S-0003- B-L.doc

AG-82B1-S-10-0003

SECTION B - SUPPLIES OR SERVICES AND PRICES/COST

GRAVEL CRUSHING & STOCKPILING

Darby & Sula Ranger Districts Bitterroot National Forest

Ravalli County, Montana

B-1 – SCHEDULE OF ITEMS

LOST HORSE (ITEM #1)

ITEM

ESTIMATED

PAY UNIT

ITEM NO.

DESCRIPTION

MM*

QUANTITY

UNIT

PRICE

AMOUNT

15101

Mobilization**

LSQ

1.0

LS $_________ $___________

32001 Stockpiled Aggregate, AQ

9,000

CY $_________ $___________

Type Surfacing, Grading F-SR Government designated material source TOTAL AMOUNT QUOTED $___________

HOG TROUGH PIT (ITEM # 2)

ITEM ESTIMATED PAY UNIT

ITEM NO DESCRIPTION MM* QUANTITY UNIT PRICE AMOUNT

15102 Mobilization** LSQ 1.0 LS $_________ $___________ 32002 Stockpiled Aggregate AQ 3,000 CY $________ $___________ Type Surfacing

Grading F-SR or

FS-R with bentonite

TOTAL AMOUNT QUOTED $__________

TEPEE PIT (ITEM # 3)

ITEM ESTIMATED PAY UNIT

ITEM NO DESCRIPTION MM* QUANTITY UNIT PRICE AMOUNT

15103 Mobilization ** LSQ 1.0 LS $________ $__________

32003 Stockpiled Aggregate AQ 13,500 CY $________ $__________

Type Surfacing

Grading F-SR or

FS-R with bentonite TOTAL AMOUNT QUOTED (Items 1-3) $____________

(Bidder does not have to bid on all 3 items) *Designated Method of Measurement:

AQ – Actual Quantities; LSQ – Lump Sum Quantities

**To Help prevent the spread of weeds, this work will require the Contractor to wash its equipment when specified by the COR. The equipment shall be washed with a pressure washer capable of producing enough water pressure to remove all mineral and organic material from the machine. Before the equipment is moved to the job site, it will be inspected and approved in writing by the COR. This work is included in 15101 Mobilization.

NOTE : The quoter must quote both items 15101 & 32001 in each of the ITEMS 1 -3 that the quoter bids on.

Quoter may bid on all or any combination thereof of the 3 ITEMS. Only quotes to the nearest cent will be accepted.

B-2 – AWARD DETERMINATION - AWARD WILL BE MADE BY ITEM; MULTIPLE AWARDS MAY BE MADE. Offers will not be accepted for quantities less than those specified for each item and must be submitted for the total item.

B-3 - INCIDENTAL PAYMENT ITEMS. The intent of the contract is to provide for the completion of the project described in the contract. Unless otherwise provided, the Contractor shall furnish all labor, materials, equipment, tools, transportation, and supplies and perform all work required to complete the project in accordance with drawings, specifications, and provisions of the contract. Payment for contract work will be made only for and under those pay sub-items included in the Schedule of Items. All other work and materials will be considered as incidental to and included in the payment for items shown.

SECTION C- DESCRIPITON/SPECIFICATIONS/STATEMENT OF WORK

General Specifications C-1 Scope of Contract The intent of this contract is to produce a predetermined quantity of crushed aggregate from a designated existing government pit and two private pits. Locations of the two private pits shall be the responsibility of the contractor.

This contract is for an end product of three separate stockpiles of crushed aggregate. Quality control of all work performed to provide the end product is the Contractor’s responsibility. The Government will inspect the work periodically to ensure quality is being met. Measurement of final stockpiled quantity for payment will be by the Forest Service surveying the completed stockpile, unless otherwise agreed to by the Contracting Officer in writing.

Requirements for the government pit (Lost Horse, Item #1) are as follows. Contractor shall clear the site, maintain roads and project area and reclaim the site as outlined in the specifications. The source of material to be crushed is a Government owned pit on Forest Service land. The crushed aggregate shall be stockpiled ¾ mile from the pit, also on Forest Service land.

Pit Development. The oversize boulders visible in the pit are indicative of material that may be encountered and need to be handled while excavating enough pit run to produce 9,000 cubic yards of crushed aggregate in a finished stockpile. The previous crushing operation experienced approximately 30% material to be oversize. The contractor shall provide an on-site jaw crusher to increase the percent of material that could be made into finished product. The crusher shall be set up in the pit and not at the stockpile site due to the proximate location to private residences.

Requirements for the two private pits (stockpiles at Hog Trough and Teepee Pits, Items 2 and 3) are as follows. The contractor shall be responsible for the location, development of pits and producing the specified quantities, on private land for the Hog Trough and Tepee Pit stockpile sites. All permits and other incidentals necessary for the development and reclamation of the pits on private land shall be the responsibility of the Contractor. The quantity to be crushed and stockpiled in the Hog Trough Pit is 3,000 cubic yards and the quantity to be crushed and stockpiled in the Tepee Pit is 13,500 cubic yards.

