HomeMy WebLinkAbout539869 LIGHTFIELD ENTERPRISES INC - CONTRACT - BID - 7658 MISCELLANEOUS CONCRETE ANNUALAMENDMENT #01
AGREEMENT BETWEEN THE CITY OF FORT COLLINS, COLORADO
AND LIGHTFIELD ENTERPRISES, INC. TO UPDATE FEDERAL TERMS
AND CONDITIONS
This Amendment (“Amendment”) is entered into by and between Lightfield Enterprises, Inc. (“LEI”) and
the City of Fort Collins, Colorado (the “City”).
WHEREAS, LEI and the City have entered into an Agreement dated July 18, 2014 (the “Agreement”);
and
WHEREAS, the Agreement contains Federal Transit Authority (“FTA”) Terms and Conditions
Contract Clauses; and
WHEREAS, in January 2015 the parties amended the Agreement to incorporate the Special DOL EEO
Clause as part of the FTA Terms and Conditions Contract Clauses; and
WHEREAS, the original amendment cannot be located and the parties wish to reaffirm and ratify all
federal work completed under the Agreement conformed to all applicable FTA Terms and Conditions
including the Special DOL EEO Clause.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises herein
contained, the parties agree as follows:
1. To update all FTA Terms and Conditions Contract Clauses found in Exhibit A.
Except as expressly amended by this Amendment #01, all other terms and conditions of the Agreement
shall remain unchanged and in full force and effect. In the event of a conflict between the terms of the
Agreement and this Amendment, this Amendment shall prevail.
IN WITNESS WHEREOF, the parties have executed this Amendment the day and year shown.
CITY OF FORT COLLINS:
A Municipal Corporation
By:
Gerry Paul
Director of Purchasing
Date: _____________________
LIGHTFIELD ENTERPRISES, INC
By:
Keith R. Lightfield
Owner
Date: _________________________
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3/19/2018 3/19/2018
EXHIBIT A
FEDERAL TRANSIT ADMINISTRATION
FEDERALLY REQUIRED AND OTHER MODEL CONTRACT CLAUSES
TABLE OF CONTENTS
1. NO GOVERNMENT OBLIGATION TO THIRD PARTIES ........................................................................... 3
2. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS .......................... 3
3. ACCESS TO RECORDS AND REPORTS ................................................................................................... 4
4. FEDERAL CHANGES .............................................................................................................................. 6
5. CIVIL RIGHTS REQUIREMENTS W/DOL EEO ......................................................................................... 6
6. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS ........................................... 7
7. ENERGY CONSERVATION REQUIREMENTS .......................................................................................... 7
8. TERMINATION ..................................................................................................................................... 8
9. GOVERNMENT-WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) ................................. 10
10. CARGO PREFERENCE REQUIREMENTS ............................................................................................... 11
11. DAVIS-BACON AND COPELAND ANTI-KICKBACK ACTS ...................................................................... 12
12. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT................................................................. 17
13. DISADVANTAGED BUSINESS ENTERPRISE (DBE) ................................................................................ 18
14. RECYCLED PRODUCTS ........................................................................................................................ 19
15. ADA ACCESS ....................................................................................................................................... 20
16. CITY OF FORT COLLINS BID PROTEST PROCEDURES .......................................................................... 20
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1. NO GOVERNMENT OBLIGATION TO THIRD PARTIES
Applicability to Contracts
Applicable to all contracts.
Flow Down
Not required by statute or regulation for either primary contractors or subcontractors, this concept
should flow down to all levels to clarify, to all parties to the contract, that the Federal Government does
not have contractual liability to third parties, absent specific written consent.
Model Clause/Language
While no specific language is required, FTA has developed the following language.
No Obligation by the Federal Government.
(1) The Purchaser and Contractor acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of the
underlying contract, absent the express written consent by the Federal Government, the
Federal Government is not a party to this contract and shall not be subject to any
obligations or liabilities to the Purchaser, Contractor, or any other party (whether or not a
party to that contract) pertaining to any matter resulting from the underlying contract.
2. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS
AND RELATED ACTS
(31 U.S.C. 3801 et seq. 49 CFR Part 31 18 U.S.C. 1001 49 U.S.C. 5307)
Applicability to Contracts
These requirements are applicable to all contracts.
Flow Down
These requirements flow down to contractors and subcontractors who make, present, or submit
covered claims and statements.
Model Clause/Language
These requirements have no specified language, so FTA proffers the following language.
Program Fraud and False or Fraudulent Statements or Related Acts.
(1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986,
as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, "Program Fraud Civil Remedies,"
49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying
contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has
made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the
FTA assisted project for which this contract work is being performed. In addition to other penalties
that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made,
a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal
Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of
1986 on the Contractor to the extent the Federal Government deems appropriate.
(2) The Contractor also acknowledges that if it makes, or causes to be made, a false,
fictitious, or fraudulent claim, statement, submission, or certification to the Federal
Government under a contract connected with a project that is financed in whole or in part
with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307,
the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49
U.S.C. § 5307(n)(1) on the Contractor, to the extent the Federal Government deems
appropriate.
