ADDENDUM NO 3 ARFQ DEP25-09 KEMPTON REFUSE REHABILITATION V1.pdf

AGENCY SOLICITATION NUMBER – ARFQ ______________

Addendum Number: ____

The Purpose of this addendum is to modify the solicitation identified as (“Agency Solicitation”) to reflect the change(s) identified and described below.

Applicable Addendum Category:

[ ] Modify bid closing date and time

[ ] Modify specification of product or service being sought

[ ] Attachment of vendor questions and responses

[ ] Attachment of pre-bid sign-in sheet

[ ] Correction of error

[ ] Other

Description of Modification to Solicitation:

This Addendum issued to publish and distribute the attached documentation to the vendor community.

Additional Documentation: Documentation related to this Addendum (if any) has been included herewith as Attachment A and is specifically incorporated herein by reference.

Terms and Conditions:

1. All provision of the Agency Solicitation and other addenda not modified herein shall remain in full force and effect.

2. Vendor should acknowledge receipt of all addenda issued for this Agency Solicitation by completing an Addendum Acknowledgement, a copy of which is included herewith. Failure to acknowledge addenda may result in bid disqualification. The addendum acknowledgement should be submitted with the bid to expedite document processing.

Addendum #3 Kempton Refuse Rehabilitation

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Addendum #3 – Additional AML Comments and Modifications, Bid Schedule (Commodity Line) Changes, Pre-Bid Conference

Questions, and Vendor Submitted Questions

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The following are Additional AML comments and modifications to the contract; as well as Bid Schedule (commodity line) changes, responses to comments and questions identified from the Pre-Bid Conference and for Vendor Submitted Questions. The contents provided herein take precedence over any previous contract provisions, requirements, and answers over verbal answers at the PBC or prior addenda, should there be any conflict between them.

Additional AML Comments and Modifications:

1) Numerous changes have been made to the required work for this project. Revision #1 documents for the Construction Plans and Construction Specifications are provided herewith and are complete replacements of those originally provided. The most significant changes were previously described in a general sense in the Addendum #1 document, although several additional changes have since been determined as necessary and have also been made and are included in these Revision #1 documents.

2) Sections of the Construction Specifications, including both the Special Provisions and the Technical Specifications sections and sub-sections therein, may have been replaced in whole or in part.

3) Several changes in the Bid Schedule have been made, including but not limited to; Addition and Removal of Pay Items, Revisions to Item Descriptions, and Quantities. Changes are not limited to those therein, but additional modifications to specifications content and requirements, methods of measurement and basis of payments, and other aspects and details, have been performed and included in the Revision #1 Technical Specifications and the Construction Plans.

4) Special Provisions Section VI. NPDES Stormwater Requirements, the Contractor is being changed to be Co-Applicant #1, and WVDEP-AML will be Co-Applicant #2. The Contactor shall sign and submit the NPDES modification Co-Applicant Signature page prior to the Pre- Construction Conference. The Contractor will be identified as Co-Applicant #1 and shall be the responsible party to conform with all requirements of the approved permit and as prescribed in the Construction Specifications.

5) The revised Engineer’s Estimate for this Project is $1,875,220

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The Contractor shall have 180 days from the date of the Notice to Proceed to complete construction activities on the project. The $1,000.00 per day liquidated damages clause will be in effect after 180 days

Bid Schedule Changes:

1) Item No. 4.3 AASHTO #1 AGGREGATE Quantity Change to 900 [Unit stays as per TON]

2) Item No. 4.5 SEPARATION FABRIC Quantity change to 1,000 [Unit stays as per SY]

3) Item No. 4.12 SODA ASH BRIQUETTES (50LB BAG) Quantity change to 100 [Unit stays as per EA]

4) Item No. 5.3 ROLLED EROSION CONTROL PRODUCT Quantity change to 3,500 [Unit stays as per SY]

5) Item No. 6.1 REVEGETATION (PER PLAN VIEW ACRE) Quantity change to 4 [Unit stays as per AC]

6) Item No. 6.2 Change description to WETLAND BED PREPARATION AND SEED MIXTURE (PER PLAN VIEW ACRE) [No changes to Unit or Quantity]

7) Item No. 6.3 Change description to “POLLINATOR SEED MIX (PER PLAN VIEW ACRE)” Quantity change to 8 [Unit stays as per AC]

8) Item No. 7.1 16OZ M288 CLASS I NON-WOVEN GEOTEXTILE Quantity change to 15,200 [Unit stays as per SY]

9) Item No. 7.2 40 MIL HDPE TEXTURED LINER (BOTH SIDES) Quantity change to 8,100 [Unit stays as per SY]

10) Item No. 7.3 AASHTO #57 (LIMESTONE BED SEPARATION LAYER) This item is being DELETED. Please see added Item No. 7.31.

