HomeMy WebLinkAboutRFP - 7429 BRYAN AVENUE BRIDGE REPLACEMENT DESIGN SERVICE (3)REQUEST FOR PROPOSAL
7429 BRYAN AVENUE BRIDGE REPLACEMENT DESIGN SERVICE
The City of Fort Collins is accepting written proposals from qualified firms to provide
engineering design, plan and specifications preparation, and construction design
support services for Bryan Avenue Bridge over the Larimer Canal No. 2 Ditch by City
Park. All consultants submitting proposals shall be pre-qualified with CDOT for BR -
Bridge Design. Please note that the City is interested in incorporating Urban Design
into replacement bridges and the selected consultant will be working with the city on-call
urban design consultants, BHA Design Inc.
Proposals may be submitted by E-mail in Microsoft Word or PDF format. E-mail
submittals shall be e-mailed to: purchasing@fcgov.com. If submitting hard copy
proposals, five (5) copies, will be received at the City of Fort Collins' Purchasing
Division, 215 North Mason St., 2nd floor, Fort Collins, Colorado 80524. Proposals will
be received no later than 3:00 PM on September 25, 2012 and referenced as
Proposal 7429. If delivered, they are to be sent to 215 North Mason Street, 2nd Floor,
Fort Collins, Colorado 80524. If mailed, the address is P.O. Box 580, Fort Collins,
80522-0580.
A pre-proposal meeting will be held at 11:00 AM on Wednesday, September 12,
2012 in Conference Room 2D located at 215 N Mason Street, Fort Collins.
The City encourages all disadvantaged business enterprises to submit proposals in
response to all requests for proposals and will not be discriminated against on the
grounds of race, color, national origin for all proposals for negotiated agreements.
Questions concerning the scope of the project should be directed to Project Manager,
Jin Wang at (970) 416-2292 or jwang@fcgov.com.
Questions regarding bid submittal or process should be directed to
John Stephen, CPPO, LEED AP, Senior Buyer at (970) 221-6777 or
jstephen@fcgov.com.
A copy of the Proposal may be obtained as follows:
1. Download the Proposal/Bid from the BuySpeed Webpage,
www.fcgov.com/eprocurement
The City of Fort Collins is subject to public information laws, which permit access to
most records and documents. Proprietary information in your response must be clearly
identified and will be protected to the extent legally permissible. Proposals may not be
Financial Services
Purchasing Division
215 N. Mason St. 2nd Floor
PO Box 580
Fort Collins, CO 80522
970.221.6775
970.221.6707
fcgov.com/purchasing
marked ‘Proprietary’ in their entirety. Information considered proprietary is limited to
material treated as confidential in the normal conduct of business, trade secrets,
discount information, and individual product or service pricing. Summary price
information may not be designated as proprietary as such information may be carried
forward into other public documents. All provisions of any contract resulting from this
request for proposal will be public information.
Sales Prohibited/Conflict of Interest: No officer, employee, or member of City Council,
shall have a financial interest in the sale to the City of any real or personal property,
equipment, material, supplies or services where such officer or employee exercises
directly or indirectly any decision-making authority concerning such sale or any
supervisory authority over the services to be rendered. This rule also applies to
subcontracts with the City. Soliciting or accepting any gift, gratuity favor, entertainment,
kickback or any items of monetary value from any person who has or is seeking to do
business with the City of Fort Collins is prohibited.
Collusive or sham proposals: Any proposal deemed to be collusive or a sham proposal
will be rejected and reported to authorities as such. Your authorized signature of this
proposal assures that such proposal is genuine and is not a collusive or sham proposal.
The City of Fort Collins has Protest procedures which are available from the Purchasing
Office.
The City of Fort Collins reserves the right to reject any and all proposals and to waive
any irregularities or informalities.
Sincerely,
James B. O'Neill II, CPPO, FNIGP
Director of Purchasing & Risk Management
REQUEST FOR PROPOSALS
7429 BRYAN AVENUE BRIDGE REPLACEMENT DESIGN SERVICE
FEDERAL-AID PROJECT: BRO M455-092, PROJECT CODE 16784
The City of Fort Collins is seeking proposals from qualified consultants to provide
engineering design, plan and specifications preparation, and construction design support
services for Bryan Avenue Bridge over the Larimer Canal No. 2 Ditch by City Park. All
consultants submitting proposals shall be pre-qualified with CDOT for BR - Bridge
Design. Please note that the City is interested in incorporating Urban Design into
replacement bridges and the selected consultant will be working with the city on-call
urban design consultants, BHA Design Inc.
I. SCOPE OF SERVICES
The services will consist of all services necessary to perform design engineering of
the replacement bridge’s design, overall plan and specification preparation, public
open house assistance, report preparation, and permit application assistance.
A. General Project Description
The City of Fort Collins has received federal funds to design and construct a
replacement bridge over Larimer Canal No. 2 Ditch. The project is located on
Bryan Avenue, about 600 feet north of Mulberry Street. The intent is to
replace a failing bridge. The project budget for bridge design, urban design
and construction is approximately $900,000.
B. Project Requirements
DBE Goals
The Colorado Department of Transportation has determined the contract
goal for DBE participation in this contract is 0.0%. Even though there is no
goal to be meet, consultant is encouraged to utilize DBE firm wherever
possible to support the program.
General Requirements
The consultant will be expected to provide a full range of engineering
services for the successful completion of construction plans and
specifications. The services shown below are not to be considered the final
scope of work. The final scope of work will be determined between the
selected consultant and the City.
All work shall be completed using the latest AASHTO, CDOT, City of Fort
Collins, and ADA design and construction standards or guidelines,
practices, and procedures.
Structure Selection Report
The consultant will be provided with survey data of the project site. City
survey crews will be available to provide any additional survey information
that the consultant deems necessary for the project. It is required that the
project be tied into the High Accuracy Reference Network (HARN).
The City will provide the consultant with property ownership and property
line information for the project.
The consultant shall conduct detailed research to update the existing utility
information. The consultant will be required to coordinate and request any
utilities potholing through the City. Potholing service will be provided by the
City’s contractor.
The consultant shall document the existing conditions in the report and plan.
A minimum of two structure alternatives shall be analyzed and included in
the report with cost estimates.
Structure selection reports shall be per CDOT requirements, incorporating,
but not limited to, any other information that is requested in this section.
Urban Design shall be documented in the reports. A minimum of two
conceptual designs is required.
A public meeting is anticipated before the structure selection report is
finalized. The consultant shall provide the City with exhibits of alternatives
analyzed for the meeting and be in attendance as necessary.
Urban Design
The Consultant will work with city urban design consultant to incorporate
urban design into the replacement bridge structure. The city urban design
consultant typically develops at least two (2) urban design alternatives for
the replacement bridge. These alternatives will utilize sound Context
Sensitive Solution (CSS) principles of evoking the history, environment and
culture of the community into the design. The Consultant will meet with City
staff to review the alternatives and assist in the selection of a preferred
alternative. Once a preferred alternative is selected, it will be refined
according to comments from City staff and a presentation of that alternative
will be made to the City of Fort Collins. Color rendering and construction
cost estimate of the preferred alternative is required.
Public Outreach
The consultant will assist the City in public outreach program, typically
involving an open house. Bridge alternatives, urban design alternatives,
and anticipate schedules are typically presented at the open house.
Consultant shall provide all exhibits for the open house.
Preliminary Design (FIR Plan)
At this level, the consultant will be required to provide a design plan for key
components. The plan shall be in CDOT format.
All utility conflicts must be identified. Relocation/removal plans must be
coordinated through the appropriate utility company.
Storm drainage shall be addressed at this level. The City stormwater
design criteria are to be followed. Drainage report may be required.
The consultant will be required to prepare all applications for necessary
permits required prior to construction.
