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The USDOT OIG has identified DBE fraud as
one of their top priorities. Increased oversight of the DBE Program by
numerous Federal agencies to reduce fraud and ensure the DBE Program benefits truly disadvantaged businesses.
DBE participation towards the established project
goal is counted only if the DBE is performing a
“Commercially Useful Function.”
The DBE must carry out its contract
responsibilities by actually performing,
managing, and supervising the work they have
been hired to perform.
Scheduling work operations
Receive quotes and ordering of all materials
Preparing and submitting certified payrolls
Hiring and firing employees
Make all operational and managerial decisions
Supervision of daily operations
DBE employees supervised by another contractor
DBE provides little or no supervision of work
DBE’s superintendent is not a regular employee
DBE firm's owner is not aware of the status of the
work or the performance of the business
Equipment lease agreements are required to be long
term (1 year +) and at competitive rates
A DBE firm may lease specialized equipment on an
ad hoc basis from another contractor, excluding the
prime contractor or subsidiary
Operation of the equipment must be subject to the full
control of the DBE, and they are expected to provide
the operator for that equipment (unless specialized)
Trucks and/or equipment used by DBE firm belong
to the prime contractor
Equipment used by the DBE belongs to a another
contractor with no formal lease agreement
Equipment signs and markings cover another
owner's identity, usually through the use of
magnetic signs
DBE firms must keep a regular workforce
DBE contractors cannot "share" employees with
non-DBE contractors, especially the prime
contractor or a subsidiary of the prime
DBE firm must be responsible for all payroll and
labor compliance requirements for all employees
within the control of the company
Movement of employees between contractors
Employee paid by both DBE and prime
Employee working for prime in morning and
DBE in afternoon
The DBE must be responsible for:
The ordering of all materials and negotiating cost
Arranging delivery and taking possession of, and
Paying for all materials and supplies provided
Materials may not be drop shipped to the project by
the manufacturer unless it is standard industry
practice, and written prior approval is given to do so.
Materials for the DBE are ordered and/or paid for,
by the prime contractor
Materials for the DBE are delivered to, billed to, or
paid for by another contractor.
Standard materials are “drop shipped” to the
project by the manufacturer. DBE never takes
possession of the materials.
The DBE must be responsible for the
performance, management and supervision of
all work identified in their subcontract agreement
(C92)
Work being done jointly by DBE firm and
another contractor.
The work to be performed outside of the DBE's
known experience or capability
DBE works for only one prime contractor or a
large portion of the firm’s contracts are with one
contractor
Immediate suspension of work;
Withholding of project payments from the
prime;
Investigation by the U.S. DOT Office of the
Inspector General and/or the U.S. Attorney; Revoke DBE certification; and/or pre-
qualification
Pursue debarment of the DBE firm, prime
contractor and/or subcontractor.
Who needs to be paid prevailing wages?
Site of Work
Trucking
Review of the Certified Payrolls
Project Site Visits
Reporting Requirements
Construction work over $2000 on Federal
contracts
over $78,258 (new construction) and
$23,447 (reconstruction, alteration and repair)
on projects that are 100% State funded.
Construction includes:
new construction, reconstruction, alteration, and
repair of a public improvement over the
established dollar threshold.
Prevailing Wage laws apply to all laborers and mechanics performing work on the “Site of Work”
Must be paid not less often than weekly
Correct wage determination must be posted at the job site, and readily accessible
Are defined as:
Workers whose duties are manual or
physical in nature
- Includes apprentices
Does not include:
Executive, administrative, and
professional employees (i.e. timekeepers,
inspectors, architects, engineers)
Non-working foremen
2 Key Points……….
Must be registered in a bona fide
apprenticeship program registered with DOL
or a DOL approved State apprenticeship
agency
Must not exceed the allowable ratio of
apprentices to journeymen specified in the
Wage Determination or approved plan
Two prong test to determine the “Site of Work”
Proximity
Must be located “adjacent or virtually adjacent”
to the project limits
This has been established to be 1 mile “as the
crow flies”
Exclusive
Must be dedicated exclusively to or nearly so, to
the performance of the contract or project.
“Site of Work” does not include a contractor’s
or subcontractor’s …..
permanent home office
commercial batch plants & quarries
other facilities not specifically established
for the project at hand.
Employee Truck drivers are covered by Davis-
Bacon for time:
Spent moving material directly on the project
Hauling material on or off the project from a
dedicated source or location considered to be
within the “Site of Work”
Time spent loading or unloading materials or
supplies on the “site of the work,” if such time is
equal to or greater than 20% of the drivers total work
week
Again, Site of Work must meet the 2 prong
test………..
Proximity
Must be located “adjacent or virtually adjacent”
to the project limits (1 mile)
and
Exclusive
Must be dedicated exclusively to the
performance of the contract or project.