(3) The Contractor agrees to include the above two clauses in each subcontract financed in
whole or in part with Federal assistance provided by FTA. It is further agreed that the
clauses shall not be modified, except to identify the subcontractor who will be subject to the
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provisions.
3. ACCESS TO RECORDS AND REPORTS
(49 U.S.C. 5325, 18 CFR 18.36 (i), 49 CFR 633.17)
Applicability to Contracts
Reference Chart "Requirements for Access to Records and Reports by Type of Contracts"
Flow Down
FTA does not require the inclusion of these requirements in subcontracts.
Model Clause/Language
The specified language is not mandated by the statutes or regulations referenced, but the language
provided paraphrases the statutory or regulatory language.
Access to Records - The following access to records requirements apply to this Contract:
1. Where the Purchaser is not a State but a local government and is the FTA Recipient or a subgrantee
of the FTA Recipient in accordance with 49 C.F.R. 18.36(i), the Contractor agrees to provide the
Purchaser, the FTA Administrator, the Comptroller General of the United States or any of their
authorized representatives access to any books, documents, papers and records of the Contractor
which are directly pertinent to this contract for the purposes of making audits, examinations,
excerpts and transcriptions. Contractor also agrees, pursuant to 49 C.F.R. 633.17 to provide the
FTA Administrator or his authorized representatives including any PMO Contractor access to
Contractor's records and construction sites pertaining to a major capital project, defined at 49
U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at
49 U.S.C. 5307, 5309 or 5311.
2. Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA Recipient in
accordance with 49 C.F.R. 633.17, Contractor agrees to provide the Purchaser, the FTA
Administrator or his authorized representatives, including any PMO Contractor, access to the
Contractor's records and construction sites pertaining to a major capital project, defined at 49
U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at
49 U.S.C. 5307, 5309 or 5311. By definition, a major capital project excludes contracts of less than
the simplified acquisition threshold currently set at $100,000.
3. Where the Purchaser enters into a negotiated contract for other than a small purchase or under the
simplified acquisition threshold and is an institution of higher education, a hospital or other non-
profit organization and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance
with 49 C.F.R. 19.48, Contractor agrees to provide the Purchaser, FTA Administrator, the
Comptroller General of the United States or any of their duly authorized representatives with access
to any books, documents, papers and record of the Contractor which are directly pertinent to this
contract for the purposes of making audits, examinations, excerpts and transcriptions.
4. Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in
accordance with 49 U.S.C. 5325(a) enters into a contract for a capital project or improvement
(defined at 49 U.S.C. 5302(a)1) through other than competitive bidding, the Contractor shall make
available records related to the contract to the Purchaser, the Secretary of Transportation and the
Comptroller General or any authorized officer or employee of any of them for the purposes of
conducting an audit and inspection.
5. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever
or to copy excerpts and transcriptions as reasonably needed.
6. The Contractor agrees to maintain all books, records, accounts and reports required under this
contract for a period of not less than three years after the date of termination or expiration of this
contract, except in the event of litigation or settlement of claims arising from the performance of this
contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA
Administrator, the Comptroller General, or any of their duly authorized representatives, have
disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR
18.39(i)(11).
7. FTA does not require the inclusion of these requirements in subcontracts.
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Requirements for Access to Records and Reports by Types of Contract
Contract
Characteristics
Operational
Service
Contract
Turnkey Construction
Architectural
Engineering
Acquisition
of Rolling
Stock
Professional
Services
I State Grantees
a. Contracts
below SAT
($100,000)
b. Contracts
above
$100,000/Capital
Projects
None
None
unless1 non-
competitive
award
Those imposed
on state pass
thru to
Contractor
None
Yes, if non-
competitive
award or if
funded thru2
5307/5309/53
11
None
None unless
non-
competitive
award
None
None unless
non-
competitive
award
None
None unless
non-
competitive
award
II Non State
Grantees
a. Contracts
below SAT
($100,000)
b. Contracts
above
4. FEDERAL CHANGES
(49 CFR Part 18)
Applicability to Contracts
The Federal Changes requirement applies to all contracts.
Flow Down
The Federal Changes requirement flows down appropriately to each applicable changed requirement.
Model Clause/Language
No specific language is mandated. The following language has been developed by FTA.
Federal Changes - Contractor shall at all times comply with all applicable FTA regulations, policies,
procedures and directives, including without limitation those listed directly or by reference in the Master
Agreement between Purchaser and FTA, as they may be amended or promulgated from time to time
during the term of this contract. Contractor's failure to so comply shall constitute a material breach of
this contract.
5. CIVIL RIGHTS REQUIREMENTS
(29 U.S.C. § 623, 42 U.S.C. § 2000 42 U.S.C. § 6102, 42 U.S.C. § 12112 42 U.S.C. § 12132, 49 U.S.C.
§ 5332 29 CFR Part 1630, 41 CFR Parts 60 et seq.)
