32-Doc 00 73 00 08 Part 1 Contract Language Requirements.pdf

Contract Language Requirements

The requirements below may or may not pertain to your contract, based of contract amount and type. Please incorporate them as required.

Violation or Breach of Contract: Contracts for more than the simplified acquisition threshold currently set at $150,000, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate.

Termination for Cause and for Convenience: All contracts in excess of $10,000 must address termination for cause and for convenience by the non-Federal entity including the manner by which it will be effected and the basis for settlement.

Rights to Inventions Made Under a Contract or Agreement: If the agreement with the contractor is for the performance of experimental, developmental, or research work, including any assignment, substitution of parties, or subcontract of any type entered into for such purpose, the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.

Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33

U.S.C. 1251-1387), as amended: Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387).

Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).

Procurement of Recovered Materials: A non-Federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

Civil Rights, Employment and Contracting Opportunities, and Other Federal

Requirements

Americans with Disabilities Act of 1990 (ADA): This Act modifies and expands the Rehabilitation Act of 1973 to prohibit discrimination against “a qualified individual with a disability” in employment and public accommodations. The ADA requires that an individual with a physical or mental impairment who is otherwise qualified to perform the essential functions of a job, with or without reasonable accommodation, be afforded equal employment opportunity in all phases of employment.

Architectural Barriers Act of 1968 (ABA) - (42 U.S.C. 4151-4157): This Act requires that certain buildings financed with Federal funds must be designed, constructed, or altered in accordance with standards that ensure accessibility for persons with physical disabilities. The ABA covers any building or facility financed in whole or in part with Federal funds, except privately owned residential structures. Covered buildings and facilities designed, constructed, or altered with CDBG funds are subject to the ABA and must comply with the Uniform Federal Accessibility Standards.

Disadvantaged Business Enterprises (DBE): It is the policy of HUD to encourage the award of prime contracts valued at $100,000 or more to small disadvantaged business (SDB) concerns (other than certified 8(a) firms) that are at least 51 percent owned and controlled by socially and economically disadvantaged individuals.

Fair Labor Standards Act (FLSA) [as amended] - 29 U.S.C. 201 et seq.: The U.S.

Department of Labor (DOL) administers and enforces the minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments.

Immigration Reform and Control Act (IRCA) of 1986: Employers may hire only persons who may legally work in the U.S., i.e., citizens and nationals of the U.S. and aliens authorized to work in the U.S. The employer must verify the identity and employment eligibility of anyone to be hired, which includes completing the Employment Eligibility Verification Form (I-9).

Minority and Women-Owned Business Enterprises (MBE/WBE) - 24CFR Part 85.36 (e)

(1): It is the policy of HUD to actively encourage contractors to take all necessary affirmative steps to assure that small and minority firms, Women’s business enterprise and labor surplus area firms as used as subcontractors when possible. A minority or women-owned small business concern is defined as owned by at least 51 percent minority group members or women.

Section 109 of Title 1 of the Housing and Community Development Act of 1974, as amended (42 U.S.C. 5301 et. seq., particularly 42 U.S.C. 6101 et. seq., and 29 U.S.C. 794):

This section provides that no person shall be excluded from participation (including employment), denied program benefits, or subject to discrimination on the basis of race, color, national origin, or sex under any program or activity funded in whole or in part under Title 1 of the Act.

Section 504 of the Rehabilitation Act of 1973, as amended (implemented at 24 CFR Part

135): It is unlawful to discriminate based on disability in federally assisted programs. This section provides that no otherwise qualified individual shall, solely by reason of his or her disability, be excluded from participation (including employment), denied program benefits, or subjected to discrimination under any program or activity receiving Federal funding assistance.

Section 504 also contains design and construction accessibility provisions for multi-family dwellings developed or substantially rehabilitated for first occupancy on or after March 13, 1991.

Uniform Guidelines on Employee Selection Procedures adopted by the Equal Employment

Opportunity Commission in 1978: This manual applies to employee selection procedures in the areas of hiring, retention, promotions, transfer, demotions, dismissal, and referral. It is designed to assist employers, labor organizations, employment agencies, licensing and certification boards in complying with the requirements of Federal laws prohibiting discriminatory employment.