This work is being solicited as a performance based service contract. Performance based means the Contractor is responsible for the end product. If an end product is not provided in compliance with the contract specifications, an adjustment to the payment will be made.

C-2 Location and Description The directions to the location for the stockpile pits are as follows:

Government stockpile pit: approx. 6.5 miles north of Darby, on US 93 turn west onto Lost Horse Road. The National Forest boundary is at MP 3.5, just west of the Lost Horse Resort, in approx. 0.35 mile the stockpile site is on the south side of the road. Proceed another ½ mile and the quarry pit is accessed via Forest Road # 62969, on the north.

Hog Trough stockpile pit- from Skalakaho HWY 38 turn SE onto Forest Road # 75, approx. ¾ mile past Bear Creek Campground, stockpile site is on the east side of the road approx. 3 mi. up FR # 75.

Tepee stockpile pit site – Approx. 2 miles north of the Sula Ranger Station on US 93 turn NE onto East Fork Hwy. proceed approx. 10 miles to Forest Road # 5778 on left. Approx. 1 mile up the road take the right turn onto forest road #73574 for 0.3 miles. Pit entrance is on the left.

C-3 Site Visit No site visit is planned for this project. For further information, please contact Rich Raines at the Bitterroot National Forest Supervisors office, (406) 363-7178.

C-4 Government -Furnished Property Aggregate source at the Lost Horse Quarry Pit.

C-5 General Specifications: Standard Specifications for the Construction of Roads and Bridges on Federal Highway Projects, FP-03, U.S. Customary Units.

C-6 Technical Specifications: See Section J-2 Additions:

1. Sec. 106- All quality control and quantity measurements are the responsibility of the Contractor and are subsidiary to item 32001. No separate payment will be made.

2. Sec. 107- Do not work within 1000 feet of an occupied dwelling on any legal holiday between 5 p. m. Friday and 6 a.m. the following Monday.

Do not haul material or perform any work that closes a road to public travel between

5 p. m. Friday and 6 a. m. the following Monday.

No gravel crushing shall take place between 5 p. m. Friday and 6 a. m. the following Monday. No gravel crushing shall occur on a Federal Holiday.

The Government Pit will be closed to the general public during active operations. Access to rock climber’s trails will be available on both the east and west sides of the quarry.

3. Sec. 108- Do not haul material or perform work that closes a road to public travel during the General Big game Season.

No parking will be allowed on the Lost Horse Road # 429 roadway due to safety concerns.

4. Sec. 151 – Remove all mud, dirt and plant parts from all equipment, i.e. excavator/loader, dozer, before moving into any project area. Cleaning must occur off National Forest lands. This does not apply to service vehicles that will stay on the roadways, traveling frequently in and out of the project areas.

5. Sec. 156 – Signing during operations shall be as follows;

A 48” x 48” TRUCKS HAULING sign shall be placed as follows: Lost Horse Rd # 429 -200 feet west of quarry Rd. # 62969 and 200 feet east of the stockpile site.

Hog Trough Stockpile Site - Skalakaho-Rye RD. # 75, at the junction with Hwy 38 and 500 feet south of the stockpile site.

Tepee Stockpile Site- Paint Cr. RD. # 5778, at the junction with the East Fork Hwy. and 200 feet past the junction with road #73574.

Note: Signs are required at any site only when hauling is taking place.

Lost Horse Pit - One American Recovery and Reinvestment Act sign, per specifications included in this contract shall be procured and posted at the junction of Rd. #429 and the pit access road while work is in progress. This sign shall be the size for slow moving traffic (42” x 27” overall dimensions.

All signs shall conform to MUTCD standards.

6. Sec. 156- Lost Horse RD # 429, Skalakaho-Rye RD # 75 and Paint CR. RD. # 5778 shall remain open to public travel during Contractors operations. The spur roads into the Lost Horse Pit and stockpile, and road 73574 into the teepee Pit may be closed during crushing and hauling.

7. Sec. 156 – Contractor is responsible for public safety of vehicles driving open roads while trucks are hauling. Contractor may use flaggers and or pilot cars if necessary. No separate payment shall be made and any costs associated shall be incidental to items 32001, 32002, and 32003.

8. Sec.158 - Temporary dust abatement shall be provided as needed for safety visibility during hauling and shall be subsidiary to Item 320 and no separate payment will be made.

9. Sec. 158 – Teepee Pit – The first ½ mile of Road #5778, from the East Fork Highway shall be kept moist enough to be free of visible dust from vehicles during hauling.

10. Sec. 201- Lost Horse Pit - Retain all vegetation (shrubs, grass and trees) between the Lost Horse Road and the quarry to maximize screening. Clearing area boundaries will be flagged by the Forest Service.

11. Sec. 201 – Teepee Pit – Contractor may prune limbs from trees along road #73574. Removed limbs shall be scattered off the north side of the road. Saplings inside the pit may be removed if necessary and piled in an approved location. Saplings shall not be buried in the gravel stockpile.

12. Sec. 201 - Lost Horse Quarry - Any logs shall be decked per SPS 201 in locations approved by the COR .Brush saplings and limbs that are cleared shall be piled in locations approved by the COR.