Must demonstrate a significant and real
financial commitment Lease must be long term (1 year +)
Can not be subject to cancellation at any time.
Must maintain full control over the use and
operation of the truck.
Must assume responsibility for all aspects of
operating that truck. Fuel
Repair costs
Vehicle insurance / Permits Fees
Must be submitted weekly
Rates of pay must meet or exceed the rate
listed in the wage determination
Project owner / LPA must perform a review of
not less than 30% of the payrolls received.
The total prevailing wage rate (TPWR) is
composed of 2 parts:
The basic hourly rate (BHR) and
The fringe benefit package
BHR $20.00 FB $10.00 Total prevailing wage $30.00
The contractor may comply by paying……..
$30.00 in cash wages
$20.00 in cash wages plus $10.00 for FB
$19.00 in cash wages plus $11.00 for FB
Regular project site visits should be conducted
to interview employees to ensure Prevailing
Wage compliance.
Project Bulletin Board must also be reviewed to
ensure that all of the required posters are in
place
Monthly Wage / EEO report must be completed
by the LPA for each active project and returned
to the ODOT district office by the 7th of every
month
Federally Funded Projects Davis-Bacon and Related Acts
29 CFR Parts 1, 3, 5, 6, and 7
100% State Funded Projects ORC 4115, Wages and Hours on Public Works
USDOL
http://www.wdol.gov/dba.aspx#0
Ohio Department of Commerce, Wage
and Hour Division
http://www.com.ohio.gov/laws/
Got Federal-aid?
Then you must include all the required contract provisions for all of the work on the project
Federally Required Contract Clauses and Conditions
Form FHWA 1273 (Required Contract Provisions)
Failure to include the FHWA-1273 could result in the loss of federal-aid funding
Local Hiring Preferences [23 CFR §635.117(b)]
Restriction of competition [23 CFR §635.110]
Standardized Changed Conditions Contract Clauses [23 CFR 635.109]
False Statements Concerning Highway Projects [23 CFR §§633 and 635.119]
Clean Air Act and Federal Water Pollution Control Act [23 CFR §635.107]
Federally Required Contract Clauses and Conditions
DBE Goal [49 CFR Part 26]
DBE goals are assigned to projects with estimates of $500,000 or more.
Davis-Bacon Prevailing Wage Requirements
Prime Contractor must perform at least 30% of the work [23 CFR 635.116]
Incorporated into the construction contract as part of the Bid Document template, Provision VII in the FHWA-1273
Must track all subcontracts to assure this requirement is met
LPA’s Contract Administration Role and Responsibilities
Pre-construction meeting - invite ODOT and FHWA (if an
oversight project)
Equal Employment Opportunity (EEO)
Prevailing Wages
DBE Contract Compliance
Project Inspection and Documentation
EEO/Prevailing Wage
LPA’s Prevailing Wage Coordinator must perform EEO/Prevailing Wage Interviews
Job Site Bulletin Boards must be visible and have current posters and wage rates
http://www.fhwa.dot.gov/
programadmin/contracts/
poster.cfm
Actual Project
Wage Rates
Contractor’s EEO
Policy Statement
Letter appointing
Contractor’s EEO
Officer
Emergency
Phone Numbers
Water Quality
Related Info (NOI)
Suggestions for Posting Job Site Bulletin Boards on Mobile Operations
Posted on an A-Frame in the Back of the Truck
Posted in a magnetic box on the outside of the Truck
Posted at Equipment Trailer
Posted where the employees meet in the mornings before heading to the project site
Posters need to be more accessible than inside the foreman’s truck The foreman can have the information in a binder in the truck, but
that cannot be the only place that the posters are available for viewing by the employees on the project
DBE Contract Compliance
Waivers - LPA must send request to ODOT to evaluate
- Examine the contractor’s “good faith efforts”
Commercially Useful Function (CUF) - Count DBE expenditures toward the DBE goal only if
the DBE is performing a “commercially useful function.”
- What constitutes “commercially useful function?”
- The DBE must carry out its contract responsibilities by actually performing, managing, and supervising the work involved.
Buy America
23 CFR 635.410
All Federal-aid construction projects
Enforcement of Buy America is State/LPA responsibility
All permanent steel or iron items incorporated in the project must meet Buy America Requirements
IRON & STEEL only all manufacturing processes must take place domestically includes coatings on these materials
Minimal use = 0.1% (contract value) or $2500 (whichever is greater) – Discuss all use of foreign iron or steel with ODOT!
Covers all contract items including 100% locally funded Waivers have to be given by Secretary of Transportation
Made in America?