Vietnam Era Veterans’ Readjustment Act of 1974 (revised Jobs for Veterans Act of 2002):

This Act was passed to ensure equal employment opportunity for qualified disabled veterans and veterans of the Vietnam War. Affirmative action is required in the hiring and promotion of veterans.

• Worker Protections. Contractors must certify that they are in compliance with all applicable Pennsylvania state labor and workforce safety laws. Such certification shall be made through the Worker Protection and Investment Certification Form (BOP-2201) and submitted with the bid, proposal or quote. (Form attached).

• Conflicts of Interest. An officer, director, or employee of a contractor who is a party to or who has a private interest in a project shall disclose the nature and extent of the interest to the governing body and may not vote on any action of the applicant concerning the project nor participate in the deliberations of the applicant concerning the project.

• Nondiscrimination Contractors must certify that they are in compliance and shall not discriminate against any employee or against any person seeking employment by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or in violation of the Pennsylvania Human Relations Act, which prohibits discrimination on the basis of race, color, religious creed, ancestry, age, sex, national origin, handicap or disability, or in violation of any applicable federal laws. (Form attached).

• Compliance with Anti-Pollution Regulations. The bidder and its subcontractors agree that in the performance of their obligations under this Contract they shall minimize pollution and shall strictly comply with all applicable environmental laws and regulations.

• Compliance with the Prohibition of Illegal Alien Labor on Assisted Projects Act. Pursuant to the Act of May 11, 2006 (P.L. 173, No. 43), known as the Prohibition of Illegal Alien Labor on Assisted Projects Act, the bidder shall not knowingly employ, or knowingly permit any of its subcontractors to knowingly employ, the labor services of an illegal alien on activities funded in whole or in part by a grant or loan issued by an executive agency of the Commonwealth of Pennsylvania.

• Federal Contracting Provisions (2 CFR 200.327). In addition to other provisions required by the Federal agency or non-Federal entity:

o Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part 60-1.3 must include the equal opportunity clause provided under 41 CFR 60-1.4(b), and implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.”

o Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non-Federal entities must include a provision for compliance with the Davis- Bacon Act (40 U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non- Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency.

o Copeland “Anti-Kickback” Act (40 U.S.C. 3145) provision, as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”) must also be included in the contract.

The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency.

o Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708).

Where applicable, all contracts awarded by the non-Federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C.

3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.

o Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended—Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).

o Debarment and Suspension (Executive Orders 12549 and 12689)—A contract award (see 2 CFR 180.220) must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.

o Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)—Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C.

1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.

o Procurement of Recovered Materials. The bidder and its subcontractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (“EPA”) at 40 CFR Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. (2 CFR 200 Appendix II (J)) and (2 CFR 200.323).

o Prohibition on certain telecommunications and video surveillance services of equipment. Bidder and its subcontractors are prohibited from obligating or expending grant funds for equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. The definition of “covered telecommunication equipment” is telecommunication equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). More detailed information is available at 2 CFR 200.216. (2 CFR 200 Appendix II (K)) and (2 CFR 200.216) o Domestic Preferences for Procurements. As appropriate and to the extent consistent with law, to the greatest extent practicable under this Contract, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subawards including all contracts and purchase orders for work or products under this award. For purposes of this section: (1) “Produced in the United States’’ means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. (2) “Manufactured products: means items and construction materials composed in whole or in part of nonferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe;

aggregates such as concrete; glass, including optical fiber; and lumber. (2 CFR 200.322) (2 CFR 200 Appendix II (L)) and (2 CFR 200.322) o Title Vl of the Civil Rights Act of 1964, P.L. 88-352 (42 U.S.C. 2000d-1 et.

seq.) and the regulations issued pursuant thereto (31 CFR Part 22), which provides that no person in the United States shall, on the grounds of race, color, or national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity for which the Grantee receives Federal financial assistance.

o Section 504 of the Rehabilitation Act of 1973 (Section 504), Public Law 93- 112, as amended by Public Law 93-516, 29 U.S.C. 794, which provide that no otherwise qualified individual with a disability in the United States , as defined in section 7(20) [ 29 USCS § 705(20)], shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

o Age Discrimination Act of 1975, Public Law 94-135, 42 U.S.C. 6101 et seq., and the Department implementing regulations at 31 CFR part 23. no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.

o Pennsylvania Human Relations Act of October 27, 1957, P.L. 744, (43 P.S.

