expertise, and experience to perform the
Services and carry out its obligations under this Agreement in a professional and first class
manner.
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6.3. The Contractor represents that is an entity validly existing and in good standing under the
laws of Florida. The execution, delivery and performance of this Agreement by
Contractor have been duly authorized, and this Agreement is binding on Contractor and
enforceable against Contractor in accordance with its terms. No consent of any other
person or entity to such execution, delivery and performance is required.
7. Conflict of Interest.
7.1. To avoid any conflict of interest or any appearance thereof, Contractor shall not, for the
term of this Agreement, provide any consulting services to any private sector entities
(developers, corporations, real estate investors, etc.), with any current, or foreseeable,
adversarial issues in the Village.
8. Termination.
8.1. The Village Manager, without cause, may terminate this Agreement upon five (5) calendar
days’ written notice to the Contractor, or immediately with cause.
8.2. Upon receipt of the Village's written notice of termination, Contractor shall immediately
stop work on the project unless directed otherwise by the Village Manager.
8.3. In the event of termination by the Village, the Contractor shall be paid for all work
accepted by the Village Manager up to the date of termination, provided that the
Contractor has first complied with the provisions of Paragraph 8.4.
8.4. The Contractor shall transfer all books, records, reports, working drafts, documents, maps,
and data pertaining to the Services and the project to the Village, in a hard copy and
electronic format within fourteen (14) days from the date of the written notice of
termination or the date of expiration of this Agreement.
9. Insurance.
9.1. Contractor shall secure and maintain throughout the duration of this agreement insurance
of such types and in such amounts not less than those specified below as satisfactory to
Village, naming the Village as an Additional Insured, underwritten by a firm rated A-X or
better by A.M. Best and qualified to do business in the State of Florida. The insurance
coverage shall be primary insurance with respect to the Village, its officials, employees,
agents, and volunteers naming the Village as additional insured. Any insurance maintained
by the Village shall be in excess of the Contractor’s insurance and shall not contribute to
the Contractor’s insurance. The insurance coverages shall include at a minimum the
amounts set forth in this section and may be increased by the Village as it deems necessary
or prudent.
9.1.1. Commercial General Liability coverage with limits of liability of not less than a
$1,000,000 per Occurrence combined single limit for Bodily Injury and Property
Damage. This Liability Insurance shall also include Completed Operations and
Product Liability coverages and eliminate the exclusion with respect to property under
the care, custody and control of Contractor. The General Aggregate Liability limit
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and the Products/Completed Operations Liability Aggregate limit shall be in the
amount of $2,000,000 each.
9.1.2. Workers Compensation and Employer’s Liability insurance, to apply for all
employees for statutory limits as required by applicable State and Federal laws. The
policy(ies) must include Employer’s Liability with minimum limits of $1,000,000.00
each accident. No employee, subcontractor or agent of the Contractor shall be allowed
to provide Services pursuant to this Agreement who is not covered by Worker’s
Compensation insurance.
9.1.3. Business Automobile Liability with minimum limits of $1,000,000 per occurrence,
combined single limit for Bodily Injury and Property Damage. Coverage must be
afforded on a form no more restrictive than the latest edition of the Business
Automobile Liability policy, without restrictive endorsements, as filed by the
Insurance Service Office, and must include Owned, Hired, and Non-Owned Vehicles.
9.1.4. Professional Liability Insurance in an amount of not less than One Million Dollars
($1,000,000.00) per occurrence, single limit.
9.2. Certificate of Insurance. Certificates of Insurance shall be provided to the Village,
reflecting the Village as an Additional Insured (except with respect to Professional
Liability Insurance and Worker’s Compensation Insurance), no later than ten (10) days
after award of this Agreement and prior to the execution of this Agreement by Village and
prior to commencing Services. Each certificate shall include no less than (30) thirty-day
advance written notice to Village prior to cancellation, termination, or material alteration
of said policies or insurance. The Contractor shall be responsible for assuring that the
insurance certificates required by this Section remain in full force and effect for the
duration of this Agreement, including any extensions or renewals that may be granted by
the Village. The Certificates of Insurance shall not only name the types of policy(ies)
provided, but also shall refer specifically to this Agreement and shall state that such
insurance is as required by this Agreement. The Village reserves the right to inspect and
return a certified copy of such policies, upon written request by the Village. If a policy is
due to expire prior to the completion of the Services, renewal Certificates of Insurance
shall be furnished thirty (30) calendar days prior to the date of their policy expiration.
Each policy certificate shall be endorsed with a provision that not less than thirty (30)
calendar days’ written notice shall be provided to the Village before any policy or
coverage is cancelled or restricted. Acceptance of the Certificate(s) is subject to approval
of the Village.
9.3. Additional Insured. Except with respect to Professional Liability Insurance and Worker’s
Compensation Insurance, the Village is to be specifically included as an Additional
Insured for the liability of the Village resulting from Services performed by or on behalf
of the Contractor in performance of this Agreement. The Contractor’s insurance,
including that applicable to the Village as an Additional Insured, shall apply on a primary
basis and any other insurance maintained by the Village shall be in excess of and shall not
contribute to the Contractor’s insurance. The Contractor’s insurance shall contain a
severability of interest provision providing that, except with respect to the total limits of
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liability, the insurance shall apply to each Insured or Additional Insured (for applicable
policies) in the same manner as if separate policies had been issued to each.
9.4. Deductibles. All deductibles or self-insured retentions must be declared to and be
reasonably approved by the Village. The Contractor shall be responsible for the payment
of any deductible or self-insured retentions in the event of any claim.
9.5. The provisions of this section shall survive termination of this Agreement.
10. Nondiscrimination. During the term of this Agreement, Contractor shall not discriminate
against any of its employees or applicants for employment because of their race, color, religion,
sex, or national origin, and will abide by all Federal and State laws regarding
nondiscrimination.
11. Attorneys Fees and Waiver of Jury Trial.
11.1. In the event of any litigation arising out of this Agreement, the prevailing party
shall be entitled to recover its attorneys’ fees and costs, including the fees and expenses
of any paralegals, law clerks and legal assistants, and including fees and expenses charged
for representation at both the trial and appellate levels.
11.2. IN THE EVENT OF ANY LITIGATION ARISING OUT OF THIS
AGREEMENT, EACH PARTY HEREBY KNOWINGLY, IRREVOCABLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO TRIAL BY
JURY.
12. Indemnification.
12.1. Contractor shall indemnify and hold harmless the Village, its officers, agents and
employees, from and against any and all demands, claims, losses, suits, liabilities, causes
of action, judgment or damages, arising from Contractor’s performance or non-
performance of any provision of this Agreement, including, but not limited to, liabilities
arising from contracts between the Contractor and third parties made pursuant to this
Agreement. Contractor shall reimburse the Village for all its expenses including
reasonable attorneys’ fees and costs incurred in and about the defense of any such claim
or investigation and for any judgment or damages arising from Contractor’s performance
or non-performance of this Agreement.
12.2. Nothing herein is intended to serve as a waiver of sovereign immunity by the
Village nor shall anything included herein be construed as consent to be sued by third
parties in any matter arising out of this Agreement or any other contract. The Village is
subject to section 768.28, Florida Statutes, as may be amended from time to time.
12.3. The provisions of this section shall survive termination of this Agreement.
13. Notices/Authorized Representatives. Any notices required by this Agreement shall be in
writing and shall be deemed to have been properly given if transmitted by hand-delivery, by
registered or certified mail with postage prepaid return receipt requested, or by a private postal
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service, addressed to the parties (or their successors) at the addresses listed on the signature
page of this Agreement or such other address as the party may have designated by proper
notice.
14. Governing Law and Venue. This Agreement shall be construed in accordance with and
governed by the laws of the State of Florida. Venue for any proceedings arising out of this
Agreement shall be proper exclusively in Miami-Dade County, Florida.
15. Entire Agreement/Modification/Amendment.
15.1. This writing contains the entire Agreement of the parties and supersedes any prior
oral or written representations. No representations were made or relied upon by either
party, other than those that are expressly set forth herein.
15.2. No agent, employee, or other representative of either party is empowered to modify
or amend the terms of this Agreement, unless executed with the same formality as this
document.
16. Ownership and Access to Records and Audits.
16.1. Contractor acknowledges that all inventions, innovations, improvements,
developments, methods, designs, analyses, drawings, reports, compiled information, and
all similar or related information (whether patentable or not) which relate to Services to
the Village which are conceived, developed or made by Contractor during the term of this
Agreement (“Work Product”) belong to the Village. Contractor shall promptly disclose
such Work Product to the Village and perform all actions reasonably requested by the
Village (whether during or after the term of this Agreement) to establish and confirm such
ownership (including, without limitation, assignments, powers of attorney and other
instruments).
16.2. Contractor agrees to keep and maintain public records in Contractor’s possession
or control in connection with Contractor’s performance under this Agreement. The Village
Manager or her designee shall, during the term of this Agreement and for a period of three
(3) years from the date of termination of this Agreement, have access to and the right to
examine and audit any records of the Contractor involving transactions related to this
Agreement. Contractor additionally agrees to comply specifically with the provisions of
Section 119.0701, Florida Statutes. Contractor shall ensure that public records that are
exempt or confidential and exempt from public records disclosure requirements are not
disclosed, except as authorized by law, for the duration of the Agreement, and following
completion of the Agreement until the records are transferred to the Village.
16.3. Upon request from the Village’s custodian of public records, Contractor shall
provide the Village with a copy of the requested records or allow the records to be
inspected or copied within a reasonable time at a cost that does not exceed the cost
provided by Chapter 119, Florida Statutes, or as otherwise provided by law.
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16.4. Unless otherwise provided by law, any and all records, including but not limited to
reports, surveys, and other data and documents provided or created in connection with this
Agreement are and shall remain the property of the Village.
16.5. Upon completion of this Agreement or in the event of termination by either party,
any and all public records relating to the Agreement in the possession of the Contractor
shall be delivered by the Contractor to the Village Manager, at no cost to the Village,
within seven (7) days. All such records stored electronically by Contractor shall be
delivered to the Village in a format that is compatible with the Village’s information
technology systems. Once the public records have been delivered upon completion or
termination of this Agreement, the Contractor shall destroy any and all duplicate public
records that are exempt or confidential and exempt from public records disclosure
requirements.
16.6. Any compensation due to Contractor shall be withheld until all records are received
as provided herein.
16.7. Contractor’s failure or refusal to comply with the provisions of this section shall
result in the immediate termination of this Agreement by the Village.
16.8. Notice Pursuant to Section 119.0701(2)(a), Florida Statutes. IF THE
CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS.
Custodian of Records: Jocelyn B. Koch
Mailing address: 88 West McIntyre Street
Key Biscayne, FL 33149
Telephone number: 305-365-5506
Email: jkoch@keybiscayne.fl.gov
17. Nonassignability. This Agreement shall not be assignable by Contractor unless such
assignment is first approved by the Village Manager. The Village is relying upon the apparent
qualifications and expertise of the Contractor, and such firm’s familiarity with the Village’s
area, circumstances and desires.
18. Severability. If any term or provision of this Agreement shall to any extent be held invalid or
unenforceable, the remainder of this Agreement shall not be affected thereby, and each
remaining term and provision of this Agreement shall be valid and be enforceable to the fullest
extent permitted by law.
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19. Independent Contractor. The Contractor and its employees, volunteers and agents shall be
and remain an independent contractor and not an agent or employee of the Village with respect
to all of the acts and services performed by and under the terms of this Agreement. This
Agreement shall not in any way be construed to create a partnership, association or any other
kind of joint undertaking, enterprise or venture between the parties.
20. Compliance with Laws. The Contractor shall comply with all applicable laws, ordinances,
rules, regulations, and lawful orders of public authorities in carrying out Services under this
Agreement, and in particular shall obtain all required permits from all jurisdictional agencies
to perform the Services under this Agreement at its own expense.
21. Waiver. The failure of either party to this Agreement to object to or to take affirmative action
with respect to any conduct of the other which is in violation of the terms of this Agreement
shall not be construed as a waiver of the violation or breach, or of any future violation, breach
or wrongful conduct.
22. Survival of Provisions. Any terms or conditions of either this Agreement that require acts
beyond the date of the term of the Agreement, shall survive termination of the Agreement,
shall remain in full force and effect unless and until the terms or conditions are completed and
shall be fully enforceable by either party.
23. Prohibition of Contingency Fees. The Contractor warrants that it has not employed or
retained any company or person, other than a bona fide employee working solely for the
Contractor, to solicit or secure this Agreement, and that it has not paid or agreed to pay any
person(s), company, corporation, individual or firm, other than a bona fide employee working
solely for the Contractor, any fee, commission, percentage, gift, or any other consideration,
contingent upon or resulting from the award or making of this Agreement.
24. Public Entity Crimes Affidavit. Contractor shall comply with Section 287.133, Florida
Statutes (Public Entity Crimes Statute), notification of which is hereby incorporated herein by
reference, including execution of any required affidavit.
25. Counterparts. This Agreement may be executed in several counterparts, each of which shall
be deemed an original and such counterparts shall constitute one and the same instrument.
26. Conflicts; Order of Priority. This document without exhibits is referred to as the “Base
Agreement.” In the event of a conflict between the terms of this Base Agreement and any
exhibits or attachments hereto, or any documents incorporated herein by reference, the conflict
shall be resolved in the following order of priorities and the more stringent criteria for
performance of the Services shall apply:
26.1. First Priority: Exhibit D – FHWA-1273;
26.2. Second Priority: Exhibit C – FEMA Contract Provisions Guide;
26.3. Third Priority: this Base Agreement;
26.4. Fourth Priority: Exhibit B – Rate Schedule;
26.5. Fifth Priority: Exhibit A – Scope of Services;
26.6. Sixth Priority: the ITB;
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26.7. Seventh Priority: Work Orders, with later date taking precedence.
27. E-Verify Affidavit. In accordance with Section 448.095, Florida Statutes, the Village requires
all contractors doing business with the Village to register with and use the E-Verify system to
verify the work authorization status of all newly hired employees. The Village will not enter
into a contract unless each party to the contract registers with and uses the E-Verify system.
The contracting entity must provide of its proof of enrollment in E-Verify. For instructions on
how to provide proof of the contracting entity’s participation/enrollment in E-Verify, please
visit: https://www.e-verify.gov/faq/how-do-i-provide-proof-of-my-participationenrollment-
in-e-verify. By entering into this Agreement, the Contractor acknowledges that it has read
Section 448.095, Florida Statutes; will comply with the E-Verify requirements imposed by
Section 448.095, Florida Statutes, including but not limited to obtaining E-Verify affidavits
from subcontractors; and has executed the required affidavit attached hereto and incorporated
herein.
28. Federally Required Clauses. In the performance of all Emergency Services under this
Agreement, the Contractor shall adhere to (1) the FEMA Guidelines (as may be amended or
superseded), including the FEMA Public Assistance Program and Policy Guide (PAPPG) and
the FEMA Public Assistance Debris Management Guide (the “FEMA Guidelines”), (2) the
contract provisions listed under 2 CFR Part 200, Appendix II, (3) all applicable contract
provisions and guidance in the FEMA Contract Provisions Guide, as may be amended from
time to time and which is attached hereto as Exhibit “C,” and (4) the FHWA-1273 attached
hereto as Exhibit “D.” The Contractor shall comply with the following terms and provisions
for all Emergency Services:
28.1. Equal Employment Opportunity. During the performance of this Agreement, the
Contractor agrees as follows:
28.1.1. The Contractor will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, sexual orientation, gender identity,
or national origin. The Contractor will take affirmative action to ensure that applicants
are employed, and that employees are treated during employment without regard to
their race, color, religion, sex, sexual orientation, gender identity, 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 setting forth the provisions of this nondiscrimination clause.
28.1.2. The Contractor will, in all solicitations or advertisements for employees placed by
or on behalf of the Contractor, state that all qualified applicants will receive
consideration for employment without regard to race, color, religion, sex, sexual
orientation, gender identity, or national origin.
28.1.3. The Contractor will not discharge or in any other manner discriminate against any
employee or applicant for employment because such employee or applicant has
inquired about, discussed, or disclosed the compensation of the employee or applicant
or another employee or applicant. This provision shall not apply to instances in which
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an employee who has access to the compensation information of other employees or
applicants as a part of such employee's essential job functions discloses the
compensation of such other employees or applicants to individuals who do not
otherwise have access to such information, unless such disclosure is in response to a
formal complaint or charge, in furtherance of an investigation, proceeding, hearing,
or action, including an investigation conducted by the employer, or is consistent with
the Contractor's legal duty to furnish information.
28.1.4. The Contractor will send to each labor union or representative of workers with
which he has a collective bargaining agreement or other contract or understanding, a
notice to be provided advising the said labor union or workers' representatives of the
Contractor's commitments under this section, and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
28.1.5. The Contractor will comply with all provisions of Executive Order 11246 of
September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary
of Labor.
28.1.6. The Contractor will furnish all information and reports required by Executive Order
11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary
of Labor, or pursuant thereto, and will permit access to his books, records, and
accounts by the administering agency and the Secretary of Labor for purposes of
investigation to ascertain compliance with such rules, regulations, and orders.
28.1.7. In the event of the Contractor's noncompliance with the nondiscrimination clauses
of this contract or with any of the said rules, regulations, or orders, this contract may
be canceled, terminated, or suspended in whole or in part and the Contractor may be
declared ineligible for further Government contracts or federally assisted construction
contracts in accordance with procedures authorized in Executive Order 11246 of
September 24, 1965, and such other sanctions may be imposed and remedies invoked
as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation,
or order of the Secretary of Labor, or as otherwise provided by law.
28.1.8. The Contractor will include the portion of the sentence immediately preceding
subsection 28.1 and the provisions of subsections 28.1.1 through 28.1.8 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 11246 of
September 24, 1965, so that such provisions will be binding upon each subcontractor
or vendor. The Contractor will take such action with respect to any subcontract or
purchase order as the administering agency may direct as a means of enforcing such
provisions, including sanctions for noncompliance:
Provided, however, that in the event a Contractor becomes involved in, or is
threatened with, litigation with a subcontractor or vendor as a result of such direction
by the administering agency, the Contractor may request the United States to enter
into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity
clause with respect to its own employment practices when it participates in federally
assisted construction work: Provided, That if the applicant so participating is a State
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or local government, the above equal opportunity clause is not applicable to any
agency, instrumentality or subdivision of such government which does not participate
in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering
agency and the Secretary of Labor in obtaining the compliance of contractors and
subcontractors with the equal opportunity clause and the rules, regulations, and
relevant orders of the Secretary of Labor, that it will furnish the administering agency
and the Secretary of Labor such information as they may require for the supervision
of such compliance, and that it will otherwise assist the administering agency in the
discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or
contract modification subject to Executive Order 11246 of September 24, 1965, with
a Contractor debarred from, or who has not demonstrated eligibility for, Government
contracts and federally assisted construction contracts pursuant to the Executive
Order and will carry out such sanctions and penalties for violation of the equal
opportunity clause as may be imposed upon contractors and subcontractors by the
administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the
Executive Order. In addition, the applicant agrees that if it fails or refuses to comply
with these undertakings, the administering agency may take any or all of the following
actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan,
insurance, guarantee); refrain from extending any further assistance to the applicant
under the program with respect to which the failure or refund occurred until
satisfactory assurance of future compliance has been received from such applicant;
and refer the case to the Department of Justice for appropriate legal proceedings.
28.2. Compliance with the Davis-Bacon Act. As applicable, during the performance of
this Agreement, the Contractor agrees as follows:
a. All transactions regarding this contract shall be done in compliance with the
Davis-Bacon Act (40 U.S.C. 3141- 3144, and 3146-3148) and the requirements of
29 C.F.R. pt. 5 as may be applicable. The Contractor shall comply with 40 U.S.C.
3141-3144, and 3146-3148 and the requirements of 29 C.F.R. pt. 5 as applicable.
b. Consultants are required to pay wages to laborers and mechanics at a rate
not less than the prevailing wages specified in a wage determination made by the
Secretary of Labor.
c. Additionally, Consultants are required to pay wages not less than once a
week.
28.3. Compliance with the Copeland “Anti-Kickback” Act. As applicable, during the
performance of this Agreement, the Contractor agrees as follows:
a. Contractor. The Contractor shall comply with 18 U.S.C. § 874, 40 U.S.C. §
3145, and the requirements of 29 C.F.R. pt. 3 as may be applicable, which are
incorporated by reference into this contract.
b. Subcontracts. The Contractor or subcontractor shall insert in any
subcontracts the clause above and such other clauses as FEMA may by appropriate
instructions require, and also a clause requiring the subcontractors to include these
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clauses in any lower tier subcontracts. The prime Contractor shall be responsible
for the compliance by any subcontractor or lower tier subcontractor with all of these
contract clauses.
c. Breach. A breach of the contract clauses above may be grounds for
termination of the contract, and for debarment as a Contractor and subcontractor as
provided in 29 C.F.R. § 5.12.
28.4. Compliance with the Contract Work Hours and Safety Standards Act. As
applicable, during the performance of this Agreement, the Contractor agrees as follows:
28.4.1. Overtime requirements. The Contractor or subcontractor contracting for any part of
the contract work which may require or involve the employment of laborers or
mechanics shall not require nor permit any such laborer or mechanic in any workweek
in which he or she is employed on such work to work in excess of forty hours in such
workweek unless such laborer or mechanic receives compensation at a rate not less
than one and one-half times the basic rate of pay for all hours worked in excess of
forty hours in such workweek.
28.4.2. Violation; liability for unpaid wages; liquidated damages. In the event of any
violation of the clause set forth in subsection 28.2.1. of this section the Contractor and
any subcontractor responsible therefor shall be liable for the unpaid wages. In
addition, the Contractor and subcontractor shall be liable to the United States (in the
case of work done under contract for the District of Columbia or a territory, to such
District or to such territory), for liquidated damages. Such liquidated damages shall
be computed with respect to each individual laborer or mechanic, including watchmen
and guards, employed in violation of the clause set forth in subsection 28.2.1. of this
section, in the sum of $10 for each calendar day on which such individual was
required or permitted to work in excess of the standard workweek of forty hours
without payment of the overtime wages required by the clause set forth in 28.2.1. of
this section.
28.4.3. Withholding for unpaid wages and liquidated damages. The Village shall upon its
own action or upon written request of an authorized representative of the Department
of Labor withhold or cause to be withheld, from any moneys payable on account of
work performed by the Contractor or subcontractor under any 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 subsection 28.2.2. of this
section.
28.4.4. Subcontracts. The Contractor or subcontractor shall insert in any subcontracts the
clauses set forth in subsections 28.2.1 through 28.2.4. of this section and a clause
requiring the subcontractors to include these clauses in any lower tier subcontracts.
The prime Contractor shall be responsible for compliance by any subcontractor or
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lower tier subcontractor with the clauses set forth in subsections 28.2.1. through
28.2.4. of this section.
28.5. Rights to Inventions Made under this Agreement.
28.5.1. As applicable, if the Contractor is engaged for the performance of experimental,
developmental, or research, the Contractor’s work shall provide for the rights of the
Federal Government and the recipient in any resulting invention in accordance with
37 CFR part 401, “Rights to Inventions Made by Nonprofit Organizations and Small
Business Firms Under Government Grants, Contracts and Cooperative Agreements,”
and any implementing regulations issued by the Federal Government.
28.6. Clean Air Act and Federal Water Pollution Control Act. As required by Federal
program legislation, the Contractor agrees to comply with the following federal
requirements:
28.6.1. Clean Air Act.
28.6.1.1. The Contractor agrees to comply with all applicable standards, orders or
regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. (2)
28.6.1.2. The Contractor agrees to report each violation to the Village and
understands and agrees that the Village will, in turn, report each violation as
required to assure notification to the State of Florida, Federal Emergency
Management Agency, and the appropriate Environmental Protection Agency
Regional Office.
28.6.1.3. The Contractor agrees to include these requirements in each subcontract
exceeding $150,000 financed in whole or in part with Federal assistance
provided by FEMA.
28.6.2. Federal Water Pollution Control Act.
28.6.2.1. The Contractor agrees to comply with all applicable standards, orders or
regulations issued pursuant to the Federal Water Pollution Control Act, as
amended, 33 U.S.C. 1251 et seq.
28.6.2.2. The Contractor agrees to report each violation to the Village and
understands and agrees that the Village will, in turn, report each violation as
required to assure notification to The State of Florida, Federal Emergency
Management Agency, and the appropriate Environmental Protection Agency
Regional Office.
28.6.2.3. The Contractor agrees to include these requirements in each subcontract
exceeding $150,000 financed in whole or in part with Federal assistance
provided by FEMA.
28.7. Suspension and Debarment. During the performance of this Agreement, the
Contractor agrees as follows:
28.7.1. This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R.
pt. 3000. As such the Contractor is required, and will, verify that neither Contractor,
its principals (defined at 2 C.F.R. § 180.995), nor its affiliates (defined at 2 C.F.R. §
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180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2
C.F.R. § 180.935).
28.7.2. The Contractor will comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000,
subpart C and must include a requirement to comply with these regulations in any
lower tier covered transaction it enters.
28.7.3. Contractor’s certification is a material representation of fact relied upon by the
Village. If it is later determined that the Contractor did not comply with 2 C.F.R. pt.
180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to
the State of Florida, the Federal Government may pursue available remedies,
including but not limited to suspension and/or debarment.
28.7.4. The Contractor agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart
C and 2 C.F.R. pt. 3000, subpart C throughout the period this Agreement. The
Contractor further agrees to include a provision requiring such compliance in its
lower-tier covered transactions.
28.8. Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352 (as amended). During the
performance of this Agreement, the Contractor agrees as follows:
28.8.1. The Contractor certifies to the Village that it has not and will not use Federal
appropriated funds to pay any person or organization for influencing or attempting to
influence an officer or employee of any agency, a member of Congress, officer or
employee of Congress, or an employee of a member of Congress in connection with
obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. §
1352. The required Certification is attached to this Agreement.
28.8.2. Contractor will also ensure that each tier of subcontractor(s) shall also disclose any
lobbying with non-Federal funds that takes place in connection with obtaining any
Federal award. Such disclosures will be forwarded from tier-to-tier up to the Village.