11) Item No. 7.7 15-INCH HDPE CULVERT This item is being DELETED. Please see added Item No. 7.32.

12) Item No. 7.8 42-INCH HDPE CULVERT This item is being DELETED.

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13) Item No. 7.9 SPLASH PAD Quantity change to 5 [Unit stays as per EA]

14) Item No. 7.27 GROUT ANCHOR/KEY Quantity change to 225 [Unit stays as per LF]

15) Item No. 7.29 SUMP Quantity change to 3 [Unit stays as per EA]

16) Item No. 7.30 Change description to CONCRETE CHANNEL (CAST-IN-PLACE) [No changes to Unit or Quantity]

17) Item No. 7.31 AASHTO #1 (LIMESTONE BED SEPARATION LAYER) This is a New Item ADDED to the contract Unit shall be per TON Quantity shall be 820 [Note: This Item Replaces Item 7.3]

18) Item No. 7.32 16-INCH SDR-17 CULVERT This is a New Item ADDED to the contract Unit shall be per LF Quantity shall be 180 [Note: This Item Replaces Item 7.7]

19) Item No. 7.33 AASHTO #57 (LIMESTONE BED PIPE TRENCH LAYER) This is a New Item ADDED to the contract Unit shall be per TON Quantity shall be 680

20) Item No. 7.34 2 FT X 2 FT BW, GROUTED RIPRAP “TRAPEZOIDAL” CHANNEL This is a New Item ADDED to the contract Unit shall be per LF Quantity shall be 18

21) Item No. 7.35 2 FT X 4 FT BW, GROUTED RIPRAP “TRAPEZOIDAL” CHANNEL This is a New Item ADDED to the contract Unit shall be per LF Quantity shall be 61

22) Item No. 7.36 2 FT X 10 FT BW, GROUTED RIPRAP “TRAPEZOIDAL” CHANNEL This is a New Item ADDED to the contract Unit shall be per LF Quantity shall be 52

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23) Item No. 8.0 TOPSOIL IMPORT This item was previously deleted in Addendum #1, for which is now reflected accordingly as such in the Revision #1 documents.

Pre-Bid Conference Questions:

1) Is the topsoil to be imported?

Answer: No longer applicable.

2) Is the Contractor responsible for obtaining the imported topsoil?

Answer: No longer applicable.

3) Is it possible to get an extension on the bid opening date, in order to obtain the imported topsoil and locate a Borrow site?

Answer: The Bid Closing Date has been changed, and imported topsoil is no longer applicable for this project.

4) Can we delay the NTP until spring, because it snows heavy in Tucker county starting in October?

Answer: Yes

5) Does temporary bridge get removed?

Answer: Yes

6) Do existing SDR35 clean outs get removed?

Answer: Yes

7) Is the new fence footprint on the plan sheet?

Answer: Yes, See Plan Sheets 5 and 9.

8) Is the “poly-liner” weldable?

Answer: The proposed treatment system liner is 40 MIL HDPE. The liner is “weldable” and shall be installed in accordance with the contract documents and to all manufacturer specifications and requirements.

9) Is the “special soil” on sheet 9 its own Bid Item? Or is it Incidental?

Answer: The interpretation of the question is that it is a reference to the humic soil, which is described in detail in the Revision #1 Plan Sheets (sheet 37) and in the Technical Specifications. The humic and loamy soil layers do not have individual pay items as they are incidental to the Pay Item No. 6.2 – Wetland Bed Preparation and Seed Mixture (per plan view acre).

10) What will be the newly established deadline for technical questions?

Answer: This date will be posted on wvOasis.

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11) What is the definition of the confinement layer and separation layer on sheet 33?