13. Sec. 201 - Clearing is subsidiary to Item 320 and no separate payment will be made.

14. Sec. 320 – Contractor shall submit a water operation plan to the COR for approval prior to starting work. The cost of developing a water supply, hauling and applying water is subsidiary to Item 32001 and no separate payment will be made.

15. Sec. 320- Reclamation- Lost Horse Quarry, after crushing operations are completed any slopes that have been disturbed shall be left at a stable slope angle. An area defined by the Forest Service after operations will be graded smooth, with suitable drainage to serve as a parking area for recreationists. Oversize material that did not pass through the crusher or was screened out shall be neatly stockpiled on site in one or more locations approved by the C.O.R.

16. Sec. 320 – Lost Horse Quarry – Only gradation tests will be required, as this is a government designated material source. For Hog Trough and Teepee Pits all tests listed in Special Project Specifications 703.05 (b) Surface Course Aggregate are required. Testing frequency is described in Section 301, Table 301-1, in the FP-03 Standard Specifications for construction of Roads and Bridges on Federal Highway Projects.

C-7 Government Quality Assurance Quality assurance will be performed by the Forest Service during the contract at regular intervals. Methods may include but not limited to visual survey and review of Contractor quality control documents. Government may survey completed stockpiles to determine volume in cubic yards. Deductions for work may include rework at no cost to the Government or Government acceptance with a price reduction.

C-8 Contractor Quality Control The Contractor, and not the Government, is responsible for management and quality control actions to meet the terms of this contract. The role of the Government is quality assurance to ensure contract standards are met.

Records of quality inspections shall be kept and made available to the Government and throughout the performance period and for the period after contract completion until final settlement of any claims under this contract.

A description of the site specific quality control inspection plan shall be provided within 30 days after contract award or prior to start of work, whichever comes first. The plan shall include; (1) location of the inspection documents and (2) corrective or preventive actions that will be taken to meet quality standards.

SECTION D – PACKAGING AND MARKING LEFT BLANK

SECTION E- INSPECTION AND ACCEPTANCE

E-1 Far 52.252-2 Clauses Incorporated by Reference (FEB 1998)

This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this/these address (es): www.arnet.gov/far/ and the Agriculture Acquisition Regulation may be accessed at www.usda.gov/procurment/pol;icy/agar.html

FEDERAL ACQUISITION REGULATION REGULATION (48 CFR CHAPTER 1) CLAUSES

52.246-4 Inspection of Services – Fixed – Price (AUG 1996)

E-2 Quality Assurance Inspections

(a) The Government will perform periodic review of the Contractor’s Quality Control Procedures, plan, inspection reports and customer comments.

(b) Quality Assurance Inspections will be made by random sampling or entire inspection of the work and follow up of customer comments. When validating customer comments, the possible cause of unacceptable performance will be determined. If any Government action or lack of action was the cause, the complaint is not valid and deficiencies shall not be counted against the Contractor.

(c) Periodic means one (1) review, bi-weekly, but may be done more frequently if necessary.

(d) Work that does not meet the contract requirements will be brought to the Contractor’s attention. Respective or continuous failure to meet contract requirements may result in a quality adjustment to payment or the Contractor’s right to proceed may be terminated.

SECTION F- DELIVERIES OR PERFORMANCE

F-1 Far 52.252-2 Clauses Incorporated by Reference (FEB 1998)

This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text clause may be accessed electronically at this address www.arnet.gov/far/

FEDERAL ACQUISITION REGULATION (48 CFR CHAPTER 10 CLAUSES

52.242-14 Suspension of Work (APR 1984)

52.242-15 Stop Work Order (AUG 1989)

52.252-17 Government Delay of Work (APR 1984)

F-2 Performance Period Item No. Approximate Starting Date Contract Time (Calendar Days)

11/23/2009 all work to be completed by 10/01/2011

The Contractor shall maintain progress at a rate which will assure completion of work within the calendar time specified.

The Government may issue a notice to proceed as soon as weather and ground conditions are favorable for work. The count of contract time will start on the date specified on the Notice to Proceed.

SECTION G - CONTRACT ADMINISTRATION DATA LEFT BLANK

SECTION H - SPECIAL CONTRACT REQUIREMENTS

H. 1 PREWORK CONFERENCE

Prior to commencement of work, the Contractor shall attend a meeting to discuss the contract terms, work performance requirements, and safety. Also at this meeting such items as work progress schedule, quality control, camping/worksite plan, and fire prevention plans shall be finalized in writing.

H. 2. EMPLOYMENT OF ELIGIBLE WORKERS (FSAR 4G52.222-701) (DEC 1999)

Section 274A of the Immigration and Nationality Act (8 USC 1324a) makes it unlawful for an employer to hire unauthorized aliens. The Immigration and Naturalization Service (INS) has established the Form I-9, Employment Eligibility Verification Form, as the document to be used for employment eligibility verification (8 CFR 274a).

The Contractor is required to (1) have all employees complete and sign the I-9 Form to certify that they are eligible for employment; (2) examine documents presented by the employee and insure the documents appear to be genuine and related to the individual; (3) record information about the documents on the form, and complete the certification portion of the form; (4) retain the form for 3 years, or 1 year past the end of employment of the individual, whichever is longer.