28.9. Procurement of Recovered Materials. As required by federal program
legislation, Contractor agrees to the following:
28.9.1. In the performance of this contract, the Contractor shall make maximum use of
products containing recovered materials that are EPA-designated items unless the
product cannot be acquired:
28.9.1.1. competitively within a timeframe providing for compliance with the
contract performance schedule;
28.9.1.2. meeting contract performance requirements; or
28.9.1.3. at a reasonable price.
28.9.2. Information about this requirement, along with the list of EPA-designate items, is
available at EPA’s Comprehensive Procurement Guidelines web site,
https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program.
28.9.3. The Contractor also agrees to comply with all other applicable requirements of
Section 6002 of the Solid Waste Disposal Act.
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28.10. DHS Seals, Logos, and Flags. The Contractor shall not use the DHS seal(s), logos,
crests, or reproductions of flags or likenesses of DHS agency officials without specific
FEMA pre-approval.
28.11. Compliance with Federal Law, Regulations, and Executive Orders. The
Contractor acknowledges that FEMA financial assistance will be used to fund the contract
only. The Contractor will comply will all applicable federal law, regulations, executive
orders, FEMA policies, procedures, and directives.
28.12. No Obligation by Federal Government. Contractor acknowledges that the
Federal Government is not a party to this contract and is not subject to any obligations or
liabilities to the non-Federal entity, Contractor, or any other party pertaining to any matter
resulting from the contract.
28.13. Program Fraud and False or Fraudulent Statements or Related Acts. The
Contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False
Claims and Statements) applies to the Contractor actions pertaining to this Agreement.
28.14. Access to Records.
28.14.1. The Contractor agrees to provide the State of Florida, the Village , the
FEMA Administrator, the Comptroller General of the United States, or any of their
authorized representatives access to any books, documents, papers, and records of
the Contractor which are directly pertinent to this contract for the purposes of making
audits, examinations, excerpts, and transcriptions.
28.14.2. The Contractor agrees to permit any of the foregoing parties to reproduce
by any means whatsoever or to copy excerpts and transcriptions as reasonably
needed.
28.14.3. The Contractor agrees to provide the FEMA Administrator or his
authorized representatives access to construction or other work sites pertaining to the
work being completed under the contract.
28.14.4. In compliance with the Disaster Recovery Act of 2018, the Village and the
Contractor acknowledge and agree that no language in this Agreement is intended to
prohibit audits or internal reviews by the FEMA Administrator or the Comptroller
General of the United States.
28.15. Affirmative Socioeconomic Steps/Small and Minority Businesses, Women’s
Business Enterprises.
28.15.1. Contractor shall comply with 2 C.F.R. § 200.321, “Contracting with small
and minority businesses, women’s business enterprises, and labor surplus area firms.”
28.15.2. If subcontracts are to be let, the Contractor is required to take all necessary
steps identified in 2 C.F.R. § 200.321(b)(1)-(5) to ensure that small and minority
businesses, women’s business enterprises, and labor surplus area firms are used when
possible.
28.16. Change or Modification. To be eligible for FEMA assistance under a FEMA grant
or cooperative agreement, the cost of a change, modification, change order, or constructive
change must be allowable, allocable, within the scope of the grant or cooperative
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agreement, and reasonable for the completion of the project scope. Accordingly, the
Contractor shall comply with the following:
28.16.1. Without invalidating the Agreement, Village reserves and shall have the right, from
time to time to make such increases, decreases or other changes in the character or
quantity of the work as may be considered necessary or desirable to fully and properly
complete the project in a satisfactory manner in accordance with the scope of the
FEMA grant or cooperative agreement. Any extra or additional work within the scope
of this Agreement must be accomplished by means of appropriate Field Orders or
Change Orders.
28.16.2. The Village shall have the right to approve and issue Field Orders setting forth
written interpretations of the intent of the project documents and ordering minor
changes in work execution, providing the Field Order involves no change in the
Agreement Price or the Agreement Time.
28.16.3. Changes in the quantity or character of the Work or Services within the scope of
the Project which are not properly the subject of Field Orders, including all changes
resulting in changes in the Agreement Price, or the Agreement Time, shall be
authorized only by Change Orders approved in advance and issued in accordance with
the provisions of Village’s Procurement Code, as amended from time to time.
28.17. Remedies. Village confirms that it is entitled to exercise all administrative,
contractual, or other remedies permitted by law to enforce Contractor’s compliance with
the terms of this Agreement, except to the extent expressly provided otherwise by this
Agreement.
28.18. Prohibition on Contracting for Covered Telecommunications Equipment or
Services. If applicable, the Contractor shall agree as follows:
28.18.1. The Village and the Contractor must comply with the Section 889(b)(1) of the John
S. McCain National Defense Authorization Act for Fiscal Year 2019 (FY2019
NDAA) and 2 C.F.R. 200.216, which prohibits the obligation or expending of federal
award funds on certain telecommunication products or from certain entities for
national security reasons. Towards that end, the Contractor shall ensure that the
Contractor and its subcontractors do not:
28.18.2. Procure or obtain any equipment, system, or service that uses covered
telecommunications equipment of services as a substantial or essential component of
any system, or as critical technology of any system;
28.18.3. Enter into, extend, or renew a contract to procure or obtain any equipment, system,
or service that uses covered telecommunications equipment or services as substantial
or essential component of any system or as critical technology of any system; or
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28.18.4. Enter into, extend or renew contracts with entities that use covered
telecommunications equipment or services as a substantial or essential component of
any system, or as critical technology as part of any system.
Additional information, including definitions for this requirement can be found in FEMA
Policy 405-143-1. Prohibitions on Expending FEMA Award Funds for Covered
Telecommunications Equipment or Services (Interim).
28.19. Domestic Preference for Procurements. As appropriate, and to the extent
consistent with law, the Contractor should, to the greatest extent practicable, provide a
preference for the purchase, acquisition, or use of goods, products, or materials produced
in the United States. This includes, but is not limited to iron, aluminum, steel, cement, and
other manufactured products. For purposes of this clause:
28.19.1. Produced in the United States means, for iron and steel products, that all
manufacturing processes, from the initial melting stage through the application of
coatings, occurred in the United States.
28.19.2. Manufactured products mean items and construction materials composed in whole
or in part of non-ferrous metals such as aluminum; plastics and polymer-based
products such as polyvinyl chloride pipe; aggregates such as concrete; glass,
including optical fiber; and lumber.
28.20. License and Delivery of Works Subject to Copyright and Data Rights. If
applicable, the Contractor shall agree as follows:
28.20.1. The Contractor grants to the Village, a paid-up, royalty-free, nonexclusive,
irrevocable, worldwide license in data first produced in the performance of this
contract to reproduce, publish, or otherwise use, including prepare derivative works,
distribute copies to the public, and perform publicly and display publicly such data.
For data required by the contract but not first produced in the performance of this
contract, the Contractor will identify such data and grant to the Village or acquires on
its behalf a license of the same scope as for data first produced in the performance of
this contract. Data, as used herein, shall include any work subject to copyright under
17 U.S.C. § 102, for example, any written reports or literary works, software and/or
source code, music, choreography, pictures or images, graphics, sculptures, videos,
motion pictures or other audiovisual works, sound and/or video recordings, and
architectural works. Upon or before the completion of this contract, the Contractor
will deliver to the Village data first produced in the performance of this contract and
data required by the contract but not first produced in the performance of this contract
in formats acceptable by the Village.
28.21. Safeguarding of Sensitive Information and Information Technology Security
and Privacy Training.
28.21.1. Applicability. This clause is applicable when the Contractor has access to
sensitive information or the Contractor’s IT system as defined in the agreement that are
used to input, store, process, output and/or transmit sensitive data. If applicable, this clause
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shall apply to the Contractor, its subcontractors, and Contractor employees (hereafter
referred to collectively as “Contractor”). The Contractor shall insert the substance of this
clause in all subcontracts.
28.21.2. Definitions. As used in this clause— “Personally Identifiable Information
(PII)” means information that can be used to distinguish or trace an individual's identity,
such as name, social security number, or biometric records, either alone, or when combined
with other personal or identifying information that is linked or linkable to a specific
individual, such as date and place of birth, or mother’s maiden name. The definition of PII
is not anchored to any single category of information or technology. Rather, it requires a
case-by-case assessment of the specific risk that an individual can be identified. In
performing this assessment, it is important for an agency to recognize that non-personally
identifiable information can become personally identifiable information whenever
additional information is made publicly available—in any medium and from any source—
that, combined with other available information, could be used to identify an individual.
PII is a subset of sensitive information. Examples of PII include, but are not limited to:
name, date of birth, mailing address, telephone number, Social Security number (SSN),
email address, zip code, account numbers, certificate/license numbers, vehicle identifiers
including license plates, uniform resource locators (URLs), static Internet protocol
addresses, biometric identifiers such as fingerprint, voiceprint, iris scan, photographic
facial images, or any other unique identifying number or characteristic, and any
information where it is reasonably foreseeable that the information will be linked with
other information to identify the individual.
(a) Sensitive Information, as used in this clause, means any information, which if lost,
misused, disclosed, or, without authorization is accessed, or modified, could adversely
affect the national or homeland security interest, the conduct of Federal programs, or the
privacy to which individuals are entitled under section 552a of title 5, United States Code
(the Privacy Act), but which has not been specifically authorized under criteria
established by an Executive Order or an Act of Congress to be kept secret in the interest
of national defense, homeland security or foreign policy. This definition includes the
following categories of information:
(1) Protected Critical Infrastructure Information (PCII) as set out in the Critical
Infrastructure Information Act of 2002 (Title II, Subtitle B, of the Homeland Security
Act, Pub. L. 107-296, 196 Stat. 2135), as amended, the implementing regulations
thereto (Title 6, Code of Federal Regulations, part 29) as amended, the applicable
PCII Procedures Manual, as amended, and any supplementary guidance officially
communicated by an authorized official of the Department of Homeland Security
(including the PCII Program Manager or his/her designee);
(2) Sensitive Security Information (SSI), as defined in Title 49, Code of Federal
Regulations, part 1520, as amended, “Policies and Procedures of Safeguarding and
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Control of SSI,” as amended, and any supplementary guidance officially
communicated by an authorized official of the Department of Homeland Security
(including the Assistant Secretary for the Transportation Security Administration or
his/her designee);
(3) Information designated as “For Official Use Only,” which is unclassified
information of a sensitive nature and the unauthorized disclosure of which could
adversely impact a person's privacy or welfare, the conduct of Federal programs, or
other programs or operations essential to the national or homeland security interest;
and
(4) Any information that is designated “sensitive” or subject to other controls,
safeguards or protections in accordance with subsequently adopted homeland security
information handling procedures.
(b) “Information Technology Resources” include, but are not limited to, computer
equipment, networking equipment, telecommunications equipment, cabling, network
drives, computer drives, network software, computer software, software programs,
intranet sites, and internet sites.
(c) Contractor employees working on this contract must complete such forms as may be
necessary for security or other reasons, including the conduct of background
investigations to determine suitability. Completed forms shall be submitted as directed by
the Contracting Officer. Upon the Contracting Officer's request, the Contractor's
employees shall be fingerprinted, or subject to other investigations as required. All
Contractor’s employees requiring recurring access to Government facilities or access to
sensitive information or IT resources are required to have a favorably adjudicated
background investigation prior to commencing work on this contract unless this
requirement is waived under Departmental procedures.
(d) The Contracting Officer may require the Contractor to prohibit individuals from
working on the contract if the Government deems their initial or continued employment
contrary to the public interest for any reason, including, but not limited to, carelessness,
insubordination, incompetence, or security concerns.
(e) Work under this contract may involve access to sensitive information. Therefore, the
Contractor shall not disclose, orally or in writing, any sensitive information to any person
unless authorized in writing by the Contracting Officer. For those Contractor employees
authorized access to sensitive information, the Contractor shall ensure that these persons
receive training concerning the protection and disclosure of sensitive information both
during and after contract performance.
(f) The Contractor shall include the substance of this clause in all subcontracts at any tier
where the subcontractor may have access to Government facilities, sensitive information,
or resources.
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EXHIBIT A
SCOPE OF WORK/TECHNICAL SPECIFICATIONS
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SECTION 2A. SCOPE OF WORK / TECHNICAL SPECIFICATIONS
2.1 SCOPE OF WORK:
CONTRACTOR shall provide all labor, materials and equipment, tools, and vehicles/transportation
necessary to perform arboriculture services for the maintenance of all trees within the VILLAGE’s rights-
of-way, landscape buffers, parks, and facilities as shown in Attachment “C”. Work includes but is not
limited to mobilizing/staging, tree pruning, aerial work, tree removal, stump grinding, utilization of hand
power pruning tools, chipping, cleanup, disposal, demobilizing/breakdown, and maintenance of traffic to
ensure that the Work and Services are performed at all Sites in a manner that will meet the Performance
Standards and all requirements of the ITB.
2.2 SCHEDULE OF WORK
All Work shall be performed Monday through Friday between the hours of 8:00 AM and 6:30 PM.
However, work on Harbor Drive and areas around the schools should occur after 9:00 AM and should not
occur at dismissal times. Work on Crandon Boulevard should occur after 9:30 AM. The Contractor shall
comply with Chapter 17 of the Village Code (i.e., the Village’s Noise Ordinance).
There will be No Work performed on weekends or holidays unless the Project Manager gives prior written
approval.
The Contractor shall submit documentation to the Project Manager with a schedule before Work is to be
started.
The Contractor shall notify the Project Manager in the event of scheduling delays, changes, or
comments/complaints received from the public.
The Contractor shall provide the necessary personnel, material, equipment in order to perform the Work
only within the specified dates below:
Hardwood Pruning:
April 15th – June 30th
Coconut Pruning, 1st Annual Round:
May 1st – June 30th (Along Crandon Blvd. June 15th – June 30th)
Coconut Pruning, 2nd Annual Round:
August 15th – October 30th (Along Crandon Blvd. October 15th – October 30th)
2.3 PERSONNEL REQUIREMENTS/QUALIFICATIONS
(a) General
The Contractor must manage the total Work effort required to assure fully adequate and timely
completion of these Services in accordance with the Performance Standards. Such management
includes, but is not limited to, planning, scheduling, report preparation, establishing and
maintaining records, and quality control. The Contractor must provide staff with the necessary
management expertise to assure the performance of the required Work; trained and
experienced field and office personnel who meet established standards to perform the Work
required effectively and who exhibit the capability to perform with minimum supervision. It is
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the Village’s preference that turnover is kept to a minimum with personnel to ensure a
continuity of operations through the Contract term.
(b) Field Supervisor
The Contractor must provide on-site, full-time Field Supervisor(s) to manage Contractor’s
personnel at each Site. This person (and their substitute) must have full authority to act on
behalf of the Contractor on all matters relating to the daily performance of the Work at the
Site(s). The Field Supervisor must be the central point of contact in the field for the Village; must
effectively communicate in English; is capable of writing schedules and monthly reports, and of
noting any deficiencies that need correcting. The Field Supervisor must understand and be able
to fulfill, completely and clearly, the Performance Standards and reporting requirements of the
Contract. A résumé for the Field Supervisor must be submitted with the Contractor’s Proposal,
which must include all contact information (i.e., telephone, email address, cell phone, etc.). The
Field Supervisor must have a minimum of three (3) years of experience on contracts of similar
size, scope, and complexity, and must remain on-site at all times while Work is being performed
under the Contract. When the on-site working Field Supervisor is absent for the day or an
extended period (more than 4 hours), the Project Manager must be notified, and the Contractor
must appoint a qualified substitute. Within five (5) days of execution of the Contract, the
Contractor must provide the Project Manager with a cellular phone number for the Field
Supervisor(s) where they can be reached at all times.
(c) Arborist
The Contractor must employ an International Society of Arboriculture (ISA) Certified Arborist to
supervise on-site at all times that tree work is being performed at the Site. The Arborist will
certify the quality and grade of each tree, including the quality of the root system, prior to
installation in the landscape. Tree work includes, but is not limited to, planting/installing,
maintaining (pruning, trimming, treating), and removing any tree in the contracted area.
Arborist will ensure that all Work is performed in accordance with the American National
Standards Institute ANSI A-300 and associated Best Management Practices for Tree Pruning and
Safety. A résumé for the Arborist must be submitted, along with proof of current certification.
It is the Contractor’s responsibility to ensure that the Arborist remains current and compliant in
their certification throughout the duration of the Contract.
(d) Personnel Qualifications
The Contractor must furnish sufficient competent and qualified personnel to perform all Work
specified in the Contract. The Contractor must perform a background check on all proposed
personnel, and only those individuals who have passed the background check must be
authorized to work under this Contract. The Contractor must submit to the Project Manager
within fourteen (14) days of the Effective Date of the Agreement, a list of all personnel proposed
to work under the Contract. The list must be updated immediately when changes occur.
Contractor shall comply with all federal, state, and local laws and ordinances when performing
any work relating to the Contract. As required by local and state authorities for Contractor’s line
of work, Contractor shall maintain all valid licenses and certifications for Contractor and for
Contractor personnel. Contractor shall timely provide any license or certificate to the Project
Manager upon request. It is the Contractor’s responsibility to ensure that anyone performing
work follows the recommendations of Florida-Friendly Best Management Practices for
Protection of Water Resources by the Green Industries.
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(e) Uniform/Appearance
The Contractor personnel located at Sites must present a neat appearance and must wear
distinct clothing bearing the Contractor’s name for easy identification. All the Contractor
personnel, including the Field Supervisor, must wear a distinctive, neat, and freshly laundered
uniform, which the Contractor must supply at no cost to the personnel. Any color or color
combination may be used for the uniforms. The following clothing types are not to be worn:
tube tops, tank tops, shorts, leotards, sandals, cutoffs, multicolored pants/shorts, items in
disrepair, or any other inappropriate or offensive clothing as determined by the Project
Manager to be unacceptable for representing the Village. The Project Manager may request the
removal of any personnel not properly uniformed.
(f) Standards of Conduct
The Contractor must maintain satisfactory standards of personnel competency, conduct,
appearance, and integrity, and must take such disciplinary action against his/her personnel, as
necessary. Each Contractor personnel is expected to adhere to standards of conduct that reflect
credit on themselves, their employer, the community, and the Village. Being that the Contractor
will be visible at all times to the public during the performance of its duties under the Contract,
the Contractor should ensure its personnel continue to adhere to standards of conduct while
on breaks. Contractor’s personnel must not smoke, vape, sleep, or lay down in public view at
any time during the Work. If any of Contractor’s personnel are found smoking, vaping, sleeping,
or laying down in public view by Village staff, or if such activity is reported by the public and
verified by the Village, the Village may impose a performance penalty of $250 per occurrence
assessed to the Contractor.
(g) Alcohol and Controlled Substances
Contract employees must not possess, distribute, or consume, any controlled substance or
alcohol on the Sites. Any Contractor personnel under the influence of alcohol or a controlled
substance must not be permitted to perform any Work under the Contract. Anyone found to be
in violation of this requirement will be permanently prohibited from performing any Work
under this Contract. Actions taken under this Section must not relieve the Contractor of the
obligation to provide sufficient personnel to perform adequate and timely Work as required in
this Contract.
(h) Personnel Safety Requirements
The Contractor must require their personnel to comply with the instructions pertaining to
conduct, safety and health regulations forming a part of this Contract. All equipment operators
must wear Personal Protection Equipment as required or recommended by the equipment
manufacturer and OSHA; and, all power equipment, power and mechanical tools, mowers,
vehicles, etc. must be operated within the safety parameters defined by OSHA. Equipment must
be carefully maintained and operated with proper safety guards and devices installed and fully
operational and with discretion when near pedestrians or vehicles. All personnel must wear a
safety vest when working by roads and in areas with vehicular traffic.
(i) Personnel Training/Operating of Equipment
The Contractor must ensure that all employees have been properly trained, certified, and/or
licensed to operate power equipment, power and mechanical tools, mowers, vehicles, etc., and
must maintain records of all training, qualifications and certifications to be made available for
the Village’s review upon request. The Contractor must provide training to all employees, at the
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Contractor’s expense, to ensure the competencies in performing tasks are met to prevent the
endangerment of personnel or the public. At no time must the safeguards on lawn mower,
edger, weed eater or any other power equipment with factory installed safety measures be
altered, turned off or used improperly. All safeguards must always be in place and operational.
2.4 EQUIPMENT AND MATERIALS
All equipment provided by the Contractor for work hereunder shall meet all OSHA, ANSI, NFPA, and all
other Federal and State requirements. Failure by the successful bidder to provide adequate equipment
may result in termination of this Contract. Equipment shall include but not be limited to aerial equipment,
trucks, chipping equipment, power, and hand tools.
All power operating equipment must be operated within the safety parameters as defined by the
manufacturer and OSHA; and must be carefully maintained and operated with proper safety guards and
devices, and with discretion when near the public and vehicular traffic.
The Contractor shall be required to follow the "State of Florida Manual on Traffic Control and Safe
Practices." The Contractor shall be responsible for providing all safety gear, equipment, and traffic control
devices for Contractor personnel and maintenance personnel. In case of any street or lane closures, a
Maintenance of Traffic (MOT) shall be provided to the Village.
2.5 PLANS AND REPORTS
(a) Maintenance & Service Plan
The Contractor must prepare a Maintenance and Service Plan (“M&S”) establishing a program
for meeting the Performance Standards of the Contract Documents. The Contractor must
submit the M&S to the Project Manager within fourteen (14) days of the Effective Date of the
Agreement, for review and acceptance. Should the Project Manager recommend or require
revisions, the Contractor must make the necessary revisions and resubmit a revised M&S to the
Project Manager within seven (7) days.
The M&S must:
• Outline the Contractor’s overall strategy for providing the Tree Trimming/Pruning
Services contained in the Contract Documents.
• Establish the Contractor’s program of inspections and maintenance for each Contract
year, to include a month-to-month breakdown by Task.
• Project a level of unscheduled work (including Re-Work).
• Document basis for the Contractor’s Annual Execution Plan – i.e., the Contractor’s
schedule of activities and resources (labor and material) to accomplish the Contractor’s
program.
• Provide the Contractor’s standard operating procedures, emergency operating
procedures, safety plan, and contingency plans, when applicable.
Once accepted, the Contractor’s M&S Plan will provide the baseline for tracking the Work and
expenditures against the Contract and for evaluating performance in accordance with the
Contract Documents.
(b) Quality Control Plan
The Contractor must submit a Quality Control Plan (“QCP”) to the Project Manager for review
and acceptance. The rationale underpinning the QCP is that the Contractor is responsible for
Quality Control (“QC”) to assure that the Work performed meets the Performance Standards
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established in the Contract. All methods, procedures, and forms must support this rationale. QC
inspections must be performed by qualified personnel (i.e. personnel knowledgeable of all
technical aspects of the Work, which would allow identification/discovery of improperly
performed services). Schedule and frequency of QC reports is left to the Contractor’s discretion,
however, all completed inspection reports must be submitted to the Project Manager as part
of the Monthly Report outlined below.
(c) Monthly Report
The Contractor must furnish a monthly report (“Report”) to the Project Manager, provided as a
hard copy AND electronic copy, no later than the fifteenth (15th) of each month that must
consist of four (4) parts, broken down as follows:
Part 1 Prior month’s Basic Services accomplished, identified by park or roadway and the
date(s) the Work was performed.
Part 2 Prior month’s Re-Work accomplished, identified by park or roadway, and the
date(s) the Work was performed.
Part 3 Prior month’s Additional Services accomplished, identified by park or roadway, and
the date(s) the Work was performed.
Part 4 Prior month’s QC Reports conducted under the QCP.
2.6 CHANGE ORDERS
Without invalidating the Contract Documents, the Village reserves the right to make increases, decreases
or other changes in the character or quantity of the Work under the Contract Documents as may be
considered necessary or desirable to complete the Work in a manner satisfactory to the Village. The
Village reserves the right to order changes, which may result in additions to or reductions from the
amount, type or value of the Work shown in the Contract, and which are within the general scope of the
Contract Documents, and all such changes will be authorized only by a change order (“CO”) approved in
advance and issued in accordance with provisions of the Contract Documents.
For Contractor initiated change orders, the Contractor is required to provide the Project Manager with a
detailed Request for Change Order (“RCO”) in a form approved by the Village, which must include the
requested revisions to the Contract, including, but not limited to, adjustments in the Contract Price and/or
Contract Time. The Contractor must provide sufficient supporting documentation to demonstrate the
reasonableness of the RCO. The Village may require Contractor to provide additional data including, but
not limited to, a cost breakdown of material costs, labor costs, labor rates by trade, work classifications,
and overhead rates to support the RCO. If applicable, the RCO must include any schedule revisions
accompanied by an explanation of the cost impact of the proposed change. Failure to include schedule
revisions in an RCO will be deemed as the Contractor’s acknowledgement that the changes included in an
RCO will not affect the project schedule.
In the event a satisfactory adjustment cannot be reached, and a CO has not been issued or time is of the
essence, the Village reserves the right, at its sole option to direct the Contractor to proceed on a time and
materials basis or make such arrangements as may be deemed necessary to complete the proposed
additional Work. Where the Village directs the Contractor to proceed on a time and materials basis, the
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Contractor must maintain detailed records of all labor and material costs to be compensated by the
Village.
2.7 INSPECTION OF WORK
The Project Manager, other Village representatives, and other public entities having jurisdiction over the
Work must always have access to the Work.
Inspectors have no authority to permit deviations from, or to relax any of the provisions of the Contract
Documents or to delay the Work by failure to inspect the materials and Work with reasonable promptness
without the written permission or instruction of Project Manager.
(a) Contract Surveillance
If Non-Compliant Work is identified, through random or unannounced inspections, or any other
circumstance in which the Village becomes aware of Non-Compliant Work, the Contractor will
be notified in writing within two (2) business days and provided documentation. Where
possible, Contractor must correct all Non-Compliant Work within two (2) business days, during
which time the Contractor must not be assessed any payment reduction. Failure to correct the
Non-Compliant Work must result in the Village assessing a payment reduction for each day the
Non-Compliant Work remains out of compliance with the Performance Standards. The payment
reduction will be assessed against the Contractor’s monthly invoice, accruing from the date of
notification of the Non-Compliant Work through issuance of a notification of compliance,
excluding those instances where the Village has provided a grace period for the Contractor to
correct the Work and the Contractor has corrected the Work within the grace period.