951-963) which provides that no employee, applicant for employment, independent contractor, or any other person shall be discriminated against because of race, color, religious creed, ancestry, national origin, age, or sex.

• Contractor Responsibility.

o Definition. For the purpose of these provisions, the term “Contractor” means as any person, including, but not limited to, a bidder, offeror, loan recipient, grantee or lessor, who has furnished or performed or seeks to furnish or perform, goods, supplies, services, leased space, construction or other activity, under a contract, grant, lease, purchase order or reimbursement agreement with the Commonwealth. The term also includes a permittee, licensee, or any agency, political subdivision, instrumentality, public authority, or other public entity in the Commonwealth.

o Contractor Representations.

▪ The Contractor represents for itself and its subgrantees, contractors, and subcontractors required to be disclosed or approved by the Commonwealth, that as of the date of its execution of this bid, that neither the Contractor, nor any of its subgrantees, contractors, and subcontractors, are under suspension or debarment by the Commonwealth or any governmental entity, instrumentality, or authority and, if the Contractor cannot make this representation, the Contractor shall submit, along with the agreement, a written explanation of why the certification cannot be made.

▪ The Contractor represents that, as of the date of its execution of this bid, it has no tax liabilities or other Commonwealth obligations, or has filed a timely administrative or judicial appeal, if any liabilities or obligations exist, or is subject to a duly approved deferred payment plan if any liabilities exist.

o Notification. The Contractor shall notify the County if, at any time during the term of the agreement, it becomes delinquent in the payment of taxes, or other Commonwealth obligations, or if it or, to the best of its knowledge, any of its subgrantees, contractors, or subcontractors are suspended or debarred by the Commonwealth, the federal government, or any other state or governmental entity. The Contractor shall provide this notification within 15 days of the date of suspension or debarment.

o Default. The Contractor’s failure to notify the Commonwealth of its suspension or debarment by the Commonwealth, any other state, or the federal government constitutes an event of default of the agreement with the Commonwealth.

o Reimbursement. The Contractor shall reimburse the County for the reasonable costs of investigation incurred by the Office of State Inspector General for investigations of the Contractor's compliance with the terms of this agreement or any other agreement between the Contractor and the Commonwealth that results in the suspension or debarment of the Contractor. These costs include, but are not limited to, salaries of investigators, including overtime; travel and lodging expenses; and expert witness and documentary fees. The Contractor shall not be responsible for investigative costs for investigations that do not result in the Contractor's suspension or debarment.

o Suspension and Debarment List. The Contractor may obtain a current list of suspended and debarred Commonwealth contractors by visiting the eMarketplace website at http://www.emarketplace.state.pa.us and clicking the Debarment list tab.

Federal Labor Standards Provisions U.S. Department of Housing and Urban Development

Office of Labor Relations

Applicability

The Project or Program to which the construction work covered by this contract pertains is being assisted by the

United States of America and the following Federal Labor

Standards Provisions are included in this Contract pursuant to the provisions applicable to such Federal assistance.

A. 1. (i) Minimum Wages. All laborers and mechanics employed or working upon the site of the work, will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account

(except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the

Copeland Act (29 CFR Part 3), the full amount of wages and bona f ide f ringe benefits (or cash equivalents thereof) due at t ime of payment computed at rates not less than those contained in the wage determination of the

Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona f ide f ringe benefits under Section l (b)( 2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of 29 CFR

5. 5(a)(1 )(iv); also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs, which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period.

Such laborers and mechanics shall be paid the appropriate wage rate and f ringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR 5. 5( a)( 4).

Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the t ime actually worked therein:

Provided, That the employer’ s payroll records accurately set forth the t ime spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under

29 CFR 5. 5 (a)(1 )(ii) and the Davis-Bacon poster (WH-

1321 ) shall be posted at all t imes by the contractor and i ts subcontractors at the site of the work in a prominent and accessible, place where i t can be easily seen by the workers.

(ii) (a) Any class of laborers or mechanics which is not l isted in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. HUD shall approve an additional classification and wage rate and f ringe benefits therefor only when the following criteria have been met:

(1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and

(2) The classification is utilized in the area by the construction industry; and

(3) The proposed wage rate, including any bona f ide f ringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.