The language in ODOT C&MS 106.09 fully implements Buy America - if using local specifications, must include this ODOT specification in contract (This is now incorporated in the LPA Bid Template)
Project Supervision and Staffing
23 USC 114
23 USC 302
23 CFR 635.105
All Federal-aid highway construction projects
Project Supervision and Staffing
Locally administered projects ODOT may arrange for local public agency having
jurisdiction to perform work with its own forces or by contract provided that all of following is met: All Federal requirements including 23 CFR 635 Subpart A shall be
met on contract awarded by local agency Local agency is adequately staffed & suitably equipped to undertake &
satisfactorily complete the work Local agency shall provide a full-time employee of agency to
be in “responsible charge” of each Fed-aid project, including those with consultant services
It does not relieve ODOT of overall responsibility for
the project
Project Supervision and Staffing
Supervision of construction engineering consultants “person in responsible charge” means:
Aware of day-to-day operations on the project Aware of and involved in decisions about changed conditions that
require change orders Aware of qualifications, assignments, performance of consultant
staff at all stages of the project Visiting the project on a frequency that is commensurate with the
magnitude & complexity of the project
Inspection and Documentation
Procedures for inspection & documentation Construction Manual & other guidelines
Electronic record keeping
Regular review of records
Major areas of documentation Daily diaries or Inspector’s daily reports
Method of Measurement & Basis of Payment
Materials submittals
(certificates of compliance, test reports, etc)
Shop drawings
NPDES/environmental compliance
Work Zone safety & traffic control
Change Orders, Extensions of Time
Claims
Seven Identifiers for Documentation
Date
Project Number
Item Number
Reference Number
Subject
Location
Signature or Initials
Project Diaries
Complete, concise, accurate Factual (no hearsay) Signed & dated WHY??? Disputes, claims, FOIA Major items to include:
Items of work Weather Contractors & Equipment Traffic control – MOT NPDES Testing Compliance issues Measurements Pay quantities Decisions made on-site Force account work
Measurement of Pay Quantities
Appropriate quantities of completed work Measured in units per contract Material delivered and incorporated into work Based on weight/mass or volume
Adequate assurance that quantities of completed work are accurate
Initial source documents pertaining to pay quantities must be retained & made a matter of record Auditors need to be able to make the link
between what was paid and what was installed/delivered
Work Zone Traffic Control - Implementation
Make sure you document the condition of the project and note the context of your photographs
Substantiation
Definition: To support with proof
or evidence
Documentation
Inspection and control records
Computations
Specific Forms and Test Methods
Documentation Good Practices
State facts, not opinions (include digital photos)
Maintain supporting documents Job Progress Meeting Minutes
Utility Meeting Minutes
Referenced Memos or Reports by Others
Referenced Specifications
Materials Inspection Reports
Inspector’s reports
Sampling, Testing & Acceptance of Materials
Determine frequency, type of tests, and who is testing at the beginning of the project
LPA needs to provide Quality Assurance
The contractor cannot hire the testing company
The LPA must hire the testing company with a Quality Based Selection
Quality Assurance vs. Quality Control
Quality Assurance Quality Control
Making sure the quality of a
product is what it should be. Making the quality of a product
what it should be.
LPA responsibility Contractor/ producer
responsibility
Includes QC Part of QA
Doing the right things Doing things right
Motivates good QC practices Motivated by QA & acceptance
procedures
Quality Assurance: Type/Frequency
Read Specifications
If the LPA wants to modify the testing criteria that is in an ODOT specification, this needs to be approved by ODOT
LPA Manual – Appendix J (Local Let Material Procedures,
Guidelines, and Documents)
Liquidated Damages
The purpose is to recover agency costs for administering the contract after the completion date has passed
The amounts in Table 108.07-1 are determined by an analysis of ODOT CE costs every 2 years
Any amount in excess of this table is considered a disincentive for purposes of federal participation
Liquidated Damages
3 different scenarios for reimbursement of LD’s
1. If there is federal participation in the CE the project is credited at the prorata share
2. If the locals are funding CE they do not have to credit FHWA for LD’s unless #3 applies
3. If the LD daily amount exceeds C&MS Table 108.07-1 FHWA is credited for the amount above regardless of the CE funding source
Components of a Change Order and/or Claim Documentation
Entitlement
Description of change
Document the changed condition
Reference applicable specification section
Impact
Description of the impact
Cost
$$ or Time Documentation
RESOURCES
ODOT Locally Administered Transportation Projects Manual of Procedures www.dot.state.oh.us/local/
Other ODOT References www.dot.state.oh.us/drrc/
FHWA Contract Administration Core Curriculum Participant’s Manual & Reference Guide 2006 www.fhwa.dot.gov/programadmin/contracts/coretoc.ht
m FHWA Construction Program Management and
Inspection Guide www.fhwa.dot.gov/construction/cpmi04tc.htm
Contact Information
Sara Lowry, PE
Transportation Engineer
Federal Highway Administration (FHWA)
614-280-6835
ODOT Local-let Program History
$8
11
$140
59
$142
106 $125
157
$152
188
$187
193
$260
189 $203
164 $150
145
$218
149 $202
155
$207
157
$489
346
$265
199
$266
141
$379
204
$0
$100
$200
$300
$400
$500
$600
1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
(Mil
lio
ns
) Local-let Program History
Dollars & Number of Projects
1998 - 2013
Environmental Studies
Selection of Consultant Services
Design
Right of Way Acquisition
Preparation of Plans, Specifications and Estimate
Preparation of Bid Proposal
Advertisement and Award
Construction Contract Administration and Inspection
Possible Delegated Activities
NEPA Review and Approval
Design Exception Approval
Right of Way Certification
DBE Goals and Waivers
Final Inspection and Acceptance
Sole Source and Proprietary Justification Approval
Labor Compliance Enforcement
Concurrence in Rejection of Bids
Non-Delegated Activities
ODOT Stewardship and Oversight Agreement for locally
administered projects.