Applicability to Contracts
The Civil Rights Requirements apply to all contracts.
Flow Down
The Civil Rights requirements flow down to all third party contractors and their contracts at every tier.
Model Clause/Language
The following clause was predicated on language contained at 49 CFR Part 19, Appendix A, but FTA
has shortened the lengthy text.
Civil Rights - The following requirements apply to the underlying contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. §
2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section
202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49
U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant
for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the
Contractor agrees to comply with applicable Federal implementing regulations and other
implementing requirements FTA may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity requirements apply to
the underlying contract:
(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights Act, as
amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor
agrees to comply with all applicable equal employment opportunity requirements of U.S.
Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance
Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq.,
(which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended
by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal
Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes,
executive orders, regulations, and Federal policies that may in the future affect construction
activities undertaken in the course of the Project. The Contractor agrees to take affirmative
action to ensure that applicants are employed, and that employees are treated during
employment, without regard to their race, color, creed, national origin, sex, or age. Such action
shall include, but not be limited to, the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. In addition, the Contractor
agrees to comply with any implementing requirements FTA may issue.
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(b) Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C. § 5332, the Contractor
agrees to refrain from discrimination against present and prospective employees for reason of
age. In addition, the Contractor agrees to comply with any implementing requirements FTA
may issue.
(c) Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended,
42 U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal
Employment Opportunity Commission, "Regulations to Implement the Equal Employment
Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to
employment of persons with disabilities. In addition, the Contractor agrees to comply with any
implementing requirements FTA may issue.
(d) Special DOL EEO Clause - In addition to the foregoing, when undertaking “construction” as
recognized by the U.S. Department of Labor (U.S. DOL), the Recipient agrees to comply, and
assures that each Third Party Participant will comply, with: (a) U.S. DOL regulations, “Office of
Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,” 41
C.F.R. chapter 60, and (b) Executive Order 11246, “Equal Employment Opportunity,” as amended
by Executive Order 11375, “Amending Executive Order 11246, Relating to Equal Employment
Opportunity,” 42 U.S.C. § 2000e note.
(3) The Contractor also agrees to include these requirements in each subcontract financed in whole or
in part with Federal assistance provided by FTA, modified only if necessary to identify the affected
parties.
6. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION
(FTA) TERMS
(FTA Circular 4220.1E)
Applicability to Contracts
The incorporation of FTA terms applies to all contracts.
Flow Down
The incorporation of FTA terms has unlimited flow down.
Model Clause/Language
FTA has developed the following incorporation of terms language:
Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions include, in
part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the
preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular
4220.1E, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA
mandated terms shall be deemed to control in the event of a conflict with other provisions contained in
this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply
with any (name of grantee) requests which would cause (name of grantee) to be in violation of the FTA
terms and conditions.
7. ENERGY CONSERVATION REQUIREMENTS
(42 U.S.C. 6321 et seq. 49 CFR Part 18)
Applicability to Contracts
The Energy Conservation requirements are applicable to all contracts.
Flow Down
The Energy Conservation requirements extend to all third party contractors and their contracts at every
tier and subrecipients and their subagreements at every tier.
Model Clause/Language
No specific clause is recommended in the regulations because the Energy Conservation requirements
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are so dependent on the state energy conservation plan. The following language has been developed
by FTA:
Energy Conservation - The contractor agrees to comply with mandatory standards and policies
relating to energy efficiency which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act.
8. TERMINATION
(49 U.S.C. Part 18 FTA Circular 4220.1E)
Applicability to Contracts
All contracts (with the exception of contracts with nonprofit organizations and institutions of higher
education,) in excess of $10,000 shall contain suitable provisions for termination by the grantee
including the manner by which it will be effected and the basis for settlement. (For contracts with
nonprofit organizations and institutions of higher education the threshold is $100,000.) In addition, such
contracts shall describe conditions under which the contract may be terminated for default as well as
conditions where the contract may be terminated because of circumstances beyond the control of the
contractor.
Flow Down
The termination requirements flow down to all contracts in excess of $10,000, with the exception of
contracts with nonprofit organizations and institutions of higher learning.
Model Clause/Language
FTA does not prescribe the form or content of such clauses. The following are suggestions of clauses
to be used in different types of contracts:
a. Termination for Convenience (General Provision) The (Recipient) may terminate this
contract, in whole or in part, at any time by written notice to the Contractor when it is in the
Government's best interest. The Contractor shall be paid its costs, including contract
close-out costs, and profit on work performed up to the time of termination. The
Contractor shall promptly submit its termination claim to (Recipient) to be paid the
Contractor. If the Contractor has any property in its possession belonging to the
(Recipient), the Contractor will account for the same, and dispose of it in the manner the
(Recipient) directs.
b. Termination for Default [Breach or Cause] (General Provision) If the Contractor does
not deliver supplies in accordance with the contract delivery schedule, or, if the contract is
for services, the Contractor fails to perform in the manner called for in the contract, or if the
Contractor fails to comply with any other provisions of the contract, the (Recipient) may
terminate this contract for default. Termination shall be effected by serving a notice of
termination on the contractor setting forth the manner in which the Contractor is in default.