(b) I f the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and HUD or i ts designee agree on the classification and wage rate (including the amount designated for f ringe benefits where appropriate), a report of the action taken shall be sent by HUD or i ts designee to the Administrator of the W age and Hour Division, Employment Standards Administration, U. S. Department of

Labor, W ashington, D. C. 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise HUD or i ts designee or will notify HUD or i ts designee within the 30 -day period that additional t ime is necessary. (Approved by the Office of

Management and Budget under OMB control number 1215 -

0140.)

(c) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and HUD or i ts designee do not agree on the proposed classification and wage rate (including the amount designated for f ringe benefits, where appropriate), HUD or i ts designee shall refer the questions, including the views of all interested parties and the recommendation of HUD or i ts designee, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise HUD or i ts designee or will notify

HUD or i ts designee within the 30-day period that additional t ime is necessary. (Approved by the Office of

Management and Budget under OMB Control Number

1215 -0140.)

(d) The wage rate (including f ringe benefits where appropriate) determined pursuant to subparagraphs

(1)(ii)(b) or (c) of this paragraph, shall be paid to all workers performing work in the classification under this contract f rom the f i rst day on which work is performed in the classification.

(iii) W henever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a f ringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona f ide f ringe benefit or an hourly cash equivalent thereof.

(iv) I f the contractor does not make payments to a t rustee or other third person, the contractor may consider as part

Previous editions are obsolete Page 1 of 5 form HUD-4010 (06/2009) ref. Handbook 1344.1 of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona f ide f ringe benefits under a plan or program, Provided, That the

Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-

Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. (Approved by the Office of Management and

Budget under OMB Control Number 1215- 0140.)

2. Withholding. HUD or i ts designee shall upon i ts own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld f rom the contractor under this contract or any other Federal contract with the same prime contractor, or any other Federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime contractor so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, t rainees and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract In the event of failure to pay any laborer or mechanic, including any apprentice, t rainee or helper, employed or working on the site of the work, all or part of the wages required by the contract, HUD or i ts designee may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. HUD or i ts designee may, after written notice to the contractor, disburse such amounts withheld for and on account of the contractor or subcontractor to the respective employees to whom they are due. The Comptroller General shall make such disbursements in the case of direct Davis-Bacon Act contracts.

3. (i) Payrolls and basic records. Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona f ide f ringe benefits or cash equivalents thereof of the types described in Section l(b)(2 )(B) of the Davis-bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. W henever the Secretary of Labor has found under 29 CFR 5. 5 ( a)(1 )(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in Section l (b)(2 )(B) of the Davis-

Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is f inancially responsible, and that the plan or program has been

Previous editions are obsolete communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits.

Contractors employing apprentices or t rainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of t rainee programs, the registration of the apprentices and t rainees, and the ratios and wage rates prescribed in the applicable programs. (Approved by the Office of

Management and Budget under OMB Control Numbers

1215 -0140 and 1215- 0017.)

(ii) ( a) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to HUD or i ts designee i f the agency is a party to the contract, but i f the agency is not such a party, the contractor will submit the payrolls to the applicant sponsor, or owner, as the case may be, for t ransmission to

HUD or i ts designee. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5. 5( a)( 3)(i) except that full social security numbers and home addresses shall not be included on weekly t ransmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e. g., the last four digits of the employee’ s social security number). The required weekly payroll information may be submitted in any form desired.

Optional Form W H-347 is available for this purpose f rom the W age and Hour Division W eb site at http://www.dol.gov/esa/whd/forms/wh347instr.htm or i ts successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors.

Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to

HUD or i ts designee i f the agency is a party to the contract, but i f the agency is not such a party, the contractor will submit the payrolls to the applicant sponsor, or owner, as the case may be, for t ransmission to

HUD or i ts designee, the contractor, or the W age and Hour

Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. I t is not a violation of this subparagraph for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for i ts own records, without weekly submission to HUD or i ts designee. (Approved by the Office of

Management and Budget under OMB Control Number

1215 -0149.)

(b) Each payroll submitted shall be accompanied by a

“Statement of Compliance,” signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following:

(1) That the payroll for the payroll period contains the information required to be provided under 29 CFR 5. 5

(a)(3)(ii), the appropriate information is being maintained under 29 CFR 5. 5( a)(3)(i), and that such information is correct and complete;

Page 2 of 5 ref. Handbook 1344.1

(2) That each laborer or mechanic (including each helper, apprentice, and t rainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly f rom the full wages earned, other than permissible deductions as set forth in 29 CFR Part 3;

(3) That each laborer or mechanic has been paid not less than the applicable wage rates and f ringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract.