Dedicated Staffing – FHWA Ohio Division Local Programs Engineer,
ODOT Office of Local Projects, and District LPA Coordinator and
Construction Monitors
Locally Administered Transportation Projects Manual of Procedures
(LATP Manual)
Qualification Program for Local Agencies – LPA Participation
Requirements Chapter of LATP Manual
ODOT Contractor and Consultant Prequalification
Process Controls
LPA Federal Project Agreement
• Roles and Responsibilities in adherence to Federal and State
requirements
Locally Administered Transportation Projects Manual of Procedures
• ODOT and LPA Project Responsibilities – Inception through
Project Closeout
• FHWA Ohio Division Involved in Development and Revision
ODOT 2010 LPA Bid Proposal Template
• Incorporated into LPA Bid Proposal and Contracts
• Developed with FHWA to ensure incorporation of Federal
requirements.
ODOT Process Requirements
ODOT Oversight in the Procurement of Consultant Services
• Advertisement of available contracts
• ODOT Prequalified Consultant
• Fee Analysis and Negotiation
• Preparation of LPA / Consultant agreement
ODOT Review and Concurrence / Approval
• Plans, Specs and Estimates Package
• Award to Lowest and Best Bidder
• DBE concurrence / waivers
• Rejection of Bids
• Change Orders
• Invoice Reimbursement
• Final Acceptance
ODOT Process Requirements
Why
- Increased Federal oversight of the LPA Program.
2005 LPA Contracts Quality Improvement review
performed by FHWA
- Compliance with required clauses and conditions
- Consistency for LPA / ODOT benefit
Where
- Word document – 2010 LPA Bid Document Template
http://www.dot.state.oh.us/local/
(Local-let Procedures and Documents)
• Properly incorporated – In most cases it has been just attached. Designed to work
with LPA proposal documents.
- Incorporated by reference in Proposal
- “The required contract provisions for federal-aid
construction contracts (contained in ODOT’s 2005 LPA
template) are hereby incorporated by reference.”
- Incorporated into Contract
- “By signing the specified contract proposal, of which the
ODOT LPA Template has been incorporated, the bidder
agrees to all of the below provisions”
– Template set up for use with C&MS
- Table includes excluded 100 specs exclusive to ODOT.
• Local Specifications – Acknowledge LPA specifications with LPA Participation
Requirements and LPA Scope of Services document.
– Modify the first note from the template
– Must still incorporate the following from C&MS:
– 103.03 - Cancellation of Award prior to signature of all parties without liability.
– 104.02 (B) – Adjustment due to Differing Site Conditions then that in the contract documents.
– 104.02 (C) – Adjustment due to Suspension of Work caused by conditions not faulting Contractor.
– 104.02 (D) – Adjustment due to Significant Changes in work in accordance with table 104.02-2
– Can replace with language from 23 CFR.109(a)(3)
LPA Template Item 1 - Specifications
– Must incorporate the following (Continued):
– 106.09 – State and Federal domestic Steel and Iron policies
– 107.01 – Laws to Be Observed – Required laws affecting contract, including EEO, OSHA Regulations 23 CFR §635.108, etc.
– 107.05 – Federal-aid Provisions – Work subject to FHWA inspection, without making Federal Government a party to the contract.
– 107.12 - CGL Insurance and workers’ compensation. Local must get a copy from the contractor before award.
– 107.19 – EPA – Waterway Permits, etc.
LPA Template Item 1 - Specifications
– Must incorporate the following (Continued
– 107.20 – Civil Rights – Comply with Antidiscrimination, Affirmative Action, and DBE requirements set forth.