Answer: Those layers are parts of the GCL trapezoidal ditch detail. See Construction Specifications sub-section 7.2.5 - Separation and Confinement layers of the channels shall be in accordance with the GCL manufacturer’s recommendations and as shown on the detail drawings.

12) What Bid Item corresponds to Clean Out stone?

Answer: The interpretation of the question is that it is a reference to the future maintenance of the Limestone Bed. The Limestone Bed AASHTO #4 layer will be mixed during future maintenance procedures to loosen the deposits on the limestone and “Clean Out Stone” is not an actual bid item, although referencing the Limestone Bed Section and Liner System Detail on Page 37 of the Plan Sheets. The layers of the Limestone Bed are paid for under Items 7.4, 7.31 and 7.33.

Vendor Submitted Questions:

1) In reference to bid item number 24 AASHTO #57 1,200.00 Tons and bit item number 25 AASHTO #4 7,500.00 Tons both products per specification must have a calcium carbonate equivalency of 90% or greater. In conversation with Greer Limestone neither products are available that meet that spec. they may be able to supply #57 and #4 say maybe in the 85% range. The question is can we use the best available Limestone from Greer Lime / Germany Valley Plant or can the Designer provide the producer that they used in the BASIS OF DESIGN for the treatment system design.

Answer: The details of the stone layers and material requirements for the limestone bed have been changed in Revision #1, which address this question. Please refer to Revision #1 Construction Plans and Specifications provided herewith. As part of Revision #1, the minimum Calcium Carbonate Equivalents (CCE) have been changed as follows; the AASHTO #4 stone will require an 85% CCE, the AASHTO #1 & AASHTO #57 stone will require a 75% CCE. The CCE’s shall be considered as to be equal to or greater than the specified minimums.

2) There is no unclassified excavation bid item for the earthwork (slip repair). Does the WVDEP have an estimated quantity?

Answer: Excavation, stockpiling, drying and placement of material back in the slip area is incidental to Item 7.20 Slip Repair Bench Drain. Any excess soil shall be stockpiled and used as soil cover if suitable to the WVDEP.

3) If a bid item isn’t created for unclassified excavation. What bid item should the contractor place the labor & equipment to perform this work?

Answer: Unclassified Excavation is incidental to the items relative to the work in those areas

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4) Can the WVDEP provide a detail for backfill on the 8” SDR35 solid?

Answer: Section 7.3 of the specifications has been edited to provide backfill requirements for all pipe.

5) What bid item should the contractor place the labor & equipment to perform the earthwork quantities listed on sheet 9 (AMD Treatment plan Earthwork Quantities)?

Answer: Excavation and placement of material in this area is incidental to Item. 4.2 Existing AMD Treatment System Removal.

6) Sheet 34 pipe anchor detail. The detail shows a different hatching under the pipe? Does the WVDEP want the pipe to be encased in concrete or have bedding?

Answer: The detail as shown on Sheet 34 have been revised as part of Revision 1. The pipe anchor will be concrete.

7) Is the AASHTO #1 backfill on the 42” pipe incidental to the pipe or will it be paid by the ton under the AASHTO #1 bid item?

Answer: No longer applicable.

8) The bid quantities have 9 cleanout but on Sheet 12 of the plans I only locate 8 cleanouts.

Where is the 9th cleanout?

Answer: The 9th Cleanout is associated with the Wetland Dewatering Pipe, please see sheet 15 for details. Note, the cleanouts associated with “Seep Collector D” are incidental to and included in Item. 7.18 SEEP COLLECTOR WITH PIPES.

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Comments:

1) This project is funded with 2022 IIJA BIL funding, so the additional requirements that would normally be present with BIL funding will apply, including but not limited to; BABA, Davis-Bacon, and certified payroll. Certified Payroll forms and Instructions have been attached here. Davis-Bacon wage rate information is attached and can be found at the following website https://sam.gov/wage-determination/WV20240061/5

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Please note that this project will be subject to BABA (Build America, Buy America) Federal Requirements. This may have an impact on your bid – please carefully read the below:

Recipients of an award of Federal financial assistance are hereby notified that none of the funds provided under this award may be used for a project for infrastructure unless:

1. all iron and steel used in the project are produced in the United States--this means all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States;

2. all manufactured products used in the project are produced in the United States—this means the manufactured product was manufactured in the United States; and the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation; and

3. all construction materials are manufactured in the United States—this means that all manufacturing processes for the construction material occurred in the United States.

