Combined_Federal_Contract_Provisions.pdf

Guidelines for Contract Provisions for Obligated Sponsors and Airport Improvement Program Projects Issued on May 24, 2023 Page 1

FAA

Airports

Contract Provision Guidelines for Obligated Sponsors and Airport Improvement Program Projects (Issued on May 24, 2023)

Contents

Purpose of this Document

Sponsor Actions

Typical Procurement Steps

Applicability Matrix for Contract Provisions

A1 ACCESS TO RECORDS AND REPORTS

A2 AFFIRMATIVE ACTION REQUIREMENT

A3 BREACH OF CONTRACT TERMS

A4 BUY AMERICAN PREFERENCE

A5 CIVIL RIGHTS - GENERAL

A6 CIVIL RIGHTS – TITLE VI ASSURANCE

A7 CLEAN AIR AND WATER POLLUTION CONTROL

A8 CONTRACT WORKHOURS AND SAFETY STANDARDS ACT REQUIREMENTS

A9 COPELAND “ANTI-KICKBACK” ACT

A10 DAVIS-BACON REQUIREMENTS

A11 DEBARMENT AND SUSPENSION

A12 DISADVANTAGED BUSINESS ENTERPRISE

A13 DISTRACTED DRIVING

A14 PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR

EQUIPMENT

A15 DRUG FREE WORKPLACE REQUIREMENTS

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A16 EQUAL EMPLOYMENT OPPORTUNITY (EEO)

A17 FEDERAL FAIR LABOR STANDARDS ACT (FEDERAL MINIMUM WAGE)

A18 LOBBYING AND INFLUENCING FEDERAL EMPLOYEES

A19 PROHIBITION of SEGREGATED FACILITIES

A20 OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970

A21 PROCUREMENT OF RECOVERED MATERIALS

A22 RIGHT TO INVENTIONS

A23 SEISMIC SAFETY

A24 TAX DELINQUENCY AND FELONY CONVICTIONS

A25 TERMINATION OF CONTRACT

A26 TRADE RESTRICTION CERTIFICATION

A27 VETERAN’S PREFERENCE

A28 DOMESTIC PREFERENCES FOR PROCUREMENTS

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CUR REN T CHAN GES

Item Change Editorial update made to the January 23, 2023 version (effective May 24, 2023)

The link on page 35 was updated to reflect changes to the Department of Labor website.

Editorial updates made to the November 17, 2022 version (effective January 23, 2023)

Pages 7, 16, 19, 20, 25, and 42 of Appendix A were edited to correct grammatical mistakes, update internal document links, and correct the name of the Title VI List of Pertinent Nondiscrimination Acts and Authorities.

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CONT RA CT GUID ANCE

Purpose of this Document

The purpose of this document is to establish a convenient resource for Sponsors that consolidates federal contract provisions and clauses into one document that includes an applicability matrix. This document itself does not create, revise or delete requirements for participation in the Airport Improvement Program (AIP). The source of requirements addressed within this document are identified within the section for each individual clause.

While this document is intended to assist Sponsors with their compliance efforts, it does not alter or modify the terms of any applicable statute or regulation, is not a substitute for reading the regulation and the applicability matrix, and each corresponding document section, nor does it constitute legal advice.

Federal laws and regulations require that a Sponsor (a recipient of federal assistance) include specific clauses in certain contracts, solicitations, or specifications regardless of whether or not the project is federally funded.

For purposes of remaining compliant with its obligations, a Sponsor must incorporate applicable contract provisions in all its procurements and contract documents. Unless otherwise stated, these provisions flow down to subcontracts and sub-tier agreements.

1) Terminology:

The term “Sponsor” is used in this document to mean either an obligated Sponsor on a project that is not federally funded, or a Sponsor on an AIP funded project. A Sponsor is a “recipient” of federal assistance when receiving AIP or other FAA grant funds.

The term “Owner” of a public use airport is generally used in the solicitation or contract clauses because of its common use in public contracts. An Owner becomes an obligated Sponsor upon acceptance of the AIP grant assurances associated with current or prior AIP grant funded projects.

For purposes of determining requirements for contract provisions, the term “contract” includes professional services, and subcontracts and supplier contracts such as purchase orders.

The term “contractor” is understood to mean a contractor, subcontractor, or consultant; and means one who participates, through a contract or subcontract (at any tier).

a. The term “bid” is understood to mean a bid, an offer, or a proposal.

b. The term “applicant” is understood to mean the following in different contexts:

For the Equal Employment Opportunity (EEO) clause, the term “applicant” means an applicant for employment (whether or not the phrase, for employment, follows the word applicant or applicants).

i. For all other clauses, the term “applicant” means a bidder, offeror, or proposer for a contract.

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Sponsor Actions

In general, Sponsor’s actions consistent with obligations:

Include in its procurements the provisions that are applicable to its project.

Not incorporate the entire contract provisions guidelines in its solicitation or contract documents, whether by reference or by inclusion in whole. Incorporation of this entire guidance document creates potential for ambiguous interpretation and may lead to improper application that unnecessarily increases price. A Sponsor that fails to properly incorporate applicable contract clauses may place themselves at risk for audit findings or denial of Federal funding.

Incorporate applicable contract provisions using mandatory language as required. The subheading entitled Applicability advises whether a particular clause or provision has mandatory language that a Sponsor must use.

(a) Mandatory Language – Whenever a clause or provision has mandatory text, the Sponsor must incorporate the text of the provision without change, except where specific adaptive input is necessary (e.g., such as the Sponsor’s name).