The contractor will only be paid the contract price for supplies delivered and accepted, or
services performed in accordance with the manner of performance set forth in the
contract.
If it is later determined by the (Recipient) that the Contractor had an excusable reason for not
performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the
control of the Contractor, the (Recipient), after setting up a new delivery of performance schedule,
may allow the Contractor to continue work, or treat the termination as a termination for
convenience.
c. Opportunity to Cure (General Provision) The (Recipient) in its sole discretion may, in the case of
a termination for breach or default, allow the Contractor [an appropriately short period of time] in
which to cure the defect. In such case, the notice of termination will state the time period in which
cure is permitted and other appropriate conditions
If Contractor fails to remedy to (Recipient)'s satisfaction the breach or default of any of the terms,
covenants, or conditions of this Contract within [ten (10) days] after receipt by Contractor of written
notice from (Recipient) setting forth the nature of said breach or default, (Recipient) shall have the
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right to terminate the Contract without any further obligation to Contractor. Any such termination for
default shall not in any way operate to preclude (Recipient) from also pursuing all available
remedies against Contractor and its sureties for said breach or default.
d. Waiver of Remedies for any Breach In the event that (Recipient) elects to waive its remedies for
any breach by Contractor of any covenant, term or condition of this Contract, such waiver by
(Recipient) shall not limit (Recipient)'s remedies for any succeeding breach of that or of any other
term, covenant, or condition of this Contract.
e. Termination for Convenience (Professional or Transit Service Contracts) The (Recipient), by
written notice, may terminate this contract, in whole or in part, when it is in the Government's
interest. If this contract is terminated, the Recipient shall be liable only for payment under the
payment provisions of this contract for services rendered before the effective date of termination.
f. Termination for Default (Supplies and Service) If the Contractor fails to deliver supplies or to
perform the services within the time specified in this contract or any extension or if the Contractor
fails to comply with any other provisions of this contract, the (Recipient) may terminate this contract
for default. The (Recipient) shall terminate by delivering to the Contractor a Notice of Termination
specifying the nature of the default. The Contractor will only be paid the contract price for supplies
delivered and accepted, or services performed in accordance with the manner or performance set
forth in this contract.
If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was
not in default, the rights and obligations of the parties shall be the same as if the termination had
been issued for the convenience of the Recipient.
g. Termination for Default (Transportation Services) If the Contractor fails to pick up the
commodities or to perform the services, including delivery services, within the time specified in this
contract or any extension or if the Contractor fails to comply with any other provisions of this
contract, the (Recipient) may terminate this contract for default. The (Recipient) shall terminate by
delivering to the Contractor a Notice of Termination specifying the nature of default. The Contractor
will only be paid the contract price for services performed in accordance with the manner of
performance set forth in this contract.
If this contract is terminated while the Contractor has possession of Recipient goods, the Contractor
shall, upon direction of the (Recipient), protect and preserve the goods until surrendered to the
Recipient or its agent. The Contractor and (Recipient) shall agree on payment for the preservation
and protection of goods. Failure to agree on an amount will be resolved under the Dispute clause.
If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was
not in default, the rights and obligations of the parties shall be the same as if the termination had
been issued for the convenience of the (Recipient).
h. Termination for Default (Construction) If the Contractor refuses or fails to prosecute the work or
any separable part, with the diligence that will insure its completion within the time specified in this
contract or any extension or fails to complete the work within this time, or if the Contractor fails to
comply with any other provisions of this contract, the (Recipient) may terminate this contract for
default. The (Recipient) shall terminate by delivering to the Contractor a Notice of Termination
specifying the nature of the default. In this event, the Recipient may take over the work and
compete it by contract or otherwise, and may take possession of and use any materials, appliances,
and plant on the work site necessary for completing the work. The Contractor and its sureties shall
be liable for any damage to the Recipient resulting from the Contractor's refusal or failure to
complete the work within specified time, whether or not the Contractor's right to proceed with the
work is terminated. This liability includes any increased costs incurred by the Recipient in
completing the work.
The Contractor's right to proceed shall not be terminated nor the Contractor charged with damages
under this clause if-
1. the delay in completing the work arises from unforeseeable causes beyond the control and
without the fault or negligence of the Contractor. Examples of such causes include: acts of
God, acts of the Recipient, acts of another Contractor in the performance of a contract with the
Recipient, epidemics, quarantine restrictions, strikes, freight embargoes; and
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2. the contractor, within [10] days from the beginning of any delay, notifies the (Recipient) in writing
of the causes of delay. If in the judgment of the (Recipient), the delay is excusable, the time for
completing the work shall be extended. The judgment of the (Recipient) shall be final and
conclusive on the parties, but subject to appeal under the Disputes clauses.