The Buy America preference only applies to articles, materials, and supplies that are consumed in, incorporated into, or affixed to an infrastructure project. As such, it does not apply to tools, equipment, and supplies, such as temporary scaffolding, brought to the construction site and removed at or before the completion of the infrastructure project. Nor does a Buy America preference apply to equipment and furnishings, such as movable chairs, desks, and portable computer equipment, that are used at or within the finished infrastructure project but are not an integral part of the structure or permanently affixed to the infrastructure project.

For further information on the Buy America preference, please visit www.doi.gov/grants/BuyAmerica . Additional information can also be found at the White House Made in America Office website: www.whitehouse.gov/omb/management/made-in-america .

Waivers

When necessary, recipients may apply for, and the Department of the Interior (DOI) may grant, a waiver from these requirements, subject to review by the Made in America Office. The DOI may waive the application of the domestic content procurement preference in any case in which it is determined that one of the below circumstances applies:

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1. Non-availability Waiver: the types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality;

2. Unreasonable Cost Waiver: the inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent; or

3. Public Interest Waiver: applying the domestic content procurement preference would be inconsistent with the public interest.

There may be instances where an award qualifies, in whole or in part, for an existing DOI general applicability waiver as described at:

www.doi.gov/grants/BuyAmerica/GeneralApplicabilityWaivers.

If the specific financial assistance agreement, infrastructure project, or non-domestic materials meets the criteria of an existing general applicability waiver within the limitations defined within the waiver, the recipient is not required to request a separate waiver for non-domestic materials. If a general applicability waiver does not already apply, and a recipient believes that one of the above circumstances applies to an award, a request to waive the application of the domestic content procurement preference may be submitted to the financial assistance awarding officer in writing. Waiver requests shall include the below information.

The waiver shall not include any Privacy Act information, sensitive data, or proprietary information within their waiver request. Waiver requests will be posted to www.doi.gov/grants/buyamerica and are subject to public comment periods of no less than 15 days. Waiver requests will also be reviewed by the Made in America Office.

1. Type of waiver requested (non-availability, unreasonable cost, or public interest).

2. Requesting entity and Unique Entity Identifier (UEI) submitting the request.

3. Department of Interior Bureau or Office who issued the award.

4. Federal financial assistance listing name and number (reference block 2 on DOI

Notice of Award).

5. Financial assistance title of project (reference block 8 on DOI Notice of Award).

6. Federal Award Identification Number (FAIN).

7. Federal funding amount (reference block 11.m. on DOI Notice of Award).

8. Total cost of Infrastructure expenditures (includes federal and non-federal funds to the extent known).

9. Infrastructure project description(s) and location(s) (to the extent known).

10. List of iron or steel item(s), manufactured goods, and construction material(s) the recipient seeks to waive from Buy America requirements. Include the name, cost, countries of origin (if known), and relevant PSC or NAICS code for each.

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11. A certification that the recipient made a good faith effort to solicit bids for domestic products supported by terms included in requests for proposals, contracts, and nonproprietary communications with the prime contractor.

12. A statement of waiver justification, including a description of efforts made (e.g., market research, industry outreach) by the recipient, in an attempt to avoid the need for a waiver. Such a justification may cite, if applicable, the absence of any Buy America-compliant bids received in response to a solicitation.

13. Anticipated impact if no waiver is issued.

Approved waivers will be posted at www.doi.gov/grants/BuyAmerica/ApprovedWaivers :, recipients requesting a waiver will be notified of their waiver request determination by an awarding officer. Questions pertaining to waivers should be directed to the financial assistance awarding officer.

Definitions

1. "Construction materials" includes an article, material, or supply that is or consists primarily of:

2. non-ferrous metals; plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables);

3. glass (including optic glass);

4. lumber; or

5. drywall.

"Construction Materials" does not include cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives.

"Domestic content procurement preference" means all iron and steel used in the project are produced in the United States; the manufactured products used in the project are produced in the United States; or the construction materials used in the project are produced in the United States.

"Infrastructure" includes, at a minimum, the structures, facilities, and equipment for, in the United States, roads, highways, and bridges; public transportation; dams, ports, harbors, and other maritime facilities; intercity passenger and freight railroads; freight and intermodal facilities; airports; water systems, including drinking water and wastewater systems; electrical transmission facilities and systems; utilities; broadband infrastructure; and buildings and real property. Infrastructure includes facilities that generate, transport, and distribute energy.

