4-Policy Bond Construction Requirements Exhibit A.pdf

POLICY AND REGULATIONS MANUAL

Policy No:

Page Number: 1 of 10

Effective Date: September 28, 2023 Board Motion No: 23-09-143

Last Review Date: January 2, 2024 Due For Review: January 2, 2025 Published Date: January 2, 2024

Printed versions of this document are uncontrolled. Please go to the Harris Health Document Control Center to retrieve an official controlled version of the document. https://apps.hchd.local/sites/dcc

TITLE: SKILLED TRADE PROTECTIONS FOR BOND-FUNDED

CONSTRUCTION CONTRACTS

PURPOSE: To mandate certain protections for skilled trade workers in construction contracts funded by bonds approved in accordance with Chapter 1251 of the Texas Government Code.

POLICY STATEMENT:

All solicitations and contracts for construction projects meeting the applicability requirements set forth herein shall include provisions mandating: (1) a minimum of either a $15/hour wage or a wage that meets the requirements of the Davis-Bacon Act, whichever is higher; (2) a minimum of 10% of total project hours be completed by individuals enrolled or graduated from an approved apprenticeship training program; and

(3) the usage and tracking of employer safety records, including OSHA Safety Training of every individual who works on the job site.

POLICY ELABORATIONS:

I. DEFINITIONS:

A. APPRENTICE. (i) a person enrolled in or a graduate of a bona fide Apprenticeship Program as defined by this policy or (ii) a person in the first 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 or (iii) a person enrolled or a graduate of a DOL-certified Bilingual Training Program.

B. APPRENTICESHIP PROGRAM. (i) A program registered with the U.S. Department of Labor (“DOL”), Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services (“OA”), or (ii) an OA- Certified Bilingual Craft Training Program.

Exhibit “A” https://apps.hchd.local/sites/dcc

Page Number: 2 of 10

Effective Date: September 28, 2023 Board Motion No: 23-09-143

Last Review Date: January 2, 2024

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C. BOND CONTRACT. A contract that meets the requirements of Section II.A. of this policy.

D. CONTRACTOR. The company who submits a bid or proposal and is awarded as the prime contractor on a Bond Contract.

E. DAVIS BACON ACT. The Davis-Bacon Act of 1931, currently codified in 40 U.S.C §§ 3141 et seq.

F. PROJECT. The construction project set forth in the Bond Contract.

G. SUBCONTRACTOR. A company that has been awarded by the Contractor to perform part of the work or services of an existing Bond Contract between the Contractor and Harris Health.

H. TOTAL PROJECT HOURS. The total labor hours performed by Workers on a Project. Includes all hours worked by the Contractor and all Subcontractors on the Project, including all Subcontracts no matter their contract value. Excludes hours worked by foremen, superintendents, supervisors, and owners.

I. WORKER. Individuals performing work on a Bond Contract as a trade worker or laborer, and as further defined and limited according to the Davis-Bacon Act (40 U.S.C §§ 3141 et seq.) This term includes full-time, part-time, temporary, and seasonal employees who are directly assigned to a Project, whether the work is performed onsite or offsite.

II. SCOPE AND APPLICABILITY

A. Bond Contracts. This policy applies to all contracts that (1) are funded through the use of any proceeds from bonds approved in accordance with Chapter 1251 of the Texas Government Code, (2) are procured by Harris Health System under Chapter 2269 of the Texas Government Code; (3) have a total contract value of at least $10,000,000; and (4) are not exempted by this Section.

The following types of contracts are exempt from this policy:

1. Services procured under Texas Government Code § 2254 (Professional

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Effective Date: September 28, 2023 Board Motion No: 23-09-143

Last Review Date: January 2, 2024

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2. Contracts for purchases of goods and services considered to be ancillary to the construction services. A business entity that only supplies goods (bricks, supplies, tools, etc.,) and such transportation services as may be incident to delivering those goods to Harris Health property (including the use of common carriers (e.g., truck drivers)) is considered a “Supplier” and Suppliers are not subject to this policy.

B. This policy does not limit, or impact in any way, Harris Health’s ability to consider in the manner it deems appropriate any relevant factor specifically listed in any particular request for bids, proposals, or qualifications.

C. This policy is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against Harris Health, its departments, agencies, entities, officers, employees, agents, or any other person.

D. Except where specifically noted otherwise within this Policy, the requirements of this policy apply to all Workers on a Project, whether or not the work is completed as an independent contractor or under an employment contract with the Contractor or a Subcontractor.

III. GENERAL REQUIREMENTS:

A. Wage Requirements.

1. Each Worker on a Project shall receive a minimum of either $15 per hour wage or a wage that meets the requirements of the Davis-Bacon Act, whichever is higher.

2. Harris Health shall follow the guidelines of the Davis Bacon Act in regards to all relevant issues regarding worker classifications, wage determinations, compliance monitoring, enforcement and other rules related to questions and determinations in this policy.

3. Harris Health shall use the Harris County Building Construction Prevailing Wage Rates for the quarter in which a Project is advertised.