If, after termination of the Contractor's right to proceed, it is determined that the Contractor was not
in default, or that the delay was excusable, the rights and obligations of the parties will be the same
as if the termination had been issued for the convenience of the Recipient.
i. Termination for Convenience or Default (Architect and Engineering) The (Recipient)
may terminate this contract in whole or in part, for the Recipient's convenience or because
of the failure of the Contractor to fulfill the contract obligations. The (Recipient) shall
terminate by delivering to the Contractor a Notice of Termination specifying the nature,
extent, and effective date of the termination. Upon receipt of the notice, the Contractor
shall (1) immediately discontinue all services affected (unless the notice directs otherwise),
and (2) deliver to the Contracting Officer all data, drawings, specifications, reports,
estimates, summaries, and other information and materials accumulated in performing this
contract, whether completed or in process.
If the termination is for the convenience of the Recipient, the Contracting Officer shall make an
equitable adjustment in the contract price but shall allow no anticipated profit on unperformed
services.
If the termination is for failure of the Contractor to fulfill the contract obligations, the Recipient may
complete the work by contact or otherwise and the Contractor shall be liable for any additional cost
incurred by the Recipient.
If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was
not in default, the rights and obligations of the parties shall be the same as if the termination had
been issued for the convenience of the Recipient.
j. Termination for Convenience of Default (Cost-Type Contracts) The (Recipient) may terminate
this contract, or any portion of it, by serving a notice or termination on the Contractor. The notice
shall state whether the termination is for convenience of the (Recipient) or for the default of the
Contractor. If the termination is for default, the notice shall state the manner in which the contractor
has failed to perform the requirements of the contract. The Contractor shall account for any
property in its possession paid for from funds received from the (Recipient), or property supplied to
the Contractor by the (Recipient). If the termination is for default, the (Recipient) may fix the fee, if
the contract provides for a fee, to be paid the contractor in proportion to the value, if any, of work
performed up to the time of termination. The Contractor shall promptly submit its termination claim
to the (Recipient) and the parties shall negotiate the termination settlement to be paid the
Contractor.
If the termination is for the convenience of the (Recipient), the Contractor shall be paid its contract
close-out costs, and a fee, if the contract provided for payment of a fee, in proportion to the work
performed up to the time of termination.
If, after serving a notice of termination for default, the (Recipient) determines that the Contractor
has an excusable reason for not performing, such as strike, fire, flood, events which are not the
fault of and are beyond the control of the contractor, the (Recipient), after setting up a new work
schedule, may allow the Contractor to continue work, or treat the termination as a termination for
convenience.
9. GOVERNMENT-WIDE DEBARMENT AND SUSPENSION
(NONPROCUREMENT)
Background and Applicability
In conjunction with the Office of Management and Budget and other affected Federal agencies, DOT
published an update to 49 CFR Part 29 on November 26, 2003. This government-wide regulation
implements Executive Order 12549, Debarment and Suspension, Executive Order 12689,
Debarment and Suspension, and 31 U.S.C. 6101 note (Section 2455, Public Law 103-355,
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108 Stat. 3327).
The provisions of Part 29 apply to all grantee contracts and subcontracts at any level expected to equal
or exceed $25,000 as well as any contract or subcontract (at any level) for Federally required auditing
services. 49 CFR 29.220(b). This represents a change from prior practice in that the dollar threshold
for application of these rules has been lowered from $100,000 to $25,000. These are contracts and
subcontracts referred to in the regulation as “covered transactions.”
Grantees, contractors, and subcontractors (at any level) that enter into covered transactions are
required to verify that the entity (as well as its principals and affiliates) they propose to contract or
subcontract with is not excluded or disqualified. They do this by (a) Checking the Excluded Parties
List System, (b) Collecting a certification from that person, or (c) Adding a clause or condition
to the contract or subcontract. This represents a change from prior practice in that certification
is still acceptable but is no longer required. 49 CFR 29.300.
Grantees, contractors, and subcontractors who enter into covered transactions also must
require the entities they contract with to comply with 49 CFR 29, subpart C and include this
requirement in their own subsequent covered transactions (i.e., the requirement flows down to
subcontracts at all levels).
Clause Language
The following clause language is suggested, not mandatory. It incorporates the optional method of
verifying that contractors are not excluded or disqualified by certification.
Suspension and Debarment
This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the contractor is
required to verify that none of the contractor, its principals, as defined at 49 CFR 29.995, or affiliates, as
defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and 29.945.
The contractor is required to comply with 49 CFR 29, Subpart C and must include the requirement to
comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters into.
By signing and submitting its bid or proposal, the bidder or proposer certifies as follows:
The certification in this clause is a material representation of fact relied upon by the City of Fort Collins.
If it is later determined that the bidder or proposer knowingly rendered an erroneous certification, in
addition to remedies available to the City of Fort Collins, the Federal Government may pursue available
remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to
comply with the requirements of 49 CFR 29, Subpart C while this offer is valid and throughout the period
of any contract that may arise from this offer. The bidder or proposer further agrees to include a
provision requiring such compliance in its lower tier covered transactions.