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"Project" means the construction, alteration, maintenance, or repair of infrastructure in the United States.

The Contractor acknowledges to and for the benefit of the West Virginia Department of Environmental Protection (WVDEP) and the Office of Surface Mining Reclamation & Enforcement (OSMRE) that it understands the goods and services under this Agreement are being funded with federal monies and have statutory requirements commonly known as “Build America, Buy America;” that requires all of the iron and steel, manufactured products, and construction materials used in the project to be produced in the United States (“Build America, Buy America Requirements”) including iron and steel, manufactured products, and construction materials provided by the Contactor pursuant to this Agreement.

The Contractor hereby represents and warrants to and for the benefit of the WVDEP and OSMRE (a) the Contractor has reviewed and understands the Build America, Buy America Requirements, (b) all of the iron and steel, manufactured products, and construction materials used in the project will be and/or have been produced in the United States in a manner that complies with the Build America, Buy America Requirements, unless a waiver of the requirements is approved, and (c) the Contractor will provide any further verified information, certification or assurance of compliance with this paragraph, or information necessary to support a waiver of the Build America, Buy America Requirements, as may be requested by the WVDEP or OSMRE. Notwithstanding any other provision of this Agreement, any failure to comply with this paragraph by the Contractor shall permit the WVDEP or OSMRE to recover as damages against the Contractor any loss, expense, or cost (including without limitation attorney’s fees) incurred by the WVDEP or OSMRE resulting from any such failure (including without limitation any impairment or loss of funding, whether in whole or in part, from the OSMRE or any damages owed to the OSMRE by the WVDEP). If the Contractor has no direct contractual privity with the OSMRE, as a lender or awardee to the WVDEP for the funding of its project, the WVDEP and the Contractor agree that the OSMRE is a third-party beneficiary and neither this paragraph (nor any other provision of this Agreement necessary to give this paragraph force or effect) shall be amended or waived without the prior written consent of the OSMRE.

*Please note that this project will be subject to Davis-Bacon Federal wage rates and payroll requirements. This may have an impact on your bid – please carefully read the following:

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DBRA Requirements for Contractors and Subcontractors Under EPA Grants

The contractor acknowledges that by entering into this contract with a contracting agency, funded by an

Environmental Protection Agency assistance agreement (grant), the contractor agrees to comply with the following terms and conditions in accordance with 29 CFR 5.5, if this contract is for activities covered under Davis-Bacon and Related Acts (DBRA) and exceeds (or will exceed) $2,000. Definitions for many of the terms used below are provided in 29 CFR 5.2.

For the purposes of this clause, non-Federal entities that enter into contracts with contractors are considered “contracting agencies”. Contracting agencies may be EPA grant recipients and/or subrecipients at any tier (including borrowers). “Contracting officers” work for contracting agencies.

(a) Required Contract Clauses

(1) Minimum Wages

(i) Wage rates and fringe benefits

All laborers and mechanics employed or working upon the site of the work (or otherwise working in construction or development of the project under a development statute), 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 basic hourly wages and bona fide fringe benefits (or cash equivalents thereof) due at time 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.

As provided in paragraphs (d) and (e) of this section, the appropriate wage determinations are effective by operation of law even if they have not been attached to the contract.

Contributions made or costs reasonably anticipated for bona fide fringe benefits under the Davis-Bacon

Act (40 U.S.C. 3141(2)(B)) on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (a)(1)(v) of this section; 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 must be paid the appropriate wage rate

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Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classifications and wage rates conformed under paragraph

(a)(1)(iii) of this section) and the Davis-Bacon poster (WH–1321) must be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers.

(ii) Frequently recurring classifications

(A) In addition to wage and fringe benefit rates that have been determined to be prevailing under the procedures set forth in 29 CFR Part 1, a wage determination may contain, pursuant to § 1.3(f), wage and fringe benefit rates for classifications of laborers and mechanics for which conformance requests are regularly submitted pursuant to paragraph (a)(1)(iii) of this section, provided that:

( 1) The work performed by the classification is not performed by a classification in the wage determination for which a prevailing wage rate has been determined;

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

( 3) The wage rate for the classification bears a reasonable relationship to the prevailing wage rates contained in the wage determination.