All geotechnical investigation services required for the design of this project
shall be provided by the consultant. The consultant shall coordinate any soil
boring locations with the City. Testing for sulfates is required.
A FIR meeting with the City is required. A cost estimate update will be
required.
The consultant will be responsible for preparing documents in accordance
with the National Environmental Policy Act of 1969 (NEPA) and federal,
state and local environmental regulations.
During construction if one acre or more of earth disturbance is anticipated a
CDPS permit is required. A Storm Water Management Plan (SWMP) is one
of the requirements for the CDPS permit. The City MS4 permit
requirements are to be followed.
Final Design (FOR Plan / Construction Bid Plan)
All required reports are to be completed.
The consultant will be required to prepare and complete all applications for
necessary design approval or construction permits.
A FOR meeting with the City is required. A final cost estimate update will be
required.
Final approved construction plans and specifications, sealed by a Colorado
P.E. are expected. A final cost estimate update is required.
An electronic copy of the construction plan, specification and estimate are to
be submitted to the City. Formats are to be in AutoCAD, MS Word, MS
Excel and PDF.
C. Construction Design Support: The selected consultant shall provide
bidding and construction design assistance, including the completion of as-
built plans, shop drawing review, and design change requests.
D. Project Schedule (Anticipated):
RFP Advertisement September 2012
Pre-proposal Meeting September 2012
RFP Submittals Due September 2012
Shortlist by October 2012
Conduct Interviews and Selection October 2012
Complete Contract Negotiation October 2012
Structure Selection Report & FIR Plan set by January 2013
Open House January 2013
FOR Plan Set May 2013
Construction Plan Bid Set by July 2013
Construction October 2013
II. INSTRUCTION TO CONSULTANTS
Submittal Requirements: Qualified consultants interested in performing the work
described in this RFP should submit the following.
1. Qualification of firm and staff proposed to perform the work on this project.
This should include resumes of staff to be used specifically on this project and
any recommendation/commendation letters received for similar past projects.
2. A list of similar projects (with references) completed in the last five years.
3. Critical issues that the consultant considers to be important for the project.
4. Provide a scope of work (expended) with estimate hours that your firm feels
necessary for a successful delivery of construction bid plan and
specifications. Upon award of selection, the scope of work will be revised
with City staff to formulate the final scope of work for the project.
5. Provide a proposed project schedule based on the availability of your staff to
perform the work.
Included in this RFP is:
1. Existing Bridge Plan.
2. 2011 Bridge inspection report.
3. 2010/2011 Survey drawing. Note that underground utilities are not
comp0letely shown.
4. FARO Focus 3D scan of the bridge. Note that 1 of the 3 scans index is off
and needs to be corrected. Software can be downloaded from the
manufacturer web site to access the scan.
III. SELECTION PROCESS
A. Review and Assessment
Professional firms will be evaluated on the following criteria. These criteria
will be the basis for review of the written proposals and interview session.
The rating scale shall be from 1 to 5, with 1 being a poor rating, 3 being an
average rating, and 5 being an outstanding rating.
WEIGHTING
FACTOR QUALIFICATION STANDARD
2.0 Scope of Proposal
Does the proposal show an understanding of the
project objective, methodology to be used and
results that are desired from the project?
2.0 Assigned
Personnel
Do the persons who will be working on the
project have the necessary skills? Are sufficient
people of the requisite skills assigned to the
project?
1.0 Availability
Can the work be completed in the necessary
time? Can the target start and completion dates
be met? Are other qualified personnel available
to assist in meeting the project schedule if
required? Is the project team available to attend
meetings as required by the Scope of Work?
1.0 Motivation Is the firm interested and are they capable of
doing the work in the required time frame?
3.0 Firm Capability
Does the firm have the support capabilities the
assigned personnel require? Has the firm done
previous projects of this type and scope?
1.0 Innovation Are there innovative ideas that will provide added
value to the project?
B. Reference evaluation (Top Ranked Firm)
The project Manager will check references using the following criteria. The
evaluation rankings will be labeled Satisfactory/Unsatisfactory.
QUALIFICATION STANDARD
Overall Performance Would you hire this Professional again? Did they
show the skills required by this project?
Timetable
Was the original Scope of Work completed within the
specified time? Were interim deadlines met in a timely
manner?
Completeness
Was the Professional responsive to client needs; did
the Professional anticipate problems? Were problems
solved quickly and effectively?
Budget Was the original Scope of Work completed within the
project budget?
Job Knowledge
a) If a study, did it meet the Scope of Work?
b) If Professional administered a construction
contract, was the project functional upon
completion and did it operate properly? Were
problems corrected quickly and effectively?
IV. FEDERAL FORMS & REQUIRMENTS
A. DBE Definitions & Requirements
Disadvantaged Business Enterprise Regulations
ATTENTION CONSULTANTS - Notice
On June 21, 2001, in order to more narrowly tailor CDOT's DBE program to conform
with the results of CDOT's 2001 Disparity Study update, the Colorado Transportation
Commission adopted Resolution No. 966, which established a new definition of
Underutilized DBE (UDBE) for construction contracts and for consultant contracts
and set a 10.93% overall annual DBE goal for the remainder of FFY 2001 and for
FFY 2002.
The Disparity Study Update found that ALL DBES were underutilized on CDOT
construction contracts and on CDOT consultant contracts, i.e., it determined that
ALL DBES WILL BE CONSIDERED TO BE UDBES. Since all CDOT DBEs are
considered to be UDBEs, CDOT's DBE list will also be the UDBE list.
Please contact Business Programs with questions about this change. Telephone:
303-757-9162 or 800-925-3427 or e-mail Karen.Gonzales@dot.state.co.us.
DISADVANTAGED BUSINESS ENTERPRISE
DEFINITIONS AND REQUIREMENTS
1. Definitions and Procedures - For this project, the following terms are defined:
A Disadvantaged Business Enterprise (DBE). A small business concern that is
certified as being:
1. At least 51 percent owned by one or more socially and economically
disadvantaged individuals or, in the case of any publicly owned business,
at least 51 percent of the stock of which is owned by one or more socially
and economically disadvantaged individuals; and
2. Whose management and daily business operations are controlled by one
or more of the socially and economically disadvantaged individuals who
own it.
3. "Socially and Economically Disadvantaged individuals" means those
individuals who are citizens or lawfully admitted permanent residents of
the United States and who are:
(a) Minorities or individuals found by the Small Business Administration
pursuant to Section 8(a) of the Small Business Act to be
disadvantaged.
(b) Individuals found by CDOT's Office of Certification to be socially and
economically disadvantaged.
B. DBE Joint Venture. An association of two or more businesses formed to
carry out a single business enterprise for profit for which purposes they
combine their property, capital, efforts, skills and knowledge. DBE joint
ventures must be certified as a joint venture. The DBE percentage of the joint
venture will be determined at the time of certification.
C. Underutilized DBE (UDBE). A firm which meets the definition of Underutilized
Disadvantaged Business Enterprise (UDBE) based on the findings and
recommendations of CDOT's Disparity Study and is eligible to meet the
contract goal as defined in the paragraph titled "Contract Goal."
D. Contract Goal. The goal for UDBE participation that the Department
determines should appropriately be met by the selected consultant, based on
the type of work included in each project and the availability of UDBEs
capable of performing such work. The Contract goal will be the percentage
stated in the invitation for consultant services and in the project documents.
E. Certification as a DBE by the Department
1. Any small business may apply to the Colorado Department of
Transportation (CDOT) for status as a DBE. Application shall be made on
forms provided by CDOT for certification of DBEs. However, only work
contracted or subcontracted to DBEs that also qualify as UDBEs and
independently performed by UDBEs shall be considered toward contract
goals as established elsewhere in these specifications.
2. It shall be the DBE applicant's responsibility to submit applications so that
CDOT has sufficient time to render decisions. CDOT will review
applications in a timely manner but is not committed to render decisions
about a firm's DBE status within any given period of time.