When inspection efforts identify Non-Compliant Work, the Contractor will be notified per the procedure
set forth above and the Village will conduct a subsequent inspection to ensure compliance. The Village
will incur additional administrative expenses for the additional time required to re-inspect Contractor
Work. The Village will assess a payment reduction of $250.00 to cover the administrative expenses
associated with each re-inspection effort; such reduction will be in addition to other payment reductions
that may apply per the Contract. The Contractor must be assessed the administrative fee in accordance
with the Payment Reduction provisions of Section “2C.”
2.8 ADDITIONAL SERVICES
The Village may request the Contractor to perform Additional Services that are not part of the Basic
Services.
(a) Work Orders
The Village will issue a Work Order for all Additional Services to be performed by the Contractor.
Upon receipt of a request for additional work from the Project Manager, the Contractor must
prepare a Work Order Proposal in a form approved by the Project Manager. Work Order
Proposals must use a time and materials basis unless otherwise specified by the Project
Manager. The Proposer shall not include markup on any materials. The Village may require
Contractor to submit receipts to verify material costs. The Work Order Proposal must include
the following:
i. A detailed description of the work to be performed, and if required, the method(s) to be
used in performing the work.
ii. Information on materials to be used including any mark-up details and Material Safety
Data Sheets (MSDS).
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iii. The number of hours, hourly rate, and total cost per the classification of personnel to be
used based on the hourly rates contained in the Contract. Should a classification or hourly
rate not exist, the additions must be subject to the approval of the Project Manager, and
the classification or hourly rate will be added to the Contract through a Change Order.
vi. Timeframe for completion of the work from the issuance of a Notice to Proceed by the
Village.
v. Description and cost of any specialized equipment to be used for the work. (Such cost is
only permissible where the Contractor must rent the equipment. The cost will be
reimbursed at the actual cost to the Contractor).
(b) Emergency Services
Upon notification by the Project Manager, through the issuance of a Work Order, the Contractor
is required to perform emergency tree trimming/pruning services in areas covered under the
Contract. Upon notification of an emergency, the Contractor must respond to the Project
Manager or Village Manager within two (2) hours to initiate Emergency Services. Upon receiving
direction from the Project Manager, the Contractor personnel must begin emergency work
within two (2) hours.
i. The Contractor must prepare an Emergency Response Plan (“ERP”) within thirty (30) days
after execution of the Contract, to be submitted to the Project Manager for review and
approval. The ERP must outline the Contractor’s response procedures in the event of an
emergency, damage, or adverse weather conditions, including hurricanes, tropical
storms, or flooding. The ERP must address the Contractor’s coordination procedures with
the Village.
ii. The ERP must include a provision for Contractor personnel to supplement the Village’s
staff in hurricane preparedness, evacuation plans, and hurricane disaster response.
(c) Supplemental Services
Supplemental Services are defined as tree trimming/pruning services not covered under Basic
or Emergency Services, such as preparing a Site for a special event, tree removal, or
trimming/pruning of trees damaged by a third party or force majeure.
i. When Supplemental Services are needed, the Village will provide a written request to the
Contractor that will include the work to be performed and the information to be provided
by the Contractor.
ii. The Contractor will provide the Project Manager with a Work Order Proposal for review.
If requested service has a Contract unit price associated with it, the Proposal shall use the
Contract unit price. Upon acceptance of the Work Order Proposal, which may be revised
through negotiations if the requested service does not have an associated Contract unit
price, the Project Manager shall issue a Work Order for the Contractor to perform the
Additional Services.
iii. The Project Manager will notify the Contractor at least forty-eight (48) hours prior to a
special event.
2.9 DEFINITION OF TERMS
1. Additional Services means those services that are not included in the Basic Services, such as
Emergency Services or Supplemental Services.
2. Basic Services must include tree trimming/pruning as required by the Performance Work
Statement (“PWS”).
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3. Change Order means a written document ordering a change in the Contract price or Contract
time or a material change in the Work.
4. Contract means the agreement that will be executed by the Contractor and the Village
subsequent to approval of award by the Village.
5. Contract Documents means the Contract as may be amended from time to time, and plans,
specifications, addendums, clarifications, directives, Change Orders, Work Orders, Work Order
Proposals, payments and other such documents issued under or relating to the Contract.
6. Contractor means the business entity who has entered into Contract to provide goods or
services to the Village and who will be responsible for the acceptable performance of any Work
and for the payment of all legal debts pertaining to the Work under the Contract.
7. Customer Complaints or Comments means comments or complaints received by the Village
from Village residents or businesses pertaining to Services provided by the Contractor.
8. Days mean calendar days unless otherwise specifically stated in the Contract.
9. Emergency Service means service that requires expeditious action to mitigate a hazardous
condition or safety risk.
10. Excluded Damage means damage due to an outside third party, force majeure, or directly by
the Village’s personnel (e.g., vehicular accidents, lighting strikes, hurricanes, etc.).
11. Hazardous Condition means debris or litter that is greater than 1 square foot in area, greater
than 6” in length, or a rigid protrusion above the ground in excess of 4”.
12. Inspector means an authorized representative of the Village assigned to make necessary
inspections of materials and Work performed by the Contractor.
13. Materials mean goods or equipment or used or consumed in the performance of the Work.
14. Median means the area in the center of the ROW consisting of Turf or Landscaping.
15. Non-Compliant Work means Work performed by the Contractor that has been determined
through Village inspection to not meet the Performance Standards.
16. Notice to Proceed means the written letter or directive issued by the Village Manager or
designee acknowledging that all conditions precedent to award have been met and directing
that the Contractor may begin Work.
17. Notification of Adjustment means a form prepared by Village and delivered to Contractor
detailing pending payment adjustments.
18. Notification of Compliance means a form prepared by Village and delivered to Contractor
approving Work corrections requested by Village and completed by Contractor.
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19. Notification of Non-Compliance means a form prepared by Village and delivered to Contractor
detailing Work corrections requested by Village to be completed by Contractor.
20. Performance Standards means the desired results established for each Type of Work such as
tree trimming/pruning, etc. necessary to be deemed Satisfactory.
21. Project means a task or series of tasks that the Contractor must complete in accordance with
the Contract Documents.
22. Project Manager means the individual assigned by the Village Manager or designee to manage
a Project.
23. Quality Assurance (“QA”) means those actions taken by the Village to assure Services meet
the Satisfactory Performance Standards established by the Contract Documents.
24. Quality Control (“QC”) means those actions taken by the Contractor to ensure the Contractor’s
performance meets the Performance Standards.
25. Quality Control Plan (“QCP”) means the document provided by the Contractor outlining how
they will assure the Quality Control (“QC”) of the Work.
26. Re-Work means corrective Work performed by the Contractor, at no cost to the Village, to
meet the Performance Standards
27. Satisfactory means Work performed by the Contractor that has been determined through
Village inspection to meet the Performance Standards.
28. Site(s) means the location(s) where Work is to be performed under the Contract, as reflected
in Exhibits E attached.
29. Subcontractor means a person, firm or corporation having a direct contract with Contractor,
including one who furnishes material, equipment or services necessary to perform the Work.
30. Task(s) means the components of Work required by the Contract Documents, which includes,
but is not limited to tree trimming/pruning, supervision, reporting, maintenance of traffic for
tree trimming/pruning operations, and debris removal and disposal.
31. Village means the Village Council of the Village of Key Biscayne or the Village Manager, as
applicable.
32. Village Manager means the duly appointed chief administrative officer of the Village of Key
Biscayne or designee.
33. Work as used herein refers to all reasonably necessary and inferable labor, material,
equipment, and services, whether or not specifically stated, to be provided by the Contractor
to fulfill its obligations under the Contract Documents.
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34. Work Order means a document issued by the Village awarding Additional Services to a
Contractor.
35. Work Order Proposal means a document prepared by the Contractor, at the request of the
Village for Work to be performed under Additional Services.
SECTION 2B. PERFORMANCE WORK STANDARDS
2.10 PERFORMANCE STANDARDS
The Contractor shall ensure that the Tree Trimming/Pruning Services are performed in a manner that will
meet the Performance Standards described herein. The Performance Standards are established to result
in the desired health and appearance of all trees and palms covered by the Contract. The Contractor shall
use current techniques and standards approved by UF/IFAS and the International Society of Arboriculture.
The Contractor shall prune selectively to improve plant structure and health, and to enhance fruiting,
flowering, or appearance.
All Work on Trees and Palms, must be supervised by the Arborist and performed in accordance with the
American National Standards Institute (ANSI) A-300 and associated Best Management Practices for Tree
Pruning and Safety.
When performing corrective pruning, the Contractor shall maintain the structural integrity, natural shape,
and characteristics of the species.
(a) Trees
Trees are to be trimmed to remove no more than 25% of the foliage at any given time, with the
specific amount to be removed based upon the health and species of the tree to be pruned. All
pruning cuts shall consist of proper reduction or removal cuts per ANSI A300 (Part I) Standards.
The objectives of tree pruning are to mitigate risk, manage health, develop or improve the
structure, provide clearance, manage the size and/or shape, or enhance views. Overall, cuts
should be made to branches three inches (3”) in diameter or less when practical to preserve the
natural form of the tree and reduce the visibility of pruning scars.
i. The Contractor shall ensure that the central leader (trunk) of all trees is maintained (no
topping/heading, hat-racking, or shearing). The Contractor shall remove interfering or
crossed limbs.
ii. The Contractor shall perform crown cleaning, defined as the removal of dead branches
two inches (2”) in diameter and greater.
iii. The Contractor shall remove adventitious shoots/sucker growth, except where needed to
restore the desired branch structure. Suckers at the base of trees shall be removed with
pruners and never herbicides.
iv. Clearance Specifications:
a. The Contractor shall maintain branches and limbs a minimum of two feet away
from all buildings, signs, light poles, etc.
b. Prune to provide eight feet (8’) of clearance over walkways (sidewalks, paths).
c. Prune to provide sixteen feet (16’) of clearance over roadways and parking areas.
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d. Use directional pruning to encourage growth away from the specified clearance
area and to develop a compatible and stable structure.
v. The Contractor shall inform the Project Manager of trees that are diseased or dying that
should be considered for removal. Tree removal is not included within this scope of work
and will be assigned a Work Order as specified under Additional Services.
(b) Palms
Palms are to be pruned to remove dead, dying, and diseased fronds, as well as fruiting bodies
and stalks and petiole stubs.
i. The Contractor shall make reasonable efforts to avoid removing leaves that are growing
horizontally or upward (i.e., retain all leaves within a “9–3” frame), except if fronds are
being removed as part of a pest management program or as part of hurricane/storm
preparation. Palms are to be trimmed like a “Wide V,” under the supervision of the
Arborist.
ii. The Contractor shall cut fronds close to the petiole base but shall not damage living trunk
tissue.
iii. The Contractor shall assess the discoloration of lower palm leaves for nutritional
deficiencies and create a corrective action fertilizer plan if necessary.
iv. Coconuts Removal: The Contractor will monitor and remove all coconuts to ensure
pedestrian safety and to avoid damage to vehicles, buildings, and equipment.
SECTION 2C. COMPENSATION
2.11 GENERALLY
The rates specified below shall be in effect for the entire term of the Agreement, including any renewal
or extension term(s), unless otherwise expressly stated below. Any goods or services required under this
Agreement for which no specific fee or cost is expressly stated in this Fee Schedule shall be deemed to be
included, at no extra cost, within the costs and fees expressly provided for in this Section 2C.
2.12 PAYMENT REDUCTION FOR NON-COMPLIANCE
(a) Reductions for Non-Compliant Work
All Work is subject to inspection by the Project Manager, Inspector, or other authorized Village
representative, as may be designated by the Village from time to time. As a result of these
inspections, resident input, or any other notification of quality issues that the Village may
receive, if Work is found to be non-compliant with the Performance Standards, the Village may
reduce payments to the Contractor by an amount equal to the value of the Unsatisfactory or
Non-Compliant Work. The Project Manager will determine the appropriate reduction using the
procedures provided for in this Section. Reductions may be deducted from any payment due
the Contractor.
(b) Payment Adjustments
The Project Manager will inform the Contractor, in writing, of all Non-Compliant Work that has not
been corrected within the two (2) day requirement by delivering a Notification of Adjustment that
provides details, including the type(s) and dollar amount(s) of proposed reductions.
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The Contractor may, within ten (10) working days of receipt of the Notification of Adjustment,
submit to the Village Manager a written objection to the adjustment containing specific reasons
why any or all of the proposed reductions are not justified. Written objections must be supported
by specific facts that justify reconsideration and/or adjustment of the reduction amount. Failure to
respond to a Notification of Adjustment will be interpreted to mean that the Contractor accepts the
deduction as proposed.
All or a portion of the final payment may be delayed or withheld until the Project Manager makes a
final decision on any pending proposed reduction(s).
(c) Reductions
The Reduction rate for the Work will be calculated using the fixed unit rate established in the
Contract for the type(s) of Work performed.
Application of Reductions
i. The Village may assess payment reductions for any Non-Compliant Work against any
outstanding payment due the Contractor.
ii. The Village may assess a fee of $250.00 for each re-inspection where Work is identified
as Non-Compliant Work and a re-inspection is required. Such fee is assessed as liquidated
damages to offset the administrative costs to the Village to conduct the inspection and
any necessary re-inspection.
iii. The Village may retain payment up to 20% of any or all outstanding invoices for Work
performed due to the Contractor’s failure to provide any Report required by the Contract
Documents. Fees for Basic Services:
Fees for Basic Services shall be in accordance with Contractor’s fee schedule attached hereto as
Exhibit “B”.
2.13 FEES FOR ADDITIONAL SERVICES
Fees for Additional Services shall be in accordance with Contractor’s fee schedule attached hereto as
Exhibit “B”.
SECTION 2D. RESIDENTIAL TREE TRIMMING SERVICES
2.14 RESIDENTIAL TREE TRIMMING SERVICES
The Village of Key Biscayne is dedicated to promoting preventive maintenance landscaping practices
within residential properties as a proactive measure to mitigate the frequency and adverse effects of
power outages. One such measure includes promoting and facilitating for residents the ability to regularly
clear palm trees, trees, and trees branches/limbs away from electrical equipment and lines to help
prevent outages. The Occupational Safety and Health Administration (OSHA) refers to this service as line-
clearance tree trimming and defines it as the pruning, trimming, repairing, maintaining, removing, or
clearing of trees or the cutting of brush that is near energized power lines.
Although not included within and outside the Scope of Service for this Agreement, if requested by a single
family and/or multifamily property owners (residential customers), the Contractor shall provide pricing
for line-clearance tree trimming. Prior to providing such services for a residential customer, the Contractor
shall promptly provide that residential customer with a firm written proposal as to the total cost of the
service within fifteen (15) business days of the residential customer’s request for proposal. No additional
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costs beyond those listed in the written proposal may be charged by the Contractor. Should the residential
customer and the Contractor reach an agreement, the Contractor may then proceed with providing line-
clearance tree trimming services, provided that:
(a) The Contractor uses personnel with all relevant line-clearance tree trimming qualifications
necessary to perform such services near power lines and adhere to all applicable standards set
by the National Electric Safety Code (NESC), American National Standard Institute (ANSI), and
Occupational Safety and Health Administration (OSHA).
(b) The Contractor complies with all OSHA regulations and safety standards that apply to line-
clearance tree trimming, which is separate from an organization that operates or controls the
operating procedures for electric power generation, transmission, or distribution lines or
equipment. These standards include but are not limited to 29 CFR 1910.268 and/or 29 CFR
1910.331 through 1910.335.
(c) The Contractor follows industry standard directional pruning guidelines, ANSI A-300, set by the
American National Standards Institute (ANSI) to protect the health of trees while helping them
to grow away from power lines.
(d) The Contractor is licensed and insured, and complies with all applicable Local, State, and Federal
laws, codes, ordinances, and/or permits.
(e) The optional additional service provided does not directly, or indirectly, conflict, or impede the
Contractor’s ability to perform all required tree trimming services, and service schedules, within
Village rights-of-way and required by this Agreement.
If the Contractor provides the above-mentioned additional line-clearance tree trimming services
requested by a residential customer, the payment shall be made directly to the Contractor by the
residential customer.
END OF SECTION
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Contract No. XX-XX Exhibit B: Rate Schedule
EXHIBIT B
RATE SCHEDULE
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Contract No. XX-XX Exhibit C: FEMA Contract Provisions Guide
EXHIBIT C
FEMA CONTRACT PROVISIONS GUIDE
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Contract Provisions
Guide Navigating Appendix II to Part 200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards
Procurement Disaster Assistance Team (PDAT) June 2021
(FI-207-21-0001)
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Table of Contents
Introduction .................................................................................................................................. 4
Summary of Applicable Federal Procurement Standards ............................................................... 5
Policy and Guidance Document(s) Incorporated and Superseded ................................................. 6
Document Management and Maintenance ..................................................................................... 6
Contract Provisions Quick Reference Guide .................................................................................... 7
Required Contract Provisions ...................................................................................................... 9
1. Remedies ................................................................................................................................ 9
1.1 Applicability ............................................................................................................... 9
1.2 Additional Considerations ........................................................................................ 9
2. Termination for Cause and Convenience .............................................................................. 9
2.1 Applicability ............................................................................................................... 9
3. Equal Employment Opportunity ........................................................................................... 10
3.1 Applicability ............................................................................................................. 10
3.2 Key Definitions ........................................................................................................ 10
3.3 Required Language ................................................................................................ 10
4. Davis-Bacon Act .................................................................................................................... 13
4.1 Applicability ............................................................................................................. 13
4.2 Additional Requirements ....................................................................................... 14
4.3 Required Language ................................................................................................ 14
5. Copeland “Anti-Kickback” Act .............................................................................................. 14
5.1 Applicability ............................................................................................................. 15
5.2 Additional Requirements ....................................................................................... 15
5.3 Suggested Language ............................................................................................. 16
6. Contract Work Hours and Safety Standards Act ................................................................. 16
6.1 Applicability ............................................................................................................. 16
6.2 Additional Requirements ....................................................................................... 17
6.3 Required Language ................................................................................................ 17
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6.4 Suggested Language ............................................................................................. 18
7. Rights to Inventions Made Under a Contract or Agreement .............................................. 18
7.1 Applicability ............................................................................................................. 19
7.2 Key Definitions ....................................................................................................... 19
8. Clean Air Act and Federal Water Pollution Control Act ....................................................... 19
8.1 Applicability ............................................................................................................. 19
8.2 Suggested Language ............................................................................................. 19
9. Debarment and Suspension ................................................................................................ 20
9.1 Applicability ............................................................................................................. 20
9.2 Additional Requirements ....................................................................................... 21
9.3 Suggested Language ............................................................................................. 21
10. Byrd Anti-Lobbying Amendment ........................................................................................... 22
10.1 Applicability ............................................................................................................. 23
10.2 Suggested Language ............................................................................................. 23
10.3 Required Certification ............................................................................................ 23
11. Procurement of Recovered Materials .................................................................................. 25
11.1 Applicability ............................................................................................................. 25
11.2 Additional Requirements ....................................................................................... 25
11.3 Suggested Language ............................................................................................. 25
12. Prohibition on Contracting for Covered Telecommunications Equipment or Services ..... 26
12.1 Applicability ............................................................................................................. 26
12.2 Suggested Language ............................................................................................. 27
13. Domestic Preferences for Procurements ............................................................................ 29
13.1 Applicability ............................................................................................................. 29
13.2 Suggested Language ............................................................................................. 29
FEMA Recommended Contract Provisions............................................................................... 30
1. Access to Records ................................................................................................................. 30
1.1 Suggested Language for All Procurements .......................................................... 30
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1.2 Additional Suggested Language Applicable to Contracts Entered into After
August 1, 2017 Under a Major Disaster or Emergency Declaration .................. 31
2. Changes ................................................................................................................................. 31
2.1 Applicability ............................................................................................................. 31
3. DHS Seal, Logo, and Flags ................................................................................................... 31
3.1 Applicability ............................................................................................................. 31
3.2 Suggested Language .................................................................................................. 31
4. Compliance with Federal Law, Regulations, And Executive Orders and Acknowledgement
of Federal Funding ........................................................................................................................... 32
4.1 Applicability ............................................................................................................. 32
4.2 Suggested Language ............................................................................................. 32
5. No Obligation by Federal Government ................................................................................ 32
5.1 Applicability ............................................................................................................. 32
5.2 Suggested Language ............................................................................................. 33
6. Program Fraud and False or Fraudulent Statements or Related Acts............................... 33
6.1 Applicability ............................................................................................................. 33
6.2 Suggested Language ............................................................................................. 33
7. Affirmative Socioeconomic Steps ........................................................................................ 33
7.1 Applicability ............................................................................................................. 34
7.2 Suggested Language ............................................................................................. 34
8. Copyright and Data Rights ................................................................................................... 34
8.1 Applicability ............................................................................................................. 34
8.2 Suggested Language ............................................................................................. 34
Appendix .................................................................................................................................... 36
Acronyms .......................................................................................................................................... 36
Definitions ........................................................................................................................................ 37
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Introduction
FEMA grant recipients and subrecipients (also known as non-federal entities or NFEs)1 will often use
contractors to help them carry out work under their awards. These contracts are a commercial
transaction between the NFE and its contractor, and FEMA has no contractual relationship with
NFEs’ contractors. Although FEMA is not a party to the contract, if an NFE is using federal funding to
pay for the contract, the NFE must comply with federal laws, including the federal procurement
standards.
This Guide is applicable to all NFEs purchasing in support of declarations and FEMA awards issued
on or after November 12, 2020 and reflects Office of Management and Budget (OMB) revisions to
the federal procurement standards.
For FEMA declarations and awards issued between December 26, 2014 and November 11, 2020
please refer to the Contract Provisions Template. While the Contract Provisions Template is only
directly applicable to FEMA’s Public Assistance (PA) Program, all FEMA grant recipients and
subrecipients are encouraged to review this resource since it provides guidance on the federal
procurement under grants regulations.
The federal procurement standards for NFEs are described in Title 2 of the Code of Federal
Regulations (C.F.R.), Part 200, sections 200.317-200.327. 2 C.F.R. § 200.327 states that “the non-
federal entity's contracts must contain the applicable provisions described in Appendix II to this part”
(emphasis added).
This Guide is designed to help FEMA grant recipients and subrecipients navigate Appendix II to Part
200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards, including providing
mandatory language and/or suggested language for each required contract provision. This Guide
also describes contract clauses that FEMA recommends in addition to those required by 2 C.F.R. Part
200.
This Guide provides:
Sample language or references to find sample language for some of the federally required
clauses.
Required language for clauses that require exact language.
1 Non-federal entity is defined as a state, local government, Indian tribe, institution of higher education, or
nonprofit organization carrying out a federal award as a recipient or subrecipient. 2 C.F.R. § 200.1. State is
defined as “any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, U.S.
Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any agency
or instrumentality thereof exclusive of local governments.” 2 C.F.R. § 200.1. The term “non-state entity”
therefore refers to a non-federal entity other than a state, which includes local and tribal governments as well
as nonprofit organizations.
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Sample language for some of the federally recommended clauses.
This Guide does not provide:
Sample language for certain federally required or recommended clauses that must be
included in accordance with the NFE’s applicable laws, rules, and procedures.
Provisions required by applicable state, tribal, or local laws or rules separate from the federal
provisions.
Many of the provisions described in this Guide only apply when certain circumstances are present,
such as the type of work being procured, the dollar amount, or the date when it is procured. Each
section will describe the applicable requirements.
NOTE: The NFE is solely responsible for ensuring that all language included in its contracts meets the
requirements of 2 C.F.R. Part 200, including 2 C.F.R. § 200.327 and Appendix II. While the Contract
Provisions Guide provides general guidance, NFEs should reach out to their applicable FEMA grant
program representative(s) if they have specific questions on the applicability of the contract
provisions to a particular FEMA grant program. NFEs are encouraged to visit www.fema.gov for
additional information regarding FEMA grant programs and www.fema.gov/grants/procurement for
procurement under grants reference material.
Summary of Applicable Federal Procurement Standards
For the NFE to determine which federal procurement rules to follow, it must first determine whether
it is a state entity or a non-state entity. Below are the federal procurement rules applicable to state
and non-state entities effective November 12, 2020:
State entities 2, including their agencies and instrumentalities, must follow their own documented
procurement policies and procedures when purchasing under a FEMA award pursuant to 2 C.F.R.
§ 200.317. These entities must also comply with socioeconomic affirmative steps (2 C.F.R. §
200.321), requirement for domestic preferences for procurement (2 C.F.R. § 200.322), the
requirements for procurement of recovered materials (2 C.F.R. § 200. 323) and ensure that all
necessary contract provisions are included in their contracts (2 C.F.R § 200.327).
NFEs other than states (collectively referred to as non-state entities 3), which include local
governments, tribes and eligible private nonprofit organizations, must have documented
procurement policies and procedures, which reflect applicable local, state or tribal law, and
ensure compliance with the federal requirements listed at 2 C.F.R. §§ 200.318 – 200.327.
2 A state entity is “any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico,
U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any
agency or instrumentality thereof exclusive of local governments.” 2 C.F.R. § 200.1
3 A non-state entity is any non-federal entity (as defined above) other than a state (as defined above).
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In the case of noncompliance with the federal procurement rules, FEMA may apply a remedy, as
appropriate, in accordance with its authorities found at 2 C.F.R. § 200.339 Remedies for
Noncompliance.
Policy and Guidance Document(s) Incorporated and
Superseded
This Guide supersedes the Contract Provisions Template and other provisions pertaining to the
procurement under grants process in policy or guidance circulated prior to the publication date of the
Contract Provisions Guide. This Guide provides the most updated and authoritative information
regarding required provisions under Appendix II to Part 200—Contract Provisions for Non-Federal
Entity Contracts Under Federal Awards and FEMA-recommended contract provisions.