It is illegal to discriminate against any individual (other than a citizen of another country who is not authorized to work in the United States) in hiring, discharging, or recruiting because of that individual's national origin or citizenship status.

Compliance with Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is a material condition of the contract. If the Contractor employs unauthorized workers during contract performance in violation of section 274A, the Government may terminate the contract, in addition to other remedies or penalties prescribed by law.

For further information on the requirements of the Act, Contractors should contact the Employer and Labor Relations Officer of their local INS office.

H. 3. LABOR STANDARDS FOR CONTRACTS INVOLVING MIGRANT AND SEASONAL AGRICULTURAL WORKERS (FSAR 4G52.222-702) (DEC 1999)

(a) General. This contract is subject to the Migrant and Seasonal Agricultural Workers Protection Act (MSPA) (29 U.S.C 1801-1872) and to Department of Labor regulations implementing MSPA (29 CFR 500). The purpose of MSPA is to eliminate activities that are detrimental to migrant and seasonal agricultural workers, to require registration of farm labor Contractors, and to insure necessary protections for the workers. In addition to traditional farm labor activities, the Act applies to predominately manual forestry work including, but not limited to, tree planting, release, pre-commercial thinning, site preparation, and wildland fire fighting.

(b) Definitions

"Migrant Agricultural Worker" and "Seasonal Agricultural Worker," as used in this clause, means individuals employed in agricultural (including forestry) work on a seasonal or temporary basis. A worker who moves from one seasonal activity to another is employed on a seasonal basis even though the worker may continue to be employed during a major portion of the year. Migrant workers are required to be absent overnight from their permanent place of residence. Seasonal workers are not required to be absent overnight from their permanent place of residence. Members of the Contractor's immediate family are not considered to be either migrant or seasonal workers. "Immediate family" includes only (1) spouse; (2) children, stepchildren, or foster children; (3) parents, stepparents, or foster parents; and (4) brothers and sisters.

"Farm Labor Contractor," as used in this clause, means an individual who, for any money or other valuable consideration, paid or promised to be paid, performs any recruiting, soliciting, hiring, employing, furnishing, or transporting of any migrant or seasonal agricultural worker.

(c) Registration Requirement. Any Contractor who provides or hires migrant or seasonal workers to perform agricultural or manual forestry work shall first obtain a Certificate of Registration from the Department of Labor or an authorized State agency. The Contractor shall carry the Certificate at all times while engaged in contract performance, and shall display it upon request. Any of the Contractor's employees who perform any one or more of the activities defined for a "Farm Labor Contractor" in paragraph (b) must have their own Farm Labor Contractor Employee Certificate.

(d) Worker Protections. The Contractor shall comply with the following protections and standards related to wage disclosure, record keeping, vehicle safety, and housing:

(1) The Contractor shall display and maintain at the place of employment the MSPA poster provided by the Department of Labor.

(2) Wage and Payroll Standards

(i) The Contractor shall disclose in writing to each worker in a language common to the worker the full terms of their employment, including workers’ compensation information, at the time they are recruited or hired. The Department of Labor provides an optional Form WH-516 for Contractor's use in disclosure.

(ii) The Contractor must keep the following payroll records for each employee: name, address, social security number, basis for wages (that is, per hour, per tree, per acre), number of units earned if paid on a per unit basis, hours worked, total pay, withholdings and purpose for each, and net pay. Payroll records shall be retained for 3 years.

(iii) Payments must be made no less frequently than every 2 weeks or semi-monthly. At the time of each payment, the Contractor shall provide to the employee a written itemization of the information listed in paragraph (ii) and shall include the employer's tax identification number.

(iv) If paid on a piece rate basis, the employee's wage must be at least equivalent to the required hourly wage for the hours worked, including overtime differential for time in excess of 40 hours per week.

(3) Motor Vehicle Safety

(i) The Contractor must be registered to transport employees, unless employees provide their own transportation or carpool by their own arrangement in one of their own vehicles. The authorization to transport employees must appear on the Contractor's certificate. If the Contractor directs or requests employees to carpool, the registration requirement is still applicable. Any driver who transports workers for a fee or at the direction of the Contractor must be registered as a farm labor Contractor or a farm labor Contractor employee.

(ii) Any vehicle under the ownership or control of the Contractor shall comply with safety standards applicable to that vehicle. Generally, passenger vehicles or station wagons must comply with Department of Labor regulations at 29 CFR 500.104. Vehicles other than passenger vehicles or station wagons which are driven more than 75 miles must comply with Department of Transportation Regulations at 29 CFR 500.105. All drivers must have a current, valid State driver’s license.

(iii) Each vehicle under the ownership or control of the Contractor that is used to transport any migrant or seasonal agricultural worker shall be covered by vehicle insurance of $100,000 per seat (maximum $5,000,000). A workers’ compensation policy that covers the workers while being transported plus an additional property damage policy for $50,000 for loss or damage in any one accident to the property of others may be substituted for the vehicle insurance requirement.