(B) The Administrator will establish wage rates for such classifications in accordance with paragraph

(a)(1)(iii)(A)( 3) of this section. Work performed in such a classification must be paid at no less than the wage and fringe benefit rate listed on the wage determination for such classification.

(iii) Conformance

(A) The contracting officer must require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract be classified in conformance with the wage determination. Conformance of an additional classification and wage rate and fringe benefits is appropriate 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 used in the area by the construction industry; and

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

(B) The conformance process may not be used to split, subdivide, or otherwise avoid application of classifications listed in the wage determination.

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(C) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken will be sent by the contracting officer by email to DBAconformance@dol.gov. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30–day period that additional time is necessary.

(D) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer will, by email to DBAconformance@dol.gov, refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the

Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30–day period that additional time is necessary.

(E) The contracting officer must promptly notify the contractor of the action taken by the Wage and

Hour Division under paragraphs (a)(1)(iii)(C) and (D) of this section. The contractor must furnish a written copy of such determination to each affected worker, or it must be posted as a part of the wage determination. The wage rate (including fringe benefits where appropriate) determined pursuant to paragraph (a)(1)(iii)(C) or (D) of this section must be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.

(iv) Fringe benefits not expressed as an hourly rate

Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor may either pay the benefit as stated in the wage determination or may pay another bona fide fringe benefit or an hourly cash equivalent thereof.

(v) Unfunded plans

If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, in accordance with the criteria set forth in § 5.28, 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.

(vi) Interest

In the event of a failure to pay all or part of the wages required by the contract, the contractor will be required to pay interest on any underpayment of wages.

(2) Withholding

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(i) Withholding requirements

The EPA, grant recipient, subrecipient at any tier, and/or contracting agency may, upon its own action, or must, upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor so much of the accrued payments or advances as may be considered necessary to satisfy the liabilities of the prime contractor or any subcontractor for the full amount of wages and monetary relief, including interest, required by the clauses set forth in paragraph

(a) of this section for violations of this contract, or to satisfy any such liabilities required by any other

Federal contract, or federally assisted contract subject to Davis-Bacon labor standards, that is held by the same prime contractor (as defined in § 5.2).

The necessary funds may be withheld from the contractor under this contract, any other Federal contract with the same prime contractor, or any other federally assisted contract that is subject to

Davis-Bacon labor standards requirements and is held by the same prime contractor, regardless of whether the other contract was awarded or assisted by the same agency, and such funds may be used to satisfy the contractor liability for which the funds were withheld.

In the event of a contractor's failure to pay any laborer or mechanic, including any apprentice or helper working on the site of the work (or otherwise working in construction or development of the project under a development statute) all or part of the wages required by the contract, or upon the contractor's failure to submit the required records as discussed in paragraph (a)(3)(iv) of this section, the EPA, grant recipient, subrecipient at any tier, and/or contracting agency may on its own initiative and after written notice to the contractor, sponsor, applicant, owner, or other entity, as the case may be, 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.

(ii) Priority to withheld funds

The Department has priority to funds withheld or to be withheld in accordance with paragraph (a)(2)(i) or (b)(3)(i) of this section, or both, over claims to those funds by:

(A) A contractor's surety(ies), including without limitation performance bond sureties and payment bond sureties;

(B) A contracting agency for its reprocurement costs;

(C) A trustee(s) (either a court-appointed trustee or a U.S. trustee, or both) in bankruptcy of a contractor, or a contractor's bankruptcy estate;

(D) A contractor's assignee(s);

(E) A contractor's successor(s); or

(F) A claim asserted under the Prompt Payment Act, 31 U.S.C. 3901–3907.

(3) Records and certified payrolls

(i) Basic record requirements

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(A) Length of record retention

All regular payrolls and other basic records must be maintained by the contractor and any subcontractor during the course of the work and preserved for all laborers and mechanics working at the site of the work

(or otherwise working in construction or development of the project under a development statute) for a period of at least 3 years after all the work on the prime contract is completed.

(B) Information required

Such records must contain the name; Social Security number; last known address, telephone number, and email address of each such worker; each worker's correct classification(s) of work actually performed;

hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in 40 U.S.C. 3141(2)(B) of the Davis-Bacon

Act); daily and weekly number of hours actually worked in total and on each covered contract; deductions made; and actual wages paid.