Document Management and Maintenance
FEMA Policy FI-207-21-0001, Contract Provisions Guide, will be reviewed, reissued, revised, and/or
rescinded within four years for the issue date. The Procurement Disaster Assistance Team (PDAT), a
subcomponent of FEMA’s Grant Programs Directorate’s (GPD) Policy Division, developed this Guide
to provide accurate and updated information to assist both FEMA staff and FEMA award recipients
and subrecipients navigate Appendix II to Part 200—Contract Provisions for Non-Federal Entity
Contracts Under Federal Awards. PDAT is responsible for the management and maintenance of this
Guide. Comments and feedback from FEMA personnel and stakeholders regarding this Guide should
be directed to the Grants Program Directorate Policy Division at FEMA headquarters (HQ) at FEMA-
GPD-Policy@fema.dhs.gov.
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Contract Provisions Quick Reference Guide
Tables A and B are designed to help FEMA grant recipients and subrecipients conduct a quick
reference of the applicability of a specific contract provision and whether sample contract language
is included within this Guide to incorporate within the NFE’s contract.
The Tables are divided between the required contract provisions set forth under 2 C.F.R. Part 200
Appendix II and those that FEMA recommends in addition to those required by 2 C.F.R. Part 200.
Table A: Required Contract Provisions (continued next page)
Provision (Appendix II Section) Applicability Sample Contract
Language Included
1 Legal/contractual/administrative
remedies for breach of contract
Greater than Simplified Acquisition
Threshold (SAT)- $250,000
No. It is based on
NFE’s procedures.
2 Termination for cause and
convenience
Greater than $10,000 No. It is based on
NFE’s procedures.
3 Equal Employment Opportunity Construction work Yes. Exact language
from 41 C.F.R. §
60-1.4(b) included.
4 Davis-Bacon Act Construction work Yes, via reference
to required
language at 29
C.F.R. § 5.5(a).
5 Copeland “Anti-Kickback” Act Construction work greater than
$2,000
Yes.
6 Contract Work Hours and Safety
Standards Act
Greater than $100,000 +
mechanics or laborers
Yes. Exact language
required from 29
C.F.R. § 5.5(b).
7 Rights to inventions made under
a contract or agreement
Funding agreement Yes.
8 Clean Air Act and federal Water
Pollution Control Act
Greater than $150,000 Yes.
9 Debarment and Suspension Greater than $25,000 Yes.
10 Byrd Anti-Lobbying Amendment Greater than $100,000; and
Certification required for all
contracts greater than $100,000
Yes. Clause and
certification.
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Provision (Appendix II Section) Applicability Sample Contract
Language Included
11 Procurement of Recovered
Materials
NFE is a state or political subdivision
of a state. Work involves the use of
materials and the contract is for
more than $10,000.
Yes.
12 Prohibition on Contracting for
Covered Telecommunications
Equipment or Services
All FEMA declarations and awards
issued on or after November 12,
2020.
Yes.
13 Domestic Preferences for
Procurements
All FEMA declarations and awards
issued on or after November 12,
2020.
Yes.
Table B: Recommended Contract Provisions
Provision Applicability Sample Contract
Language Included
1 Access to Records All Yes.
2 Contract Changes or
Modifications
All No. It depends on
nature of contract
and end-item
procured.
3 DHS Seal, Logo, and Flags All Yes.
4 Compliance with federal Law,
Regulations and Executive
Orders
All Yes.
5 No Obligation by Federal
Government
All Yes.
6 Program Fraud and False or
Fraudulent Statements or
Related Acts
All Yes.
7 Affirmative Socioeconomic
Steps
State entities: all FEMA declarations
and awards issued on or after
November 12, 2020.
Non-state entities: all procurements
Yes.
8 Copyright All procurements that may involve
creation of copyrightable material.
Yes.
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Required Contract Provisions
1. Remedies
Contracts for more than the federal simplified acquisition threshold (SAT), the dollar amount below
which an NFE may purchase property or services using small purchase methods, currently set at
$250,000 for procurements made on or after June 20, 2018,4 must address administrative,
contractual, or legal remedies in instances where contractors violate or breach contract terms, and
must provide for sanctions and penalties as appropriate.5
1.1 Applicability
This contract provision is required for contracts over the SAT, currently set at $250,000 for
procurements made on or after June 20, 2018. Although not required for contracts at or below the
SAT, FEMA suggests including a remedies provision.
1.2 Additional Considerations
For FEMA’s Assistance to Firefighters Grant (AFG) Program, recipients must include a penalty clause
in all contracts for any AFG-funded vehicle, regardless of dollar amount. In that situation, the
contract must include a clause addressing that non-delivery by the contract’s specified date or other
vendor nonperformance will require a penalty of no less than $100 per day until such time that the
vehicle, compliant with the terms of the contract, has been accepted by the recipient. This penalty
clause should, however, account for force majeure or acts of god. AFG recipients should refer to the
applicable year’s Notice of Funding Opportunity (NOFO) for additional information, which can be
accessed at FEMA.gov.
2. Termination for Cause and Convenience
Contracts for more than $10,000 must address termination for cause and for convenience by the
non-federal entity, including how it will be carried out and the basis for settlement.6
2.1 Applicability
This contract provision is required for procurements exceeding $10,000. FEMA suggests including a
termination for cause and for convenience in all contracts even when not required.
4 See FEMA Grant Programs Directorate Information Bulletin No. 434, Increases and Changes to the Micro-
Purchase and Simplified Acquisition Thresholds (Aug. 28, 2018),
https://www.fema.gov/sites/default/files/2020-
08/ib_434_changes_micro_purch_simp_acquisition_thresholds.pdf. For procurements subject to 2 C.F.R. Part
200 that were made before June 20, 2018, the SAT was $150,000.
5 2 C.F.R. Part 200, Appendix II, § A.
6 See 2 C.F.R. Part 200, Appendix II, § B.
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3. Equal Employment Opportunity
Any contract that uses federal funds to pay for construction work is a “federally assisted construction
contract” and must include the equal opportunity clause found in 2 C.F.R. Part 200, unless otherwise
stated in 41 C.F.R. Part 60.7
3.1 Applicability
This contract provision is required for all procurements that meet the definition of a “federally
assisted construction contract.”
3.2 Key Definitions
Federally Assisted Construction Contract: The regulation at 41 C.F.R. § 60-1.3 defines a federally
assisted construction contract as “any agreement or modification thereof between any applicant
and a person for construction work which is paid for in whole or in part with funds obtained from
the Government or borrowed on the credit of the Government pursuant to any federal program
involving a grant, contract, loan, insurance or guarantee, or undertaken pursuant to any federal
program involving such grant, contract, loan, insurance, or guarantee, or any application or
modification thereof approved by the Government for a grant, contract, loan, insurance, or
guarantee under which the applicant itself participates in the construction work.”
Construction Work: The regulation at 41 C.F.R. § 60-1.3 defines construction work as “the
construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings,
highways, or other changes or improvements to real property, including facilities providing utility
services. The term also includes the supervision, inspection, and other onsite functions incidental
to the actual construction.”
Contract: The regulation at 41 C.F.R. § 60-1.3 defines contract as “any Government contract or
subcontract or any federally assisted construction contract or subcontract.”
Additional definitions pertaining to this contract provision can be found at 41 C.F.R. § 60-1.3.
3.3 Required Language
The regulation at 41 C.F.R. § 60-1.4(b) requires, except as otherwise provided or exempted in 41
C.F.R. Part 60, the insertion of the following contract clause: “During the performance of this
contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment
because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The
contractor will take affirmative action to ensure that applicants are employed, and that
employees are treated during employment without regard to their race, color, religion, sex, sexual
7 See 2 C.F.R. Part 200, Appendix II, § C.
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orientation, gender identity, 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 setting forth the provisions of this
nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf
of the contractor, state that all qualified applicants will receive consideration for employment
without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee
or applicant for employment because such employee or applicant has inquired about, discussed,
or disclosed the compensation of the employee or applicant or another employee or applicant.
This provision shall not apply to instances in which an employee who has access to the
compensation information of other employees or applicants as a part of such employee's
essential job functions discloses the compensation of such other employees or applicants to
individuals who do not otherwise have access to such information, unless such disclosure is in
response to a formal complaint or charge, in furtherance of an investigation, proceeding,
hearing, or action, including an investigation conducted by the employer, or is consistent with the
contractor's legal duty to furnish information.
(4) The contractor will send to each labor union or representative of workers with which he has a
collective bargaining agreement or other contract or understanding, a notice to be provided
advising the said labor union or workers' representatives of the contractor's commitments under
this section, and shall post copies of the notice in conspicuous places available to employees
and applicants for employment.
(5) The contractor will comply with all provisions of Executive Order 11246 of September 24,
1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(6) The contractor will furnish all information and reports required by Executive Order 11246 of
September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant
thereto, and will permit access to his books, records, and accounts by the administering agency
and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules,
regulations, and orders.
(7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this
contract or with any of the said rules, regulations, or orders, this contract may be canceled,
terminated, or suspended in whole or in part and the contractor may be declared ineligible for
further Government contracts or federally assisted construction contracts in accordance with
procedures authorized in Executive Order 11246 of September 24, 1965, and such other
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sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of
September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise
provided by law.
(8) The contractor will include the portion of the sentence immediately preceding paragraph (1)
and the provisions of paragraphs (1) through (8) 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 11246 of September 24, 1965, so that such provisions will be binding
upon each subcontractor or vendor. The contractor will take such action with respect to any
subcontract or purchase order as the administering agency may direct as a means of enforcing
such provisions, including sanctions for noncompliance:
Provided, however, that in the event a contractor becomes involved in, or is threatened with,
litigation with a subcontractor or vendor as a result of such direction by the administering
agency, the contractor may request the United States to enter into such litigation to protect the
interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause with
respect to its own employment practices when it participates in federally assisted construction
work: Provided, that if the applicant so participating is a state or local government, the above
equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such
government which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering agency and
the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the
equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of
Labor, that it will furnish the administering agency and the Secretary of Labor such information
as they may require for the supervision of such compliance, and that it will otherwise assist the
administering agency in the discharge of the agency's primary responsibility for securing
compliance.
The applicant further agrees that it will refrain from entering into any contract or contract
modification subject to Executive Order 11246 of September 24, 1965, with a contractor
debarred from, or who has not demonstrated eligibility for, Government contracts and federally
assisted construction contracts pursuant to the Executive Order and will carry out such sanctions
and penalties for violation of the equal opportunity clause as may be imposed upon contractors
and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II,
Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to
comply with these undertakings, the administering agency may take any or all of the following
actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance,
guarantee); refrain from extending any further assistance to the applicant under the program
with respect to which the failure or refund occurred until satisfactory assurance of future
compliance has been received from such applicant; and refer the case to the Department of
Justice for appropriate legal proceedings.”
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4. Davis-Bacon Act
This statute requires that contractors must pay wages to laborers and mechanics at a rate not less
than the prevailing wages specified in the Secretary of Labor’s wage determination. Additionally,
contractors are required to pay wages at least once per week.8 Additional requirements are listed
below, and relevant definitions are at 29 C.F.R. § 5.2. NFEs should refer to the applicable NOFO or
other program guidance or contact their applicable FEMA grant representative for additional
information on how to implement this requirement.
4.1 Applicability
When required by the federal program legislation, prime construction contracts over $2,000
awarded by NFEs must include a provision for compliance with the Davis-Bacon Act.9
The Davis-Bacon Act only applies to the Emergency Management Performance Grant Program,10
Homeland Security Grant Program,11 Nonprofit Security Grant Program,12 Tribal Homeland Security
Grant Program,13 Port Security Grant Program,14 Transit Security Grant Program,15 Intercity
Passenger Rail Program,16 and Rehabilitation of High Hazard Potential Dams Program.17 Unless
otherwise stated in a program’s authorizing statute, it does not apply to other FEMA grant and
cooperative agreement programs, including the PA Program. .
8 See id.; 40 U.S.C. §§ 3141-3144 and 3146-3148. The Davis-Bacon Act is supplemented by Department of
Labor regulations at 29 C.F.R. Part 5 (Labor Standards Provisions Applicable to Contracts Covering federally
Financed and Assisted Construction)
9 2 C.F.R. Part 200, Appendix II, § D.
10 See section 611(j)(9) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act),
Pub. L. No. 93-288 (codified as amended at 42 U.S.C. § 5196(j)(9)).
11 See section 2008(b)(4)(B)(ii) of the Homeland Security Act of 2002, Pub. L. No. 107-296 (codified as
amended at 6 U.S.C. § 609(b)(4)(B)(ii)) (citing to section 611(j)(9) of the Stafford Act).
12 Id. The Davis-Bacon Act only applies to the Nonprofit Security Grant Program (NSGP) where that program is
funded as a carve-out of the appropriations for the Homeland Security Grant Program (HSGP). See, e.g.,
Department of Homeland Security Appropriations Act, 2020, Pub. L. No. 116-93, Title III, Protection,
Preparedness, Response, and Recovery, Federal Emergency Management Agency, Federal Assistance §§ 1-2.
Compare id. with section 2009 of the Homeland Security Act of 2002 (6 U.S.C. § 609a) (authorizing NSPG as a
stand-alone program where the Davis-Bacon Act does not apply, but as of the date of publication of this
document, NSGP has not been funded as a standalone program).
13 See section 2008(b)(4)(B)(ii) of the Homeland Security Act of 2002.
14 See section 102 of the Maritime Transportation Security Act of 2002 (MTSA), Pub. L. No. 107-295 (codified
as amended at 46 U.S.C. § 70107); 46 U.S.C. § 70107(b)(2). While the MTSA requires that PSGP construction
activities are carried out consistent with section 611(j)(8) of the Stafford Act, a subsequent amendment to the
Stafford Act by section 3 of Pub. L. No. 109-308 in 2006 redesignated the text of section 611(j)(8) to 611(j)(9).
The cross-reference in the MTSA has not been updated.
15 See section 1406 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act),
Pub. L. No. 110-53 (6 U.S.C. § 1135) (applying the requirements of section 49 U.S.C. § 5307); 49 U.S.C. §
5333 (applying the Davis-Bacon Act to grants provided under 49 U.S.C. § 5307).
16 See section 1513(h) of the 9/11 Act (6 U.S.C. § 1163(h)) (citing to 49 U.S.C. § 24312, which requires
compliance with the Davis-Bacon Act).
17 See section 8A(d)(2)(E) of the National Dam Safety Program Act (codified as amended at 33 U.S.C. § 467f-
2(d)(2)(E)) (requiring compliance with 42 U.S.C. § 5196(j)(9), which is section 611(j)(9) of the Stafford Act that
applies the Davis-Bacon Act).
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4.2 Additional Requirements
If applicable, in addition to the requirements mentioned in the beginning of this section, the NFE
must do the following:
Place a copy of the Department of Labor’s current prevailing wage determination in each
solicitation. Contracts or subcontracts must be awarded on the condition that the prevailing
wage determination is accepted. The non-federal entity must report all suspected or reported
violations to the federal awarding agency.18
Include a provision for compliance with the Copeland “Anti-Kickback” Act for all contracts subject
to the Davis-Bacon Act.19 See Required Contract Provisions, Section 5. Copeland Anti-Kickback
Act in this Guide for additional information. According to 29 C.F.R. § 5.5(a)(5), the regulatory
requirements for the Copeland “Anti-Kickback” Act are incorporated by reference into the required
contract provision, so a separate contract provision is not necessary. However, the NFE may include
a separate contract provision specific to the Copeland “Anti-Kickback” Act.
Per Department of Labor’s implementing regulations for the Davis-Bacon Act, the NFEs
contractor and any subcontractors are required to insert, or incorporate by reference, the clauses
contained at 29 C.F.R. § 5.5(a)(1)-(10)20 into any subcontracts.
Follow the other requirements of the Davis-Bacon Act and implementing regulations.21
4.3 Required Language 22
If applicable per the standard described above, the NFE must include the provisions at 29 C.F.R. §
5.5(a)(1)-(10) in full into all applicable contracts, and all applicable contractors must include these
provisions in full in any subcontracts.23
5. Copeland “Anti-Kickback” Act
The Copeland "Anti-Kickback" Act prohibits workers on construction contracts from giving up wages
that they are owed.24 Additional requirements are listed below, and relevant definitions are at 29
C.F.R. § 3.2. The applicable implementing regulations are intended to assist with enforcement of the
18 2 C.F.R. Part 200, Appendix II, § D.
19 2 C.F.R. Part 200, Appendix II, § D.
20 29 C.F.R. § 5.5(a)(6).
21 40 U.S.C. §§ 3141-3144, 3146-3148; 29 C.F.R. Part 5.
22 29 C.F.R. § 5.5(a).
23 29 C.F.R. § 5.5(a)(1), (6).
24 See id.; 40 U.S.C. § 3145. The Copeland “Anti-Kickback” Act is supplemented by Department of Labor
regulations at 29 C.F.R. Part 3 (Contractors and Subcontractors on Public Building or Public Work Financed in
Whole or in Part by Loans or Grants from the United States).
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Davis-Bacon Act’s minimum wage provisions as well as various statutes with similar minimum wage
provisions for federally assisted construction.25
5.1 Applicability
For all prime construction contracts above $2,000, when the Davis-Bacon Act also applies,26 NFEs
must include a provision in contracts and subcontracts for compliance with the Copeland “Anti-
Kickback” Act.27 This requirement applies to all prime construction contracts above $2,000 in
situations where the Davis-Bacon Act also applies.28 In situations where the Davis-Bacon Act does
not apply, neither does the Copeland “Anti-Kickback” Act. As described in section A.4 regarding the
Davis-Bacon Act, this provision only applies to certain FEMA grant and cooperative agreement
programs. Please reference that list discussed above. Of note, it does not apply to the PA Program.
5.2 Additional Requirements
If applicable, the NFE must do the following:
Include a provision for compliance with the Copeland “Anti-Kickback” Act.29 According to the
Davis-Bacon Act implementing regulations, the requirements for the Copeland “Anti-Kickback”
Act are incorporated into the required contract provision for the Davis-Bacon Act by reference.30
Therefore, a separate contract provision is not necessary. However, the NFE may include a
separate contract provision specific to the Copeland “Anti-Kickback” Act with language
suggested below.
The Copeland “Anti-Kickback Act” prohibits each contractor or subcontractor from any form of
persuading a person employed in construction, completion, or repair of public work to give up
any part of their rightful compensation. The NFE must report all suspected or reported violations
of the Copeland “Anti-Kickback Act” to FEMA.31
Each contractor and subcontractor must provide weekly reports of the wages paid during the
prior week’s payroll period to each employee covered by the “Copeland Anti-Kickback” Act and
the Davis-Bacon Act. The reports must be delivered to a representative of a federal or state
agency in charge at the building or work site by the contractor or subcontractor within seven days
of the payroll period’s payment date.32
25 See 29 C.F.R. § 3.1.
26 See 2 C.F.R. Part 200, Appendix II, § D; 29 C.F.R. §§ 3.1, 3.3(c).
27 2 C.F.R. Part 200, Appendix II, § D.
28 See 2 C.F.R. Part 200, Appendix II, § D; 29 C.F.R. § 3.3(c).
29 See 29 C.F.R. § 3.11.
30 29 C.F.R. § 5.5(a)(5).
31 See 2 C.F.R. Part 200, Appendix II, § D.
32 See 29 C.F.R. § 3.4.
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Follow the other requirements of the Copeland “Anti-Kickback” Act and implementing
regulations.33
5.3 Suggested Language
The following provides a sample contract clause:
“Compliance with the Copeland “Anti-Kickback” Act.
Contractor. The contractor shall comply with 18 U.S.C. § 874, 40 U.S.C. § 3145, and the
requirements of 29 C.F.R. Part 3 as may be applicable, which are incorporated by reference into
this contract.
Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clause above
and such other clauses as FEMA may by appropriate instructions require, and also a clause
requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime
contractor shall be responsible for the compliance by any subcontractor or lower tier
subcontractor with all of these contract clauses.
Breach. A breach of the contract clauses above may be grounds for termination of the contract,
and for debarment as a contractor and subcontractor as provided in 29 C.F.R. § 5.12.”
6. Contract Work Hours and Safety Standards Act
Where applicable,34 all contracts awarded by the NFE of more than $100,000 that involve the
employment of mechanics or laborers must include a provision for compliance with statutory
requirements on work hours and safety standards.35 Under 40 U.S.C. § 3702, each contractor must
base wages for every mechanic and laborer on a standard 40-hour work week. Work over 40 hours is
allowed, so long as the worker is paid at least one and a half times the base pay rate for all hours
worked over 40 hours in the work week. Additionally, for construction work, under 40 U.S.C. § 3704,
work surroundings and conditions for laborers and mechanics must not be unsanitary or unsafe.
Relevant definitions are at 40 U.S.C. § 3701 and 29 C.F.R. § 5.2.
6.1 Applicability
This required contract provision applies to all procurements over $100,000 that involve the
employment of mechanics, laborers, and construction work.36 These requirements do not apply to
33 18 U.S.C. § 874; 40 U.S.C. § 3145; 29 C.F.R. Part 3.
34 See 40 U.S.C. §§ 3701-3708.
35 40 U.S.C. §§ 3702, 3704. The Contract Work Hours and Safety Standards Act is supplemented by
Department of Labor regulations at 29 C.F.R. Part 5. See 2 C.F.R. Part 200, Appendix II, § E.
36 41 C.F.R. Part 60-1.3.
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the purchase of supplies or materials or articles ordinarily available on the open market, or contracts
for transportation or transmission of intelligence.37
6.2 Additional Requirements
If applicable per the standard described above, the non-federal entity must include the provisions at
29 C.F.R. § 5.5(b)(1)-(4), verbatim, into all applicable contracts, and all applicable contractors must
include these provisions, in full, into any subcontracts.38
In addition to the required language from 29 C.F.R. § 5.5(b)(1)-(4), in any contract subject only to the
Contract Work Hours and Safety Standards Act and not to any other statutes cited in 29 C.F.R. § 5.1,
the NFE must also insert a clause meeting the requirements of 29 C.F.R. § 5.5(c). Specific language
is not required, but FEMA has provided suggested language below.
6.3 Required Language
For the required contract provision, the language from 29 C.F.R. § 5.5(b)(1)-(4) is provided here for
ease of reference:
“Compliance with the Contract Work Hours and Safety Standards Act.
(1) Overtime requirements. No contractor or subcontractor contracting for any part of the
contract work which may require or involve the employment of laborers or mechanics shall
require or permit any such laborer or mechanic in any workweek in which he or she is employed
on such work to work in excess of forty hours in such workweek unless such laborer or mechanic
receives compensation at a rate not less than one and one-half times the basic rate of pay for all
hours worked in excess of forty hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the
clause set forth in paragraph (b)(1) of this section the contractor and any subcontractor
responsible therefor shall be liable for the unpaid wages. In addition, such contractor and
subcontractor shall be liable to the United States (in the case of work done under contract for the
District of Columbia or a territory, to such District or to such territory), for liquidated damages.
Such liquidated damages shall be computed with respect to each individual laborer or mechanic,
including watchmen and guards, employed in violation of the clause set forth in paragraph (b)(1)
of this section, in the sum of $27 for each calendar day on which such individual was required or
permitted to work in excess of the standard workweek of forty hours without payment of the
overtime wages required by the clause set forth in paragraph (b)(1) of this section.
(3) Withholding for unpaid wages and liquidated damages. The (insert name of grant recipient or
subrecipient) shall upon its own action or upon written request of an authorized representative of
the Department of Labor withhold or cause to be withheld, from any moneys payable on account
of work performed by the contractor or subcontractor under any such contract or any other
37 2 C.F.R. Part 200, Appendix II, § E.
38 29 C.F.R. § 5.5(b)(1), (4).
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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 (b)(2) of this section.
(4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set
forth in paragraph (b)(1) through (4) of this section and also a clause requiring the
subcontractors to include these clauses in any lower tier subcontracts. The prime contractor
shall be responsible for compliance by any subcontractor or lower tier subcontractor with the
clauses set forth in paragraphs (b)(1) through (4) of this section.”
6.4 Suggested Language
For contracts that are only subject to Contract Work Hours and Safety Standards Act and are not
subject to the other statutes in 29 C.F.R. § 5.1 where an additional contract provision is required,
FEMA suggests including the following language:
“Further Compliance with the Contract Work Hours and Safety Standards Act.
(1) The contractor or subcontractor shall maintain payrolls and basic payroll records during the
course of the work and shall preserve them for a period of three years from the completion of
the contract for all laborers and mechanics, including guards and watchmen, working on the
contract. Such records shall contain the name and address of each such employee, social
security number, correct classifications, hourly rates of wages paid, daily and weekly number
of hours worked, deductions made, and actual wages paid.
(2) Records to be maintained under this provision shall be made available by the contractor or
subcontractor for inspection, copying, or transcription by authorized representatives of the
Department of Homeland Security, the Federal Emergency Management Agency, and the
Department of Labor, and the contractor or subcontractor will permit such representatives to
interview employees during working hours on the job.”
7. Rights to Inventions Made Under a Contract or
Agreement
This contract provision outlines the rules governing the ownership of inventions created using federal
funds. If the FEMA award meets the definition of funding agreement 39 and the NFE enters into any
contract involving substitution of parties, assignment or performance of experimental,
developmental, or research work under that funding agreement, then the NFE must comply with the
requirements of 37 C.F.R. Part 401 and any implementing regulations issued by FEMA.
39 Funding agreement definition found under 37 C.F.R. § 401.2(a).
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7.1 Applicability
This provision does not apply to all FEMA grant and cooperative agreement programs. NFEs should
refer to applicable NOFO or other program guidance or contact their applicable FEMA grant
representative to determine if this provision is required for the procurement. However, the Rights to
Inventions Made Under a Contract or Agreement clause is not required for procurements under
FEMA’s PA Program.