(4) Housing

(i) The Contractor shall house workers only in a commercial establishment or a facility that has been certified by a health authority or other appropriate agency. The Contractor must post the certificate of occupancy at the housing site.

(ii) The authorization to furnish housing, other than commercial lodging, must appear on the Contractor's certificate.

(iii) If the contractor is not furnishing worker housing:

Workers on this contract may obtain housing only in a residential accommodation, including a commercial establishment such as a hotel or motel, which meets all applicable state and federal standards for employee housing.

Within 10 days after award, and prior to the issuance of Notice to Proceed, the contractor must notify the Contracting Officer of the planned worker housing site.

If the housing site is located on a National Forest, the Contractor must obtain a permit from the District Ranger for the District on which the housing site is located and the facilities established for the workers must meet the applicable U.S. Department of Labor (USDOL) MSPA standards for such sites.

If the housing site is not located on a National Forest, the site must meet the applicable housing standards in MSPA.

If an exemption from the permit requirement is claimed, the contractor must provide a written statement identifying the law authorizing the exemption, stating the facts constituting an exemption under that law, and identifying a USDOL employee or official who stated or concurred that the accommodations were exempt, citing name, date, and means of communication.

If the housing site is changed after approval by the Contracting Officer, the contractor must provide a new Permit or exemption statement. The above requirements are material conditions of this contract. If the contractor fails to comply, the Government may terminate the contract. In addition, other remedies or penalties prescribed by law may apply.

Field Sanitation In accordance with US Department of Labor Fact Sheet No. ESA 97-28 “Field Sanitation Standards” (Ref. 29CFR 1928.110), employers must provide:

· Potable drinking water, suitably cool and in sufficient amounts, dispensed in single-use cups or by fountains, located so as to be readily accessible to employees.

· Facilities maintained in accordance with public health sanitation practices include upkeep of water quality through daily change or more often if necessary.

· Notification to each employee of the location of the water and allowance of reasonable opportunities during the workday to use them. The employer also must inform the employee of the relevant health hazards in the field and the practices necessary to minimize them.

Employees cannot be made to bear the costs incurred by the employer for providing required facilities.

(e) For further information on the requirements of the Act, Contractors should contact their local Wage and Hour Division of the Department of Labor.

H. 4 FSAR 4G52.222-703 Migrant and Seasonal Agricultural Worker Protection Act Registration (DEC 1999)

The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) (29 U.S.C. 1801-1872) and implementing regulations issued by the Department of Labor (29 CFR 500), require any employer who hires or anticipates hiring employees subject to MSPA to obtain an MSPA registration number.

If the contractor employs or anticipates hiring employees subject to MSPA, the contractor shall provide a valid U.S. Department of Labor MSPA Registration Number to the Contracting Officer within 10 days after notification of award of the contract.

The Government may demand that the contractor display MSPA registration at any time during contract performance if it appears that the contractor is employing workers subject to MSPA. On demand, the contractor shall display its MSPA registration or state why it is exempt from MSPA.

Compliance with MSPA is a material condition of the contract. If the contractor fails to provide a valid MSPA number in accordance with this clause, or falsely states that it is exempt from the MSPA, the Government may terminate the contract, in addition to other remedies or penalties prescribed by law.

H. 5

PERSONAL PROTECTIVE EQUIPMENT

1. The contractor will train in the safe operation and use of equipment to all workers using such equipment.

2. Personal protective equipment, including personal protective equipment for eyes, face, head, and extremities shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards or processes encountered in a manner capable of causing injury or impairment in the function of any part of the body.

3. Defective or damaged personal protective equipment shall not be used.

4. The contractor shall provide, at no cost to the employee, to each employee who operates a chain saw, chain saw chaps and assure the chaps are worn during saw operations. These chaps must be approved by Underwriters Laboratory or meet Forest Service specification 6170-47. The chaps shall cover the full length of the thigh to the top of the boot on each leg.

5. The contractor shall assure that each employee wears foot protection that provides adequate traction and ankle support. Employees operating chain saws shall wear foot protection that is constructed with cut-resistant material which will protect the employee against contact with a running chain saw.

6. The contractor shall provide, at no cost to the employee, and assure that each employee who works in an area where there is potential for head injury from falling objects or flying objects wears a hard hat that meets the minimum requirements of American National Standards Institute (ANSI) standard Z89.1-1997.

7. The contractor shall provide, at no cost to the employee, eye protection where there is potential for eye injury due to flying objects. This eye protection must meet the minimum requirements of ANSI standard Z87.1-2003.

The contractor shall provide, at no cost to the employee, hearing protection where there is a potential for hearing loss due to high intensity noise e.g., chain saw operation.

H-6 52.204-11 American Recovery and Reinvestment Act—Reporting Requirements.

American Recovery and Reinvestment Act—Reporting Requirements (Mar 2009)

(a) Definitions. As used in this clause—

“Contract”, as defined in FAR 2.101, means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise authorized, are in writing. In addition to bilateral instruments, contracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; and bilateral contract modifications. Contracts do not include grants and cooperative agreements covered by 31 U.S.C. 6301, et seq. For discussion of various types of contracts, see FAR Part 16.

