Ohio Department of Transportation The USDOT OIG has identified DBE - - PowerPoint PPT Presentation

Jeffery Peyton Office of Contracts Ohio Department of Transportation

• The USDOT OIG has identified DBE fraud as
• ne 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.

• Management
• Equipment
• Workforce
• Materials
• Performance

• 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
• wner'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.

Jeffery Peyton Office of Contracts Ohio Department of Transportation

• 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)

• n 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

• f 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

• r 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
• r 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
• peration of the truck.
• Must assume responsibility for all aspects of
• perating 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

• Life Insurance
• Health Insurance
• Pension
• Vacation
• Holiday
• Sick Leave

• 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/

Contract Administration and Construction Inspection

by Federal Highway Administration

The Federal-aid Process

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

• versight 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

• n 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

• r 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)

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

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

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

$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

(Millions)

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’

• r 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

• rigin.

– 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

• fficers 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

• bserve 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

• f 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

• f 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/StateContr actdescriptions.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.

–

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
• f 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,

• r 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