3. The Department will make available a list of DBE contractors, consultants,
vendors and suppliers for the purpose of providing a reference source to
assist any consultant in identifying DBEs and UDBEs. Consultants will be
solely responsible for verifying the Certification of UDBEs they intend to
use prior to submitting a Statement of Interest (SOI.) The DBE list is
available at:
http://www.dot.state.co.us/app_ucp/
2. Selection of UDBEs by Consultant:
A. Consultants shall exercise their own judgments in selecting any subconsultant
to perform any portion of the work.
3. Requirements
A. The use of UDBEs is an evaluation factor for consultant selection under
Section 24-30-1403 (2) CRS. All Consultants shall submit with their
proposals a list of the names of their UDBE subconsultants to meet the
contract goal.
B. If the Consultant proposes to voluntarily use any non-UDBEs on the project,
the Consultant shall also submit the names of those DBEs. However, the
non-UDBEs will not be used to meet the UDBE goal for the project.
C. Evaluation points will be awarded for UDBE participation during the
Statement of Interest (SOI) scoring. A maximum of 5 evaluation points will be
awarded for UDBE participation during the SOI scoring. If the consultant
doesn't submit sufficient UDBE participation to meet the project goal, they
may be awarded from 0 to 4 points, based on the amount of UDBE
participation they submit. The consultant must submit all UDBE participation
commitments on either CDOT Form #1330 (for NPS Contracts) or CDOT
Form #1331 (for PS Contracts) with their SOI in order to receive the
corresponding evaluation points.
D. The selected consultant must use the UDBE firms named (if any) on CDOT
Form #1330 or #1331 in the Statement of Interest for the items of work
described. The replacement of a named UDBE firm will be allowed only as
provided for in (6) of the DBE Definitions and Requirements. Failure to
comply may constitute grounds for default and termination of the Contract.
E. Consultant's UDBE Obligation.
1. The Consultant submitting a Statement of Interest and a Work Plan on
consultant projects advertised by the Department agrees to ensure that
UDBEs, as defined in this special provision, have equal opportunity to
participate in the performance of contracts or subcontracts. The prime
Consultant shall not discriminate on the basis of race, color, national
origin, or sex in the selection and bidding process or the performance of
contracts.
2. To ensure that UDBEs are offered equal opportunity to participate in the
performance of contracts, it is the responsibility of the prime Consultant to
offer and to provide assistance to UDBEs related to the UDBE
performance of the subcontract. However, the UDBE must independently
perform a commercially useful function on the project, as described in F(4)
below.
F. Counting UDBE Participation Toward Goals
1. Once a firm has been certified as a DBE that qualifies as a UDBE, the
total dollar amount of the contract awarded to the firm shall be counted
toward the contract goal as explained below, and as modified for the
project in the project special provisions titled "Contract Goal."
2. The actual dollar total of a proposed subcontract, supply or service
contract with any UDBE firm shall be reported to the Department in the
Consultant's Cost Proposal.
3. The eligibility of a proposed UDBE subconsultant will be finally established
based on the firm's status at the time the contract is signed. If a firm
becomes certified as a DBE during performance under a fully executed
contract with CDOT but prior to the UDBE performing any work, then
100% of the work performed by the firm under that contract may be
claimed as eligible work. No work performed by a UDBE firm can be
counted toward UDBE participation prior to the firm receiving certification
as a DBE.
4 The Consultant may count toward its contract goal only that percentage of
expenditures to UDBEs which independently perform a commercially
useful function in the work of a contract. A UDBE is considered to be
performing a commercially useful function by actually performing,
managing, and supervising the work involved. To determine whether a
UDBE is performing a commercially useful function, the Department will
evaluate the amount of work subcontracted, work performed solely by the
UDBE, industry practices, and other relevant factors.
5. A UDBE may enter into subcontracts consistent with normal industry
practices. If a UDBE subcontracts over 51% of the work of the Contract
the UDBE shall be presumed not to be performing a commercially useful
function. The UDBE may present evidence to rebut this presumption to
the Department.
6. The Consultant may count toward its contract goal the percentage of
expenditures for materials and supplies obtained from UDBE suppliers
(regular dealers) and manufacturers specifically for use on the project,
provided that the UDBEs assume the actual and contractual responsibility
for and actually provide the materials and supplies.
a. The Consultant may count 100 percent of its expenditures to an UDBE
manufacturer if the purchased items are to be used on the project. A
UDBE manufacturer is a certified firm that operates or maintains a
factory or establishment that produces on the premises the materials
or supplies obtained by the Consultant.
b. The Consultant may count 60 percent of its expenditures to UDBE
suppliers that are not manufacturers, provided that the UDBE supplier
performs a commercially useful function in the supply process. A
supplier is a certified firm that owns, operates, or maintains a store,
warehouse, or other establishment in which the materials or supplies
required for the performance of the Contract are bought, kept in stock,
and regularly sold to the public in the usual course of business. To be
a supplier the firm must engage in, as its principal business and in its
own name, the purchase and sale of the products in question. A
supplier in such bulk items as steel, cement, gravel, stone, and
petroleum products need not keep such products in stock, if it owns or
operates distribution equipment. Brokers and packagers shall not be
regarded as manufacturers or suppliers within the meaning of this
section.
c. The Consultant may count toward its UDBE goal the following
expenditures to UDBE firms that are not manufacturers or suppliers:
1. The fees or commissions charged for providing a bona fide service,
such as professional, technical, consultant or managerial services
and assistance in the procurement of essential personnel, facilities,
equipment, materials or supplies required for performance of the
Contract, provided that the fee or commission is determined by the
Department to be reasonable and not excessive as compared with
fees customarily allowed for similar services.
2. The fees charged for delivery of materials and supplies required to
a job site (but not the cost of the materials and supplies
themselves) when the hauler, trucker, or delivery service is not also
the manufacturer of or a supplier of the materials and supplies,
provided that the fee is determined by the Department to be
reasonable and not excessive as compared with fees customarily
allowed for similar services.
3. The fees or commissions charged for providing any bonds or
insurance specifically required for the performance of the Contract,
provided that the fee or commission is determined by the
Department to be reasonable and not excessive as compared with
fees customarily allowed for similar services.
4. Determination of goal achievement .
To determine the goals achieved under this Contract, the UDBE
participation shall be divided by the original prime Contract amount
and multiplied by 100 to determine the percentage of
performance. The Consultant shall maintain records of payment
that show amounts paid to all UDBEs and DBEs. The Consultant
shall submit a CDOT Form #1313 with each billing/invoice to the
Department listing all subconsultants (including UDBEs and other
DBEs) that participated in this Contract and the dollar amount paid
to each. The Consultant shall certify the amount paid, which may
be audited by the Department. When the participation by UDBEs is
less than the Consultant committed to the Department, the
Consultant shall submit a statement to CDOT along with the CDOT
Form #1313 that indicates the amount of participation and gives
reasons why it was different from the Consultant's SOI
commitment.
5. Replacement of UDBEs used to meet the contract goal.
A. Based upon a showing of good cause the Consultant may
request that a UDBE named in the Consultant's Statement of
Interest be replaced with another UDBE pursuant to the terms
and conditions of this special provision. Replacements will be
allowed only with prior written approval of the Department.
B. If a replacement is to be requested prior to the time that the
named UDBE has begun to effectively prosecute the work under
a fully executed subcontract, the Consultant shall furnish to the
Department the following:
1. Written permission of the named UDBE. Written permission
may be waived only if such permission cannot be obtained
for reasons beyond the control of the Consultant.
2. A full written disclosure of the circumstances making it
impossible for the Consultant to comply with the condition of
award.
3. Documentation of the Consultant's assistance to the UDBE
named in the Consultant's Statement of Interest.