“First-tier subcontract” means a subcontract awarded directly by a Federal Government prime contractor whose contract is funded by the Recovery Act.

“Jobs created” means an estimate of those new positions created and filled, or previously existing unfilled positions that are filled, as a result of funding by the American Recovery and Reinvestment Act of 2009 (Recovery Act). This definition covers only prime contractor positions established in the United States and outlying areas (see definition in FAR 2.101). The number shall be expressed as “full-time equivalent” (FTE), calculated cumulatively as all hours worked divided by the total number of hours in a full-time schedule, as defined by the contractor. For instance, two full-time employees and one part-time employee working half days would be reported as 2.5 FTE in each calendar quarter.

“Jobs retained” means an estimate of those previously existing filled positions that are retained as a result of funding by the American Recovery and Reinvestment Act of 2009 (Recovery Act). This definition covers only prime contractor positions established in the United States and outlying areas (see definition in FAR 2.101). The number shall be expressed as “full-time equivalent” (FTE), calculated cumulatively as all hours worked divided by the total number of hours in a full-time schedule, as defined by the contractor. For instance, two full-time employees and one part-time employee working half days would be reported as 2.5 FTE in each calendar quarter.

“Total compensation” means the cash and noncash dollar value earned by the executive during the contractor’s past fiscal year of the following (for more information see 17 CFR 229.402(c)(2)):

(1) Salary and bonus.

(2) Awards of stock, stock options, and stock appreciation rights. Use the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2004) (FAS 123R), Shared Based Payments.

(3) Earnings for services under non-equity incentive plans. Does not include group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of executives, and are available generally to all salaried employees.

(4) Change in pension value. This is the change in present value of defined benefit and actuarial pension plans.

(5) Above-market earnings on deferred compensation which is not tax-qualified.

(6) Other compensation. For example, severance, termination payments, value of life insurance paid on behalf of the employee, perquisites or property if the value for the executive exceeds $10,000.

(b) This contract requires the contractor to provide products and/or services that are funded under the American Recovery and Reinvestment Act of 2009 (Recovery Act). Section 1512(c) of the Recovery Act requires each contractor to report on its use of Recovery Act funds under this contract. These reports will be made available to the public.

(c) Reports from contractors for all work funded, in whole or in part, by the Recovery Act, and for which an invoice is submitted prior to June 30, 2009, are due no later than July 10, 2009. Thereafter, reports shall be submitted no later than the 10th day after the end of each calendar quarter.

(d) The Contractor shall report the following information, using the online reporting tool available at www.FederalReporting.gov.

(1) The Government contract and order number, as applicable.

(2) The amount of Recovery Act funds invoiced by the contractor for the reporting period. A cumulative amount from all the reports submitted for this action will be maintained by the government’s on-line reporting tool.

(3) A list of all significant services performed or supplies delivered, including construction, for which the contractor invoiced in this calendar quarter.

(4) Program or project title, if any.

(5) A description of the overall purpose and expected outcomes or results of the contract, including significant deliverables and, if appropriate, associated units of measure.

(6) An assessment of the contractor’s progress towards the completion of the overall purpose and expected outcomes or results of the contract (i.e., not started, less than 50 percent completed, completed 50 percent or more, or fully completed). This covers the contract (or portion thereof) funded by the Recovery Act.

(7) A narrative description of the employment impact of work funded by the Recovery Act. This narrative should be cumulative for each calendar quarter and only address the impact on the contractor’s workforce. At a minimum, the contractor shall provide—

(i) A brief description of the types of jobs created and jobs retained in the United States and outlying areas (see definition in FAR 2.101). This description may rely on job titles, broader labor categories, or the contractor’s existing practice for describing jobs as long as the terms used are widely understood and describe the general nature of the work; and

(ii) An estimate of the number of jobs created and jobs retained by the prime contractor, in the United States and outlying areas. A job cannot be reported as both created and retained.

(8) Names and total compensation of each of the five most highly compensated officers of the Contractor for the calendar year in which the contract is awarded if—

(i) In the Contractor’s preceding fiscal year, the Contractor received—

(A) 80 percent or more of its annual gross revenues from Federal contracts (and subcontracts), loans, grants (and subgrants) and cooperative agreements; and

(B) $25,000,000 or more in annual gross revenues from Federal contracts (and subcontracts), loans, grants (and subgrants) and cooperative agreements; and

(ii) The public does not have access to information about the compensation of the senior executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986.

(9) For subcontracts valued at less than $25,000 or any subcontracts awarded to an individual, or subcontracts awarded to a subcontractor that in the previous tax year had gross income under $300,000, the Contractor shall only report the aggregate number of such first tier subcontracts awarded in the quarter and their aggregate total dollar amount.

(10) For any first-tier subcontract funded in whole or in part under the Recovery Act, that is over $25,000 and not subject to reporting under paragraph 9, the contractor shall require the subcontractor to provide the information described in (i), (ix), (x), and (xi) below to the contractor for the purposes of the quarterly report. The contractor shall advise the subcontractor that the information will be made available to the public as required by section 1512 of the Recovery Act. The contractor shall provide detailed information on these first-tier subcontracts as follows:

(i) Unique identifier (DUNS Number) for the subcontractor receiving the award and for the subcontractor’s parent company, if the subcontractor has a parent company.