10. CARGO PREFERENCE REQUIREMENTS
(46 U.S.C. 1241 , 46 CFR Part 381)
Applicability to Contracts
The Cargo Preference requirements apply to all contracts involving equipment, materials, or
commodities which may be transported by ocean vessels.
Flow Down
The Cargo Preference requirements apply to all subcontracts when the subcontract may be involved
with the transport of equipment, material, or commodities by ocean vessel.
Model Clause/Language
The MARAD regulations at 46 CFR 381.7 contain suggested contract clauses. The following language
is proffered by FTA.
Cargo Preference - Use of United States-Flag Vessels - The contractor agrees: a. to use privately
owned United States-Flag commercial vessels to ship at least 50 percent of the gross tonnage
(computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping
any equipment, material, or commodities pursuant to the underlying contract to the extent such vessels
are available at fair and reasonable rates for United States-Flag commercial vessels; b. to furnish within
20 working days following the date of loading for shipments originating within the United States or within
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30 working days following the date of leading for shipments originating outside the United States, a
legible copy of a rated, "on-board" commercial ocean bill-of -lading in English for each shipment of
cargo described in the preceding paragraph to the Division of National Cargo, Office of Market
Development, Maritime Administration, Washington, DC 20590 and to the FTA recipient (through the
contractor in the case of a subcontractor's bill-of-lading.) c. to include these requirements in all
subcontracts issued pursuant to this contract when the subcontract may involve the transport of
equipment, material, or commodities by ocean vessel.
11. DAVIS-BACON AND COPELAND ANTI-KICKBACK ACTS
Background and Application
The Davis-Bacon and Copeland Acts are codified at 40 USC 3141, et seq. and 18 USC 874. The Acts
apply to grantee construction contracts and subcontracts that “at least partly are financed by a loan or
grant from the Federal Government.” 40 USC 3145(a), 29 CFR 5.2(h), 49 CFR 18.36(i)(5). The Acts
apply to any construction contract over $2,000. 40 USC 3142(a), 29 CFR 5.5(a). ‘Construction,’ for
purposes of the Acts, includes “actual construction, alteration and/or repair, including painting and
decorating.” 29 CFR 5.5(a). The requirements of both Acts are incorporated into a single clause (see
29 CFR 3.11) enumerated at 29 CFR 5.5(a) and reproduced below.
The clause language is drawn directly from 29 CFR 5.5(a) and any deviation from the model clause
below should be coordinated with counsel to ensure the Acts’ requirements are satisfied.
Clause Language
Davis-Bacon and Copeland Anti-Kickback Acts
(1) Minimum wages - (i) All laborers and mechanics employed or working upon the site of the
work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in
the construction or development of the project), 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)(iv) of
this section; also, regular contributions made or costs incurred for more than a weekly
period (but not less often than quarterly) under plans, funds, or programs which cover the
particular weekly period, are deemed to be constructively made or incurred during such
weekly period. Such laborers and mechanics 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 Part 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 classifications
and wage rates conformed under paragraph (1)(ii) 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.
(ii)(A) 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
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rate and fringe benefits therefore only when the following criteria have been met:
(1) Except with respect to helpers as defined as 29 CFR 5.2(n)(4), the work to be
performed by the classification requested is not performed by a classification in the wage
determination; and
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable
relationship to the wage rates contained in the wage determination; and
(4) With respect to helpers as defined in 29 CFR 5.2(n)(4), such a classification prevails in
the area in which the work is performed.
(B) 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.
(C) 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
Administrator for determination. The Administrator, or an authorized representative, will
issue a determination within 30 days of receipt and so advise the contracting officer or will
notify the contracting officer within the 30-day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to
paragraphs (a)(1)(ii) (B) or (C) 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.
(iii) 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.
(iv) 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.
(v)(A) The contracting officer shall require that any class of laborers or mechanics 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 therefor only when the following criteria have been
met:
(1) The work to be performed by the classification requested is not performed by a classification in
the wage determination; and
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(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship
to the wage rates contained in the wage determination.
(B) 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, 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.
(C) 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
Administrator for determination. The Administrator, or an authorized representative, will
issue a determination with 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.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to
paragraphs (a)(1)(v) (B) or (C) 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.
(2) Withholding - The [ insert name of grantee ] 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 (or under the United States Housing Act of 1937 or under
the Housing Act of 1949 in the construction or development of the project), all or part of the
wages required by the contract, the [ insert name of grantee ] may, after written notice to
the contractor, sponsor, applicant, or owner, 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.
(2) Payrolls and basic records - (i) 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 (or
under the United States Housing Act of 1937, or under the Housing Act of 1949, in the
construction or development of the project). 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
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1(b)(2)(B) of the Davis-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.
(ii)(A) The contractor shall submit weekly for each week in which any contract work is
performed a copy of all payrolls to the [ insert name of grantee ] for transmission to the
Federal Transit Administration. The payrolls submitted shall set out accurately and
completely all of the information required to be maintained under section 5.5(a)(3)(i) of
Regulations, 29 CFR part 5. This information may be submitted in any form desired.