4. Copies of any pertinent correspondence and documented
verbal communications between the Consultant and the
named UDBE.
5. Documentation of the Good Faith Efforts in finding a
replacement UDBE and the results of the efforts. It is within
the control of the Consultant to locate, prior to award,
UDBEs that offer reasonable prices and that could
reasonably be expected to perform the work. For this
reason, increased cost shall not, by itself, be considered
sufficient reason for not providing an in-kind
replacement.
C. In the event a UDBE begins to prosecute the work and is unable
to satisfactorily complete performance of the work, the
Consultant shall furnish to the Department the following:
1. Documentation that the subject UDBE did not perform in a
satisfactory manner.
2. Documentation of the Consultant's assistance to the UDBE
prior to finding the UDBE in default.
3. A copy of the certified letter finding the UDBE to be in default
or a letter from the UDBE stating that it cannot complete the
work and it is turning the work back to the Consultant.
4. Copy of the contract between the Consultant and the UDBE,
plus any modifications thereto.
6. Sanctions
A. It is the obligation of the Consultant to provide UDBE firms with
equal opportunity to participate in the performance of the work.
B. It is the responsibility of UDBE firms to perform their work in a
responsible manner fully consistent with the intent of the DBE
program, and in substantial compliance with the terms and
conditions of these DBE definitions and requirements.
C. UDBE firms which fail to perform a commercially useful function
as described in subsection 4(E) of these DBE definitions and
requirements or operate in a manner which is not consistent
with the intent of the DBE program may be subject to revocation
of certification.
D. A finding by the Department that the Consultant has failed to
comply with the terms and conditions of these DBE definitions
and requirements may constitute sufficient grounds for default
and termination of the Contract.
B. Local Agency Procedures for Consultant Services
THE LOCAL AGENCY SHALL USE THESE PROCEDURES TO IMPLEMENT
FEDERAL-AID PROJECT AGREEMENTS WITH PROFESSIONAL CONSULTANT
SERVICES
Title 23 Code of Federal Regulations (CFR) 172 applies to a federally funded local
agency project agreement administered by CDOT that involves professional
consultant services. 23 CFR 172.1 states “The policies and procedures involve
federally funded contracts for engineering and design related services for projects
subject to the provisions of 23 U.S.C. 112(a) and are issued to ensure that a
qualified consultant is obtained through an equitable selection process, that
prescribed work is properly accomplished in a timely manner, and at fair and
reasonable cost” and according to 23 CFR 172.5 “Price shall not be used as a factor
in the analysis and selection phase.” Therefore, local agencies must comply with
these CFR requirements when obtaining professional consultant services under a
federally funded consultant contract administered by CDOT.
CDOT has formulated its procedures in Procedural Directive (P.D.) 400.1 and the
related operations guidebook titled "Obtaining Professional Consultant Services".
This directive and guidebook incorporate requirements from both Federal and State
regulations, i.e., 23 CFR 172 and CRS §24-30-1401 et seq. Copies of the directive
and the guidebook may be obtained upon request from CDOT's Agreements and
Consultant Management Unit. [Local agencies should have their own written
procedures on file for each method of procurement that addresses the items in 23
CFR 172].
Because the procedures and laws described in the Procedural Directive and the
guidebook are quite lengthy, the subsequent steps serve as a short-hand guide to
CDOT procedures that a local agency must follow in obtaining professional
consultant services. This guidance follows the format of 23 CFR 172. The steps are:
1. The contracting local agency shall document the need for obtaining
professional services.
2. Prior to solicitation for consultant services, the contracting local agency shall
develop a detailed scope of work and a list of evaluation factors and their
relative importance. The evaluation factors are those identified in C.R.S. 24-30-
1403. Also, a detailed cost estimate should be prepared for use during
negotiations.
3. The contracting agency must advertise for contracts in conformity with the
requirements of C.R.S. 24-30-1405. The public notice period, when such notice
is required, is a minimum of 15 days prior to the selection of the three most
qualified firms and the advertising should be done in one or more daily
newspapers of general circulation.
4. The request for consultant services should include the scope of work, the
evaluation factors and their relative importance, the method of payment, and
the goal of 10% for Disadvantaged Business Enterprise (DBE) participation as
a minimum for the project.
5. The analysis and selection of the consultants shall be done in accordance with
CRS §24-30-1403. This section of the regulation identifies the criteria to be
used in the evaluation of CDOT pre-qualified prime consultants and their team.
It also shows which criteria are used to short-list and to make a final selection.
The short-list is based on the following evaluation factors:
a. Qualifications,
b. Approach to the Work,
c. Ability to furnish professional services.
d. Anticipated design concepts, and
e. Alternative methods of approach for furnishing the professional services.
Evaluation factors for final selection are the consultant's:
a. Abilities of their personnel,
b. Past performance,
c. Willingness to meet the time and budget requirement,
d. Location,
e. Current and projected work load,
f. Volume of previously awarded contracts, and
g. Involvement of minority consultants.
6. Once a consultant is selected, the local agency enters into negotiations with the
consultant to obtain a fair and reasonable price for the anticipated work. Pre-
negotiation audits are prepared for contracts expected to be greater than
$50,000. Federal reimbursements for costs are limited to those costs allowable
under the cost principles of 48 CFR 31. Fixed fees (profit) are determined with
consideration given to size, complexity, duration, and degree of risk involved in
the work. Profit is in the range of six to 15 percent of the total direct and indirect
costs.
7. A qualified local agency employee shall be responsible and in charge of the
Work to ensure that the work being pursued is complete, accurate, and
consistent with the terms, conditions, and specifications of the contract. At the
end of Work, the local agency prepares a performance evaluation (a CDOT
form is available) on the consultant.
8. Each of the steps listed above is to be documented in accordance with the
provisions of 49 CFR 18.42, which provide for records to be kept at least three
years from the date that the local agency submits its final expenditure report.
Records of projects under litigation shall be kept at least three years after the
case has been settled.
CRS §§24-30-1401 through 24-30-1408, 23 CFR Part 172, and P.D. 400.1, provide
additional details for complying with the preceeding eight (8) steps.
C. CDOT DBE Participation Form
D. Sample Professional Services Agreement
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT made and entered into the day and year set forth below, by and
between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter
referred to as the "City" and , hereinafter referred to as "Professional".
WITNESSETH:
In consideration of the mutual covenants and obligations herein expressed, it is agreed
by and between the parties hereto as follows:
1. Scope of Services. The Professional agrees to provide services in accordance
with the scope of services attached hereto as Exhibit "A", consisting of ( ) pages,
and incorporated herein by this reference.
2. The Work Schedule. [Optional] The services to be performed pursuant to this
Agreement shall be performed in accordance with the Work Schedule attached hereto as
Exhibit "B", consisting of ( ) pages, and incorporated herein by this reference.
3. Contract Period. The services to be performed pursuant to this Agreement
shall be initiated within five (5) days following execution of this Agreement. Services shall be
completed no later than_______, 20__. Time is of the essence. Any extensions of the time
limit set forth above must be agreed upon in writing by the parties hereto.
4. Early Termination by City. Notwithstanding the time periods contained herein,
the City may terminate this Agreement at any time without cause by providing written notice of
termination to the Professional. Such notice shall be delivered at least fifteen (15) days prior to
the termination date contained in said notice unless otherwise agreed in writing by the parties.
All notices provided under this Agreement shall be effective when mailed, postage prepaid and
sent to the following addresses:
Professional:
City:
City of Fort Collins
Attn:
PO Box 580
Fort Collins, CO 80522
With Copy to:
City of Fort Collins, Purchasing
PO Box 580
Fort Collins, CO 80522
In the event of any such early termination by the City, the Professional shall be paid for services
rendered prior to the date of termination, subject only to the satisfactory performance of the
Professional's obligations under this Agreement. Such payment shall be the Professional's sole
right and remedy for such termination.