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Effective Date: September 28, 2023 Board Motion No: 23-09-143

Last Review Date: January 2, 2024

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B. Apprenticeship Requirements.

1. On each Project, the Contractor shall ensure that a minimum of 10% of the Total Project Hours are performed by an Apprentice as defined by this policy.

2. Apprentice certificates must be supplied with the first weekly payroll upon which the Apprentice’s name appears on certified payroll. For Workers who are not graduates of an apprenticeship program, Contractor shall submit certification of current enrollment in an Apprenticeship Program with the first weekly payroll upon which the Worker’s name appears on a certified payroll.

3. With its monthly Application for Payment, the Contractor shall submit the Apprentice Utilization Report on the form provided by Harris Health.

4. When measuring Total Project Hours, include all hours worked by the Contractor and all Subcontractors on the Project, including all Subcontracts no matter their contract value.

5. If, during the performance of the Project, an Apprentice leaves employment with the Contractor/Subcontractor, and the Contractor/Subcontractor does not have a suitable Apprentice replacement to fulfill the Apprentice’s role, the Contractor may request the approval of Harris Health to utilize a replacement worker that is not enrolled in an Apprenticeship Program (a “Replacement Worker”) on the Project for a period of thirty (30) calendar days. If an approved Replacement Worker meets the qualifications of an Apprentice by the end of that thirty (30) day period, all hours worked by the Replacement Worker during the thirty (30) days shall be counted as Apprentice hours towards the 10% requirement.

C. Worker Safety Requirements.

1. The solicitation for each Bond Contract, and each subcontract with an estimated value greater than $50,000, shall include a safety record

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Effective Date: September 28, 2023 Board Motion No: 23-09-143

Last Review Date: January 2, 2024

Printed versions of this document are uncontrolled. Please go to the Harris Health Document Control Center to retrieve an official controlled version of the questionnaire. To meet the requirements of this Policy, the bidder must certify each of the items on the questionnaire and submit the certification with its bid or proposal in order to be awarded the Bond Contract or subcontract. Subcontractors must certify each of the items on their questionnaire and submit the certification to the Contractor. The Contractor or Subcontractor is not required to provide supporting documentation to Harris Health unless it is specifically requested.

2. The Contractor on a Bond Contract, and each Subcontractor with an estimated subcontract value greater than $50,000, shall be required to certify the following:

a. The Contractor/Subcontractor has not been listed on OSHA’s Severe Violator Enforcement Program (SVEP) Log at any time within the three (3) years preceding the date of the certification;

b. The Contractor/Subcontractor has not been sanctioned with an OSHA Citation and Notification of Penalty classified as one of the following types (if the OSHA Citation is contested, then its classification is based on the Settlement with OSHA or OSHA Final Order) within the three (3) years preceding the date of this certification: (1)“Serious” with a Gravity finding of “High” ;

(2)“Willful or Repeated”; (3) “Failure to Abate”; and/or (4) “Posting Requirements” with a Gravity finding of “High”1;

c. The Contractor/Subcontractor (i.e., the company itself, not the company’s employees) has not been convicted of a criminal offense within the past ten (10) years in connection with a workplace incident that resulted in serious bodily harm or death;

d. Before starting work on the Project, each of the Contractor/Subcontractor’s Workers that will be doing manual work under the Bond Contract is OSHA 10 certified;

e. Each of the Contractor/Subcontractor’s managers who manage at least one Worker that will be doing manual work on the Project or

Page Number: 6 of 10

Effective Date: September 28, 2023 Board Motion No: 23-09-143

Last Review Date: January 2, 2024

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f. The Contractor/Subcontractor will not require their managers or Workers to pay for training associated with their OSHA 10 or OSHA 30 certification;

g. The Contractor/Subcontractor will compensate its managers and Workers at their normal hourly rate for time spent obtaining their OSHA 10 or OSHA 30 certification; and

h. The Contractor/Subcontractor will provide access to all records, and take whatever steps necessary (e.g., obtain and disclose Gravity findings from OSHA with respect to an OSHA citation, waive any confidentiality (only to the extent necessary to comply with this policy), etc.), to demonstrate compliance with the requirements of this policy.

3. When awarding a Bond Contract, Harris Health may consider the employer safety records of each potential Contractor, including the certifications listed above. If the Contractor/Subcontractor fails to certify that it has met the requirements, Harris Health will deem the company’s bid nonresponsive. This determination will disqualify the Contractor/Subcontractor from only the bid at issue—the entity will not be prohibited from bidding on other Harris Health projects.

4. If a Worker is not OSHA Safety Certified before that Worker begins work on the Project, and in order to comply with this Policy, the Contractor/Subcontractor needs to have the Worker complete that safety training before beginning work on the Project, then the Contractor/Subcontractor may include the training costs and wages for the Worker as a cost of the Project in the pay applications to Harris Health.

D. Recordkeeping. Contractors (not Subcontractors) shall maintain all records, reports, and other documents or items that demonstrate compliance with the requirements of this policy, including, but not limited to, all documents that

Page Number: 7 of 10

Effective Date: September 28, 2023 Board Motion No: 23-09-143

Last Review Date: January 2, 2024

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Contractors shall ensure Harris Health has access to all records, reports and other documents or items of Contractor and/or Subcontractors that are maintained to demonstrate compliance with the requirements of this policy.