(C) Additional records relating to fringe benefits

Whenever the Secretary of Labor has found under paragraph (a)(1)(v) of this section 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 40 U.S.C. 3141(2)(B) of the Davis-Bacon Act, the contractor must maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been 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.

(D) Additional records relating to apprenticeship. Contractors with apprentices working under approved programs must maintain written evidence of the registration of apprenticeship programs, the registration of the apprentices, and the ratios and wage rates prescribed in the applicable programs.

(ii) Certified payroll requirements

(A) Frequency and method of submission

The contractor or subcontractor must submit weekly, for each week in which any DBA- or Related Acts-covered work is performed, certified payrolls to the contracting agency if the agency is a party to the contract, but if the agency is not such a party, the contractor will submit the certified payrolls to the applicant, sponsor, owner, or other entity, as the case may be, that maintains such records, for transmission to the contracting agency. The prime contractor is responsible for the submission of all certified payrolls by all subcontractors. A contracting agency or prime contractor may permit or require contractors to submit certified payrolls through an electronic system, as long as the electronic system requires a legally valid electronic signature; the system allows the contractor, the contracting agency, and the Department of Labor to access the certified payrolls upon request for at least 3 years after the work on the prime contract has been completed; and the contracting agency or prime contractor permits other methods of submission in situations where the contractor is unable or limited in its ability to use or access the electronic system.

(B) Information required

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The certified payrolls submitted must set out accurately and completely all of the information required to be maintained under paragraph (a)(3)(i)(B) of this section, except that full Social Security numbers and last known addresses, telephone numbers, and email addresses must not be included on weekly transmittals.

Instead, the certified payrolls need only include an individually identifying number for each worker ( e.g., the last four digits of the worker's Social Security number). The required weekly certified payroll information may be submitted using Optional Form WH–347 or in any other format desired. Optional

Form WH–347 is available for this purpose from the Wage and Hour Division website at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/wh347/.pdf or its successor website. It is not a violation of this section for a prime contractor to require a subcontractor to provide full Social Security numbers and last known addresses, telephone numbers, and email addresses to the prime contractor for its own records, without weekly submission by the subcontractor to the sponsoring government agency

(or the applicant, sponsor, owner, or other entity, as the case may be, that maintains such records).

(C) Statement of Compliance

Each certified payroll submitted must be accompanied by a “Statement of Compliance,” signed by the contractor or subcontractor, or the contractor's or subcontractor's agent who pays or supervises the payment of the persons working on the contract, and must certify the following:

( 1) That the certified payroll for the payroll period contains the information required to be provided under paragraph (a)(3)(ii) of this section, the appropriate information and basic records are being maintained under paragraph (a)(3)(i) of this section, and such information and records are correct and complete;

( 2) That each laborer or mechanic (including each helper and apprentice) working 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 from the full wages earned, other than permissible deductions as set forth in 29 CFR part 3; and

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

(D) Use of Optional Form WH–347

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

WH–347 will satisfy the requirement for submission of the “Statement of Compliance” required by paragraph (a)(3)(ii)(C) of this section.

(E) Signature

The signature by the contractor, subcontractor, or the contractor's or subcontractor's agent must be an original handwritten signature or a legally valid electronic signature.

(F) Falsification

The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under 18 U.S.C. 1001 and 31 U.S.C. 3729.

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(G) Length of certified payroll retention

The contractor or subcontractor must preserve all certified payrolls during the course of the work and for a period of 3 years after all the work on the prime contract is completed.

Contracts, subcontracts, and related documents

The contractor or subcontractor must maintain this contract or subcontract and related documents including, without limitation, bids, proposals, amendments, modifications, and extensions. The contractor or subcontractor must preserve these contracts, subcontracts, and related documents during the course of the work and for a period of 3 years after all the work on the prime contract is completed.

(iii) Required disclosures and access

(A) Required record disclosures and access to workers

The contractor or subcontractor must make the records required under paragraphs (a)(3)(i) through (iii) of this section, and any other documents that the EPA, recipient, or subrecipient at any tier, and/or contracting agency, or the Department of Labor deems necessary to determine compliance with the labor standards provisions of any of the applicable statutes referenced by § 5.1, available for inspection, copying, or transcription by authorized representatives of the EPA, recipient, or subrecipient at any tier, and/or contracting agency, or the Department of Labor, and must permit such representatives to interview workers during working hours on the job.