– 107.21 Prompt Payment
– 108.10 Payroll Records
– Refer to color-coded C&MS document on Local Projects website
– Required (green)
– Strongly encouraged (blue)
– Optional (yellow)
LPA Template Item 1 - Specifications
ODOT C&MS 106.09 -
Contains both (a.) 23 CFR 635.410 & (b.) ORC 153.011
23 CFR 635.410 – All steel and iron products incorporated
permanently into the Work
- all manufacturing processes must take place domestically
- includes coatings on these materials
- Minimal use = 0.1% (contract value) or $2500 (whichever is
greater)
- Covers all contract items including 100% locally funded
- Waivers have to be given by FHWA Headquarters
– FHWA 1273 (XI)
– 49 CFR 29
– By signing the contract, the bidder certifies that they, or any described party, are not under suspension, debarment, voluntary exclusion or determination of ineligibility by any Federal agency; have not been within past 3 years; or currently pending proposed debarment.
LPA Template Item 3 – Debarment and
Suspension
– Only ODOT Prequalified contractors eligible to submit for bids
– Prequalification must be in force at time of bidding, at the time of Award, and throughout the life of the contract
– Prime Contractor must perform no less than 30% of the total contract price (FHWA 1273 - 23 CFR 635)
– Encourage incorporating prequalification for specific ODOT work types
LPA Template Item 4 – Prequalification
– Executive Orders 10925, 11114, 11246 and 41 CFR 60-1.7(b)
– Bidder must certify compliance by circling appropriate ‘has’ or has not’
– Requirement also contained within ODOT PN017
FEDERALLY REQUIRED EEO CERTIFICATION FORM
The bidder hereby certifies that he has ...., has not ...., participated in a previous
contract or subcontract subject to the equal opportunity clause, as required by
Executive Orders 10925, 11114, or 11246, and that he has ...., has not ...., filed with
the Joint Reporting Committee, the Director of the Office of Federal Contract
Compliance, a Federal Government Contract Compliance, a Federal
Government contracting or administering agency, or the former President's
Committee on Equal Employment Opportunity, all reports due under the applicable
filing requirements. The Bidder must circle the appropriate “has or has not” above.
LPA Template Item 6 – EEO Certification
– ODOT PN 026
– FHWA 1273 – (III.) 23 CFR 633A
– Applicable to all Federal-aid construction contracts and to all related subcontracts of $10,000 or more.)
– By signing proposal Contractor agrees to provisions of the “Certification of Nonsegregated Facilities,” providing that the bidder does not maintain or provide for employees facilities which are segregated on a basis of race, creed, color, or national origin.
– Defines places under term “segregated facilities”
– Provides “Notice to Perspective Subcontractors and Material Suppliers of Requirement for Certification of Nonsegregated Facilities”.
LPA Template Item 8 – NonSegregated
Facilities
– ODOT PN 035
– FHWA Form 1273 (II), 1-9
– Requires designation of EEO Officer and EEO Dissemination of Policy requirements
– EEO responsibilities associated with –
– Recruitment
– Personnel Actions
– Training and Promotion
– Unions
– Selection of Subcontractors, Materials and Equipment Leasing.
– Requires retention of records and reports to support number of minority and non-minority in each work classification, progress and efforts in securing , training and promoting minority and female employees and DBE contractors.
LPA Template Item 9 – EEO Special
Provisions (Nondiscrimination)
1. Equal Employment Opportunity: Equal employment opportunity
(EEO) requirements not to discriminate and to take affirmative action
to assure equal opportunity.
- Incorporates provisions of the American Disabilities Act of 1990 by
reference
- 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 State DOT and the Federal
Government in carrying out EEO obligations and in their review of
his/her activities under the contract.
b) Acceptance of EEO operating policy defined in FHWA 1273
LPA Template Item 9 – EEO Provisions
FHWA 1273 (II.)
2. EEO Officer:
The contractor will designate and make known to the SHA contracting officers an EEO Officer who will have the responsibility for administering and promoting an active contractor program of EEO and who must be assigned adequate authority and responsibility to do so.
LPA Template Item 9 – EEO Provisions
FHWA 1273 (II.)
3. Dissemination of Policy: Authorized contractor‟s staff will disseminate
and implement EEO policy and contractual responsibilities. To ensure that
the above agreement will be met, the following actions will be taken as a
minimum:
a) Periodic meetings
b) All new supervisory or personnel office employees will be given a
thorough indoctrination by the EEO Officer within 30 days
c) EEO Officer will instruct recruitment personnel in the contractor's
procedures for locating and hiring minority group employees.
d) Notices and posters setting forth the contractor's EEO policy in
areas accessible to employees, applicants and potential employees.
e) Inform employees of contractor's EEO policy & procedures by
means of meetings, employee handbooks, or appropriate means.
LPA Template Item 9 – EEO Provisions
FHWA 1273 (II.)