IV. RESPONSIBILITIES:

A. Wage Rate Compliance

1. Harris County Purchasing Agent shall include, within each solicitation for a Project, the Harris County Building Construction Prevailing Wage Rates for the quarter in which a Project is advertised.

2. Facilities Construction & Systems Engineering, or its representative, shall ensure Contractor and Subcontractor compliance with the Davis Bacon Act.

B. Apprenticeship Requirements.

1. Harris County Purchasing Agent shall:

a. Include, within each solicitation for a Bond Contract, the apprenticeship certification form prepared according to this policy;

b. Review bids and proposals for document submission consistent with this policy; and

c. Declare non-responsive any bid or proposal that does not meet the requirements of this policy.

2. Facilities Construction & Systems Engineering, or its representative, shall:

a. With support from the Harris County Attorney’s Office, prepare forms for Contractors to submit with their bid proposals and monthly pay applications to ensure compliance with the Apprenticeship Requirements of this policy;

Page Number: 8 of 10

Effective Date: September 28, 2023 Board Motion No: 23-09-143

Last Review Date: January 2, 2024

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b. Review each monthly pay application submitted by Contractors for compliance with this policy, including ongoing review and end-of- Project verification of the calculation of whether 10% of Total Project Hours was worked by Apprentices;

c. Review and respond to Contractors’ written requests described in Sections III.B.5-6 of this policy, and keep a record of these decisions and responses in the Project files; and

d. Prepare monthly reports of Total Project Hours on all Projects and the current and projected percentage of Apprentice hours worked.

C. Worker Safety Requirements

1. Harris County Purchasing Agent shall:

a. Include, within each solicitation for a Project, the certification form prepared according to this policy;

b. Review bids and proposals for document submission consistent with this policy; and

c. Declare non-responsive any bid or proposal that does not meet the requirements of this policy.

2. Facilities Construction & Systems Engineering, or its representative, shall:

a. With support from the Harris County Attorney’s Office, prepare forms for Contractors and Subcontractors to submit with their bid proposals and monthly pay applications to ensure compliance with the Worker Safety Requirements of this policy;

b. Review each monthly pay application submitted by Contractors for compliance with the Worker Safety Requirements of this policy; and

c. Receive and address complaints regarding failures to comply with the Worker Safety Requirements of this policy.

Page Number: 9 of 10

Effective Date: September 28, 2023 Board Motion No: 23-09-143

Last Review Date: January 2, 2024

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V. ENFORCEMENT AND NON-COMPLIANCE

A. A bid or proposal will be deemed nonresponsive if every question on the safety record questionnaire is not marked “True” or if a response to a question in the safety record questionnaire is found to be false.

B. Harris Health may conduct compliance reviews before the award of a Bond Contract or whenever it deems it necessary after the award.

C. A Contractor found to have violated the requirements of this Policy during the term of the Bond Contract, shall be subject to:

1. Negative impact on submissions of future Harris Health solicitations and possibly denial of award of a contract, including non-Bond Contracts;

2. Probation, suspension, or debarment for a period of time determined in the sole discretion of Harris Health.

D. A Contractor or Subcontractor may appeal a finding of a violation under this Policy to the Senior Vice President of Harris Health’s Facilities Construction & Systems Engineering Department.

REFERENCES/BIBLIOGRAPHY:

1 OSHA Post-Citation Procedures and Abatement Verification.

https://www.osha.gov/enforcement/directives/cpl-02-00-163/chapter- 7#:~:text=Violation.,Penalties

Harris Health System Board of Trustees Resolution No. 23.04-49

Occupational Safety & Health Administration [OSHA]. (1998). Abatement verification

(29 CFR 1903.19).

US Department of Labor Apprenticeship website:

https://www.dol.gov/general/topic/training/apprenticeship https://apps.hchd.local/sites/dcc https://www.osha.gov/enforcement/directives/cpl-02-00-163/chapter-7#:%7E:text=Violation.,Penalties https://www.osha.gov/enforcement/directives/cpl-02-00-163/chapter-7#:%7E:text=Violation.,Penalties https://www.dol.gov/general/topic/training/apprenticeship

Page Number: 10 of 10

Effective Date: September 28, 2023 Board Motion No: 23-09-143

Last Review Date: January 2, 2024

Printed versions of this document are uncontrolled. Please go to the Harris Health Document Control Center to retrieve an official controlled version of the

29 U.S.C. §50. Promotion of Labor Standards of Apprenticeship.

29 CFR 29. Labor Standards for the Registration of Apprenticeship Programs.

OFFICE OF PRIMARY RESPONSIBILITY:

Facilities Construction & Systems Engineering

REVIEW/REVISION HISTORY:

Effective Date Version # (If Applicable)

Review/ Revision Date (Indicate Reviewed or

Revised) Approved by:

09/28/2023 Version 1.0 Based on HHS Board Approval

Patrick M. Casey, SVP Facilities