7.2 Key Definitions
Funding Agreements: The regulation at 37 C.F.R. § 401.2(a) defines funding agreement as “any
contract, grant, or cooperative agreement entered into between any federal agency, other than the
Tennessee Valley Authority, and any contractor for the performance of experimental, developmental,
or research work funded in whole or in part by the federal government. This term also includes any
assignment, substitution of parties, or subcontract of any type entered into for the performance of
experimental, developmental, or research work under a funding agreement as defined in the first
sentence of this paragraph.”
8. Clean Air Act and Federal Water Pollution Control Act
For contracts over $150,000, contracts must contain a provision requiring contractors to comply
with the Clean Air Act 40 and the Federal Water Pollution Control Act.41 Violations must be reported to
FEMA and the Regional Office of the Environmental Protection Agency (EPA).42
8.1 Applicability
This contract provision is required for all procurements over $150,000.
8.2 Suggested Language
The following provides a sample contract clause:
“Clean Air Act”
The contractor agrees to comply with all applicable standards, orders or regulations issued
pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq.
The contractor agrees to report each violation to the (insert name of non-federal entity
entering into the contract) and understands and agrees that the (insert name of the non-
federal entity entering into the contract) will, in turn, report each violation as required to
40 42 U.S.C. §§ 7401-7671q. This also includes all applicable standards, orders, or regulations issued
pursuant to the Clean Air Act.
41 33 U.S.C. §§ 1251-1387, as amended.
42 2 C.F.R. Part 200, Appendix II, § G.
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assure notification to the Federal Emergency Management Agency (FEMA), and the
appropriate Environmental Protection Agency Regional Office.
The contractor agrees to include these requirements in each subcontract exceeding
$150,000 financed in whole or in part with federal assistance provided by FEMA.
“Federal Water Pollution Control Act”
The contractor agrees to comply with all applicable standards, orders, or regulations issued
pursuant to the federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq.
The contractor agrees to report each violation to the (insert name of the non-federal entity
entering into the contract) and understands and agrees that the (insert name of the non-
federal entity entering into the contract) will, in turn, report each violation as required to
assure notification to the (insert name of the pass-through entity, if applicable), Federal
Emergency Management Agency (FEMA), and the appropriate Environmental Protection
Agency Regional Office.
The contractor agrees to include these requirements in each subcontract exceeding
$150,000 financed in whole or in part with federal assistance provided by FEMA.”
9. Debarment and Suspension
NFEs contractors and subcontractors are subject to debarment and suspension regulations.43
Applicable contracts and subcontracts must include a provision requiring compliance with
debarment and suspension regulations.44
9.1 Applicability
The debarment and suspension clause is required for all contracts and subcontracts for $25,000 or
more, all contracts that require the consent of an official of a federal agency, and all contracts for
federally required audit services.45
NFEs, even for procurements under $25,000, must also comply with the regulation requiring non-
state entities to only award contracts to responsible vendors.46
43 2 C.F.R. Part 180 (implementing Executive Order 12549, Debarment and Suspension (1986) and Executive
Order 12689, Debarment and Suspension (1989)); 2 C.F.R. Part 3000 (Department of Homeland Security
regulations for Nonprocurement Debarment and Suspension, implementing 2 C.F.R. Part 180).
44 2 C.F.R. § 180; 2 C.F.R. Part 200, Appendix II, § H; 2 C.F.R. § 3000.332.
45 2 C.F.R. § 180.220(b); 2 C.F.R. § 3000.220.
46 2 C.F.R. § 200.318(h). For contracts and subcontracts under $25,000, a contract provision is only required
if those contracts or subcontracts are for federally required audit services or require the consent of a federal
agency. However, even where a contract provision is not required, non-state entities must still ensure they are
only awarding contracts to responsible vendors.
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9.2 Additional Requirements
The debarment and suspension regulations restrict awards, subawards, contracts, and subcontracts
with parties that are debarred, suspended, or otherwise excluded, or declared ineligible for
participation in federal assistance programs and activities.47
If applicable, a contract or subcontract must not be made to parties listed on the governmentwide
exclusions in the System for Award Management (SAM). SAM Exclusions is the list maintained by the
General Services Administration that contains the names of parties that are debarred, suspended, or
otherwise excluded, or declared ineligible under statutory or regulatory authority other than Executive
Order 12549.48 SAM Exclusions can be accessed at www.sam.gov.49
In general, an “excluded” party cannot receive a federal grant award or a contract considered to be a
“covered transaction,” which includes parties that receive federal funding indirectly such as
subawards and subcontracts. The key to the exclusion is whether there is a covered transaction. A
covered transaction is a nonprocurement transaction at either a primary or secondary tier.50
Specifically, a covered transaction includes the following contracts for goods or services under FEMA
grant and cooperative agreement programs:
The contract is at least $25,000.
The contract requires the approval of FEMA, regardless of amount.
The contract is for federally required audit services.
It is a subcontract for $25,000 or more.51
9.3 Suggested Language
The following provides a debarment and suspension clause. It also incorporates an optional method
of verifying that contractors are not excluded or disqualified 52:
47 See 2 C.F.R. Part 200, Appendix II, § H; 2 C.F.R. § 200.213. See also 2 C.F.R. Parts 180, 3000.
48 See 2 C.F.R. Part 200, Appendix II, § H.
49 2 C.F.R. § 180.530.
50 The regulations at 2 C.F.R. Parts 180 and 3000 are titled “nonprocurement” because they do not apply to
procurements by the federal government but rather to federal financial assistance. There are separate
debarment and suspension regulations covering procurements by the federal government. However, although
the term “covered transactions” under 2 C.F.R. Parts 180 and 3000 does not include contracts awarded by the
federal government, it does include some contracts awarded by recipients and subrecipients.
51 See 2 C.F.R. §§ 180.220, 3000.220.
52 Per 2 C.F.R. § 180.300, non-federal entity about to enter into an applicable contract, or a contractor about
to entire into an applicable subcontract, must verify that the contractor or subcontractor is not excluded or
disqualified by doing one of three things: 1) check SAM Exclusions; 2) collect a certification from the contractor
or subcontractor; or 3) add a clause or condition to the contract or subcontract. The additional suggested
language in this sample clause is for purposes of this requirement.
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“Suspension and Debarment
This contract is a covered transaction for purposes of 2 C.F.R. Part 180 and 2 C.F.R. Part
3000. As such, the contractor is required to verify that none of the contractor’s principals
(defined at 2 C.F.R. § 180.995) or its affiliates (defined at 2 C.F.R. § 180.905) are excluded
(defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935).
The contractor must comply with 2 C.F.R. Part 180, subpart C and 2 C.F.R. Part 3000,
subpart C, and must include a requirement to comply with these regulations in any lower tier
covered transaction it enters into.
This certification is a material representation of fact relied upon by (insert name of
recipient/subrecipient/applicant). If it is later determined that the contractor did not comply
with 2 C.F.R. Part 180, subpart C and 2 C.F.R. Part 3000, subpart C, in addition to remedies
available to (insert name of recipient/subrecipient/applicant), the federal government may
pursue available remedies, including but not limited to suspension and/or debarment.
The bidder or proposer agrees to comply with the requirements of 2 C.F.R. Part 180, subpart
C and 2 C.F.R. Part 3000, subpart C while this offer is valid and throughout the period of any
contract that may arise from this offer. The bidder or proposer further agrees to include a
provision requiring such compliance in its lower tier covered transactions.”
10. Byrd Anti-Lobbying Amendment
NFEs who intend to award contracts of more than $100,000, and their contractors who intend to
award subcontracts of more than $100,000, must include a contract provision prohibiting the use of
federal appropriated funds to influence officers or employees of the federal government. Contractors
that apply or bid for a contract for more than $100,000 must also file the required certification
regarding lobbying.53
Each tier certifies to the tier above that it will not and has not used federal appropriated funds to pay
any person or organization for influencing or attempting to influence an employee of a federal
agency, a Member of Congress, an employee of Congress, or an employee of a Member of Congress
in connection with receiving any federal contract, grant, or other award covered by 31 U.S.C. § 1352.
53 See 2 C.F.R. Part 200, Appendix II, § I (citing 31 U.S.C. § 1352); 44 C.F.R. § 18.110.
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The required certification form is found in FEMA regulations.54 Each tier must also disclose any
lobbying with non-federal funds that takes place in connection with obtaining any federal funding.
These disclosures are forwarded from tier to tier, all the way up to the federal awarding agency.55
10.1 Applicability
The Byrd Anti-Lobbying Amendment clause and certification are required for contracts of more than
$100,000, and for subcontracts of more than $100,000.
10.2 Suggested Language
The following provides a sample contract clause:
“Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352 (as amended)
Contractors who apply or bid for an award of more than $100,000 shall file the required
certification. Each tier certifies to the tier above that it will not and has not used federally
appropriated funds to pay any person or organization for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, officer or employee of
Congress, or an employee of a Member of Congress in connection with obtaining any federal
contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose
any lobbying with non-federal funds that takes place in connection with obtaining any federal
award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will
forward the certification(s) to the federal awarding agency.”
10.3 Required Certification
10.3.1 REQUIRED CERTIFICATION LANGUAGE
If applicable, contractors must sign and submit the following certification to the NFE with each bid or
offer exceeding $100,000:
“APPENDIX A, 44 C.F.R. PART 18 – CERTIFICATION REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his or her knowledge and belief, that:
No federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or employee
54 See 44 C.F.R. §§ 18.100, 18.110; 44 C.F.R. Part 18, Appendix A. FEMA’s regulations at 44 C.F.R. Part 18
implement the requirements of 31 U.S.C. § 1352 and provides, in Appendix A to Part 18, a copy of the
certification that is required to be completed by each entity as described in 31 U.S.C. § 1352.
55 See 44 C.F.R. §§ 18.100, 18.110; 44 C.F.R. Part 18, Appendix B. The specific form for disclosures is
referenced in Appendix B to 44 C.F.R. Part 18 and is SF-LLL, also available at
https://www.grants.gov/web/grants/forms/sf-424-family.html.
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of an 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.
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 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.
The undersigned shall require that the language of this certification be included in the award
documents for all subawards at all tiers (including subcontracts, subgrants, and contracts
under grants, loans, and cooperative agreements) and that all subrecipients shall certify and
disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when
this transaction was made or entered into. Submission of this certification is a prerequisite
for making or entering into this transaction imposed by section 1352, Title 31, U.S.C. Any
person who fails to file the required certification shall be subject to a civil penalty of not less
than $10,000 and not more than $100,000 for each such failure.”
10.3.2 RECOMMENDED SIGNATURE LINE:
At the end of the certification language, FEMA recommends including the following signature
line.
“The Contractor, _______________, certifies or affirms the truthfulness and accuracy
of each statement of its certification and disclosure, if any. In addition, the Contractor
understands and agrees that the provisions of 31 U.S.C. Chap. 38, Administrative Remedies
for False Claims and Statements, apply to this certification and disclosure, if any.
Signature of Contractor’s Authorized Official
Name and Title of Contractor’s Authorized Official
Date”
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11. Procurement of Recovered Materials
An NFE that is a state agency or an agency of a political subdivision of a state, and the NFE’s
contractors must comply with Section 6002 of the Solid Waste Disposal Act.56 Applicable NFEs must
include a contract provision requiring compliance with this requirement.57 This includes contracts
awarded by a state agency or political subdivision of a state and its contractors for certain items, as
designated by the EPA, with a purchase price greater than $10,000.58 Indian Tribal Governments
and nonprofit organizations are not required to comply with this provision. Additional requirements
are listed below.
11.1 Applicability
This required contract provision applies to all procurements over $10,000 made by a state agency or
an agency of a political subdivision of a state and its contractors.
11.2 Additional Requirements
The requirements include:
Procuring only items designated in EPA guidelines 59 that contain the highest practical percentage
of recovered materials consistent with maintaining competition, where the purchase price of the
item is greater than $10,000, or the value of the amount of items purchased in the preceding
fiscal year was greater than $10,000;
Procuring solid waste management services in a way that maximizes energy and resource
recovery; and
Establishing an affirmative procurement program for procurement of recovered materials
identified in the EPA guidelines.60
11.3 Suggested Language
The following provides a sample contract clause:
“In the performance of this contract, the Contractor shall make maximum use of products
containing recovered materials that are EPA-designated items unless the product cannot be
acquired—
56 Pub. L. No. 89-272 (1965) (codified as amended by the Resource Conservation and Recovery Act at 42
U.S.C. § 6962). 2 C.F.R. § 200.323.
57 See 2 C.F.R. Part 200, Appendix II, § J (citing 2 C.F.R. § 200.323).
58 See 2 C.F.R. Part 200, Appendix II, § J; 2 C.F.R. § 200.323; 40 C.F.R. Part 247.
59 40 C.F.R. Part 247.
60 42 U.S.C. § 6962; 2 C.F.R. § 200.323.
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Competitively within a timeframe providing for compliance with the contract performance
schedule;
Meeting contract performance requirements; or
At a reasonable price.
Information about this requirement, along with the list of EPA-designated items, is available at
EPA’s Comprehensive Procurement Guidelines webpage:
https://www.epa.gov/smm/comprehensive- procurement-guideline-cpg-program.
The Contractor also agrees to comply with all other applicable requirements of Section 6002 of
the Solid Waste Disposal Act.”
12. Prohibition on Contracting for Covered
Telecommunications Equipment or Services
Section 889(b)(1) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019
(FY2019 NDAA) and 2 C.F.R. § 200.216, as implemented by FEMA Policy 405-143-1, Prohibitions on
Expending FEMA Award Funds for Covered Telecommunications Equipment or Services (Interim),
prohibit the obligation or expending of federal award funds on certain telecommunication products
or from certain entities for national security reasons. Effective August 13, 2020, FEMA recipients and
subrecipients, as well as their contractors and subcontractors, may not obligate or expend any FEMA
award funds to:
a. Procure or obtain any equipment, system, or service that uses covered
telecommunications equipment or services as a substantial or essential component
of any system, or as critical technology of any system;
b. Enter into, extend, or renew a contract to procure or obtain any equipment, system,
or service that uses covered telecommunications equipment or services as a
substantial or essential component of any system, or as critical technology of any
system; or
c. Enter into, extend, or renew contracts with entities that use covered
telecommunications equipment or services as a substantial or essential component
of any system, or as critical technology as part of any system.
12.1 Applicability
For purchases in support of FEMA declarations and awards issued on or after November 12, 2020,
all FEMA recipients and subrecipients, and their contractors and subcontractors, are required to
include this contract provision in all FEMA-funded contracts and subcontracts, including any
purchase orders.61 FEMA strongly encourages the use of this contract clause for any contracts where
61 2 C.F.R. Part 200, Appendix II, § K (citing 2 C.F.R. § 200.216).
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FEMA funding will be used regardless of whether the funding is from FEMA declarations or awards
issued on or after November 12, 2020.
12.2 Suggested Language
The following provides a sample contract clause:
“Prohibition on Contracting for Covered Telecommunications Equipment or Services
(a) Definitions. As used in this clause, the terms backhaul; covered foreign country; covered
telecommunications equipment or services; interconnection arrangements; roaming;
substantial or essential component; and telecommunications equipment or services have the
meaning as defined in FEMA Policy 405-143-1, Prohibitions on Expending FEMA Award Funds
for Covered Telecommunications Equipment or Services (Interim), as used in this clause—
(b) Prohibitions.
(1) Section 889(b) of the John S. McCain National Defense Authorization Act for Fiscal Year
2019, Pub. L. No. 115-232, and 2 C.F.R. § 200.216 prohibit the head of an executive
agency on or after Aug.13, 2020, from obligating or expending grant, cooperative
agreement, loan, or loan guarantee funds on certain telecommunications products or
from certain entities for national security reasons.
(2) Unless an exception in paragraph (c) of this clause applies, the contractor and its
subcontractors may not use grant, cooperative agreement, loan, or loan guarantee funds
from the Federal Emergency Management Agency to:
(i) Procure or obtain any equipment, system, or service that uses covered
telecommunications equipment or services as a substantial or essential component of
any system, or as critical technology of any system;
(ii) Enter into, extend, or renew a contract to procure or obtain any equipment, system, or
service that uses covered telecommunications equipment or services as a substantial
or essential component of any system, or as critical technology of any system;
(iii) Enter into, extend, or renew contracts with entities that use covered
telecommunications equipment or services as a substantial or essential component of
any system, or as critical technology as part of any system; or
(iv) Provide, as part of its performance of this contract, subcontract, or other contractual
instrument, any equipment, system, or service that uses covered telecommunications
equipment or services as a substantial or essential component of any system, or as
critical technology as part of any system.
(c) Exceptions.
(1) This clause does not prohibit contractors from providing—
(i) A service that connects to the facilities of a third-party, such as backhaul, roaming,
or interconnection arrangements; or
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(ii) Telecommunications equipment that cannot route or redirect user data traffic or
permit visibility into any user data or packets that such equipment transmits or
otherwise handles.
(2) By necessary implication and regulation, the prohibitions also do not apply to:
(i) Covered telecommunications equipment or services that:
i. Are not used as a substantial or essential component of any system; and
ii. Are not used as critical technology of any system.
(ii) Other telecommunications equipment or services that are not considered covered
telecommunications equipment or services.
(d) Reporting requirement.
(1) In the event the contractor identifies covered telecommunications equipment or services
used as a substantial or essential component of any system, or as critical technology as
part of any system, during contract performance, or the contractor is notified of such by a
subcontractor at any tier or by any other source, the contractor shall report the
information in paragraph (d)(2) of this clause to the recipient or subrecipient, unless
elsewhere in this contract are established procedures for reporting the information.
(2) The Contractor shall report the following information pursuant to paragraph (d)(1) of this
clause:
(i) Within one business day from the date of such identification or notification: The
contract number; the order number(s), if applicable; supplier name; supplier unique
entity identifier (if known); supplier Commercial and Government Entity (CAGE) code (if
known); brand; model number (original equipment manufacturer number,
manufacturer part number, or wholesaler number); item description; and any readily
available information about mitigation actions undertaken or recommended.
(ii) Within 10 business days of submitting the information in paragraph (d)(2)(i) of this
clause: Any further available information about mitigation actions undertaken or
recommended. In addition, the contractor shall describe the efforts it undertook to
prevent use or submission of covered telecommunications equipment or services, and
any additional efforts that will be incorporated to prevent future use or submission of
covered telecommunications equipment or services.
(e) Subcontracts. The Contractor shall insert the substance of this clause, including this
paragraph (e), in all subcontracts and other contractual instruments.”
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13. Domestic Preferences for Procurements
As appropriate, and to the extent consistent with law, NFEs should, to the greatest extent practicable
under a federal award, provide a preference for the purchase, acquisition, or use of goods, products
or materials produced in the United States. This includes, but is not limited to, iron, aluminum, steel,
cement, and other manufactured products.62
13.1 Applicability
For purchases in support of FEMA declarations and awards issued on or after November 12, 2020,
all FEMA recipients and subrecipients are required to include in all contracts and purchase orders for
work or products a contract provision encouraging domestic preference for procurements.63
13.2 Suggested Language
The following provides a sample contract clause:
“Domestic Preference for Procurements
As appropriate, and to the extent consistent with law, the contractor should, to the greatest
extent practicable, provide a preference for the purchase, acquisition, or use of goods, products,
or materials produced in the United States. This includes, but is not limited to iron, aluminum,
steel, cement, and other manufactured products.
For purposes of this clause:
Produced in the United States means, for iron and steel products, that all manufacturing
processes, from the initial melting stage through the application of coatings, occurred in the
United States.
Manufactured products mean items and construction materials composed in whole or in part of
non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl
chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.”
62 See 2 C.F.R. § 200.322.
63 2 C.F.R. Part 200, Appendix II, § L (citing 2 C.F.R. § 200.322). The requirements of 2 C.F.R. § 200.322 must
also be included in all subawards.
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FEMA Recommended Contract
Provisions
Appendix II to Part 200 authorizes FEMA to require or recommend additional provisions for NFE
contracts. Therefore, FEMA recommends the following:
1. Access to Records
NFEs and their contractors and subcontractors must give the Department of Homeland Security
(DHS) and FEMA access to records associated with their awards during the federally required record
retention period and as long as the records are retained.64 All parties agree to comply with DHS
provisions about accessing people, places, and things related to the federal financial award as
necessary or as required by DHS regulations or other applicable laws and policies.65 Additionally, for
contracts entered into after August 1, 2017, under a major disaster or emergency declaration under
Titles IV or V of the Robert T. Stafford Disaster Relief Act, FEMA is prohibited from funding any
contracts that prevent audits or internal reviews by the FEMA Administrator or Comptroller General.66
1.1 Suggested Language for All Procurements
The following provides a sample contract clause:
“The Contractor agrees to provide (insert non-federal entity), (insert name of pass-through entity,
if applicable), the FEMA Administrator, the Comptroller General of the United States, or any of
their authorized representatives access to any books, documents, papers, and records of the
Contractor which are directly pertinent to this contract for the purposes of making audits,
examinations, excerpts, and transcriptions.
The Contractor agrees to permit any of the foregoing parties to reproduce by any means
whatsoever or to copy excerpts and transcriptions as reasonably needed.
The Contractor agrees to provide the FEMA Administrator or his authorized representatives
access to construction or other work sites pertaining to the work being completed under the
contract.
64 2 C.F.R. §§ 200.334, 200.337.
65 See DHS Standard Terms and Conditions, available at https://www.dhs.gov/publication/fy15-dhs-standard-
terms-and-conditions.
66 See Sections 1202 and 1225 of the Disaster Recovery Reform Act of 2018, Pub. L. No. 115-254.
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1.2 Additional Suggested Language Applicable to Contracts Entered into
After August 1, 2017 Under a Major Disaster or Emergency Declaration
The following provides a sample contract clause:
In compliance with section 1225 of the Disaster Recovery Reform Act of 2018, the (insert name
of the non-federal entity) and the Contractor acknowledge and agree that no language in this
contract is intended to prohibit audits or internal reviews by the FEMA Administrator or the
Comptroller General of the United States.”
2. Changes
To be allowable under a FEMA grant or cooperative agreement award, the cost of any contract
change, modification, amendment, addendum, change order, or constructive change must be
necessary, allocable, within the scope of the grant or cooperative agreement, reasonable for the
scope of work, and otherwise allowable.67
2.1 Applicability
FEMA recommends that all contracts include a changes clause that describes how, if at all, changes
can be made by either party to alter the method, price, or schedule of the work without breaching the
contract. The language of the clause may depend on the nature of the contract and the procured
item(s) or service(s). The NFE should also consult their servicing legal counsel to determine whether
and how contract changes are permissible under applicable state, local, or tribal laws or regulations.
3. DHS Seal, Logo, and Flags
Recipients must obtain permission before using the DHS seal(s), logos, crests, reproductions of
flags, or likenesses of DHS agency officials.68
3.1 Applicability
FEMA recommends that all NFEs include in their contracts a statement that a contractor shall not
use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials
without FEMA’s pre-approval.
3.2 Suggested Language
The following provides a sample contract clause:
67 See 2 C.F.R. § 200.403.
68 See DHS Standard Terms and Conditions, available at https://www.dhs.gov/publication/fy15-dhs-standard-
terms-and-conditions.
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“The contractor shall not use the DHS seal(s), logos, crests, or reproductions of flags or
likenesses of DHS agency officials without specific FEMA pre-approval. The contractor shall
include this provision in any subcontracts.”
4. Compliance with Federal Law, Regulations, And
Executive Orders and Acknowledgement of Federal
Funding
The NFEs and its contractors are required to comply with all federal laws, regulations, and executive
orders. Additionally, recipients must acknowledge their use of federal funding when issuing
statements, press releases, requests for proposal, bid invitations, and other documents describing
projects or programs funded in whole or in part with federal funds.69
4.1 Applicability
FEMA recommends that all NFEs include in their contracts a statement acknowledging that FEMA
funding will be used in the contract, as well as a requirement that contractors will comply with all
applicable federal law, regulations, executive orders, and FEMA policies, procedures, and directives.
4.2 Suggested Language
The following provides a sample contract clause:
“This is an acknowledgement that FEMA financial assistance will be used to fund all or a portion
of the contract. The contractor will comply with all applicable federal law, regulations, executive
orders, FEMA policies, procedures, and directives.”
5. No Obligation by Federal Government
FEMA is not a party to any transaction between a NFE and its contractor. Therefore, FEMA is not
subject to any obligations or liable to any party for any matter relating to the contract between an
NFE and its contractor.70
5.1 Applicability
FEMA recommends that the NFE include a statement in its contract that the federal government is
not a party to the contract and, thus, is not subject to any obligations or liabilities to any party
resulting from the contract.
69 See DHS Standard Terms and Conditions, available at https://www.dhs.gov/publication/fy15-dhs-standard-
terms-and-conditions.
70 See, e.g., 2 C.F.R. § 200.318(k) (stating that the NFE alone is responsible for the settlement of all
contractual and administrative issues arising out of procurements).
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5.2 Suggested Language
The following provides a sample contract clause:
“The federal government is not a party to this contract and is not subject to any obligations or
liabilities to the non-federal entity, contractor, or any other party pertaining to any matter
resulting from the contract.”
6. Program Fraud and False or Fraudulent Statements
or Related Acts
NFEs must comply with the requirements of the False Claims Act which prohibits submitting false or
fraudulent claims for payment to the federal government.71 As a part of the contract with a NFE,
contractors must acknowledge that 31 U.S.C. Chap. 38, regarding administrative remedies for false
claims and statements,72 applies to their actions under their contract.73
6.1 Applicability
FEMA recommends that contracts include a provision prohibiting making false or fraudulent claims
to the federal government.
6.2 Suggested Language
The following provides a sample contract clause:
“The contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False
Claims and Statements) applies to the contractor’s actions pertaining to this contract.”
7. Affirmative Socioeconomic Steps
For procurements under FEMA declarations and awards issued on or after November 12, 2020, all
NFEs are required to take the six affirmative steps to ensure use of small and minority businesses,
women’s business enterprises, and labor surplus area firms when possible. One of the six steps is to
require the prime contractor, if subcontracts are to be let, to take the five other affirmative steps,74
For procurements under FEMA declarations and awards issued between December 26, 2014, and
November 12, 2020, this requirement only applies to non-state entities.