4. Recruitment: Advertisement for employees will include"An Equal
Opportunity Employer." Advertisements will be placed in publications
having a large circulation among minority groups.
a) The contractor will, unless precluded by a valid bargaining
agreement, conduct systematic and direct recruitment of minority
employees.
b) In the event the contractor has a valid bargaining agreement
providing for exclusive hiring hall referrals, he is expected to
observe the provisions of that agreement to the extent that the
system permits the contractor's compliance with EEO contract
provisions.
c) Contractor will encourage employees to refer minority group
applicants for employment..
LPA Template Item 9 – EEO Provisions
FHWA 1273 (II.)
5. Personnel Actions: Wages, working conditions, and employee
benefits shall be established and administered, and personnel actions shall
be taken without discrimination. Contractor shall follow these procedures:
a) Periodic inspections of project sites to insure that working
conditions & employee facilities are not discriminatory.
b) Periodically evaluate wages paid within each classification to
determine any evidence of discriminatory wage practices.
c) Periodically review selected personnel actions in depth to
determine whether there is evidence of discrimination and if found
follow prompt corrective action.
d) Promptly investigate all complaints of alleged discrimination and
will take appropriate corrective action.
LPA Template Item 9 – EEO Provisions
FHWA 1273 (II.)
6. Training and Promotion: Contractor will:
a) Assist in locating, qualifying, and increasing the skills of minority
group and women employees and applicants.
b) Consistent with the work force requirements and Federal & State
regulations, make full use of training programs, i.e.,
apprenticeship, and on-the-job training programs.
c) Advise employees and applicants for employment of available
programs & entrance requirements.
d) Periodically review the training and promotion potential of minority
group and women employees and will encourage application for
such training and promotion.
LPA Template Item 9 – EEO Provisions
FHWA 1273 (II.)
7. Unions: Contractor will use best efforts to obtain the cooperation of
such unions to increase opportunities for minority groups and women
within the unions. Actions by the contractor will include:
a) Efforts to develop, with union cooperation, joint training programs
aimed toward qualifying minority members & women for
membership and increasing skills for advancement.
b) Efforts to incorporate an EEO clause into each union agreement
c) Obtain information as to the referral practices and policies of the
labor union
d) If union is unable to provide a reasonable flow of minority and
women referrals within the time limit in CBA, contractor will,
through independent recruitment, fill vacancies w/o discrimination.
LPA Template Item 9 – EEO Provisions
FHWA 1273 (II.)
8. Selection of Subcontractors, Procurement of Materials and
Leasing of Equipment: The contractor shall not discriminate in the
selection & retention of subs, procurement of materials & leases of
equipment.
a) The contractor shall notify all potential subcontractors and
suppliers of his/her EEO obligations under this contract.
b) DBEs shall have equal opportunity to compete for and perform
subcontracts pursuant to the contract.
c) The contractor will use his best efforts to ensure subcontractor
compliance with their EEO obligations.
LPA Template Item 9 – EEO Provisions
FHWA 1273 (II.)
9. Records and Reports: The contractor shall keep such records as
necessary to document compliance with the EEO requirements and for
inspection by SHA and the FHWA.
a) The records kept by the contractor shall document the following:
1) The number of minority and non-minority group members and
women employed in each work classification on the project;
2) The progress and efforts being made in cooperation with
unions, to increase minotity & women employment
3) The progress and efforts being made recruitment, qualifying,
and upgrading minority & female employees
4) The progress and efforts being made in securing the services
of DBE subcontractors
b) Submit Form FHWA-1391 Annual report to the LPA each July for
the duration of the project. Collect and report On-the-job Training.
LPA Template Item 9 – EEO Provisions
FHWA 1273 (II.)
– ODOT PN 003
– Title VI of Civil Rights Act of 1964, and related statutes.
– Nondiscrimination In Federally Assisted Programs
– No person shall, on grounds of race, color, national origin, sex, disability or age be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity.
LPA Template Item 10 – Title VI
Nondiscrimination
– ODOT PN 020 – Sufficient for the sale of projects through ODOT to meet FHWA / ODOT EEO requirements
– Obligated under 23 CFR Part 230, 41 CFR Part 60, EO 11246, and VEVRAA (Vietnam Vet Assistance) of 1974
– Provides for minority and female utilization obligations by craft. Census driven
– Defines New Hire
LPA Template Item 11 – Affirmative Action
– ODOT PN 059
– 29 CFR Part 1.8 and 29 CFR Part 7
– Describes stepped process for appeals of Federal wage determinations
LPA Template Item 13 – Wage
Determination Appeals Process
– ODOT PN 061
– US DOL, Title 29, Subtitle A, Part 5 & FHWA 1273
– Contractor shall use only the classifications and wage rates set forth in US DOL Davis Bacon wage decisions.
– Latest decision at time of advertisement. Rates locked in for life of construction contract.