(B) Sanctions for non-compliance with records and worker access requirements

If the contractor or subcontractor fails to submit the required records or to make them available, or refuses to permit worker interviews during working hours on the job, the Federal agency may, after written notice to the contractor, sponsor, applicant, owner, or other entity, as the case may be, that maintains such records or that employs such workers, 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, or to permit worker interviews during working hours on the job, may be grounds for debarment action pursuant to § 5.12. In addition, any contractor or other person that fails to submit the required records or make those records available to WHD within the time

WHD requests that the records be produced will be precluded from introducing as evidence in an administrative proceeding under 29 CFR part 6 any of the required records that were not provided or made available to WHD. WHD will take into consideration a reasonable request from the contractor or person for an extension of the time for submission of records. WHD will determine the reasonableness of the request and may consider, among other things, the location of the records and the volume of production.

(C) Required information disclosures

Contractors and subcontractors must maintain the full Social Security number and last known address, telephone number, and email address of each covered worker, and must provide them upon request to the

Environmental Protection Agency if the agency is a party to the contract, or to the Wage and Hour

Division of the Department of Labor. If the Federal agency is not such a party to the contract, the contractor, subcontractor, or both, must, upon request, provide the full Social Security number and last

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Division of the Department of Labor for purposes of an investigation or other compliance action.

(4) Apprentices and Equal Employment Opportunity

(i) Apprentices

(A) Rate of pay

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

Apprenticeship (OA), or with a State Apprenticeship Agency recognized by the OA. A person who is not individually registered in the program, but who has been certified by the OA or a State Apprenticeship

Agency (where appropriate) to be eligible for probationary employment as an apprentice, will be permitted to work at less than the predetermined rate for the work they perform in the first 90 days of probationary employment as an apprentice in such a program. In the event the OA or a State

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

(B) Fringe benefits

Apprentices must be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the

Administrator determines that a different practice prevails for the applicable apprentice classification, fringe benefits must be paid in accordance with that determination.

(C) Apprenticeship ratio

The allowable ratio of apprentices to journey workers on the job site in any craft classification must not be greater than the ratio permitted to the contractor as to the entire work force under the registered program or the ratio applicable to the locality of the project pursuant to paragraph (a)(4)(i)(D) of this section. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated in paragraph (a)(4)(i)(A) of this section, must 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 this section must be paid not less than the applicable wage rate on the wage determination for the work actually performed.

(D) Reciprocity of ratios and wage rates

Where a contractor is performing construction on a project in a locality other than the locality in which its program is registered, the ratios and wage rates (expressed in percentages of the journey worker’s

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Kempton Refuse Rehabilitation – Addendum #3 Page 20 of 28 hourly rate) applicable within the locality in which the construction is being performed must be observed. If there is no applicable ratio or wage rate for the locality of the project, the ratio and wage rate specified in the contractor's registered program must be observed.

(ii) Equal employment opportunity

The use of apprentices and journey workers under this part must be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30.

(5) is reserved

(6) Subcontracts

The contractor or subcontractor must insert in any subcontracts the clauses contained in paragraphs (a)(1) through (11) of this section or a link to the DBRA Requirements for Contractors and Subcontractors

Under EPA Grants document on EPA’s Contract Provisions for Davis-Bacon and Related Acts webpage, along with the applicable wage determination(s) and such other clauses or contract modifications as the Environmental Protection Agency may by appropriate instructions require, and a clause requiring the subcontractors to include these clauses and wage determination(s) in any lower tier subcontracts. The prime contractor is responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in this section. In the event of any violations of these clauses, the prime contractor and any subcontractor(s) responsible will be liable for any unpaid wages and monetary relief, including interest from the date of the underpayment or loss, due to any workers of lower-tier subcontractors, and may be subject to debarment, as appropriate.

(7) – (9) are reserved

(10) Certification of Eligibility

(i) By entering into this contract, the contractor certifies that neither it nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of 40 U.S.C. 3144(b) or § 5.12(a).

(ii) No part of this contract shall be subcontracted to any person or firm…