(c) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form

WH-347 shall satisfy the requirement for submission of the

“Statement of Compliance” required by subparagraph

A. 3.(ii)(b).

(d) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section

231 of Title 31 of the United States Code.

(iii) The contractor or subcontractor shall make the records required under subparagraph A. 3.(i) available for inspection, copying, or t ranscription by authorized representatives of HUD or i ts designee or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. I f the contractor or subcontractor fails to submit the required records or to make them available, HUD or i ts designee may, after written notice to the contractor, sponsor, applicant or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to

29 CFR 5. 12.

4. Apprentices and Trainees.

(i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona f ide apprenticeship program registered with the U. S. Department of Labor, Employment and Training Administration, Office of

Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the

Office, or i f a person is employed in his or her f i rst 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor

Services or a State Apprenticeship Agency ( where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who

Previous editions are obsolete is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which i ts program is registered, the ratios and wage rates

(expressed in percentages of the journeyman’ s hourly rate) specified in the contractor’ s or subcontractor’ s registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice’ s level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination.

Apprentices shall be paid f ringe benefits in accordance with the provisions of the apprenticeship program. I f the apprenticeship program does not specify f ringe benefits, apprentices must be paid the full amount of f ringe benefits l isted on the wage determination for the applicable classification. I f the Administrator determines that a different practice prevails for the applicable apprentice classification, f ringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship

Training, Employer and Labor Services, or a State

Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

(ii) Trainees. Except as provided in 29 CFR 5. 16, t rainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant ‘ , to and individually registered in a program which has received prior approval, evidenced by formal certif ication by the U. S. Department of Labor, Employment and Training Administration. The ratio of t rainees to journeymen on the job site shall not be greater than permitted under the plan approved by the

Employment and Training Administration. Every t rainee must be paid at not less than the rate specified in the approved program for the t rainee’ s level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid f ringe benefits in accordance with the provisions of the t rainee program. I f the t rainee program does not mention f ringe benefits, t rainees shall be paid the full amount of f ringe benefits l isted on the wage determination unless the Administrator of the Wage and

Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full f ringe benefits for apprentices. Any employee l isted on the payroll at a t rainee rate who is not registered and participating in a t raining plan approved by

Page 3 of 5 ref. Handbook 1344.1 the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In addition, any t rainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a t raining program, the contractor will no longer be permitted to utilize t rainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

(iii) Equal employment opportunity. The utilization of apprentices, t rainees and journeymen under 29 CFR Part 5 shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30.

5. Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR

Part 3 which are incorporated by reference in this contract

6. Subcontracts. The contractor or subcontractor will insert in any subcontracts the clauses contained in subparagraphs 1 through 11 in this paragraph A and such other clauses as HUD or i ts designee may by appropriate instructions require, and a copy of the applicable prevailing wage decision, and also a clause requiring the subcontractors to include these clauses in any lower t ier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower t ier subcontractor with all the contract clauses in this paragraph.

7. Contract termination; debarment. A breach of the contract clauses in 29 CFR 5. 5 may be grounds for termination of the contract and for debarment as a contractor and a subcontractor as provided in 29 CFR

5. 12.

8. Compliance with Davis-Bacon and Related Act Requirements.

All rulings and interpretations of the Davis-Bacon and

Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract

9. Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of

Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of i ts subcontractors) and HUD or i ts designee, the U. S. Department of Labor, or the employees or their representatives.

10. (i) Certification of Eligibility. By entering into this contract the contractor certifies that neither i t ( nor he or she) nor any person or f i rm who has an interest in the contractor’ s f i rm is a person or f i rm ineligible to be awarded Government contracts by virtue of Section 3 (a) of the Davis-Bacon Act or 29 CFR 5. 12 (a)(1 ) or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR Part 24.

(ii) No part of this contract shall be subcontracted to any person or f i rm ineligible for award of a Government contract by virtue of Section 3 (a) of the Davis-Bacon Act or 29 CFR 5. 12( a)(1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR Part 24 .