– Requires certifies payrolls to be submitted on Form WH-347
– Refer to FHWA Form 1273 and LATP Manual of Procedures, Construction Contract Administration Chapter, for monitoring responsibilities.
LPA Template Item 14 – Wage Scale on All
Federal-aid Projects
– ODOT PN 045
– 23 USC 112 and ORC 1331, 2921.11 and 2921.13
– Contractor has not entered either directly or indirectly into any agreement , participated in any collusion, or otherwise taken action in the restraint of free competitive bidding in connection with the proposal.
– Requires signature of Non-Collusion Affidavit as permitted by 28 USC 1746. No separate form needed with proper inclusion of LPA Bid Document Template.
– Bid Rigging hotline information
LPA Template Item 17 – Non-Collusion
– ODOT PN 014
– 23 USC 112 and ORC 1331, 2921.11 and 2921.13
– Contractor agrees to all applicable state and federal laws regarding drug-free workplace
– Required to make a good faith effort to ensure that employees will not purchase, transfer, use or possess illegal drugs or alcohol or abuse prescription drugs in any way.
– Require this obligation to be placed on all subcontractors and material contracts and their lower tier contracts.
– Register for Drug-Free Workplace
– http://www.bwc.state.oh.us/employer/services/StateContract/StateContractdescriptions.asp
LPA Template Item 18 – Drug-Free
Workplace
– ODOT PN 034
– Drug-Free Workplace Program – During the life of the project, the Contractor and all Subcontractors
that provide labor must be enrolled and in good standing in the OBWC Drug-Free Safety Program or a comparable program approved by OPWC.
– LPA will declare a bid non-responsive and ineligible for award if the Contractor is not enrolled within 8 days of the bid opening.
– Contractor is responsible for and shall insert in each of its subcontracts a clause requiring all subcontractors to comply.
LPA Template Item 19 – Drug-Free
Workplace Discount Program
– ODOT PN 034
– Contractor must secure and maintain valid Ohio workers‟ compensation coverage until the project has been finally accepted by the LPA/ ODOT
– A certificate of coverage evidencing valid workers‟ compensation coverage must be submitted to the LPA before the contract will be executed by the LPA.
– Contractor must immediately notify the LPA, in writing, if it or any subcontractor fails or refuses to renew their workers‟ compensation coverage.
– Failure to maintain valid workers‟ compensation coverage shall be considered a breach of contract leading to withholding of pay estimates and/or termination of the contract.
LPA Template Item 20 – Ohio Workers
Compensation Coverage
– ODOT PN 038
– OAC 9.24
– Contractor represents to LPA that it is not subject to a finding for recovery under OAC 9.24.
– If this representation is deemed false, the contract shall be void and any funds paid by the state hereunder shall be repaid to the LPA.
LPA Template Item 21 – Unresolved
Finding for Recovery
ODOT PNs for price adjustments for Asphalt Binder, Steel and Fuel.
Encouraged not required.
– Steel Price Adjustment ODOT PN 525
– Fuel Price Adjustment ODOT PN 520
– Asphalt Binder Price Adjustment
– PN 530 – Single year projects
– PN 535 – Multiple year projects
LPA Template Item 24, 25 & 26 – Asphalt
Binder, Steel and Fuel Price Adjustments
– ODOT PN 013
– 49 CFR Part 26
– ODOT assigned DBE Goal obtained for all projects > $500K
– Based on availability of DBE firms to perform associated work types.
– LPA place goal on cover of the Bid Proposal Document and identified within „instructions to bidders‟
– Establishes Contractor responsibilities associated with Disadvantaged Business Enterprises
– Outlines waiver process of full or partial DBE goal
– Sanctions to be issued by the LPA if goal not met and waiver not presented
LPA – DBE Requirements
– Request to sublet form (ODOT C-92) and all executed subcontractor / P.O. agreements submitted to the ODOT District EEO Coordinator for review and approval -
– Verify that the firm is certified as a DBE (ww.OhioUCP.org)
– Verify proper NAICS code assigned for the work detailed in subcontractor
– For material suppliers, compare type of material being supplied to NAICS code assigned
– Information on proposed drop shipped items
– No drop shipment can occur without prior approval from ODOT
– If DBE is a regular dealer only 60% of expenditures may be counted toward goal, providing CUF
– Entire expenditure may be counted if DBE supplier is a manufacturer that produces the goods from raw materials or substantially alters them before resale
LPA – DBE Requirements
– ALL DBE material suppliers should be asked to provide the following information by the LPA documented through email:
– I am in the process of approving the C-92‟s for the referenced project
– I have the some questions that I am hoping you can answer. Please refer to the attached P.O./C-92 and provide the following for each item listed:
– Please identify those items that will be coming directly from your yard and any items that are intended to be drop shipped
– From which of your locations will the material be shipped?