(ii) Name of the subcontractor.

(iii) Amount of the subcontract award.

(iv) Date of the subcontract award.

(v) The applicable North American Industry Classification System (NAICS) code.

(vi) Funding agency.

(vii) A description of the products or services (including construction) being provided under the subcontract, including the overall purpose and expected outcomes or results of the subcontract.

(viii) Subcontract number (the contract number assigned by the prime contractor).

(ix) Subcontractor’s physical address including street address, city, state, and country. Also include the nine-digit zip code and congressional district if applicable.

(x) Subcontract primary performance location including street address, city, state, and country. Also include the nine-digit zip code and congressional district if applicable.

(xi) Names and total compensation of each of the subcontractor’s five most highly compensated officers, for the calendar year in which the subcontract is awarded if—

(A) In the subcontractor’s preceding fiscal year, the subcontractor received—

(1) 80 percent or more of its annual gross revenues in Federal contracts (and subcontracts), loans, grants (and subgrants), and cooperative agreements; and

(2) $25,000,000 or more in annual gross revenues from Federal contracts (and subcontracts), loans, grants (and subgrants), and cooperative agreements; and

(B) The public does not have access to information about the compensation of the senior executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986.

h. 7 Whistleblower Protections Under The American Recovery And Reinvestment Act of 2009 (Mar 2009)

(a) The Contractor shall post notice of employees rights and remedies for whistleblower protections provided under section 1553 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5).

(a) The Contractor shall include the substance of this clause including this paragraph (b) in all subcontracts.

(End of Clause)

H. 8. SEC. 1553. PROTECTING STATE AND LOCAL GOVERNMENT AND CONTRACTOR

WHISTLEBLOWERS.

(a) PROHIBITION OF REPRISALS.—An employee of any non-Federal employer receiving covered funds may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing, including a disclosure made in the ordinary course of an employee’s duties, to the Board, an inspector general, the Comptroller General, a member of Congress, a State or Federal regulatory or law enforcement agency, a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct), a court or grand jury, the head of a Federal agency, or their representatives, information that the employee reasonably believes is evidence of—

(1) gross mismanagement of an agency contract or grant relating to covered funds;

(2) a gross waste of covered funds;

(3) a substantial and specific danger to public health or safety related to the implementation or use of covered funds;

(4) an abuse of authority related to the implementation or use of covered funds; or

(5) a violation of law, rule, or regulation related to an agency contract (including the competition for or negotiation of a contract) or grant, awarded or issued relating to covered funds.

(b) INVESTIGATION OF COMPLAINTS.—

(1) IN GENERAL.—A person who believes that the person has been subjected to a reprisal prohibited by subsection (a) may submit a complaint regarding the reprisal to the appropriate inspector general. Except as provided under paragraph

(3), unless the inspector general determines that the complaint is frivolous, does not relate to covered funds, or another Federal or State judicial or administrative proceeding has previously been invoked to resolve such complaint, the inspector general shall investigate the complaint and, upon completion of such investigation, submit a report of the findings of the investigation to the person, the person’s employer, the head of the appropriate agency, and the Board.

(2) TIME LIMITATIONS FOR ACTIONS.—

(A) IN GENERAL.—Except as provided under subparagraph

(B), the inspector general shall, not later than 180 days after receiving a complaint under paragraph (1)— H. R. 1—184

(i) make a determination that the complaint is frivolous, does not relate to covered funds, or another

Federal or State judicial or administrative proceeding has previously been invoked to resolve such complaint; or

(ii) submit a report under paragraph (1).

(B) EXTENSIONS.—

(i) VOLUNTARY EXTENSION AGREED TO BETWEEN

INSPECTOR GENERAL AND COMPLAINANT.—If the inspector general is unable to complete an investigation under this section in time to submit a report within the 180-day period specified under subparagraph (A) and the person submitting the complaint agrees to an extension of time, the inspector general shall submit a report under paragraph (1) within such additional period of time as shall be agreed upon between the inspector general and the person submitting the complaint.

(ii) EXTENSION GRANTED BY INSPECTOR GENERAL.—

If the inspector general is unable to complete an investigation under this section in time to submit a report within the 180-day period specified under subparagraph

(A), the inspector general may extend the period for not more than 180 days without agreeing with the person submitting the complaint to such extension, provided that the inspector general provides a written explanation (subject to the authority to exclude information under paragraph (4)(C)) for the decision, which shall be provided to both the person submitting the complaint and the non-Federal employer.

(iii) SEMI-ANNUAL REPORT ON EXTENSIONS.—The inspector general shall include in semi-annual reports to Congress a list of those investigations for which the inspector general received an extension.

(3) DISCRETION NOT TO INVESTIGATE COMPLAINTS.—

(A) IN GENERAL.—The inspector general may decide not to conduct or continue an investigation under this section upon providing to the person submitting the complaint and the non-Federal employer a written explanation

(subject to the authority to exclude information under paragraph

(4)(C)) for such decision.