5. Design, Project Indemnity and Insurance Responsibility. The Professional shall
be responsible for the professional quality, technical accuracy, timely completion and the
coordination of all services rendered by the Professional, including but not limited to designs,
plans, reports, specifications, and drawings and shall, without additional compensation,
promptly remedy and correct any errors, omissions, or other deficiencies. The Professional
shall indemnify, save and hold harmless the City, its officers and employees in accordance with
Colorado law, from all damages whatsoever claimed by third parties against the City; and for the
City's costs and reasonable attorneys fees, arising directly or indirectly out of the Professional's
negligent performance of any of the services furnished under this Agreement. The Professional
shall maintain commercial general liability insurance in the amount of $500,000 combined single
limits and errors and omissions insurance in the amount of $ Optional: according to the
Insurance Requirements attached hereto as Exhibit “ “, consisting of one (1) page.
6. Compensation. [Use this paragraph or Option 1 below.] In consideration of
the services to be performed pursuant to this Agreement, the City agrees to pay Professional a
fixed fee in the amount of ($ ) plus reimbursable direct costs. All such fees and
costs shall not exceed ($ ). Monthly partial payments based upon the
Professional's billings and itemized statements are permissible. The amounts of all such partial
payments shall be based upon the Professional's City-verified progress in completing the
services to be performed pursuant hereto and upon the City's approval of the Professional's
actual reimbursable expenses. [Optional] Insert Subcontractor Clause Final payment shall be
made following acceptance of the work by the City. Upon final payment, all designs, plans,
reports, specifications, drawings, and other services rendered by the Professional shall become
the sole property of the City.
6. Compensation. [Option 1] In consideration of the services to be performed
pursuant to this Agreement, the City agrees to pay Professional on a time and reimbursable
direct cost basis according to the following schedule:
Hourly billing rates:
Reimbursable direct costs:
with maximum compensation (for both Professional's time and reimbursable direct costs) not to
exceed ($ ). Monthly partial payments based upon the Professional's billings and
itemized statements of reimbursable direct costs are permissible. The amounts of all such
partial payments shall be based upon the Professional's City-verified progress in completing the
services to be performed pursuant hereto and upon the City's approval of the Professional's
reimbursable direct costs. Final payment shall be made following acceptance of the work by the
City. Upon final payment, all designs, plans, reports, specifications, drawings and other
services rendered by the Professional shall become the sole property of the City.
7. City Representative. The City will designate, prior to commencement of work, its
project representative who shall make, within the scope of his or her authority, all necessary and
proper decisions with reference to the project. All requests for contract interpretations, change
orders, and other clarification or instruction shall be directed to the City Representative.
8. Project Drawings. [Optional] Upon conclusion of the project and before final
payment, the Professional shall provide the City with reproducible drawings of the project
containing accurate information on the project as constructed. Drawings shall be of archival,
prepared on stable Mylar base material using a non-fading process to provide for long storage
and high quality reproduction. "CD" disc of the as-built drawings shall also be submitted to the
City in an AutoCAD version no older then the established city standard.
9. Monthly Report. Commencing thirty (30) days after the date of execution of this
Agreement and every thirty (30) days thereafter, Professional is required to provide the City
Representative with a written report of the status of the work with respect to the Scope of
Services, Work Schedule, and other material information. Failure to provide any required
monthly report may, at the option of the City, suspend the processing of any partial payment
request.
10. Independent Contractor. The services to be performed by Professional are those
of an independent contractor and not of an employee of the City of Fort Collins. The City shall
not be responsible for withholding any portion of Professional's compensation hereunder for the
payment of FICA, Workers' Compensation, other taxes or benefits or for any other purpose.
11. Personal Services. It is understood that the City enters into this Agreement
based on the special abilities of the Professional and that this Agreement shall be considered as
an agreement for personal services. Accordingly, the Professional shall neither assign any
responsibilities nor delegate any duties arising under this Agreement without the prior written
consent of the City.
12. Acceptance Not Waiver. The City's approval of drawings, designs, plans,
specifications, reports, and incidental work or materials furnished hereunder shall not in any way
relieve the Professional of responsibility for the quality or technical accuracy of the work. The
City's approval or acceptance of, or payment for, any of the services shall not be construed to
operate as a waiver of any rights or benefits provided to the City under this Agreement.
13. Default. Each and every term and condition hereof shall be deemed to be a
material element of this Agreement. In the event either party should fail or refuse to perform
according to the terms of this agreement, such party may be declared in default.
14. Remedies. In the event a party has been declared in default, such defaulting
party shall be allowed a period of ten (10) days within which to cure said default. In the event
the default remains uncorrected, the party declaring default may elect to (a) terminate the
Agreement and seek damages; (b) treat the Agreement as continuing and require specific
performance; or (c) avail himself of any other remedy at law or equity. If the non-defaulting
party commences legal or equitable actions against the defaulting party, the defaulting party
shall be liable to the non-defaulting party for the non-defaulting party's reasonable attorney fees
and costs incurred because of the default.
15. Binding Effect. This writing, together with the exhibits hereto, constitutes the
entire agreement between the parties and shall be binding upon said parties, their officers,
employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs,
personal representatives, successors and assigns of said parties.
16. Law/Severability. The laws of the State of Colorado shall govern the
construction, interpretation, execution and enforcement of this Agreement. In the event any
provision of this Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this
Agreement.
17. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101,
C.R.S., et. seq., Professional represents and agrees that:
a. As of the date of this Agreement:
1. Professional does not knowingly employ or contract with an illegal alien
who will perform work under this Agreement; and
2. Professional will participate in either the e-Verify program created in
Public Law 208, 104th Congress, as amended, and expanded in Public Law 156,
108th Congress, as amended, administered by the United States Department of
Homeland Security (the “e-Verify Program”) or the Department Program (the
“Department Program”), an employment verification program established
pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment
eligibility of all newly hired employees to perform work under this Agreement.
b. Professional shall not knowingly employ or contract with an illegal alien to
perform work under this Agreement or knowingly enter into a contract with a
subcontractor that knowingly employs or contracts with an illegal alien to perform work
under this Agreement.
c. Professional is prohibited from using the e-Verify Program or Department
Program procedures to undertake pre-employment screening of job applicants while this
Agreement is being performed.
d. If Professional obtains actual knowledge that a subcontractor performing work
under this Agreement knowingly employs or contracts with an illegal alien, Professional
shall:
1. Notify such subcontractor and the City within three days that Professional
has actual knowledge that the subcontractor is employing or contracting with an
illegal alien; and
2. Terminate the subcontract with the subcontractor if within three days of
receiving the notice required pursuant to this section the subcontractor does not
cease employing or contracting with the illegal alien; except that Professional
shall not terminate the contract with the subcontractor if during such three days
the subcontractor provides information to establish that the subcontractor has not
knowingly employed or contracted with an illegal alien.
e. Professional shall comply with any reasonable request by the Colorado
Department of Labor and Employment (the “Department”) made in the course of an
investigation that the Department undertakes or is undertaking pursuant to the authority
established in Subsection 8-17.5-102 (5), C.R.S.
f. If Professional violates any provision of this Agreement pertaining to the duties
imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this
Agreement is so terminated, Professional shall be liable for actual and consequential
damages to the City arising out of Professional’s violation of Subsection 8-17.5-102,
C.R.S.
g. The City will notify the Office of the Secretary of State if Professional violates this
provision of this Agreement and the City terminates the Agreement for such breach.
18. Special Provisions. Special provisions or conditions relating to the services to be
performed pursuant to this Agreement are set forth in Exhibit " " – Federal Requirements,
consisting of twelve (12) pages, attached hereto and incorporated herein by this reference.
