Civil Rights Grant Assurances and Contract Clauses · Federal Aviation Administration Federal Aviation Administration Civil Rights Grant Assurances and Contract Clauses Presented

Federal AviationAdministration


Civil Rights Grant Assurances and Contract Clauses

Presented To: 9th Annual FAA National Civil Rights Training Conference

Presenters: Nancy S WilliamsOperations Research AnalystFAA Office of Airports, on detail to FAA Office of Civil Rights

Date: July 19, 2018


Requirements

• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d, et seq.)

• Airport sponsors may not discriminate on the grounds of race, color, or national origin:– Deny any individual service, financial aid, or benefit under the

program.– Provide any service, financial aid, or benefit that is different

from that provided to others.– Subject an individual to segregation or separate treatment.

• Airport and Airway Improvement Act of 1982 (49 U.S.C. § 47123) adds sex and creed.

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Source of Requirements

• Sponsors must meet the laws, regulations, Orders, and policies of the FAA and DOT.

• Airport Improvement Program (AIP) Grant Assurances: – Apply to any sponsor that has taken an AIP grant. – Are derived from statute (49 U.S.C. §§ 47105 -

47107, 49 U.S.C. § 47123).– For the civil rights assurance, are in effect for as

long as the airport is owned and operated as an airport.

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• FAA Advisory Circulars:“Application. …In general, use of this AC is not mandatory. However, use of this AC is mandatory for all projects funded …through the Airport Improvement Program (AIP) and … the Passenger Facility Charge (PFC) Program. See Grant Assurance No. 34 … and PFC Assurance No. 9, Standards and Specifications.”

Source: AC No: 150/5370-10G, 7/21/14Standards for Specifying Construction of Airports

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• Regulations– Listed in Grant Assurance No. 1.– Includes 49 C.F.R. Part 21 - Nondiscrimination in

federally-assisted programs of the U.S. Department of Transportation - effectuation of Title VI of the Civil Rights Act of 1964.

• Executive Orders• FAA and DOT Orders and Policy Documents

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AIP Grant Assurances

• AIP Grant Assurances are obligations that airports agree to when accepting an AIP grant.

• The assurances define what is required:– For FAA to approve a grant application (i.e., sponsor

must own an airport, having the local share).– For the sponsor to build the project (Davis Bacon

Wages, water and air quality).– For the sponsor to operate and maintain the airport

(such as keeping the runway safe).

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Last update publishedon April 3, 2014.

All assurances are online:http://www.faa.gov/airports/aip/grant_assurances/

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NondiscriminationFAA Order 1400.11

Prescribes FAA operating procedures and responsibilities for:• Title VI of Civil Rights Act• Airport and Airway Improvement Act • Age Discrimination Act of 1975

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No. 30 - Civil Rights

It will promptly take any measures necessary to ensure that no person in the United States shall, on the grounds of race, creed, color, national origin, sex, age, or disability be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination in any activity conducted with, or benefiting from, funds received from this grant.

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Who Must Comply?

• The requirements may flow down to contractors and subcontractors, tenants, lessees, employees, and others.

• In many cases, the requirements apply even to local contracts, construction undertaken by airlines at the airport, and projects/activities that are unrelated to AIP itself.

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– AIP contracts– PFC contracts– Local contracts– Airline Construction Contracts

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Atlanta Hartsfield

Southwest Georgia Regional

Examples of Title VI coverage


Services:– Concessions– Parking– Surface transportation

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Land Transfers:– From the United States– From the airport

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May carry perpetual obligation on the recipient of the land.


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To help sponsors and others doing work on an airport, the FAA Office of Airports put together required Contract Clauses that are needed for:

– Bid Solicitations– Leases– Service Contracts– Construction and Consultant Contracts

Federal Contract ClausesObligated Sponsors


Federal Contract ClausesObligated Sponsors

Requirement:• An Obligated Sponsor must include specific clauses in

their solicitations and contracts.• Clause requirements originate from varying statutes

(e.g. AIP) and regulations (i.e. 2 CFR Part 200). • Sponsors must incorporate applicable clauses in all AIP

funded procurement actions.• Select clauses (e.g. Title VI) will also apply to the

obligated sponsor’s non-federally funded contracts.

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Federal Contract ClausesFAA Guidelines for AIP Contract Provisions

Purpose:• Consolidated resource for all

applicable provisions.• Identifies source of requirement.• Includes applicability matrix per

project type and size.• Identifies when language is

mandatory.• Provides model language

whenever mandatory language is not prescribed.

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Federal Contract ClausesAreas of Concern

General:• Missing AIP clauses.• Use of obsolete clauses (e.g. ADAP provisions).• Modifications made to mandatory language.• Failure to insert required information in spaces

requiring Sponsor input (e.g. name of sponsor).• State/Local clauses conflict with AIP clauses.• Extraneous clauses (i.e. inserting the entire federal

clause package).• Requirements don’t flow-down to sub-tier contracts.

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DBE:• Project goal vs Program goal ($ 250,000 threshold).• Non-compliant prompt payment provisions.• Non-compliant retainage requirements.

Nondiscrimination Requirements:• Failure to incorporate both Title VI and AIP statutory

language (§ 47123).

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Affirmative Action:• Failure to identify EEO

participation goals for minorities and females.

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•The DBE regulation (49 CFR § 26.29) does not impact a sponsor’s ability to hold retainage from a prime contractor.

•The prime contractor is required to pay the subcontractor within 30 days of receiving partial payment from the sponsor.

Prompt PaymentFailure to pay subcontractors within required time periods because of misapplication of retainage.