Optional Form WH-347 is available for this purpose and may be purchased from the
Superintendent of Documents (Federal Stock Number 029-005-00014-1), U.S.
Government Printing Office, Washington, DC 20402. The prime contractor is responsible
for the submission of copies of payrolls by all subcontractors.
(B) 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:
(1) That the payroll for the payroll period contains the information required to be
maintained under section 5.5(a)(3)(i) of Regulations, 29 CFR part 5 and that such
information is correct and complete;
(2) 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;
(3) 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.
(C) 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 (a)(3)(ii)(B) of this section.
(D) 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.
(iii) The contractor or subcontractor shall make the records required under paragraph
(a)(3)(i) of this section available for inspection, copying, or transcription by authorized
representatives of the Federal Transit Administration 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 Federal agency may, after written notice to the contractor, sponsor, applicant, or
owner, 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.
(3) Apprentices and trainees - (i) Apprentices - Apprentices will be permitted to work at
less than the predetermined rate for the work they performed when they are employed
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pursuant to and individually registered in a bona fide apprenticeship program registered
with the U.S. Department of Labor, Employment and Training Administration, Bureau of
Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the
Bureau, 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 Bureau of Apprenticeship and Training 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 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 of the Wage
and Hour Division of the U.S. Department of Labor determines that a different practice
prevails for the applicable apprentice classification, fringes shall be paid in accordance
with that determination. In the event the Bureau of Apprenticeship and Training, or a State
Apprenticeship Agency recognized by the Bureau, 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.
(ii) Trainees - 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
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utilize trainees at less than the applicable predetermined rate for the work performed until
an acceptable program is approved.
(iii) 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.
(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 in any subcontracts the
clauses contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as the Federal
Transit Administration may by appropriate instructions require, and also a clause requiring
the subcontractors to include these clauses in any lower tier subcontracts. The prime
contractor shall be responsible for the compliance by any subcontractor or lower tier
subcontractor with all 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 - (i) 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).
(ii) 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).
(iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C.
1001.
12. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
Background and Application
The Contract Work Hours and Safety Standards Act is codified at 40 USC 3701, et seq. The Act
applies to grantee contracts and subcontracts “financed at least in part by loans or grants from … the
[Federal] Government.” 40 USC 3701(b)(1)(B)(iii) and (b)(2), 29 CFR 5.2(h), 49 CFR 18.36(i)(6).
Although the original Act required its application in any construction contract over $2,000 or non-
construction contract to which the Act applied over $2,500 (and language to that effect is still found in 49
CFR 18.36(i)(6)), the Act no longer applies to any “contract in an amount that is not greater than
$100,000.” 40 USC 3701(b)(3) (A)(iii).
The Act applies to construction contracts and, in very limited circumstances, non-construction projects
that employ “laborers or mechanics on a public work.” These non-construction applications do not
generally apply to transit procurements because transit procurements (to include rail cars and buses)
are deemed “commercial items.” 40 USC 3707, 41 USC 403 (12). A grantee that contemplates
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entering into a contract to procure a developmental or unique item should consult counsel to determine
if the Act applies to that procurement and that additional language required by 29 CFR 5.5(c) must be
added to the basic clause below.
The clause language is drawn directly from 29 CFR 5.5(b) and any deviation from the model clause
below should be coordinated with counsel to ensure the Act’s requirements are satisfied.
Clause Language
Contract Work Hours and Safety Standards
(1) Overtime requirements - No contractor or subcontractor contracting for any part of the contract
work which may require or involve the employment of laborers or mechanics shall require or permit
any such laborer or mechanic in any workweek in which he or she is employed on such work to
work in excess of forty hours in such workweek unless such laborer or mechanic receives
compensation at a rate not less than one and one-half times the basic rate of pay for all hours
worked in excess of forty hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages - In the event of any violation of the
clause set forth in paragraph (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 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 (write in the name of the
grantee) 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 paragraphs (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.
13. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
(49 CFR Part 26)
Background and Applicability
The newest version on the Department of Transportation’s Disadvantaged Business Enterprise (DBE)
program became effective July 16, 2003. The rule provides guidance to grantees on the use of overall
and contract goals, requirement to include DBE provisions in subcontracts, evaluating DBE participation
where specific contract goals have been set, reporting requirements, and replacement of DBE
subcontractors. Additionally, the DBE program dictates payment terms and conditions (including
limitations on retainage) applicable to all subcontractors regardless of whether they are DBE firms or
not.
The DBE program applies to all DOT-assisted contracting activities. A formal clause such as that below
must be included in all contracts above the micro-purchase level. The requirements of clause
subsection b flow down to subcontracts.
A substantial change to the payment provisions in this newest version of Part 26 concerns retainage
(see section 26.29). Grantee choices concerning retainage should be reflected in the language choices
in clause subsection d.
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Clause Language
The following clause language is suggested, not mandatory. It incorporates the payment terms and
conditions applicable to all subcontractors based in Part 26 as well as those related only to DBE
subcontractors. The suggested language allows for the options available to grantees concerning
retainage, specific contract goals, and evaluation of DBE subcontracting participation when specific
contract goals have been established.