7131 U.S.C. §§ 3729-3733.
72 31 U.S.C. §§ 3801-3812 (detailing the administrative remedies for false claims and statements made).
73 See DHS Standard Terms and Conditions, available at https://www.dhs.gov/publication/fy15-dhs-standard-
terms-and-conditions.
74 See 2 C.F.R. § 200.321; compare 2 C.F.R. § 200.317 (2019), with 2 C.F.R. § 200.317 in Office of
Management and Budget, Guidance for Grants and Agreements, 85 Fed. Reg. 49,506, 49,552 (Aug. 13,
2020).
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7.1 Applicability
FEMA recommends that applicable NFEs include in their contracts a statement requiring prime
contractors, if subcontracts are to be let, to take the required affirmative socioeconomic steps.
7.2 Suggested Language
The following provides a sample contract clause:
“If subcontracts are to be let, the prime contractor is required to take all necessary steps
identified in 2 C.F.R. § 200.321(b)(1)-(5) to ensure that small and minority businesses, women’s
business enterprises, and labor surplus area firms are used when possible.”
8. Copyright and Data Rights
An NFE is required by 2 C.F.R. § 200.315 to provide certain licenses with respect to copyright and
data to the federal awarding agency. 2 C.F.R. § 200.315(b) provides to the federal awarding agency
“a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use [any work
that is subject to copyright] for federal purposes, and to authorize others to do so.” 2 C.F.R. §
200.315(d) provides to the federal government the rights to “obtain, reproduce, publish, or
otherwise use” data produced under a federal award and to authorize others to do the same.
8.1 Applicability
When an NFE enters into a contract requiring a contractor or subcontractor to produce copyrightable
subject matter and/or data for the NFE under the award, the NFE should include appropriate
copyright and data licenses to meet its obligations under 2 C.F.R. § 200.315(b) and (d), respectively.
Work that is subject to copyright, or copyrightable subject matter, includes any written reports or
literary works, software and/or source code, music, choreography, pictures or images, graphics,
sculptures, videos, motion pictures or other audiovisual works, sound and/or video recordings, and
architectural works.75
8.2 Suggested Language
The following provides a sample contract clause:
“License and Delivery of Works Subject to Copyright and Data Rights”
The Contractor grants to the (insert name of the non-federal entity), a paid-up, royalty-free,
nonexclusive, irrevocable, worldwide license in data first produced in the performance of this
contract to reproduce, publish, or otherwise use, including prepare derivative works, distribute
copies to the public, and perform publicly and display publicly such data. For data required by the
contract but not first produced in the performance of this contract, the Contractor will identify
75 See 17 U.S.C. § 102.
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such data and grant to the (insert name of the non-federal entity) or acquires on its behalf a
license of the same scope as for data first produced in the performance of this contract. Data, as
used herein, shall include any work subject to copyright under 17 U.S.C. § 102, for example, any
written reports or literary works, software and/or source code, music, choreography, pictures or
images, graphics, sculptures, videos, motion pictures or other audiovisual works, sound and/or
video recordings, and architectural works. Upon or before the completion of this contract, the
Contractor will deliver to the (insert name of the non-federal entity) data first produced in the
performance of this contract and data required by the contract but not first produced in the
performance of this contract in formats acceptable by the (insert name of the non-federal
entity).”
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Appendix
Acronyms
AFG: Assistance to Firefighter Grants
CAGE: Commercial and Government Entity
CFR: Code of Federal Regulations
DHS: U.S. Department of Homeland Security
DRRA: Disaster Recovery and Reform Act of 2018
EPA: U.S. Environmental Protection Agency
FEMA: Federal Emergency Management Agency
GPD: Grant Programs Directorate
HQ: FEMA Headquarters
NDAA: National Defense Authorization Act
NFE: Non-Federal Entity
NOFO: Notice of Funding Opportunity
OMB: Office of Management and Budget
PA: Public Assistance Program
PNP: Private Non-Profit
PDAT: Procurement Disaster Assistance Team
SAM: System for Award Management
SAT: Simplified Acquisition Threshold
USC: United States Code
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Definitions
Contract: A legal instrument by which a FEMA award recipient or subrecipient purchases property
or services needed to carry out the project or program under a federal award.76 A contract, for
the purposes of this Guide, does not mean a federal award or subaward.
Contractor: Contractor means an entity that receives a contract.77
Cooperative agreement: A legal instrument of financial assistance between a federal awarding
agency or pass-through entity and a non-Federal entity, that is consistent with 31 U.S.C. 6302-
6305.78
Federal awarding agency: The federal agency that provides a federal award directly to a non-
Federal entity (NFE). The federal awarding agency discussed in this Guide is FEMA.
Federal Emergency Management Agency (FEMA): FEMA’s statutory mission is to reduce the loss
of life and property and protect the Nation from all hazards, including natural disasters, acts of
terrorism, and other man-made disasters, by leading and supporting the Nation in a risk-based,
comprehensive emergency management system of preparedness, protection, response,
recovery, and mitigation.79 Among other things:
o FEMA administers its programs and carries out its activities through its headquarters
offices in Washington, D.C.; ten Regional Offices; Area Offices for the Pacific, Caribbean,
and Alaska; various Recovery Offices; and temporary Joint Field Offices (JFO).
o FEMA administers numerous assistance programs annually for on a regular basis to
increase the Nation’s preparedness, readiness and resilience to all hazards. These
assistance programs are typically available to NFEs including, but not limited to, states,
local governments, Indian Tribes, universities, hospitals, and certain private nonprofit
organizations.
o Each program is governed by the applicable federal law, regulations, executive orders
and FEMA program-specific policies. As the Federal awarding agency for these programs,
FEMA is responsible for the proper management and administration of these programs
as otherwise required by law and enforcing the terms of the agreements it enters with
NFEs that receive FEMA financial assistance, consistent with the requirements at 2
C.F.R. Part 200.
76 2 C.F.R. § 200.1 Contracts.
77 2 C.F.R. § 200.1 Contractor.
78 2 C.F.R. § 200.1 Cooperative agreement.
79 See Homeland Security Act of 2002, Pub. L. No. 107-296, § 503 (2002) (codified as amended at 6 U.S.C. §
313).
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Federal award: The financial assistance that an NFE receives either directly from a Federal
awarding agency or indirectly from a pass-through entity.80 In this Guide, the term is used
interchangeably with “FEMA Award,” “grant,” and “financial assistance.”
Grant agreement: A legal instrument of financial assistance between a Federal awarding agency
or pass-through entity and an NFE that, consistent with 31 U.S.C. §§ 6302, 6304: Is used to
transfer anything of value from the Federal awarding agency or pass-through entity to the NFE to
carry out a public purpose authorized by a law of the United States (see 31 U.S.C. § 6101(3));
and does not include an agreement that provides only:
o Direct United States government
cash assistance to an individual;
o A subsidy;
o A loan;
o A loan guarantee; or
o Insurance.
Indian tribe (or “federally recognized Indian tribe”): Indian tribe means any Indian tribe, band,
nation, or other organized group or community, including any Alaska Native village or regional or
village corporation as defined in or established pursuant to the Alaska Native Claims Settlement
Act (43 U.S.C. Chapter 33), which is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as Indians (25 U.S.C. 450b(e)).81
See annually published Bureau of Indian Affairs list of Indian Entities Recognized and Eligible to
Receive Services. For the purposes of this Guide, used interchangeably with “Indian Tribal
government”.
Local government: Local government 82 means any unit of government within a state, including a:
o County
o Borough
o Municipality
o City
o Town
o Township
o Parish
o Special district
o School District
o Intrastate district
o Council of governments,
whether incorporated or
not as a nonprofit
corporation under state
law
o Local public authority,
including any public
housing agency under the
United States Housing Act
of 1937
o Any other agency or
instrumentality of a multi-
regional, or intra-state or
local government
80 2 C.F.R. § 200.1 Federal award.
81 2 C.F.R. § 200.1 Indian tribe.
82 2 C.F.R. § 200.1 Local government.
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Non-Federal Entity (NFE): A state, local government, Indian tribe, Institution of Higher Education,
or eligible private nonprofit organization that carries out a federal award as a recipient or
subrecipient.83 In this Guide, NFEs include state and non-state entities.
Non-State Entity: A non-state entity is an eligible FEMA award recipient or subrecipient that does
not meet the definition of a “state under 2 CFR 200.1.
Nonprofit organization (in this Guide, it is used interchangeably with “Private Nonprofit
Organization or PNP”): Nonprofit organization 84 means any corporation, trust, association,
cooperative, or other organization, not including Institutions of Higher Education, that:
Recipient: An NFE that receives a federal award directly from a Federal awarding agency to carry
out an activity under a federal program. The term recipient does not include subrecipients.85 A
recipient is responsible for administering the federal award in accordance with applicable federal
laws. Examples of recipients include state, Indian tribe, or territorial governments.
Pass-through entity: A recipient that provides a subaward to a subrecipient to carry out part of a
federal program is known as the pass-through entity.86 Pass-through entities are responsible for
processing subawards to subrecipients and ensuring subrecipient compliance with the terms
and conditions of the FEMA award agreement.
Political Subdivision: A political subdivision means the unit of government that the State
determines to have met the State’s legislative definition of a political subdivision.87
Simplified Acquisition Threshold (SAT): Simplified acquisition threshold means the dollar amount
below which an NFE may purchase property or services using small purchase methods. NFEs
adopt small purchase procedures to expedite the purchase of items costing less than the
simplified acquisition threshold. The federal SAT is set by the FAR at 48 C.F.R. Subpart 2.1
(Definitions) and in accordance with 41 U.S.C. 1908.88 As of June 2018, the federal SAT is
$250,000,89 but is periodically adjusted for inflation.
State: State means any state of the United States, the District of Columbia, the Commonwealth
of Puerto Rico, U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands, and any agency or instrumentality thereof exclusive of local governments.90 In
this Guide, state is used interchangeably with “state entity”.
83 2 C.F.R. § 200.1 Non-Federal entity.
84 2 C.F.R. § 200.1 Nonprofit organization.
85 2 C.F.R. § 200.1 Recipient.
86 2 C.F.R. § 200.1 Pass-through entity.
87 40 C.F.R. § 35.6015(a) Political subdivision
88 2 C.F.R. § 200.1 Simplified acquisition threshold.
89 Section 805 codified at 41 U.S.C. § 134; OMB Memo (M-18-18), available at
https://www.whitehouse.gov/wp-content/uploads/2018/06/M-18-18.pdf.
90 2 C.F.R. § 200.1 State. Some hospitals and IHEs as defined by 2 C.F.R. § 200.1 Hospitals and 2 C.F.R. §
200.1 Institutions of Higher Education respectively, may meet the definition of a State.
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Subaward: An award provided by a pass-through entity to a subrecipient for the subrecipient to
carry out part of a federal award received by the pass-through entity. It does not include
payments to a contractor or payments to an individual that is a beneficiary of a federal program.
A subaward may be provided through any form of legal agreement, including an agreement that
the pass-through entity considers a contract.91 In this Guide, the term is used interchangeably
with “subgrant.”
Subrecipient: An NFE that receives a subaward from a pass-through entity to carry out part of a
federal program but does not include an individual that is a beneficiary of such program.92
Uniform Rules: The series of regulations found at 2 C.F.R. Part 200 that establishes Uniform
Administrative Requirements, Cost Principles, and Audit Requirements for federal awards to
NFEs. The Uniform Rules are referred to by several names throughout the remaining portions of
this Guide. Some of the names include standards, requirements, rules, and regulations.
91 2 C.F.R. § 200.1 Subaward.
92 2 C.F.R. § 200.1 Subrecipient.
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Contract No. XX-XX Exhibit D: FHWA-1273
EXHIBIT D
FHWA-1273
REQUIRED CONTRACT PROVISIONS
FEDERAL-AID CONSTRUCTION CONTRACTS
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FHWA-1273 – Revised October 23, 2023
REQUIRED CONTRACT PROVISIONS
FEDERAL-AID CONSTRUCTION CONTRACTS
I. General
II. Nondiscrimination
III. Non-segregated Facilities
IV. Davis-Bacon and Related Act Provisions
V. Contract Work Hours and Safety Standards Act
Provisions
VI. Subletting or Assigning the Contract
VII. Safety: Accident Prevention
VIII. False Statements Concerning Highway Projects
IX. Implementation of Clean Air Act and Federal Water
Pollution Control Act
X. Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion
XI. Certification Regarding Use of Contract Funds for
Lobbying
XII. Use of United States-Flag Vessels:
ATTACHMENTS
A. Employment and Materials Preference for Appalachian
Development Highway System or Appalachian Local Access
Road Contracts (included in Appalachian contracts only)
I. GENERAL
1. Form FHWA-1273 must be physically incorporated in each
construction contract funded under title 23, United States
Code, as required in 23 CFR 633.102(b) (excluding
emergency contracts solely intended for debris removal). The
contractor (or subcontractor) must insert this form in each
subcontract and further require its inclusion in all lower tier
subcontracts (excluding purchase orders, rental agreements
and other agreements for supplies or services). 23 CFR
633.102(e).
The applicable requirements of Form FHWA-1273 are
incorporated by reference for work done under any purchase
order, rental agreement or agreement for other services. The
prime contractor shall be responsible for compliance by any
subcontractor, lower-tier subcontractor or service provider. 23
CFR 633.102(e).
Form FHWA-1273 must be included in all Federal-aid design-
build contracts, in all subcontracts and in lower tier
subcontracts (excluding subcontracts for design services,
purchase orders, rental agreements and other agreements for
supplies or services) in accordance with 23 CFR 633.102. The
design-builder shall be responsible for compliance by any
subcontractor, lower-tier subcontractor or service provider.
Contracting agencies may reference Form FHWA-1273 in
solicitation-for-bids or request-for-proposals documents,
however, the Form FHWA-1273 must be physically
incorporated (not referenced) in all contracts, subcontracts and
lower-tier subcontracts (excluding purchase orders, rental
agreements and other agreements for supplies or services
related to a construction contract). 23 CFR 633.102(b).
2. Subject to the applicability criteria noted in the following
sections, these contract provisions shall apply to all work
performed on the contract by the contractor's own organization
and with the assistance of workers under the contractor's
immediate superintendence and to all work performed on the
contract by piecework, station work, or by subcontract. 23
CFR 633.102(d).
3. A breach of any of the stipulations contained in these
Required Contract Provisions may be sufficient grounds for
withholding of progress payments, withholding of final
payment, termination of the contract, suspension / debarment
or any other action determined to be appropriate by the
contracting agency and FHWA.
4. Selection of Labor: During the performance of this contract,
the contractor shall not use convict labor for any purpose
within the limits of a construction project on a Federal-aid
highway unless it is labor performed by convicts who are on
parole, supervised release, or probation. 23 U.S.C. 114(b).
The term Federal-aid highway does not include roadways
functionally classified as local roads or rural minor collectors.
23 U.S.C. 101(a).
II. NONDISCRIMINATION (23 CFR 230.107(a); 23 CFR Part
230, Subpart A, Appendix A; EO 11246)
The provisions of this section related to 23 CFR Part 230,
Subpart A, Appendix A are applicable to all Federal-aid
construction contracts and to all related construction
subcontracts of $10,000 or more. The provisions of 23 CFR
Part 230 are not applicable to material supply, engineering, or
architectural service contracts.
In addition, the contractor and all subcontractors must comply
with the following policies: Executive Order 11246, 41 CFR
Part 60, 29 CFR Parts 1625-1627, 23 U.S.C. 140, Section 504
of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794),
Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C.
2000d et seq.), and related regulations including 49 CFR Parts
21, 26, and 27; and 23 CFR Parts 200, 230, and 633.
The contractor and all subcontractors must comply with: the
requirements of the Equal Opportunity Clause in 41 CFR 60-
1.4(b) and, for all construction contracts exceeding $10,000,
the Standard Federal Equal Employment Opportunity
Construction Contract Specifications in 41 CFR 60-4.3.
Note: The U.S. Department of Labor has exclusive authority to
determine compliance with Executive Order 11246 and the
policies of the Secretary of Labor including 41 CFR Part 60,
and 29 CFR Parts 1625-1627. The contracting agency and
the FHWA have the authority and the responsibility to ensure
compliance with 23 U.S.C. 140, Section 504 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and
Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C.
2000d et seq.), and related regulations including 49 CFR Parts
21, 26, and 27; and 23 CFR Parts 200, 230, and 633.
The following provision is adopted from 23 CFR Part 230,
Subpart A, Appendix A, with appropriate revisions to conform
to the U.S. Department of Labor (US DOL) and FHWA
requirements.
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1. Equal Employment Opportunity: Equal Employment
Opportunity (EEO) requirements not to discriminate and to
take affirmative action to assure equal opportunity as set forth
under laws, executive orders, rules, regulations (see 28 CFR
Part 35, 29 CFR Part 1630, 29 CFR Parts 1625-1627, 41 CFR
Part 60 and 49 CFR Part 27) and orders of the Secretary of
Labor as modified by the provisions prescribed herein, and
imposed pursuant to 23 U.S.C. 140, shall constitute the EEO
and specific affirmative action standards for the contractor's
project activities under this contract. The provisions of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et
seq.) set forth under 28 CFR Part 35 and 29 CFR Part 1630
are incorporated by reference in this contract. In the execution
of this contract, the contractor agrees to comply with the
following minimum specific requirement activities of EEO:
a. The contractor will work with the contracting agency and
the Federal Government to ensure that it has made every
good faith effort to provide equal opportunity with respect to all
of its terms and conditions of employment and in their review
of activities under the contract. 23 CFR 230.409 (g)(4) & (5).
b. The contractor will accept as its operating policy the
following statement:
"It is the policy of this Company to assure that applicants
are employed, and that employees are treated during
employment, without regard to their race, religion, sex,
sexual orientation, gender identity, color, national origin, age
or disability. Such action shall include: employment,
upgrading, demotion, or transfer; recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms
of compensation; and selection for training, including
apprenticeship, pre-apprenticeship, and/or on-the-job
training."
2. EEO Officer: The contractor will designate and make
known to the contracting officers an EEO Officer who will have
the responsibility for and must be capable of effectively
administering and promoting an active EEO program and who
must be assigned adequate authority and responsibility to do
so.
3. Dissemination of Policy: All members of the contractor's
staff who are authorized to hire, supervise, promote, and
discharge employees, or who recommend such action or are
substantially involved in such action, will be made fully
cognizant of and will implement the contractor's EEO policy
and contractual responsibilities to provide EEO in each grade
and classification of employment. To ensure that the above
agreement will be met, the following actions will be taken as a
minimum:
a. Periodic meetings of supervisory and personnel office
employees will be conducted before the start of work and then
not less often than once every six months, at which time the
contractor's EEO policy and its implementation will be
reviewed and explained. The meetings will be conducted by
the EEO Officer or other knowledgeable company official.
b. All new supervisory or personnel office employees will be
given a thorough indoctrination by the EEO Officer, covering
all major aspects of the contractor's EEO obligations within
thirty days following their reporting for duty with the contractor.
c. All personnel who are engaged in direct recruitment for
the project will be instructed by the EEO Officer in the
contractor's procedures for locating and hiring minorities and
women.
d. Notices and posters setting forth the contractor's EEO
policy will be placed in areas readily accessible to employees,
applicants for employment and potential employees.
e. The contractor's EEO policy and the procedures to
implement such policy will be brought to the attention of
employees by means of meetings, employee handbooks, or
other appropriate means.
4. Recruitment: When advertising for employees, the
contractor will include in all advertisements for employees the
notation: "An Equal Opportunity Employer." All such
advertisements will be placed in publications having a large
circulation among minorities and women in the area from
which the project work force would normally be derived.
a. The contractor will, unless precluded by a valid
bargaining agreement, conduct systematic and direct
recruitment through public and private employee referral
sources likely to yield qualified minorities and women. To
meet this requirement, the contractor will identify sources of
potential minority group employees and establish with such
identified sources procedures whereby minority and women
applicants may be referred to the contractor for employment
consideration.
b. In the event the contractor has a valid bargaining
agreement providing for exclusive hiring hall referrals, the
contractor is expected to observe the provisions of that
agreement to the extent that the system meets the contractor's
compliance with EEO contract provisions. Where
implementation of such an agreement has the effect of
discriminating against minorities or women, or obligates the
contractor to do the same, such implementation violates
Federal nondiscrimination provisions.
c. The contractor will encourage its present employees to
refer minorities and women as applicants for employment.
Information and procedures with regard to referring such
applicants will be discussed with employees.
5. Personnel Actions: Wages, working conditions, and
employee benefits shall be established and administered, and
personnel actions of every type, including hiring, upgrading,
promotion, transfer, demotion, layoff, and termination, shall be
taken without regard to race, color, religion, sex, sexual
orientation, gender identity, national origin, age or disability.
The following procedures shall be followed:
a. The contractor will conduct periodic inspections of project
sites to ensure that working conditions and employee facilities
do not indicate discriminatory treatment of project site
personnel.
b. The contractor will periodically evaluate the spread of
wages paid within each classification to determine any
evidence of discriminatory wage practices.
c. The contractor will periodically review selected personnel
actions in depth to determine whether there is evidence of
discrimination. Where evidence is found, the contractor will
promptly take corrective action. If the review indicates that the
discrimination may extend beyond the actions reviewed, such
corrective action shall include all affected persons.
d. The contractor will promptly investigate all complaints of
alleged discrimination made to the contractor in connection
with its obligations under this contract, will attempt to resolve
such complaints, and will take appropriate corrective action
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within a reasonable time. If the investigation indicates that the
discrimination may affect persons other than the complainant,
such corrective action shall include such other persons. Upon
completion of each investigation, the contractor will inform
every complainant of all of their avenues of appeal.
6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and
increasing the skills of minorities and women who are
applicants for employment or current employees. Such efforts
should be aimed at developing full journey level status
employees in the type of trade or job classification involved.
b. Consistent with the contractor's work force requirements
and as permissible under Federal and State regulations, the
contractor shall make full use of training programs (i.e.,
apprenticeship and on-the-job training programs for the
geographical area of contract performance). In the event a
special provision for training is provided under this contract,
this subparagraph will be superseded as indicated in the
special provision. The contracting agency may reserve
training positions for persons who receive welfare assistance
in accordance with 23 U.S.C. 140(a).
c. The contractor will advise employees and applicants for
employment of available training programs and entrance
requirements for each.
d. The contractor will periodically review the training and
promotion potential of employees who are minorities and
women and will encourage eligible employees to apply for
such training and promotion.
7. Unions: If the contractor relies in whole or in part upon
unions as a source of employees, the contractor will use good
faith efforts to obtain the cooperation of such unions to
increase opportunities for minorities and women. 23 CFR
230.409. Actions by the contractor, either directly or through a
contractor's association acting as agent, will include the
procedures set forth below:
a. The contractor will use good faith efforts to develop, in
cooperation with the unions, joint training programs aimed
toward qualifying more minorities and women for membership
in the unions and increasing the skills of minorities and women
so that they may qualify for higher paying employment.
b. The contractor will use good faith efforts to incorporate an
EEO clause into each union agreement to the end that such
union will be contractually bound to refer applicants without
regard to their race, color, religion, sex, sexual orientation,
gender identity, national origin, age, or disability.
c. The contractor is to obtain information as to the referral
practices and policies of the labor union except that to the
extent such information is within the exclusive possession of
the labor union and such labor union refuses to furnish such
information to the contractor, the contractor shall so certify to
the contracting agency and shall set forth what efforts have
been made to obtain such information.
d. In the event the union is unable to provide the contractor
with a reasonable flow of referrals within the time limit set forth
in the collective bargaining agreement, the contractor will,
through independent recruitment efforts, fill the employment
vacancies without regard to race, color, religion, sex, sexual
orientation, gender identity, national origin, age, or disability;
making full efforts to obtain qualified and/or qualifiable
minorities and women. The failure of a union to provide
sufficient referrals (even though it is obligated to provide
exclusive referrals under the terms of a collective bargaining
agreement) does not relieve the contractor from the
requirements of this paragraph. In the event the union referral
practice prevents the contractor from meeting the obligations
pursuant to Executive Order 11246, as amended, and these
special provisions, such contractor shall immediately notify the
contracting agency.
8. Reasonable Accommodation for Applicants /
Employees with Disabilities: The contractor must be familiar
with the requirements for and comply with the Americans with
Disabilities Act and all rules and regulations established
thereunder. Employers must provide reasonable
accommodation in all employment activities unless to do so
would cause an undue hardship.
9. Selection of Subcontractors, Procurement of Materials
and Leasing of Equipment: The contractor shall not
discriminate on the grounds of race, color, religion, sex, sexual
orientation, gender identity, national origin, age, or disability in
the selection and retention of subcontractors, including
procurement of materials and leases of equipment. The
contractor shall take all necessary and reasonable steps to
ensure nondiscrimination in the administration of this contract.
a. The contractor shall notify all potential subcontractors,
suppliers, and lessors of their EEO obligations under this
contract.
b. The contractor will use good faith efforts to ensure
subcontractor compliance with their EEO obligations.
10. Assurances Required:
a. The requirements of 49 CFR Part 26 and the State
DOT’s FHWA-approved Disadvantaged Business Enterprise
(DBE) program are incorporated by reference.
b. The contractor, subrecipient or subcontractor shall not
discriminate on the basis of race, color, national origin, or sex
in the performance of this contract. The contractor shall carry
out applicable requirements of 49 CFR part 26 in the award
and administration of DOT-assisted contracts. Failure by the
contractor to carry out these requirements is a material breach
of this contract, which may result in the termination of this
contract or such other remedy as the recipient deems
appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as non-
responsible.
c. The Title VI and nondiscrimination provisions of U.S.
DOT Order 1050.2A at Appendixes A and E are incorporated
by reference. 49 CFR Part 21.