THE CITY OF FORT COLLINS, COLORADO
By: _________________________________
James B. O'Neill II, CPPO, FNIGP
Director of Purchasing & Risk Management
DATE: ______________________________
ATTEST:
_________________________________
City Clerk
APPROVED AS TO FORM:
________________________________
Assistant City Attorney
[Insert Professional's name] or
[Insert Partnership Name] or
[Insert individual's name] or
Doing business as [insert name of business]
By: __________________________________
Title: _______________________________
CORPORATE PRESIDENT OR VICE PRESIDENT
Date: _______________________________
ATTEST:
_________________________________ (Corporate Seal)
Corporate Secretary
EXHIBIT
INSURANCE REQUIREMENTS
1. The Professional will provide, from insurance companies acceptable to the City, the
insurance coverage designated hereinafter and pay all costs. Before commencing work under
this bid, the Professional shall furnish the City with certificates of insurance showing the type,
amount, class of operations covered, effective dates and date of expiration of policies, and
containing substantially the following statement:
"The insurance evidenced by this Certificate will not be cancelled or materially altered,
except after ten (10) days written notice has been received by the City of Fort Collins."
In case of the breach of any provision of the Insurance Requirements, the City, at its option,
may take out and maintain, at the expense of the Professional, such insurance as the City may
deem proper and may deduct the cost of such insurance from any monies which may be due or
become due the Professional under this Agreement. The City, its officers, agents and
employees shall be named as additional insureds on the Professional's general liability and
automobile liability insurance policies for any claims arising out of work performed under this
Agreement.
2. Insurance coverages shall be as follows:
A. Workers' Compensation & Employer's Liability. The Professional shall maintain
during the life of this Agreement for all of the Professional's employees engaged in work
performed under this agreement:
1. Workers' Compensation insurance with statutory limits as required by
Colorado law.
2. Employer's Liability insurance with limits of $100,000 per accident,
$500,000 disease aggregate, and $100,000 disease each employee.
B. Commercial General & Vehicle Liability. The Professional shall maintain during
the life of this Agreement such commercial general liability and automobile liability
insurance as will provide coverage for damage claims of personal injury, including
accidental death, as well as for claims for property damage, which may arise directly or
indirectly from the performance of work under this Agreement. Coverage for property
damage shall be on a "broad form" basis. The amount of insurance for each coverage,
Commercial General and Vehicle, shall not be less than $500,000 combined single limits
for bodily injury and property damage.
In the event any work is performed by a subcontractor, the Professional shall be
responsible for any liability directly or indirectly arising out of the work performed under
this Agreement by a subcontractor, which liability is not covered by the subcontractor's
insurance.
[Optional]
EXHIBIT
CONFIDENTIALITY
IN CONNECTION WITH SERVICES provided to the City of Fort Collins (the “City”) pursuant to
this Agreement (the “Agreement”), the Professional hereby acknowledges that it has been
informed that the City has established policies and procedures with regard to the handling of
confidential information and other sensitive materials.
In consideration of access to certain information, data and material (hereinafter individually and
collectively, regardless of nature, referred to as “information”) that are the property of and/or
relate to the City or its employees, customers or suppliers, which access is related to the
performance of services that the Professional has agreed to perform, the Professional hereby
acknowledges and agrees as follows:
That information that has or will come into its possession or knowledge in connection with the
performance of services for the City may be confidential and/or proprietary. The Professional
agrees to treat as confidential (a) all information that is owned by the City, or that relates to the
business of the City , or that is used by the City in carrying on business, and (b) all information
that is proprietary to a third party (including but not limited to customers and suppliers of the
City) . The Professional shall not disclose any such information to any person not having a
legitimate need-to-know for purposes authorized by the City. Further, the Professional shall not
use such information to obtain any economic or other benefit for itself, or any third party, except
as specifically authorized by the City.
The foregoing to the contrary notwithstanding, the Professional understands that it shall have no
obligation under this Agreement with respect to information and material that (a) becomes
generally known to the public by publication or some means other than a breach of duty of this
Agreement, or (b) is required by law, regulation or court order to be disclosed, provided that the
request for such disclosure is proper and the disclosure does not exceed that which is required.
In the event of any disclosure under (b) above, the Professional shall furnish a copy of this
Agreement to anyone to whom it is required to make such disclosure and shall promptly advise
the City in writing of each such disclosure.
In the event that the Professional ceases to perform services for the City, or the City so requests
for any reason, the Professional shall promptly return to the City any and all information
described hereinabove, including all copies, notes and/or summaries (handwritten or
mechanically produced) thereof, in its possession or control or as to which it otherwise has
access.
The Professional understands and agrees that the City’s remedies at law for a breach of the
Professional’s obligations under this Confidentiality Agreement may be inadequate and that the
City shall, in the event of any such breach, be entitled to seek equitable relief (including without
limitation preliminary and permanent injunctive relief and specific performance) in addition to all
other remedies provided hereunder or available at law.
1
FHWA-1273 -- Revised May 1, 2012
REQUIRED CONTRACT PROVISIONS
FEDERAL-AID CONSTRUCTION CONTRACTS
I. General
II. Nondiscrimination
III. Nonsegregated 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. Compliance with Governmentwide Suspension and
Debarment Requirements
XI. Certification Regarding Use of Contract Funds for
Lobbying
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 (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).
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.
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). 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 bid
proposal or request for proposal 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).
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.
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
2
this contract. The provisions of the Americans with Disabilities
Act of 1990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR
35 and 29 CFR 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.
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, 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 who
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.
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
3
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. 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, 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, 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.
4
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
$10,000 or more.
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, 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). The
requirements apply to all projects located within the right-of-
way of a roadway that is functionally classified as Federal-aid
highway. This excludes roadways functionally classified as
local roads or rural minor collectors, which are exempt.
Contracting agencies may elect to apply these requirements to
other projects.
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
a. All laborers and mechanics employed or working upon
the site of the work, will be paid unconditionally and not less
often than once a week, and without subsequent deduction or
rebate on any account (except such payroll deductions as are
permitted by regulations issued by the Secretary of Labor
under the Copeland Act (29 CFR part 3)), the full amount of
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.
Contributions made or costs reasonably anticipated for bona
fide fringe benefits under section 1(b)(2) of the Davis-Bacon
Act on behalf of laborers or mechanics are considered wages
paid to such laborers or mechanics, subject to the provisions
of paragraph 1.d. 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
5
will notify the contracting officer within the 30-day period that
additional time is necessary.
(4) The wage rate (including fringe benefits where
appropriate) determined pursuant to paragraphs 1.b.(2) or
1.b.(3) of this section, shall 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.
c. 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
shall either pay the benefit as stated in the wage determination
or shall pay another bona fide fringe benefit or an hourly cash
equivalent thereof.
d. 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,
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.
2. Withholding
The contracting agency 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
the contractor under this contract, or any other Federal
contract with the same prime contractor, or any other federally-
assisted contract subject to Davis-Bacon prevailing wage
requirements, which is held by the same prime contractor, so
much of the accrued payments or advances as may be
considered necessary to pay laborers and mechanics,
including apprentices, trainees, and helpers, employed by the
contractor or any subcontractor the full amount of wages
required by the contract. In the event of failure to pay any
laborer or mechanic, including any apprentice, trainee, or
helper, employed or working on the site of the work, all or part
of the wages required by the contract, the contracting agency
may, after written notice to the contractor, take such action as
may be necessary to cause the suspension of any further
payment, advance, or guarantee of funds until such violations
have ceased.
3. Payrolls and basic records
a. Payrolls and basic records relating thereto shall be
maintained by the contractor during the course of the work and
preserved for a period of three years thereafter for all laborers
and mechanics working at the site of the work. Such records
shall contain the name, address, and social security number of
each such worker, his or her correct classification, 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 section 1(b)(2)(B) of the
Davis-Bacon Act), daily and weekly number of hours worked,
deductions made and actual wages paid. Whenever the
Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) 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 section 1(b)(2)(B) of the Davis-
6
(3) The weekly submission of a properly executed
certification set forth on the reverse side of Optional Form
WH–347 shall satisfy the requirement for submission of the
“Statement of Compliance” required by paragraph 3.b.(2) of
this section.