– How will the item get to the project site?
– Please indicate the quantities that will be delivered throughout the life of the project
– Will it all be shipped at once? Or,
– Will shipments be made throughout the life of the project?
– Identify the name of the manufacturer that will be drop shipping (if applicable)
– Forward to the District EEOCC for review and approval of C-92
– Must be approved by the District EEOCC prior to execution of the contract with the Prime.
– Each subcontract or material supply agreement must be submitted to and approved by ODOT EEO CC prior to the DBE beginning work on the project.
LPA – DBE Requirements
In the event the Contractor is unable to meet the DBE Goal placed on this project, a
request for waiver of all or part of the goal may be made to the Ohio Department of
Transportation through the LPA.
- The Contractor must document the progress and efforts being made in securing the
services of DBE subcontractors.
- The written request must indicate a good faith effort was made to meet the goal and
be sent to the LPA contracting authority.
- The LPA forwards the request with recommended action to the ODOT District.
- The ODOT District then makes recommendation and forwards the request to ODOT
Office of Contracts for determination of action.
- If an item of work subcontracted to a DBE firm is non-performed by LPA or the subject
of an approved VECP, the Contractor may request a waiver for the portion of work
excluded.
LPA – DBE Requirements – Waiver Process
DBE Monitoring Requirements - DBE Quarterly Payments Form
- January 10, April 10, July 10, and October 10 – Signed by LPA EEO Coordinator
- Sent to District EEOCC
– ODOT PN 031
– 49 CFR Part 26.37
– Verifies that work committed to the DBE at Award is actually performed by the DBE.
– Verifies actual payments made to DBE.
– Affidavit must be signed by the Contractor within 15 days of completion and mailed to ODOT Office of Contracts
– Forms on Contracts website and LATP Manual, Construction Chapter Appendices
LPA Template Item 29 – Affidavit of
Subcontractor Payment (if DBE)
– ORC 2909.33
– Serves as a declaration of the provision of material assistance to a terrorist organization or organization that supports terrorism as identified by the U.S. Department of State Terrorist Exclusion List.
– Must be completed and returned prior to entering into a contract with any political subdivision of the state of Ohio
– Failure to submit this form prior to entering into contract will result in the bid being deemed non-responsive and ineligible for award.
– Form located on Ohio Homeland Security website at http://www.homelandsecurity.ohio.gov/dma.asp,
or linked on Local Projects Website under Bid Preparation section.
LPA Template Item 31 – DMA /
Nonassistance to Terrorist Organizations
Form FHWA 1273 (Required Contract Provisions)
• Failure to include the FHWA-1273 could result
in the loss of federal-aid funding
Standardized Changed Conditions Contract
Clauses
• 23 CFR 635.109 – ODOT C&MS 104.02 Establishes pay factors for significant changes in
character of the work
• 23 CFR §635.117(b)
– Prohibits ODOT and local governments from enacting preferences
• Examples
– Local encourage or mandate the use of local employment
– Local considers location of contractor in award process
– Hometown plans (Cincinnati & Toledo)
– “All contractors and subcontractors involved with the
project will, to the extent practicable, use Ohio Products,
materials, services, and labor in the implementation of their
project.”
– Anti-apartheid ordinances are anti-competitive
» Northern Ireland clause (MacBride Principles)
• Local mandates
– Local presence
– Local business license
– Local workforce requirement
– Restrictive Best Bid Criteria
Prime Contractor must perform at least 30% of the work
• 23 CFR 635.116
• Incorporated into the construction contract as part of the Bid
Document template, Provision VII in the FHWA-1273
Must track all subcontracts to assure this requirement is met
• In accordance with ORC 153.57
• Need note naming ODOT as an additional insured or obligee
per LPA agreement
• Other requirements:
– Dispute process
– Termination process (Compliance with LPA Agreement)
– Best bid criteria (non-restrictive)
– Bid rejection process
– ODOT and FHWA must concur in the rejection of bids
– Confliction between specified provisions and specifications
(Public Works or HUD language)
Two acceptable methods
- Additive Bidding (takes advantage of project‟s available funding)
- Proprietary – Local funds the price differential between standard
item and betterment.
Both methods must be coordinated and approved by ODOT District
If not done through alternate bidding:
Two acceptable methods:
- Public Interest Finding (ODOT & FHWA approval) – FHWA
Can participate in item.
- 100% Local Funded
Both methods must be coordinated and approved by ODOT District
ODOT Local Projects Website http://www.dot.state.oh.us/local/
Locally Administered Transportation Projects Manual of Procedures
Bid Doc Template
Bid Doc Preparation Guidance and Checklist
Color-coded ODOT C&MS
FHWA Contract Administration Core Curriculum Manual
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