11. Records and Reports: The contractor shall keep such
records as necessary to document compliance with the EEO
requirements. Such records shall be retained for a period of
three years following the date of the final payment to the
contractor for all contract work and shall be available at
reasonable times and places for inspection by authorized
representatives of the contracting agency and the FHWA.
a. The records kept by the contractor shall document the
following:
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(1) The number and work hours of minority and non-
minority group members and women employed in each work
classification on the project;
(2) The progress and efforts being made in cooperation
with unions, when applicable, to increase employment
opportunities for minorities and women; and
(3) The progress and efforts being made in locating, hiring,
training, qualifying, and upgrading minorities and women.
b. The contractors and subcontractors will submit an annual
report to the contracting agency each July for the duration of
the project indicating the number of minority, women, and non-
minority group employees currently engaged in each work
classification required by the contract work. This information is
to be reported on Form FHWA-1391. The staffing data should
represent the project work force on board in all or any part of
the last payroll period preceding the end of July. If on-the-job
training is being required by special provision, the contractor
will be required to collect and report training data. The
employment data should reflect the work force on board during
all or any part of the last payroll period preceding the end of
July.
III. NONSEGREGATED FACILITIES
This provision is applicable to all Federal-aid construction
contracts and to all related construction subcontracts of more
than $10,000. 41 CFR 60-1.5.
As prescribed by 41 CFR 60-1.8, the contractor must ensure
that facilities provided for employees are provided in such a
manner that segregation on the basis of race, color, religion,
sex, sexual orientation, gender identity, or national origin
cannot result. The contractor may neither require such
segregated use by written or oral policies nor tolerate such use
by employee custom. The contractor's obligation extends
further to ensure that its employees are not assigned to
perform their services at any location under the contractor's
control where the facilities are segregated. The term "facilities"
includes waiting rooms, work areas, restaurants and other
eating areas, time clocks, restrooms, washrooms, locker
rooms and other storage or dressing areas, parking lots,
drinking fountains, recreation or entertainment areas,
transportation, and housing provided for employees. The
contractor shall provide separate or single-user restrooms and
necessary dressing or sleeping areas to assure privacy
between sexes.
IV. DAVIS-BACON AND RELATED ACT PROVISIONS
This section is applicable to all Federal-aid construction
projects exceeding $2,000 and to all related subcontracts and
lower-tier subcontracts (regardless of subcontract size), in
accordance with 29 CFR 5.5. The requirements apply to all
projects located within the right-of-way of a roadway that is
functionally classified as Federal-aid highway. 23 U.S.C. 113.
This excludes roadways functionally classified as local roads
or rural minor collectors, which are exempt. 23 U.S.C. 101.
Where applicable law requires that projects be treated as a
project on a Federal-aid highway, the provisions of this subpart
will apply regardless of the location of the project. Examples
include: Surface Transportation Block Grant Program projects
funded under 23 U.S.C. 133 [excluding recreational trails
projects], the Nationally Significant Freight and Highway
Projects funded under 23 U.S.C. 117, and National Highway
Freight Program projects funded under 23 U.S.C. 167.
The following provisions are from the U.S. Department of
Labor regulations in 29 CFR 5.5 “Contract provisions and
related matters” with minor revisions to conform to the FHWA-
1273 format and FHWA program requirements.
1. Minimum wages (29 CFR 5.5)
a. Wage rates and fringe benefits. All laborers and
mechanics employed or working upon the site of the work (or
otherwise working in construction or development of the
project under a development statute), will be paid
unconditionally and not less often than once a week, and
without subsequent deduction or rebate on any account
(except such payroll deductions as are permitted by
regulations issued by the Secretary of Labor under the
Copeland Act (29 CFR part 3)), the full amount of basic hourly
wages and bona fide fringe benefits (or cash equivalents
thereof) due at time of payment computed at rates not less
than those contained in the wage determination of the
Secretary of Labor which is attached hereto and made a part
hereof, regardless of any contractual relationship which may
be alleged to exist between the contractor and such laborers
and mechanics. As provided in paragraphs (d) and (e) of 29
CFR 5.5, the appropriate wage determinations are effective by
operation of law even if they have not been attached to the
contract. Contributions made or costs reasonably anticipated
for bona fide fringe benefits under the Davis-Bacon Act (40
U.S.C. 3141(2)(B)) on behalf of laborers or mechanics are
considered wages paid to such laborers or mechanics, subject
to the provisions of paragraph 1.e. of this section; also, regular
contributions made or costs incurred for more than a weekly
period (but not less often than quarterly) under plans, funds, or
programs which cover the particular weekly period, are
deemed to be constructively made or incurred during such
weekly period. Such laborers and mechanics must be paid the
appropriate wage rate and fringe benefits on the wage
determination for the classification(s) of work actually
performed, without regard to skill, except as provided in
paragraph 4. of this section. Laborers or mechanics performing
work in more than one classification may be compensated at
the rate specified for each classification for the time actually
worked therein: Provided, That the employer's payroll records
accurately set forth the time spent in each classification in
which work is performed. The wage determination (including
any additional classifications and wage rates conformed under
paragraph 1.c. of this section) and the Davis-Bacon poster
(WH–1321) must be posted at all times by the contractor and
its subcontractors at the site of the work in a prominent and
accessible place where it can be easily seen by the workers.
b. Frequently recurring classifications. (1) In addition to wage
and fringe benefit rates that have been determined to be
prevailing under the procedures set forth in 29 CFR part 1, a
wage determination may contain, pursuant to § 1.3(f), wage
and fringe benefit rates for classifications of laborers and
mechanics for which conformance requests are regularly
submitted pursuant to paragraph 1.c. of this section, provided
that:
(i) The work performed by the classification is not
performed by a classification in the wage determination for
which a prevailing wage rate has been determined;
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(ii) The classification is used in the area by the
construction industry; and
(iii) The wage rate for the classification bears a reasonable
relationship to the prevailing wage rates contained in the
wage determination.
(2) The Administrator will establish wage rates for such
classifications in accordance with paragraph 1.c.(1)(iii) of this
section. Work performed in such a classification must be paid
at no less than the wage and fringe benefit rate listed on the
wage determination for such classification.
c. Conformance. (1) The contracting officer must require that
any class of laborers or mechanics, including helpers, which is
not listed in the wage determination and which is to be
employed under the contract be classified in conformance with
the wage determination. Conformance of an additional
classification and wage rate and fringe benefits is appropriate
only when the following criteria have been met:
(i) The work to be performed by the classification
requested is not performed by a classification in the wage
determination; and
(ii) The classification is used in the area by the
construction industry; and
(iii) The proposed wage rate, including any bona fide fringe
benefits, bears a reasonable relationship to the wage rates
contained in the wage determination.
(2) The conformance process may not be used to split,
subdivide, or otherwise avoid application of classifications
listed in the wage determination.
(3) If the contractor and the laborers and mechanics to be
employed in the classification (if known), or their
representatives, and the contracting officer agree on the
classification and wage rate (including the amount designated
for fringe benefits where appropriate), a report of the action
taken will be sent by the contracting officer by email to
DBAconformance@dol.gov. The Administrator, or an
authorized representative, will approve, modify, or disapprove
every additional classification action within 30 days of receipt
and so advise the contracting officer or will notify the
contracting officer within the 30–day period that additional time
is necessary.
(4) In the event the contractor, the laborers or mechanics to
be employed in the classification or their representatives, and
the contracting officer do not agree on the proposed
classification and wage rate (including the amount designated
for fringe benefits, where appropriate), the contracting officer
will, by email to DBAconformance@dol.gov, refer the
questions, including the views of all interested parties and the
recommendation of the contracting officer, to the Administrator
for determination. The Administrator, or an authorized
representative, will issue a determination within 30 days of
receipt and so advise the contracting officer or will notify the
contracting officer within the 30–day period that additional time
is necessary.
(5) The contracting officer must promptly notify the
contractor of the action taken by the Wage and Hour Division
under paragraphs 1.c.(3) and (4) of this section. The contractor
must furnish a written copy of such determination to each
affected worker or it must be posted as a part of the wage
determination. The wage rate (including fringe benefits where
appropriate) determined pursuant to paragraph 1.c.(3) or (4) of
this section must be paid to all workers performing work in the
classification under this contract from the first day on which
work is performed in the classification.
d. Fringe benefits not expressed as an hourly rate.
Whenever the minimum wage rate prescribed in the contract
for a class of laborers or mechanics includes a fringe benefit
which is not expressed as an hourly rate, the contractor may
either pay the benefit as stated in the wage determination or
may pay another bona fide fringe benefit or an hourly cash
equivalent thereof.
e. Unfunded plans. If the contractor does not make
payments to a trustee or other third person, the contractor may
consider as part of the wages of any laborer or mechanic the
amount of any costs reasonably anticipated in providing bona
fide fringe benefits under a plan or program, Provided, That
the Secretary of Labor has found, upon the written request of
the contractor, in accordance with the criteria set forth in
§ 5.28, that the applicable standards of the Davis-Bacon Act
have been met. The Secretary of Labor may require the
contractor to set aside in a separate account assets for the
meeting of obligations under the plan or program.
f. Interest. In the event of a failure to pay all or part of the
wages required by the contract, the contractor will be required
to pay interest on any underpayment of wages.
2. Withholding (29 CFR 5.5)
a. Withholding requirements. The contracting agency may,
upon its own action, or must, upon written request of an
authorized representative of the Department of Labor, withhold
or cause to be withheld from the contractor so much of the
accrued payments or advances as may be considered
necessary to satisfy the liabilities of the prime contractor or any
subcontractor for the full amount of wages and monetary relief,
including interest, required by the clauses set forth in this
section for violations of this contract, or to satisfy any such
liabilities required by any other Federal contract, or federally
assisted contract subject to Davis-Bacon labor standards, that
is held by the same prime contractor (as defined in § 5.2). The
necessary funds may be withheld from the contractor under
this contract, any other Federal contract with the same prime
contractor, or any other federally assisted contract that is
subject to Davis-Bacon labor standards requirements and is
held by the same prime contractor, regardless of whether the
other contract was awarded or assisted by the same agency,
and such funds may be used to satisfy the contractor liability
for which the funds were withheld. In the event of a
contractor's failure to pay any laborer or mechanic, including
any apprentice or helper working on the site of the work all or
part of the wages required by the contract, or upon the
contractor's failure to submit the required records as discussed
in paragraph 3.d. of this section, the contracting agency may
on its own initiative and after written notice to the contractor,
take such action as may be necessary to cause the
suspension of any further payment, advance, or guarantee of
funds until such violations have ceased.
b. Priority to withheld funds. The Department has priority to
funds withheld or to be withheld in accordance with paragraph
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2.a. of this section or Section V, paragraph 3.a., or both, over
claims to those funds by:
(1) A contractor's surety(ies), including without limitation
performance bond sureties and payment bond sureties;
(2) A contracting agency for its reprocurement costs;
(3) A trustee(s) (either a court-appointed trustee or a U.S.
trustee, or both) in bankruptcy of a contractor, or a contractor's
bankruptcy estate;
(4) A contractor's assignee(s);
(5) A contractor's successor(s); or
(6) A claim asserted under the Prompt Payment Act, 31
U.S.C. 3901–3907.
3. Records and certified payrolls (29 CFR 5.5)
a. Basic record requirements (1) Length of record retention.
All regular payrolls and other basic records must be
maintained by the contractor and any subcontractor during the
course of the work and preserved for all laborers and
mechanics working at the site of the work (or otherwise
working in construction or development of the project under a
development statute) for a period of at least 3 years after all
the work on the prime contract is completed.
(2) Information required. Such records must contain the
name; Social Security number; last known address, telephone
number, and email address of each such worker; each
worker's correct classification(s) of work actually performed;
hourly rates of wages paid (including rates of contributions or
costs anticipated for bona fide fringe benefits or cash
equivalents thereof of the types described in 40 U.S.C.
3141(2)(B) of the Davis-Bacon Act); daily and weekly number
of hours actually worked in total and on each covered contract;
deductions made; and actual wages paid.
(3) Additional records relating to fringe benefits. Whenever
the Secretary of Labor has found under paragraph 1.e. of this
section that the wages of any laborer or mechanic include the
amount of any costs reasonably anticipated in providing
benefits under a plan or program described in 40 U.S.C.
3141(2)(B) of the Davis-Bacon Act, the contractor must
maintain records which show that the commitment to provide
such benefits is enforceable, that the plan or program is
financially responsible, and that the plan or program has been
communicated in writing to the laborers or mechanics affected,
and records which show the costs anticipated or the actual
cost incurred in providing such benefits.
(4) Additional records relating to apprenticeship. Contractors
with apprentices working under approved programs must
maintain written evidence of the registration of apprenticeship
programs, the registration of the apprentices, and the ratios
and wage rates prescribed in the applicable programs.
b. Certified payroll requirements (1) Frequency and method
of submission. The contractor or subcontractor must submit
weekly, for each week in which any DBA- or Related Acts-
covered work is performed, certified payrolls to the contracting
agency. The prime contractor is responsible for the submission
of all certified payrolls by all subcontractors. A contracting
agency or prime contractor may permit or require contractors
to submit certified payrolls through an electronic system, as
long as the electronic system requires a legally valid electronic
signature; the system allows the contractor, the contracting
agency, and the Department of Labor to access the certified
payrolls upon request for at least 3 years after the work on the
prime contract has been completed; and the contracting
agency or prime contractor permits other methods of
submission in situations where the contractor is unable or
limited in its ability to use or access the electronic system.
(2) Information required. The certified payrolls submitted
must set out accurately and completely all of the information
required to be maintained under paragraph 3.a.(2) of this
section, except that full Social Security numbers and last
known addresses, telephone numbers, and email addresses
must not be included on weekly transmittals. Instead, the
certified payrolls need only include an individually identifying
number for each worker ( e.g., the last four digits of the
worker's Social Security number). The required weekly
certified payroll information may be submitted using Optional
Form WH–347 or in any other format desired. Optional Form
WH–347 is available for this purpose from the Wage and Hour
Division website at https://www.dol.gov/sites/dolgov/files/WHD/
legacy/files/wh347/.pdf or its successor website. It is not a
violation of this section for a prime contractor to require a
subcontractor to provide full Social Security numbers and last
known addresses, telephone numbers, and email addresses to
the prime contractor for its own records, without weekly
submission by the subcontractor to the contracting agency.
(3) Statement of Compliance. Each certified payroll
submitted must be accompanied by a “Statement of
Compliance,” signed by the contractor or subcontractor, or the
contractor's or subcontractor's agent who pays or supervises
the payment of the persons working on the contract, and must
certify the following:
(i) That the certified payroll for the payroll period contains
the information required to be provided under paragraph 3.b.
of this section, the appropriate information and basic records
are being maintained under paragraph 3.a. of this section,
and such information and records are correct and complete;
(ii) That each laborer or mechanic (including each helper
and apprentice) working on the contract during the payroll
period has been paid the full weekly wages earned, without
rebate, either directly or indirectly, and that no deductions
have been made either directly or indirectly from the full
wages earned, other than permissible deductions as set
forth in 29 CFR part 3; and
(iii) That each laborer or mechanic has been paid not less
than the applicable wage rates and fringe benefits or cash
equivalents for the classification(s) of work actually
performed, as specified in the applicable wage determination
incorporated into the contract.
(4) Use of Optional Form WH–347. The weekly submission
of a properly executed certification set forth on the reverse
side of Optional Form WH–347 will satisfy the requirement for
submission of the “Statement of Compliance” required by
paragraph 3.b.(3) of this section.
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(5) Signature. The signature by the contractor,
subcontractor, or the contractor's or subcontractor's agent
must be an original handwritten signature or a legally valid
electronic signature.
(6) Falsification. The falsification of any of the above
certifications may subject the contractor or subcontractor to
civil or criminal prosecution under 18 U.S.C. 1001 and 31
U.S.C. 3729.
(7) Length of certified payroll retention. The contractor or
subcontractor must preserve all certified payrolls during the
course of the work and for a period of 3 years after all the work
on the prime contract is completed.
c. Contracts, subcontracts, and related documents. The
contractor or subcontractor must maintain this contract or
subcontract and related documents including, without
limitation, bids, proposals, amendments, modifications, and
extensions. The contractor or subcontractor must preserve
these contracts, subcontracts, and related documents during
the course of the work and for a period of 3 years after all the
work on the prime contract is completed.
d. Required disclosures and access (1) Required record
disclosures and access to workers. The contractor or
subcontractor must make the records required under
paragraphs 3.a. through 3.c. of this section, and any other
documents that the contracting agency, the State DOT, the
FHWA, or the Department of Labor deems necessary to
determine compliance with the labor standards provisions of
any of the applicable statutes referenced by § 5.1, available for
inspection, copying, or transcription by authorized
representatives of the contracting agency, the State DOT, the
FHWA, or the Department of Labor, and must permit such
representatives to interview workers during working hours on
the job.
(2) Sanctions for non-compliance with records and worker
access requirements. If the contractor or subcontractor fails to
submit the required records or to make them available, or
refuses to permit worker interviews during working hours on
the job, the Federal agency may, after written notice to the
contractor, sponsor, applicant, owner, or other entity, as the
case may be, that maintains such records or that employs
such workers, take such action as may be necessary to cause
the suspension of any further payment, advance, or guarantee
of funds. Furthermore, failure to submit the required records
upon request or to make such records available, or to permit
worker interviews during working hours on the job, may be
grounds for debarment action pursuant to § 5.12. In addition,
any contractor or other person that fails to submit the required
records or make those records available to WHD within the
time WHD requests that the records be produced will be
precluded from introducing as evidence in an administrative
proceeding under 29 CFR part 6 any of the required records
that were not provided or made available to WHD. WHD will
take into consideration a reasonable request from the
contractor or person for an extension of the time for
submission of records. WHD will determine the
reasonableness of the request and may consider, among other
things, the location of the records and the volume of
production.
(3) Required information disclosures. Contractors and
subcontractors must maintain the full Social Security number
and last known address, telephone number, and email address
of each covered worker, and must provide them upon request
to the contracting agency, the State DOT, the FHWA, the
contractor, or the Wage and Hour Division of the Department
of Labor for purposes of an investigation or other compliance
action.
4. Apprentices and equal employment opportunity (29 CFR
5.5)
a. Apprentices (1) Rate of pay. Apprentices will be permitted
to work at less than the predetermined rate for the work they
perform when they are employed pursuant to and individually
registered in a bona fide apprenticeship program registered
with the U.S. Department of Labor, Employment and Training
Administration, Office of Apprenticeship (OA), or with a State
Apprenticeship Agency recognized by the OA. A person who is
not individually registered in the program, but who has been
certified by the OA or a State Apprenticeship Agency (where
appropriate) to be eligible for probationary employment as an
apprentice, will be permitted to work at less than the
predetermined rate for the work they perform in the first 90
days of probationary employment as an apprentice in such a
program. In the event the OA or a State Apprenticeship
Agency recognized by the OA withdraws approval of an
apprenticeship program, the contractor will no longer be
permitted to use apprentices at less than the applicable
predetermined rate for the work performed until an acceptable
program is approved.
(2) Fringe benefits. Apprentices must be paid fringe benefits
in accordance with the provisions of the apprenticeship
program. If the apprenticeship program does not specify fringe
benefits, apprentices must be paid the full amount of fringe
benefits listed on the wage determination for the applicable
classification. If the Administrator determines that a different
practice prevails for the applicable apprentice classification,
fringe benefits must be paid in accordance with that
determination.
(3) Apprenticeship ratio. The allowable ratio of apprentices to
journeyworkers on the job site in any craft classification must
not be greater than the ratio permitted to the contractor as to
the entire work force under the registered program or the ratio
applicable to the locality of the project pursuant to paragraph
4.a.(4) of this section. Any worker listed on a payroll at an
apprentice wage rate, who is not registered or otherwise
employed as stated in paragraph 4.a.(1) of this section, must
be paid not less than the applicable wage rate on the wage
determination for the classification of work actually performed.
In addition, any apprentice performing work on the job site in
excess of the ratio permitted under this section must be paid
not less than the applicable wage rate on the wage
determination for the work actually performed.
(4) Reciprocity of ratios and wage rates. Where a contractor
is performing construction on a project in a locality other than
the locality in which its program is registered, the ratios and
wage rates (expressed in percentages of the journeyworker's
hourly rate) applicable within the locality in which the
construction is being performed must be observed. If there is
no applicable ratio or wage rate for the locality of the project,
the ratio and wage rate specified in the contractor's registered
program must be observed.
b. Equal employment opportunity. The use of apprentices
and journeyworkers under this part must be in conformity with
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the equal employment opportunity requirements of Executive
Order 11246, as amended, and 29 CFR part 30.
c. Apprentices and Trainees (programs of the U.S. DOT).
Apprentices and trainees working under apprenticeship and
skill training programs which have been certified by the
Secretary of Transportation as promoting EEO in connection
with Federal-aid highway construction programs are not
subject to the requirements of paragraph 4 of this Section IV.
23 CFR 230.111(e)(2). The straight time hourly wage rates for
apprentices and trainees under such programs will be
established by the particular programs. The ratio of
apprentices and trainees to journeyworkers shall not be
greater than permitted by the terms of the particular program.
5. Compliance with Copeland Act requirements. The
contractor shall comply with the requirements of 29 CFR part
3, which are incorporated by reference in this contract as
provided in 29 CFR 5.5.
6. Subcontracts. The contractor or subcontractor must insert
FHWA-1273 in any subcontracts, along with the applicable
wage determination(s) and such other clauses or contract
modifications as the contracting agency may by appropriate
instructions require, and a clause requiring the subcontractors
to include these clauses and wage determination(s) in any
lower tier subcontracts. The prime contractor is responsible for
the compliance by any subcontractor or lower tier
subcontractor with all the contract clauses in this section. In
the event of any violations of these clauses, the prime
contractor and any subcontractor(s) responsible will be liable
for any unpaid wages and monetary relief, including interest
from the date of the underpayment or loss, due to any workers
of lower-tier subcontractors, and may be subject to debarment,
as appropriate. 29 CFR 5.5.
7. Contract termination: debarment. A breach of the
contract clauses in 29 CFR 5.5 may be grounds for termination
of the contract, and for debarment as a contractor and a
subcontractor as provided in 29 CFR 5.12.
8. Compliance with Davis-Bacon and Related Act
requirements. All rulings and interpretations of the Davis-
Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5
are herein incorporated by reference in this contract as
provided in 29 CFR 5.5.
9. Disputes concerning labor standards. As provided in 29
CFR 5.5, disputes arising out of the labor standards provisions
of this contract shall not be subject to the general disputes
clause of this contract. Such disputes shall be resolved in
accordance with the procedures of the Department of Labor
set forth in 29 CFR parts 5, 6, and 7. Disputes within the
meaning of this clause include disputes between the contractor
(or any of its subcontractors) and the contracting agency, the
U.S. Department of Labor, or the employees or their
representatives.
10. Certification of eligibility. a. By entering into this contract,
the contractor certifies that neither it nor any person or firm
who has an interest in the contractor's firm is a person or firm
ineligible to be awarded Government contracts by virtue of 40
U.S.C. 3144(b) or § 5.12(a).
b. No part of this contract shall be subcontracted to any
person or firm ineligible for award of a Government contract by
virtue of 40 U.S.C. 3144(b) or § 5.12(a).
c. The penalty for making false statements is prescribed in
the U.S. Code, Title 18 Crimes and Criminal Procedure, 18
U.S.C. 1001.
11. Anti-retaliation. It is unlawful for any person to discharge,
demote, intimidate, threaten, restrain, coerce, blacklist, harass,
or in any other manner discriminate against, or to cause any
person to discharge, demote, intimidate, threaten, restrain,
coerce, blacklist, harass, or in any other manner discriminate
against, any worker or job applicant for:
a. Notifying any contractor of any conduct which the worker
reasonably believes constitutes a violation of the DBA, Related
Acts, this part, or 29 CFR part 1 or 3;
b. Filing any complaint, initiating or causing to be initiated
any proceeding, or otherwise asserting or seeking to assert on
behalf of themselves or others any right or protection under the
DBA, Related Acts, this part, or 29 CFR part 1 or 3;
c. Cooperating in any investigation or other compliance
action, or testifying in any proceeding under the DBA, Related
Acts, this part, or 29 CFR part 1 or 3; or
d. Informing any other person about their rights under the
DBA, Related Acts, this part, or 29 CFR part 1 or 3.
V. CONTRACT WORK HOURS AND SAFETY STANDARDS
ACT
Pursuant to 29 CFR 5.5(b), the following clauses apply to any
Federal-aid construction contract in an amount in excess of
$100,000 and subject to the overtime provisions of the
Contract Work Hours and Safety Standards Act. These
clauses shall be inserted in addition to the clauses required by
29 CFR 5.5(a) or 29 CFR 4.6. As used in this paragraph, the
terms laborers and mechanics include watchpersons and
guards.
1. Overtime requirements. No contractor or subcontractor
contracting for any part of the contract work which may require
or involve the employment of laborers or mechanics shall
require or permit any such laborer or mechanic in any
workweek in which he or she is employed on such work to
work in excess of forty hours in such workweek unless such
laborer or mechanic receives compensation at a rate not less
than one and one-half times the basic rate of pay for all hours
worked in excess of forty hours in such workweek. 29 CFR
5.5.
2. Violation; liability for unpaid wages; liquidated
damages. In the event of any violation of the clause set forth
in paragraph 1. of this section the contractor and any
subcontractor responsible therefor shall be liable for the
unpaid wages and interest from the date of the underpayment.
In addition, such contractor and subcontractor shall be liable to
the United States (in the case of work done under contract for
the District of Columbia or a territory, to such District or to such
territory), for liquidated damages. Such liquidated damages
shall be computed with respect to each individual laborer or
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mechanic, including watchpersons and guards, employed in
violation of the clause set forth in paragraph 1. of this section,
in the sum currently provided in 29 CFR 5.5(b)(2)* for each
calendar day on which such individual was required or
permitted to work in excess of the standard workweek of forty
hours without payment of the overtime wages required by the
clause set forth in paragraph 1. of this section.
* $31 as of January 15, 2023 (See 88 FR 88 FR 2210) as may
be adjusted annually by the Department of Labor, pursuant to
the Federal Civil Penalties Inflation Adjustment Act of 1990.