(4) The falsification of any of the above certifications may
subject the contractor or subcontractor to civil or criminal
prosecution under section 1001 of title 18 and section 231 of
title 31 of the United States Code.
c. The contractor or subcontractor shall make the records
required under paragraph 3.a. of this section available for
inspection, copying, or transcription by authorized
representatives of the contracting agency, the State DOT, the
FHWA, or the Department of Labor, and shall permit such
representatives to interview employees during working hours
on the job. If the contractor or subcontractor fails to submit the
required records or to make them available, the FHWA may,
after written notice to the contractor, the contracting agency or
the State DOT, 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 may
be grounds for debarment action pursuant to 29 CFR 5.12.
4. Apprentices and trainees
a. Apprentices (programs of the USDOL).
Apprentices will be permitted to work at less than the
predetermined rate for the work they performed when they are
employed pursuant to and individually registered in a bona fide
apprenticeship program registered with the U.S. Department of
Labor, Employment and Training Administration, Office of
Apprenticeship Training, Employer and Labor Services, or with
a State Apprenticeship Agency recognized by the Office, or if a
person is employed in his or her first 90 days of probationary
employment as an apprentice in such an apprenticeship
program, who is not individually registered in the program, but
who has been certified by the Office of Apprenticeship
Training, Employer and Labor Services or a State
Apprenticeship Agency (where appropriate) to be eligible for
probationary employment as an apprentice.
The allowable ratio of apprentices to journeymen on the job
site in any craft classification shall not be greater than the ratio
permitted to the contractor as to the entire work force under
the registered program. Any worker listed on a payroll at an
apprentice wage rate, who is not registered or otherwise
employed as stated above, shall be paid not less than the
applicable wage rate 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 the registered program shall be paid not
less than the applicable wage rate on the wage determination
for the work actually performed. Where a contractor is
performing construction on a project in a locality other than
that in which its program is registered, the ratios and wage
rates (expressed in percentages of the journeyman's hourly
rate) specified in the contractor's or subcontractor's registered
program shall be observed.
Every apprentice must be paid at not less than the rate
specified in the registered program for the apprentice's level of
progress, expressed as a percentage of the journeymen hourly
7
d. Apprentices and Trainees (programs of the U.S. DOT).
Apprentices and trainees working under apprenticeship and
skill training programs which have been certified by the
Secretary of Transportation as promoting EEO in connection
with Federal-aid highway construction programs are not
subject to the requirements of paragraph 4 of this Section IV.
The straight time hourly wage rates for apprentices and
trainees under such programs will be established by the
particular programs. The ratio of apprentices and trainees to
journeymen 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.
6. Subcontracts. The contractor or subcontractor shall insert
Form FHWA-1273 in any subcontracts and also require the
subcontractors to include Form FHWA-1273 in any lower tier
subcontracts. The prime contractor shall be responsible for the
compliance by any subcontractor or lower tier subcontractor
with all the contract clauses in 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.
9. Disputes concerning labor standards. 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 he or she) 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 section 3(a) of
the Davis-Bacon Act or 29 CFR 5.12(a)(1).
b. No part of this contract shall be subcontracted to any person
or firm ineligible for award of a Government contract by virtue
of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
c. The penalty for making false statements is prescribed in the
U.S. Criminal Code, 18 U.S.C. 1001.
V. CONTRACT WORK HOURS AND SAFETY
STANDARDS ACT
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 watchmen and guards.
1. Overtime requirements. No contractor or subcontractor
contracting for any part of the contract work which may require
8
VI. SUBLETTING OR ASSIGNING THE CONTRACT
This provision is applicable to all Federal-aid construction
contracts on the National Highway System.
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” 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:
(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;
(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.
2. 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. 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
9
"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 1, 1916, (39 Stat. 355), as amended
and supplemented;
Shall be fined under this title or imprisoned not more than 5
years or both."
IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL
WATER POLLUTION CONTROL ACT
This provision is applicable to all Federal-aid construction
contracts and to all related subcontracts.
By submission of this bid/proposal or the execution of this
contract, or subcontract, as appropriate, the bidder, proposer,
Federal-aid construction contractor, or subcontractor, as
appropriate, will be deemed to have stipulated as follows:
1. That any person who is or will be utilized in the
performance of this contract is not prohibited from receiving an
award due to a violation of Section 508 of the Clean Water Act
or Section 306 of the Clean Air Act.
2. That the contractor agrees to include or cause to be
included the requirements of paragraph (1) of this Section X in
every subcontract, and further agrees to take such action as
the contracting agency may direct as a means of enforcing
such requirements.
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.
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,
10
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. 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) 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;
(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; 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.
b. Where the prospective participant is unable to certify to
any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.
2. Instructions for Certification - Lower Tier 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)
a. By signing and submitting this proposal, the prospective
lower tier is providing the certification set out below.
b. The certification in this clause is a material representation
of fact upon which reliance was placed when this transaction
was entered into. If 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
11
department or agency with which this transaction originated
may pursue available remedies, including suspension and/or
debarment.
* * * * *
Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion--Lower Tier
Participants:
1. The prospective lower tier participant certifies, by
submission of this proposal, that neither it nor its principals is
presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from participating in
covered transactions by any Federal department or agency.
2. Where the prospective lower tier participant is unable to
certify to any of the statements in this certification, such
prospective participant shall attach an explanation to this
proposal.
* * * * *
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 20).
1. The prospective participant certifies, by signing and
submitting this bid or proposal, to the best of his or her
knowledge and belief, that:
a. No Federal appropriated funds have been paid or will be
paid, by or 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.
12
ATTACHMENT A - EMPLOYMENT AND MATERIALS
PREFERENCE FOR APPALACHIAN DEVELOPMENT
HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS
ROAD CONTRACTS
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.
COLO/U.DC) OEPARTMENT C;" TAANSPORTATlOH
LOAD FACTOR RATING SUMMARY
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E. Bridge Specifications
F. Existing Bridge Plans
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.
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.
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 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 grantee or
subgrantee 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 grantee or subgrantee 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.
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.
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 Excluded
Parties List System website (https://www.epls.gov/), which is
compiled by the General Services Administration.
h. Nothing contained in the foregoing shall be construed to
require establishment of a system of records in order to render
in good faith the certification required by this clause. The
knowledge and information of participant is not required to
exceed that which is normally possessed by a prudent person
in the ordinary course of business dealings.
i. Except for transactions authorized under paragraph e of
these instructions, if a participant in a covered transaction
knowingly enters into a lower tier covered transaction with a
person who is suspended, debarred, ineligible, or voluntarily
excluded from participation in this transaction, in addition to
other remedies available to the Federal Government, the
failure of the prospective first tier participant to furnish a
certification or an explanation shall disqualify such a person
from participation in this transaction.
c. The certification in this clause is a material representation
of fact upon which reliance was placed when the 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.
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.
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 and 1200. “First Tier Covered
Transactions” refers to any covered transaction between a
grantee or subgrantee 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 grantee or subgrantee 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.
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.
h. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it
knows that the certification is erroneous. A participant 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 Excluded
Parties List System website (https://www.epls.gov/), which is
compiled by the General Services Administration.
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.
5. The 30% self-performance requirement of paragraph (1) is
not applicable to design-build contracts; however, contracting
agencies may establish their own self-performance
requirements.
VII. SAFETY: ACCIDENT PREVENTION
T h i s p r o v i s i o n i s 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 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.
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 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).
