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
Emergency Phone Numbers Actual Project Wage Rates Contractor’s EEO Policy Statement Water Quality Related Info (NOI) Letter appointing Contractor’s EEO Officer
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 Making the quality of a product product is what it should be. what it should be. Contractor/ producer LPA responsibility responsibility Includes QC Part of QA Doing the right things Doing things right Motivated by QA & acceptance Motivates good QC practices 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)
Progress Schedule Bar Chart
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 If there is federal participation in the CE the project is 1. credited at the prorata share If the locals are funding CE they do not have to credit 2. FHWA for LD’s unless #3 applies If the LD daily amount exceeds C&MS Table 108.07-1 3. 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
Construction Quality
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 Sara.lowry@dot.gov
Randy Lane Local Projects Section
ODOT Local-let Program History Local-let Program History Dollars & Number of Projects 1998 - 2013 $600 $489 346 $500 $379 204 $400 (Millions) $265 $266 $260 $300 199 141 189 $203 $218 $207 149 $202 $187 157 164 $150 155 193 $152 $142 $200 $140 106 $125 188 145 59 157 $100 $8 11 $0 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
Possible Delegated Activities 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
Non-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
Process Controls 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
ODOT Process Requirements 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 •
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.
LPA Template Item 1 - Specifications • 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)
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 -
LPA Template Item 3 – Debarment and Suspension – 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 4 – Prequalification – 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 6 – EEO Certification – 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 8 – NonSegregated Facilities – 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 9 – EEO Special Provisions (Nondiscrimination) – 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 Provisions FHWA 1273 (II.) 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..
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