3. Withholding for unpaid wages and liquidated damages
a. Withholding process. The FHWA or the contracting
agency may, upon its own action, or must, upon written
request of an authorized representative of the Department of
Labor, withhold or cause to be withheld from the contractor so
much of the accrued payments or advances as may be
considered necessary to satisfy the liabilities of the prime
contractor or any subcontractor for any unpaid wages;
monetary relief, including interest; and liquidated damages
required by the clauses set forth in this section on this
contract, any other Federal contract with the same prime
contractor, or any other federally assisted contract subject to
the Contract Work Hours and Safety Standards Act that is held
by the same prime contractor (as defined in § 5.2). The
necessary funds may be withheld from the contractor under
this contract, any other Federal contract with the same prime
contractor, or any other federally assisted contract that is
subject to the Contract Work Hours and Safety Standards Act
and is held by the same prime contractor, regardless of
whether the other contract was awarded or assisted by the
same agency, and such funds may be used to satisfy the
contractor liability for which the funds were withheld.
b. Priority to withheld funds. The Department has priority to
funds withheld or to be withheld in accordance with Section IV
paragraph 2.a. or paragraph 3.a. of this section, or both, over
claims to those funds by:
(1) A contractor's surety(ies), including without limitation
performance bond sureties and payment bond sureties;
(2) A contracting agency for its reprocurement costs;
(3) A trustee(s) (either a court-appointed trustee or a U.S.
trustee, or both) in bankruptcy of a contractor, or a contractor's
bankruptcy estate;
(4) A contractor's assignee(s);
(5) A contractor's successor(s); or
(6) A claim asserted under the Prompt Payment Act, 31
U.S.C. 3901–3907.
4. Subcontracts. The contractor or subcontractor must insert
in any subcontracts the clauses set forth in paragraphs 1.
through 5. of this section and a clause requiring the
subcontractors to include these clauses in any lower tier
subcontracts. The prime contractor is responsible for
compliance by any subcontractor or lower tier subcontractor
with the clauses set forth in paragraphs 1. through 5. In the
event of any violations of these clauses, the prime contractor
and any subcontractor(s) responsible will be liable for any
unpaid wages and monetary relief, including interest from the
date of the underpayment or loss, due to any workers of lower-
tier subcontractors, and associated liquidated damages and
may be subject to debarment, as appropriate.
5. Anti-retaliation. It is unlawful for any person to discharge,
demote, intimidate, threaten, restrain, coerce, blacklist, harass,
or in any other manner discriminate against, or to cause any
person to discharge, demote, intimidate, threaten, restrain,
coerce, blacklist, harass, or in any other manner discriminate
against, any worker or job applicant for:
a. Notifying any contractor of any conduct which the worker
reasonably believes constitutes a violation of the Contract
Work Hours and Safety Standards Act (CWHSSA) or its
implementing regulations in this part;
b. Filing any complaint, initiating or causing to be initiated
any proceeding, or otherwise asserting or seeking to assert on
behalf of themselves or others any right or protection under
CWHSSA or this part;
c. Cooperating in any investigation or other compliance
action, or testifying in any proceeding under CWHSSA or this
part; or
d. Informing any other person about their rights under
CWHSSA or this part.
VI. SUBLETTING OR ASSIGNING THE CONTRACT
This provision is applicable to all Federal-aid construction
contracts on the National Highway System pursuant to 23 CFR
635.116.
1. The contractor shall perform with its own organization
contract work amounting to not less than 30 percent (or a
greater percentage if specified elsewhere in the contract) of
the total original contract price, excluding any specialty items
designated by the contracting agency. Specialty items may be
performed by subcontract and the amount of any such
specialty items performed may be deducted from the total
original contract price before computing the amount of work
required to be performed by the contractor's own organization
(23 CFR 635.116).
a. The term “perform work with its own organization” in
paragraph 1 of Section VI refers to workers employed or
leased by the prime contractor, and equipment owned or
rented by the prime contractor, with or without operators.
Such term does not include employees or equipment of a
subcontractor or lower tier subcontractor, agents of the prime
contractor, or any other assignees. The term may include
payments for the costs of hiring leased employees from an
employee leasing firm meeting all relevant Federal and State
regulatory requirements. Leased employees may only be
included in this term if the prime contractor meets all of the
following conditions: (based on longstanding interpretation)
(1) the prime contractor maintains control over the
supervision of the day-to-day activities of the leased
employees;
(2) the prime contractor remains responsible for the quality
of the work of the leased employees;
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(3) the prime contractor retains all power to accept or
exclude individual employees from work on the project; and
(4) the prime contractor remains ultimately responsible for
the payment of predetermined minimum wages, the
submission of payrolls, statements of compliance and all
other Federal regulatory requirements.
b. "Specialty Items" shall be construed to be limited to work
that requires highly specialized knowledge, abilities, or
equipment not ordinarily available in the type of contracting
organizations qualified and expected to bid or propose on the
contract as a whole and in general are to be limited to minor
components of the overall contract. 23 CFR 635.102.
2. Pursuant to 23 CFR 635.116(a), the contract amount upon
which the requirements set forth in paragraph (1) of Section VI
is computed includes the cost of material and manufactured
products which are to be purchased or produced by the
contractor under the contract provisions.
3. Pursuant to 23 CFR 635.116(c), the contractor shall furnish
(a) a competent superintendent or supervisor who is employed
by the firm, has full authority to direct performance of the work
in accordance with the contract requirements, and is in charge
of all construction operations (regardless of who performs the
work) and (b) such other of its own organizational resources
(supervision, management, and engineering services) as the
contracting officer determines is necessary to assure the
performance of the contract.
4. No portion of the contract shall be sublet, assigned or
otherwise disposed of except with the written consent of the
contracting officer, or authorized representative, and such
consent when given shall not be construed to relieve the
contractor of any responsibility for the fulfillment of the
contract. Written consent will be given only after the
contracting agency has assured that each subcontract is
evidenced in writing and that it contains all pertinent provisions
and requirements of the prime contract. (based on long-
standing interpretation of 23 CFR 635.116).
5. The 30-percent self-performance requirement of paragraph
(1) is not applicable to design-build contracts; however,
contracting agencies may establish their own self-performance
requirements. 23 CFR 635.116(d).
VII. SAFETY: ACCIDENT PREVENTION
This provision is applicable to all Federal-aid construction
contracts and to all related subcontracts.
1. In the performance of this contract the contractor shall
comply with all applicable Federal, State, and local laws
governing safety, health, and sanitation (23 CFR Part 635).
The contractor shall provide all safeguards, safety devices and
protective equipment and take any other needed actions as it
determines, or as the contracting officer may determine, to be
reasonably necessary to protect the life and health of
employees on the job and the safety of the public and to
protect property in connection with the performance of the
work covered by the contract. 23 CFR 635.108.
2. It is a condition of this contract, and shall be made a
condition of each subcontract, which the contractor enters into
pursuant to this contract, that the contractor and any
subcontractor shall not permit any employee, in performance
of the contract, to work in surroundings or under conditions
which are unsanitary, hazardous or dangerous to his/her
health or safety, as determined under construction safety and
health standards (29 CFR Part 1926) promulgated by the
Secretary of Labor, in accordance with Section 107 of the
Contract Work Hours and Safety Standards Act (40 U.S.C.
3704). 29 CFR 1926.10.
3. Pursuant to 29 CFR 1926.3, it is a condition of this contract
that the Secretary of Labor or authorized representative
thereof, shall have right of entry to any site of contract
performance to inspect or investigate the matter of compliance
with the construction safety and health standards and to carry
out the duties of the Secretary under Section 107 of the
Contract Work Hours and Safety Standards Act (40 U.S.C.
3704).
VIII. FALSE STATEMENTS CONCERNING HIGHWAY
PROJECTS
This provision is applicable to all Federal-aid construction
contracts and to all related subcontracts.
In order to assure high quality and durable construction in
conformity with approved plans and specifications and a high
degree of reliability on statements and representations made
by engineers, contractors, suppliers, and workers on Federal-
aid highway projects, it is essential that all persons concerned
with the project perform their functions as carefully, thoroughly,
and honestly as possible. Willful falsification, distortion, or
misrepresentation with respect to any facts related to the
project is a violation of Federal law. To prevent any
misunderstanding regarding the seriousness of these and
similar acts, Form FHWA-1022 shall be posted on each
Federal-aid highway project (23 CFR Part 635) in one or more
places where it is readily available to all persons concerned
with the project:
18 U.S.C. 1020 reads as follows:
"Whoever, being an officer, agent, or employee of the United
States, or of any State or Territory, or whoever, whether a
person, association, firm, or corporation, knowingly makes any
false statement, false representation, or false report as to the
character, quality, quantity, or cost of the material used or to
be used, or the quantity or quality of the work performed or to
be performed, or the cost thereof in connection with the
submission of plans, maps, specifications, contracts, or costs
of construction on any highway or related project submitted for
approval to the Secretary of Transportation; or
Whoever knowingly makes any false statement, false
representation, false report or false claim with respect to the
character, quality, quantity, or cost of any work performed or to
be performed, or materials furnished or to be furnished, in
connection with the construction of any highway or related
project approved by the Secretary of Transportation; or
Whoever knowingly makes any false statement or false
representation as to material fact in any statement, certificate,
or report submitted pursuant to provisions of the Federal-aid
Roads Act approved July 11, 1916, (39 Stat. 355), as
amended and supplemented;
Shall be fined under this title or imprisoned not more than 5
years or both."
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IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL
WATER POLLUTION CONTROL ACT (42 U.S.C. 7606; 2
CFR 200.88; EO 11738)
This provision is applicable to all Federal-aid construction
contracts in excess of $150,000 and to all related
subcontracts. 48 CFR 2.101; 2 CFR 200.327.
By submission of this bid/proposal or the execution of this
contract or subcontract, as appropriate, the bidder, proposer,
Federal-aid construction contractor, subcontractor, supplier, or
vendor agrees to comply with all applicable standards, orders
or regulations issued pursuant to the Clean Air Act (42 U.S.C.
7401-7671q) and the Federal Water Pollution Control Act, as
amended (33 U.S.C. 1251-1387). Violations must be reported
to the Federal Highway Administration and the Regional Office
of the Environmental Protection Agency. 2 CFR Part 200,
Appendix II.
The contractor agrees to include or cause to be included the
requirements of this Section in every subcontract, and further
agrees to take such action as the contracting agency may
direct as a means of enforcing such requirements. 2 CFR
200.327.
X. CERTIFICATION REGARDING DEBARMENT,
SUSPENSION, INELIGIBILITY AND VOLUNTARY
EXCLUSION
This provision is applicable to all Federal-aid construction
contracts, design-build contracts, subcontracts, lower-tier
subcontracts, purchase orders, lease agreements, consultant
contracts or any other covered transaction requiring FHWA
approval or that is estimated to cost $25,000 or more – as
defined in 2 CFR Parts 180 and 1200. 2 CFR 180.220 and
1200.220.
1. Instructions for Certification – First Tier Participants:
a. By signing and submitting this proposal, the prospective
first tier participant is providing the certification set out below.
b. The inability of a person to provide the certification set out
below will not necessarily result in denial of participation in this
covered transaction. The prospective first tier participant shall
submit an explanation of why it cannot provide the certification
set out below. The certification or explanation will be
considered in connection with the department or agency's
determination whether to enter into this transaction. However,
failure of the prospective first tier participant to furnish a
certification or an explanation shall disqualify such a person
from participation in this transaction. 2 CFR 180.320.
c. The certification in this clause is a material representation
of fact upon which reliance was placed when the contracting
agency determined to enter into this transaction. If it is later
determined that the prospective participant knowingly rendered
an erroneous certification, in addition to other remedies
available to the Federal Government, the contracting agency
may terminate this transaction for cause of default. 2 CFR
180.325.
d. The prospective first tier participant shall provide
immediate written notice to the contracting agency to whom
this proposal is submitted if any time the prospective first tier
participant learns that its certification was erroneous when
submitted or has become erroneous by reason of changed
circumstances. 2 CFR 180.345 and 180.350.
e. The terms "covered transaction," "debarred,"
"suspended," "ineligible," "participant," "person," "principal,"
and "voluntarily excluded," as used in this clause, are defined
in 2 CFR Parts 180, Subpart I, 180.900-180.1020, and 1200.
“First Tier Covered Transactions” refers to any covered
transaction between a recipient or subrecipient of Federal
funds and a participant (such as the prime or general contract).
“Lower Tier Covered Transactions” refers to any covered
transaction under a First Tier Covered Transaction (such as
subcontracts). “First Tier Participant” refers to the participant
who has entered into a covered transaction with a recipient or
subrecipient of Federal funds (such as the prime or general
contractor). “Lower Tier Participant” refers any participant who
has entered into a covered transaction with a First Tier
Participant or other Lower Tier Participants (such as
subcontractors and suppliers).
f. The prospective first tier participant agrees by submitting
this proposal that, should the proposed covered transaction be
entered into, it shall not knowingly enter into any lower tier
covered transaction with a person who is debarred,
suspended, declared ineligible, or voluntarily excluded from
participation in this covered transaction, unless authorized by
the department or agency entering into this transaction. 2
CFR 180.330.
g. The prospective first tier participant further agrees by
submitting this proposal that it will include the clause titled
"Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion-Lower Tier Covered Transactions,"
provided by the department or contracting agency, entering
into this covered transaction, without modification, in all lower
tier covered transactions and in all solicitations for lower tier
covered transactions exceeding the $25,000 threshold. 2 CFR
180.220 and 180.300.
h. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it
knows that the certification is erroneous. 2 CFR 180.300;
180.320, and 180.325. A participant is responsible for
ensuring that its principals are not suspended, debarred, or
otherwise ineligible to participate in covered transactions. 2
CFR 180.335. To verify the eligibility of its principals, as well
as the eligibility of any lower tier prospective participants, each
participant may, but is not required to, check the System for
Award Management website (https://www.sam.gov/). 2 CFR
180.300, 180.320, and 180.325.
i. Nothing contained in the foregoing shall be construed to
require the establishment of a system of records in order to
render in good faith the certification required by this clause.
The knowledge and information of the prospective participant
is not required to exceed that which is normally possessed by
a prudent person in the ordinary course of business dealings.
j. Except for transactions authorized under paragraph (f) of
these instructions, if a participant in a covered transaction
knowingly enters into a lower tier covered transaction with a
person who is suspended, debarred, ineligible, or voluntarily
excluded from participation in this transaction, in addition to
other remedies available to the Federal Government, the
department or agency may terminate this transaction for cause
or default. 2 CFR 180.325.
* * * * *
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2. Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion – First Tier
Participants:
a. The prospective first tier participant certifies to the best of
its knowledge and belief, that it and its principals:
(1) Are not presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from
participating in covered transactions by any Federal
department or agency, 2 CFR 180.335;.
(2) Have not within a three-year period preceding this
proposal been convicted of or had a civil judgment rendered
against them for commission of fraud or a criminal offense in
connection with obtaining, attempting to obtain, or performing
a public (Federal, State, or local) transaction or contract under
a public transaction; violation of Federal or State antitrust
statutes or commission of embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false
statements, or receiving stolen property, 2 CFR 180.800;
(3) Are not presently indicted for or otherwise criminally or
civilly charged by a governmental entity (Federal, State or
local) with commission of any of the offenses enumerated in
paragraph (a)(2) of this certification, 2 CFR 180.700 and
180.800; and
(4) Have not within a three-year period preceding this
application/proposal had one or more public transactions
(Federal, State or local) terminated for cause or default. 2
CFR 180.335(d).
(5) Are not a corporation that has been convicted of a felony
violation under any Federal law within the two-year period
preceding this proposal (USDOT Order 4200.6 implementing
appropriations act requirements); and
(6) Are not a corporation with any unpaid Federal tax liability
that has been assessed, for which all judicial and
administrative remedies have been exhausted, or have lapsed,
and that is not being paid in a timely manner pursuant to an
agreement with the authority responsible for collecting the tax
liability (USDOT Order 4200.6 implementing appropriations act
requirements).
b. Where the prospective participant is unable to certify to
any of the statements in this certification, such prospective
participant should attach an explanation to this proposal. 2
CFR 180.335 and 180.340.
* * * * *
3. Instructions for Certification - Lower Tier Participants:
(Applicable to all subcontracts, purchase orders, and other
lower tier transactions requiring prior FHWA approval or
estimated to cost $25,000 or more - 2 CFR Parts 180 and
1200). 2 CFR 180.220 and 1200.220.
a. By signing and submitting this proposal, the prospective
lower tier participant is providing the certification set out below.
b. The certification in this clause is a material representation
of fact upon which reliance was placed when this transaction
was entered into. If it is later determined that the prospective
lower tier participant knowingly rendered an erroneous
certification, in addition to other remedies available to the
Federal Government, the department, or agency with which
this transaction originated may pursue available remedies,
including suspension and/or debarment.
c. The prospective lower tier participant shall provide
immediate written notice to the person to which this proposal is
submitted if at any time the prospective lower tier participant
learns that its certification was erroneous by reason of
changed circumstances. 2 CFR 180.365.
d. The terms "covered transaction," "debarred,"
"suspended," "ineligible," "participant," "person," "principal,"
and "voluntarily excluded," as used in this clause, are defined
in 2 CFR Parts 180, Subpart I, 180.900 – 180.1020, and 1200.
You may contact the person to which this proposal is
submitted for assistance in obtaining a copy of those
regulations. “First Tier Covered Transactions” refers to any
covered transaction between a recipient or subrecipient of
Federal funds and a participant (such as the prime or general
contract). “Lower Tier Covered Transactions” refers to any
covered transaction under a First Tier Covered Transaction
(such as subcontracts). “First Tier Participant” refers to the
participant who has entered into a covered transaction with a
recipient or subrecipient of Federal funds (such as the prime or
general contractor). “Lower Tier Participant” refers any
participant who has entered into a covered transaction with a
First Tier Participant or other Lower Tier Participants (such as
subcontractors and suppliers).
e. The prospective lower tier participant agrees by
submitting this proposal that, should the proposed covered
transaction be entered into, it shall not knowingly enter into
any lower tier covered transaction with a person who is
debarred, suspended, declared ineligible, or voluntarily
excluded from participation in this covered transaction, unless
authorized by the department or agency with which this
transaction originated. 2 CFR 1200.220 and 1200.332.
f. The prospective lower tier participant further agrees by
submitting this proposal that it will include this clause titled
"Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion-Lower Tier Covered Transaction,"
without modification, in all lower tier covered transactions and
in all solicitations for lower tier covered transactions exceeding
the $25,000 threshold. 2 CFR 180.220 and 1200.220.
g. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it
knows that the certification is erroneous. A participant is
responsible for ensuring that its principals are not suspended,
debarred, or otherwise ineligible to participate in covered
transactions. To verify the eligibility of its principals, as well as
the eligibility of any lower tier prospective participants, each
participant may, but is not required to, check the System for
Award Management website (https://www.sam.gov/), which is
compiled by the General Services Administration. 2 CFR
180.300, 180.320, 180.330, and 180.335.
h. Nothing contained in the foregoing shall be construed to
require establishment of a system of records in order to render
in good faith the certification required by this clause. The
knowledge and information of participant is not required to
exceed that which is normally possessed by a prudent person
in the ordinary course of business dealings.
i. Except for transactions authorized under paragraph e of
these instructions, if a participant in a covered transaction
knowingly enters into a lower tier covered transaction with a
person who is suspended, debarred, ineligible, or voluntarily
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excluded from participation in this transaction, in addition to
other remedies available to the Federal Government, the
department or agency with which this transaction originated
may pursue available remedies, including suspension and/or
debarment. 2 CFR 180.325.
* * * * *
4. Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion--Lower Tier
Participants:
a. The prospective lower tier participant certifies, by
submission of this proposal, that neither it nor its principals:
(1) is presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from
participating in covered transactions by any Federal
department or agency, 2 CFR 180.355;
(2) is a corporation that has been convicted of a felony
violation under any Federal law within the two-year period
preceding this proposal (USDOT Order 4200.6 implementing
appropriations act requirements); and
(3) is a corporation with any unpaid Federal tax liability that
has been assessed, for which all judicial and administrative
remedies have been exhausted, or have lapsed, and that is
not being paid in a timely manner pursuant to an agreement
with the authority responsible for collecting the tax liability.
(USDOT Order 4200.6 implementing appropriations act
requirements)
b. Where the prospective lower tier participant is unable to
certify to any of the statements in this certification, such
prospective participant should attach an explanation to this
proposal.
* * * * *
XI. CERTIFICATION REGARDING USE OF CONTRACT
FUNDS FOR LOBBYING
This provision is applicable to all Federal-aid construction
contracts and to all related subcontracts which exceed
$100,000. 49 CFR Part 20, App. A.
1. The prospective participant certifies, by signing and
submitting this bid or proposal, to the best of his or her
knowledge and belief, that:
a. No Federal appropriated funds have been paid or will be
paid, by or on behalf of the undersigned, to any person for
influencing or attempting to influence an officer or employee of
any Federal agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of
Congress in connection with the awarding of any Federal
contract, the making of any Federal grant, the making of any
Federal loan, the entering into of any cooperative agreement,
and the extension, continuation, renewal, amendment, or
modification of any Federal contract, grant, loan, or
cooperative agreement.
b. If any funds other than Federal appropriated funds have
been paid or will be paid to any person for influencing or
attempting to influence an officer or employee of any Federal
agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in
connection with this Federal contract, grant, loan, or
cooperative agreement, the undersigned shall complete and
submit Standard Form-LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions.
2. This certification is a material representation of fact upon
which reliance was placed when this transaction was made or
entered into. Submission of this certification is a prerequisite
for making or entering into this transaction imposed by 31
U.S.C. 1352. Any person who fails to file the required
certification shall be subject to a civil penalty of not less than
$10,000 and not more than $100,000 for each such failure.
3. The prospective participant also agrees by submitting its
bid or proposal that the participant shall require that the
language of this certification be included in all lower tier
subcontracts, which exceed $100,000 and that all such
recipients shall certify and disclose accordingly.
XII. USE OF UNITED STATES-FLAG VESSELS:
This provision is applicable to all Federal-aid construction
contracts, design-build contracts, subcontracts, lower-tier
subcontracts, purchase orders, lease agreements, or any other
covered transaction. 46 CFR Part 381.
This requirement applies to material or equipment that is
acquired for a specific Federal-aid highway project. 46 CFR
381.7. It is not applicable to goods or materials that come into
inventories independent of an FHWA funded-contract.
When oceanic shipments (or shipments across the Great
Lakes) are necessary for materials or equipment acquired for a
specific Federal-aid construction project, the bidder, proposer,
contractor, subcontractor, or vendor agrees:
1. To utilize privately owned United States-flag commercial
vessels to ship at least 50 percent of the gross tonnage
(computed separately for dry bulk carriers, dry cargo liners,
and tankers) involved, whenever shipping any equipment,
material, or commodities pursuant to this contract, to the
extent such vessels are available at fair and reasonable rates
for United States-flag commercial vessels. 46 CFR 381.7.
2. To furnish within 20 days following the date of loading for
shipments originating within the United States or within 30
working days following the date of loading for shipments
originating outside the United States, a legible copy of a rated,
‘on-board’ commercial ocean bill-of-lading in English for each
shipment of cargo described in paragraph (b)(1) of this section
to both the Contracting Officer (through the prime contractor in
the case of subcontractor bills-of-lading) and to the Office of
Cargo and Commercial Sealift (MAR-620), Maritime
Administration, Washington, DC 20590. (MARAD requires
copies of the ocean carrier's (master) bills of lading, certified
onboard, dated, with rates and charges. These bills of lading
may contain business sensitive information and therefore may
be submitted directly to MARAD by the Ocean Transportation
Intermediary on behalf of the contractor). 46 CFR 381.7.
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ATTACHMENT A - EMPLOYMENT AND MATERIALS
PREFERENCE FOR APPALACHIAN DEVELOPMENT
HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS
ROAD CONTRACTS (23 CFR 633, Subpart B, Appendix B)
This provision is applicable to all Federal-aid projects funded
under the Appalachian Regional Development Act of 1965.
1. During the performance of this contract, the contractor
undertaking to do work which is, or reasonably may be, done
as on-site work, shall give preference to qualified persons who
regularly reside in the labor area as designated by the DOL
wherein the contract work is situated, or the subregion, or the
Appalachian counties of the State wherein the contract work is
situated, except:
a. To the extent that qualified persons regularly residing in
the area are not available.
b. For the reasonable needs of the contractor to employ
supervisory or specially experienced personnel necessary to
assure an efficient execution of the contract work.
c. For the obligation of the contractor to offer employment to
present or former employees as the result of a lawful collective
bargaining contract, provided that the number of nonresident
persons employed under this subparagraph (1c) shall not
exceed 20 percent of the total number of employees employed
by the contractor on the contract work, except as provided in
subparagraph (4) below.
2. The contractor shall place a job order with the State
Employment Service indicating (a) the classifications of the
laborers, mechanics and other employees required to perform
the contract work, (b) the number of employees required in
each classification, (c) the date on which the participant
estimates such employees will be required, and (d) any other
pertinent information required by the State Employment
Service to complete the job order form. The job order may be
placed with the State Employment Service in writing or by
telephone. If during the course of the contract work, the
information submitted by the contractor in the original job order
is substantially modified, the participant shall promptly notify
the State Employment Service.
3. The contractor shall give full consideration to all qualified
job applicants referred to him by the State Employment
Service. The contractor is not required to grant employment to
any job applicants who, in his opinion, are not qualified to
perform the classification of work required.
4. If, within one week following the placing of a job order by
the contractor with the State Employment Service, the State
Employment Service is unable to refer any qualified job
applicants to the contractor, or less than the number
requested, the State Employment Service will forward a
certificate to the contractor indicating the unavailability of
applicants. Such certificate shall be made a part of the
contractor's permanent project records. Upon receipt of this
certificate, the contractor may employ persons who do not
normally reside in the labor area to fill positions covered by the
certificate, notwithstanding the provisions of subparagraph (1c)
above.
5. The provisions of 23 CFR 633.207(e) allow the
contracting agency to provide a contractual preference for the
use of mineral resource materials native to the Appalachian
region.
6. The contractor shall include the provisions of Sections 1
through 4 of this Attachment A in every subcontract for work
which is, or reasonably may be, done as on-site work.
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