Disadvantaged Business Enterprises
a. This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26,
Participation by Disadvantaged Business Enterprises in Department of Transportation Financial
Assistance Programs. The national goal for participation of Disadvantaged Business Enterprises
(DBE) is 10%. The agency’s overall goal for DBE participation is 5 %. A contract goal of %
DBE participation has been established for this procurement.
b. The contractor 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 this DOT-assisted contract. 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 City of Fort Collins deems appropriate. Each subcontract
the contractor signs with a subcontractor must include the assurance in this paragraph (see 49 CFR
26.13(b)).
c. Bidders/offerors are required to document sufficient DBE participation to meet these goals or,
alternatively, document adequate good faith efforts to do so, as provided for in 49 CFR 26.53.
Award of this contract is conditioned on submission of the following concurrent with and
accompanying sealed bid:
1. The names and addresses of DBE firms that will participate in this contract;
2. A description of the work each DBE will perform;
3. The dollar amount of the participation of each DBE firm participating;
4. Written documentation of the bidder/offeror’s commitment to use a DBE subcontractor whose
participation it submits to meet the contract goal;
5. Written confirmation from the DBE that it is participating in the contract as provided in the prime
contractor’s commitment; and
6. If the contract goal is not met, evidence of good faith efforts to do so.
Bidders must present the information required above as a matter of responsiveness (see 49 CFR
26.53(3)).
{If no separate contract goal has been established, use the following} The successful
bidder/offeror will be required to report its DBE participation obtained through race-neutral means
throughout the period of performance.
d. The contractor is required to pay its subcontractors performing work related to this contract for
satisfactory performance of that work no later than 30 days after the contractor’s receipt of payment
for that work from the City of Fort Collins. In addition, the contractor may not hold retainage from its
subcontractors and is required to return any retainage payments to those subcontractors within 30
days after the subcontractor's work related to this contract is satisfactorily completed.
e. The contractor must promptly notify the City of Fort Collins whenever a DBE subcontractor
performing work related to this contract is terminated or fails to complete its work, and must make
good faith efforts to engage another DBE subcontractor to perform at least the same amount of
work. The contractor may not terminate any DBE subcontractor and perform that work through its
own forces or those of an affiliate without prior written consent of the City of Fort Collins.
14. RECYCLED PRODUCTS
(42 U.S.C. 6962, 40 CFR Part 247, Executive Order 12873)
Applicability to Contracts
The Recycled Products requirements apply to all contracts for items designated by the EPA, when the
purchaser or contractor procures $10,000 or more of one of these items during the fiscal year, or has
DocuSign Envelope ID: 1B280F64-7C0D-4B2E-8741-F4383373B5EE
procured $10,000 or more of such items in the previous fiscal year, using Federal funds. New
requirements for "recovered materials" will become effective May 1, 1996. These new regulations apply
to all procurement actions involving items designated by the EPA, where the procuring agency
purchases $10,000 or more of one of these items in a fiscal year, or when the cost of such items
purchased during the previous fiscal year was $10,000.
Flow Down
These requirements flow down to all to all contractor and subcontractor tiers.
Model Clause/Language
No specific clause is mandated, but FTA has developed the following language.
Recovered Materials - The contractor agrees to comply with all the requirements of Section 6002 of
the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not
limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the
procurement of the items designated in Subpart B of 40 CFR Part 247.
15. ADA ACCESS
Accessibility. Facilities to be used in public transportation service must comply with 42 U.S.C.
Sections 12101 et seq. and DOT regulations, “Transportation Services for Individuals with
Disabilities (ADA),” 49 CFR Part 37; and Joint ATBCB/DOT regulations, “Americans with Disabilities
(ADA) Accessibility Specifications for Transportation Vehicles,” 36 CFR Part 1192 and 49 CFR Part
38. Notably, DOT incorporated by reference the ATBCB’s “Americans with Disabilities Act
Accessibility Guidelines” (ADAAG), revised July 2004, which include accessibility guidelines for
buildings and facilities, and are incorporated into Appendix A to 49 CFR Part 37. DOT also added
specific provisions to Appendix A modifying the ADAAG, with the result that buildings and facilities
must comply with both the ADAAG and amendments thereto in Appendix A to 49 CFR Part 37.
16. CITY OF FORT COLLINS BID PROTEST PROCEDURES
The City of Fort Collins has a protest procedure, covering any phase of solicitation or award,
including but not limited to specification or award. The protest procedures are available from the
Purchasing Department, City of Fort Collins, 215 N. Mason, Street, 2nd Floor, P. O. Box 580, Fort
Collins, CO. 80522. You may also request a copy of the procedures by emailing:
Purchasing@fcgov.com or calling 970-221-6775.
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$100,000/Capital
Projects
Yes3
Yes3
Those imposed
on non-state
Grantee pass
thru to
Contractor
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Sources of Authority:
1
49 USC 5325 (a)
2
49 CFR 633.17
3
18 CFR 18.36 (i)
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