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
T h i s p r o v i s i o n i s 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 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:
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 (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 (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 paragraph (1.) of this section.
3. Withholding for unpaid wages and liquidated damages.
The FHWA or the contacting agency 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 paragraph (2.) of this
section.
4. Subcontracts. The contractor or subcontractor shall insert
in any subcontracts the clauses set forth in paragraph (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 (1.) through (4.) of this
section.
rate specified in the applicable wage determination.
Apprentices shall be paid fringe benefits in accordance with
the provisions of the apprenticeship program. If the
apprenticeship program does not specify fringe benefits,
apprentices must be paid the full amount of fringe benefits
listed on the wage determination for the applicable
classification. If the Administrator determines that a different
practice prevails for the applicable apprentice classification,
fringes shall be paid in accordance with that determination.
In the event the Office of Apprenticeship Training, Employer
and Labor Services, or a State Apprenticeship Agency
recognized by the Office, withdraws approval of an
apprenticeship program, the contractor will no longer be
permitted to utilize apprentices at less than the applicable
predetermined rate for the work performed until an acceptable
program is approved.
b. Trainees (programs of the USDOL).
Except as provided in 29 CFR 5.16, trainees will not be
permitted to work at less than the predetermined rate for the
work performed unless they are employed pursuant to and
individually registered in a program which has received prior
approval, evidenced by formal certification by the U.S.
Department of Labor, Employment and Training
Administration.
The ratio of trainees to journeymen on the job site shall not be
greater than permitted under the plan approved by the
Employment and Training Administration.
Every trainee must be paid at not less than the rate specified
in the approved program for the trainee's level of progress,
expressed as a percentage of the journeyman hourly rate
specified in the applicable wage determination. Trainees shall
be paid fringe benefits in accordance with the provisions of the
trainee program. If the trainee program does not mention
fringe benefits, trainees shall be paid the full amount of fringe
benefits listed on the wage determination unless the
Administrator of the Wage and Hour Division determines that
there is an apprenticeship program associated with the
corresponding journeyman wage rate on the wage
determination which provides for less than full fringe benefits
for apprentices. Any employee listed on the payroll at a trainee
rate who is not registered and participating in a training plan
approved by the Employment and Training Administration shall
be paid not less than the applicable wage rate on the wage
determination for the classification of work actually performed.
In addition, any trainee performing work on the job site in
excess of the ratio permitted under the registered program
shall be paid not less than the applicable wage rate on the
wage determination for the work actually performed.
In the event the Employment and Training Administration
withdraws approval of a training program, the contractor will no
longer be permitted to utilize trainees at less than the
applicable predetermined rate for the work performed until an
acceptable program is approved.
c. Equal employment opportunity. The utilization of
apprentices, trainees and journeymen under this part shall be
in conformity with the equal employment opportunity
requirements of Executive Order 11246, as amended, and 29
CFR part 30.
Bacon Act, the contractor shall 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. Contractors employing apprentices or trainees under
approved programs shall maintain written evidence of the
registration of apprenticeship programs and certification of
trainee programs, the registration of the apprentices and
trainees, and the ratios and wage rates prescribed in the
applicable programs.
b. (1) The contractor shall submit weekly for each week in
which any contract work is performed a copy of all payrolls to
the contracting agency. The payrolls submitted shall set out
accurately and completely all of the information required to be
maintained under 29 CFR 5.5(a)(3)(i), except that full social
security numbers and home addresses shall not be included
on weekly transmittals. Instead the payrolls shall only need to
include an individually identifying number for each employee (
e.g. , the last four digits of the employee's social security
number). The required weekly payroll information may be
submitted in any form desired. Optional Form WH–347 is
available for this purpose from the Wage and Hour Division
Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm
or its successor site. The prime contractor is responsible for
the submission of copies of payrolls by all subcontractors.
Contractors and subcontractors shall maintain the full social
security number and current address of each covered worker,
and shall provide them upon request to the contracting agency
for transmission to the State DOT, the FHWA or the Wage and
Hour Division of the Department of Labor for purposes of an
investigation or audit of compliance with prevailing wage
requirements. It is not a violation of this section for a prime
contractor to require a subcontractor to provide addresses and
social security numbers to the prime contractor for its own
records, without weekly submission to the contracting agency..
(2) Each payroll submitted shall be accompanied by a
“Statement of Compliance,” signed by the contractor or
subcontractor or his or her agent who pays or supervises the
payment of the persons employed under the contract and shall
certify the following:
(i) That the payroll for the payroll period contains the
information required to be provided under §5.5 (a)(3)(ii) of
Regulations, 29 CFR part 5, the appropriate information is
being maintained under §5.5 (a)(3)(i) of Regulations, 29
CFR part 5, and that such information is correct and
complete;
(ii) That each laborer or mechanic (including each
helper, apprentice, and trainee) employed on the contract
during the payroll period has been paid the full weekly
wages earned, without rebate, either directly or indirectly,
and that no deductions have been made either directly or
indirectly from the full wages earned, other than
permissible deductions as set forth in Regulations, 29 CFR
part 3;
(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 of work performed,
as specified in the applicable wage determination
incorporated into the contract.
which cover the particular weekly period, are deemed to be
constructively made or incurred during such weekly period.
Such laborers and mechanics shall be paid the appropriate
wage rate and fringe benefits on the wage determination for
the classification of work actually performed, without regard to
skill, except as provided in 29 CFR 5.5(a)(4). 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 classification
and wage rates conformed under paragraph 1.b. of this
section) and the Davis-Bacon poster (WH–1321) shall 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. (1) The contracting officer shall 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 shall be classified in conformance with the wage
determination. The contracting officer shall approve an
additional classification and wage rate and fringe benefits
therefore 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 utilized 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) 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 shall be sent by the contracting officer to the
Administrator of the Wage and Hour Division, Employment
Standards Administration, U.S. Department of Labor,
Washington, DC 20210. 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.
(3) 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 shall refer the questions, including the
views of all interested parties and the recommendation of the
contracting officer, to the Wage and Hour Administrator for
determination. The Wage and Hour Administrator, or an
authorized representative, will issue a determination within
30 days of receipt and so advise the contracting officer or
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 there
under. 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,
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 and
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. Assurance Required by 49 CFR 26.13(b):
a. The requirements of 49 CFR Part 26 and the State
DOT’s U.S. DOT-approved DBE program are incorporated by
reference.
b. The contractor or subcontractor shall not discriminate on
the basis of race, color, national origin, or sex in the
performance of this contract. The contractor shall carry out
applicable requirements of 49 CFR Part 26 in the award and
administration of 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 contracting agency
deems appropriate.
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:
(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
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, national
origin, age or disability. The following procedures shall be
followed:
a. The contractor will conduct periodic inspections of project
sites to insure that working conditions and employee facilities
do not indicate discriminatory treatment of project site
personnel.
b. The contractor will periodically evaluate the spread of
wages paid within each classification to determine any
evidence of 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
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
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. The term Federal-aid
highway does not include roadways functionally classified as
local roads or rural minor collectors.
II. NONDISCRIMINATION
The provisions of this section related to 23 CFR Part 230 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 60,
29 CFR 1625-1627, Title 23 USC Section 140, the
Rehabilitation Act of 1973, as amended (29 USC 794), Title VI
of the Civil Rights Act of 1964, as amended, 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 60, and 29
CFR 1625-1627. The contracting agency and the FHWA have
the authority and the responsibility to ensure compliance with
Title 23 USC Section 140, the Rehabilitation Act of 1973, as
amended (29 USC 794), and Title VI of the Civil Rights Act of
1964, as amended, 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 230, Appendix
A, with appropriate revisions to conform to the U.S.
Department of Labor (US DOL) and FHWA requirements.
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 (28 CFR 35,
29 CFR 1630, 29 CFR 1625-1627, 41 CFR 60 and 49 CFR 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