(iii) The penalty for making false statements is prescribed in the U. S. Criminal Code, 18 U. S. C. 1001. Additionally, U. S. Criminal Code, Section 1 01 0, Title 18, U.S.C., “Federal Housing Administration t ransactions”, provides in part: “W hoever, for the purpose of . . . influencing in any way the action of such Administration..... makes, utters or publishes any statement knowing the same to be false shall be f ined not more than $5, 000 or imprisoned not more than two years, or both.”

11. Complaints, Proceedings, or Testimony by

Employees. No laborer or mechanic to whom the wage, salary, or other labor standards provisions of this Contract are applicable shall be discharged or in any other manner discriminated against by the Contractor or any subcontractor because such employee has f i led any complaint or instituted or caused to be instituted any proceeding or has testified or is about to testify in any proceeding under or relating to the labor standards applicable under this Contract to his employer.

B. Contract Work Hours and Safety Standards Act. The provisions of this paragraph B are applicable where the amount of the prime contract exceeds $100,000. As used in this paragraph, the terms “laborers” and “mechanics” include watchmen and guards.

(1) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which the individual is employed on such work to work in excess of 40 hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of 40 hours in such workweek.

(2) Violation; l iability for unpaid wages; l iquidated damages. In the event of any violation of the clause set forth in subparagraph (1 ) of this paragraph, the contractor and any subcontractor responsible therefor shall be l iable for the unpaid wages. In addition, such contractor and subcontractor shall be l iable to the United States (in the case of work done under contract for the District of

Columbia or a territory, to such District or to such territory), for l iquidated damages. Such l iquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in subparagraph ( 1) of this paragraph, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of 40 hours without payment of the overtime wages required by the clause set forth in sub paragraph ( 1) of this paragraph.

Previous editions are obsolete

(3) Withholding for unpaid wages and l iquidated damages. HUD or i ts designee shall upon i ts own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, f rom any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contract, or any other Federally- assisted contract subject to the

Contract W ork Hours and Safety Standards Act which is held by the same prime contractor such sums as may be determined to be necessary to satisfy any l iabilities of such contractor or subcontractor for unpaid wages and l iquidated damages as provided in the clause set forth in subparagraph (2) of this paragraph.

(4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in subparagraph ( 1) through (4 ) of this paragraph and also a clause requiring the subcontractors to include these clauses in any lower t ier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower t ier subcontractor with the clauses set forth in subparagraphs (1) through ( 4) of this paragraph.

C. Health and Safety. The provisions of this paragraph C are applicable where the amount of the prime contract exceeds $100,000.

(1) No laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health and safety as determined under construction safety and health standards promulgated by the Secretary of Labor by regulation.

(2) The Contractor shall comply with all regulations issued by the Secretary of Labor pursuant to Title 29 Part

1926 and failure to comply may result in imposition of sanctions pursuant to the Contract W ork Hours and Safety

Standards Act, (Public Law 91- 54, 83 Stat 96). 40 USC

3701 et seq.

(3) The contractor shall include the provisions of this paragraph in every subcontract so that such provisions will be binding on each subcontractor. The contractor shall take such action with respect to any subcontractor as the

Secretary of Housing and Urban Development or the

Secretary of Labor shall direct as a means of enforcing such provisions.

Previous editions are obsolete

CODE OF FEDERAL REGULATIONS

Title 24 - Housing and Urban Development

Volume: 3 Date: 2010-04-01 Original Date: 2010-04-01

Context: Title 24 - Housing and Urban Development. Subtitle B - Regulations Relating to Housing and Urban Development

CHAPTER V - OFFICE OF ASSISTANT SECRETARY FOR COMMUNITY PLANNING

AND DEVELOPMENT, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT.

SUBCHAPTER C - COMMUNITY FACILITIES.

PART 570 - COMMUNITY DEVELOPMENT BLOCK GRANTS. Subpart K - Other Program Requirements.

§ 570.603 Labor standards.

(a) Section 110(a) of the Act contains labor standards that apply to non-volunteer labor financed in whole or in part with assistance received under the Act. In accordance with section 110(a) of the Act, the Contract Work Hours and Safety Standards Act (40 U.S.C. 327 et seq.) also applies.

However, these requirements apply to the rehabilitation of residential property only if such property contains not less than 8 units.(b) The regulations in 24 CFR part 70 apply to the use of volunteers.

[61 FR 11477, Mar. 20, 1996]

§ 570.609 Use of debarred, suspended or ineligible contractors or subrecipients.

The…