(B) ASSUMPTION OF RIGHTS TO CIVIL REMEDY.—Upon receipt of an explanation of a decision not to conduct or continue an investigation under subparagraph (A), the person submitting a complaint shall immediately assume the right to a civil remedy under subsection (c)(3) as if the

210-day period specified under such subsection has already passed.

(C) SEMI-ANNUAL REPORT.—The inspector general shall include in semi-annual reports to Congress a list of those investigations the inspector general decided not to conduct or continue under this paragraph.

(4) ACCESS TO INVESTIGATIVE FILE OF INSPECTOR GENERAL.—

(A) IN GENERAL.—The person alleging a reprisal under this section shall have access to the investigation file of

H. R. 1—185 the appropriate inspector general in accordance with section

552a of title 5, United States Code (commonly referred to as the ‘‘Privacy Act’’). The investigation of the inspector general shall be deemed closed for purposes of disclosure under such section when an employee files an appeal to an agency head or a court of competent jurisdiction.

(B) CIVIL ACTION.—In the event the person alleging the reprisal brings suit under subsection (c)(3), the person alleging the reprisal and the non-Federal employer shall have access to the investigative file of the inspector general in accordance with the Privacy Act.

(C) EXCEPTION.—The inspector general may exclude from disclosure—

(i) information protected from disclosure by a provision of law; and

(ii) any additional information the inspector general determines disclosure of which would impede a continuing investigation, provided that such information is disclosed once such disclosure would no longer impede such investigation, unless the inspector general determines that disclosure of law enforcement techniques, procedures, or information could reasonably be expected to risk circumvention of the law or disclose the identity of a confidential source.

(5) PRIVACY OF INFORMATION.—An inspector general investigating an alleged reprisal under this section may not respond to any inquiry or disclose any information from or about any person alleging such reprisal, except in accordance with the provisions of section 552a of title 5, United States Code, or as required by any other applicable Federal law.

(c) REMEDY AND ENFORCEMENT AUTHORITY.—

(1) BURDEN OF PROOF.—

(A) DISCLOSURE AS CONTRIBUTING FACTOR IN

REPRISAL.—

(i) IN GENERAL.—A person alleging a reprisal under this section shall be deemed to have affirmatively established the occurrence of the reprisal if the person demonstrates that a disclosure described in subsection

(a) was a contributing factor in the reprisal.

(ii) USE OF CIRCUMSTANTIAL EVIDENCE.—A disclosure may be demonstrated as a contributing factor in a reprisal for purposes of this paragraph by circumstantial evidence, including—

(I) evidence that the official undertaking the reprisal knew of the disclosure; or

(II) evidence that the reprisal occurred within a period of time after the disclosure such that a reasonable person could conclude that the disclosure was a contributing factor in the reprisal.

(B) OPPORTUNITY FOR REBUTTAL.—The head of an agency may not find the occurrence of a reprisal with respect to a reprisal that is affirmatively established under subparagraph (A) if the non-Federal employer demonstrates by clear and convincing evidence that the non-

Federal employer would have taken the action constituting the reprisal in the absence of the disclosure.

H. R. 1—186

(2) AGENCY ACTION.—Not later than 30 days after receiving an inspector general report under subsection (b), the head of the agency concerned shall determine whether there is sufficient basis to conclude that the non-Federal employer has subjected the complainant to a reprisal prohibited by subsection

(a) and shall either issue an order denying relief in whole or in part or shall take 1 or more of the following actions:

(A) Order the employer to take affirmative action to abate the reprisal.

(B) Order the employer to reinstate the person to the position that the person held before the reprisal, together with the compensation (including back pay), compensatory damages, employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken.

(C) Order the employer to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorneys’ fees and expert witnesses’ fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the agency or a court of competent jurisdiction.

(3) CIVIL ACTION.—If the head of an agency issues an order denying relief in whole or in part under paragraph (1), has not issued an order within 210 days after the submission of a complaint under subsection (b), or in the case of an extension of time under subsection (b)(2)(B)(i), within 30 days after the expiration of the extension of time, or decides under subsection

(b)(3) not to investigate or to discontinue an investigation, and there is no showing that such delay or decision is due to the bad faith of the complainant, the complainant shall be deemed to have exhausted all administrative remedies with respect to the complaint, and the complainant may bring a de novo action at law or equity against the employer to seek compensatory damages and other relief available under this section in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy. Such an action shall, at the request of either party to the action, be tried by the court with a jury.

(4) JUDICIAL ENFORCEMENT OF ORDER.—Whenever a person fails to comply with an order issued under paragraph (2), the head of the agency shall file an action for enforcement of such order in the United States district court for a district in which the reprisal was found to have occurred. In any action brought under this paragraph, the court may grant appropriate relief, including injunctive relief, compensatory and exemplary damages, and attorneys fees and costs.

(5) JUDICIAL REVIEW.—Any person adversely affected or aggrieved by an order issued under paragraph (2) may obtain review of the order’s conformance with this subsection, and any regulations issued to carry out this section, in the United

States court of appeals for a…