No Mandatory Language – For provisions without mandatory language, this guidance provides model language acceptable to the FAA. Some Sponsors may have standard procurement language that is equivalent to those federal provisions. In these cases, Sponsors may use their existing standard procurement provision language provided the text meets the intent and purpose of the Federal law or regulation.

Require the contractor (including all subcontractors) to insert these contract provisions in each lower tier contract (e.g., subcontract or sub-agreement).

Require the contractor (including all subcontractors) to incorporate the requirements of these contract provisions by reference for work done under any purchase orders, rental agreements, and other agreements for supplies or services.

Require that the prime contractor be responsible for compliance with these contract provisions by any subcontractor, lower-tier subcontractor, or service provider.

Verify that any required local or State provision does not conflict with or alter a Federal law or regulation.

Typical Procurement Steps

The typical procurement steps in a project are:

Solicitation, Request for Bids, or Request for Proposals – This is also called the Advertisement or Notice to Bidders.

Bidding or Accepting Proposals – In this stage, the bidders receive a complete set of the procurement documents, also known as the project manual. The project manual will typically include a copy of the solicitation, instructions-to-bidders, bid forms, certifications and representations, general provisions, contract conditions, copy of contract, project drawings, technical specifications, and related project documents.

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Bid/Proposal Evaluation – Period when Sponsor tabulates, reviews, and evaluates all proposals for bid responsiveness and bidder responsibility.

Award – Point when the Sponsor formally awards the contract to the successful bidder.

Execution of Contract – Point at which the Sponsor formally enters into a legally binding agreement with bidder to perform services or provide goods.

Applicability Matrix for Contract Provisions

Table 1 Matrix summarizes the applicability of contract provisions based upon the type of contract or agreement. The dollar threshold represents the value at which, when equal to or exceeded, the Sponsor must incorporate the provision in the contract or agreement.

Supplemental information addressing applicability and use for each provision is located in Appendix A.

Appendix A and the Matrix include notes indicating when the Sponsor may incorporate references in the solicitation in lieu of including the entire text.

Sponsors are responsible for reviewing both the Matrix and each corresponding section to determine applicability of specific contract provisions.

Meaning of cell values in table below:

• Info –Sponsor has discretion on whether to include clause in its contracts.

• Limited – Provision with limited applicability depending on circumstances of the procurement.

• n/a – Provision that is not applicable for that procurement type.

• NIS – Provision that does not need to be included or referenced in the solicitation document

• REF – Provision to be incorporated into the solicitation by reference.

• REQD – Provision the Sponsor must incorporate into procurement documents.

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Table 1 – Applicability of Provisions

Provisions/Clauses

Do lla r Th re sh ol d

So lic ita tio n

Pr of es si on al

Se rv ic es

Co ns tr uc tio n

Eq ui pm en t

Pr op er ty

(L an d)

N on

-A

IP

Co nt ra ct s

Access to Records and Reports $ 0 NIS REQD REQD REQD REQD n/a Affirmative Action Requirement $10,000 REQD Limited REQD Limited Limited n/a Breach of Contract $250,000 NIS REQD REQD REQD REQD n/a Buy American Preferences $ 0 REF Limited REQD REQD Limited n/a

(1) Buy American Statement $ 0 NIS Limited REQD REQD Limited n/a

(2) Construction $ 0 NIS Limited REQD REQD Limited n/a

(3) Equipment/Building Projects $ 0 NIS Limited REQD REQD Limited n/a

Civil Rights – General $ 0 NIS REQD REQD REQD REQD REQD Civil Rights - Title VI Assurances $ 0 REF REQD REQD REQD REQD REQD

(1) Notice - Solicitation $ 0 REQD REQD REQD REQD REQD REQD

(2) Clause - Contracts $ 0 NIS REQD REQD REQD REQD REQD

(3) Clause – Transfer of U.S. Property $ 0 NIS n/a n/a n/a Limited REQD

(4) Clause – Transfer of Real Property $ 0 NIS n/a n/a n/a REQD REQD

(5) Clause - Construct/Use/Access to

Real Property $ 0 NIS n/a n/a n/a REQD REQD

(6) List – Pertinent Authorities $0 NIS REQD REQD REQD REQD REQD Clean Air/Water Pollution Control $150,000 NIS REQD REQD REQD REQD n/a Contract Work Hours and Safety Standards $100,000 NIS Limited REQD Limited Limited n/a Copeland Anti-Kickback $ 2,000 NIS Limited REQD Limited Limited n/a Davis Bacon Requirements $ 2,000 REF Limited REQD Limited Limited n/a Debarment and Suspension $25,000 REF REQD REQD REQD Limited n/a Disadvantaged Business Enterprise $ 250,000 REQD REQD REQD REQD REQD n/a Distracted Driving $10,000 NIS REQD REQD REQD REQD n/a Domestic Preferences for Procurements $0 NIS REQD REQD REQD REQD Info Equal Employment Opportunity $10,000 NIS Limited REQD Limited Limited n/a

(1) EEO Contract Clause $10,000 NIS Limited REQD Limited Limited n/a

(2) EEO Specification $10,000 NIS Limited REQD Limited Limited n/a

Federal Fair Labor Standards Act $ 0 REQD REQD REQD REQD REQD Info Foreign Trade Restriction $ 0 REQD REQD REQD REQD REQD n/a Lobbying Federal Employees $ 100,000 REF REQD REQD REQD REQD n/a Occupational Safety and Health Act $ 0 NIS REQD REQD REQD REQD Info Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment

$0 NIS REQD REQD REQD REQD Info

Prohibition of Segregated Facilities $0 NIS Limited REQD Limited Limited n/a Recovered Materials $10,000 REF Limited REQD REQD Limited n/a Right to Inventions $ 0 NIS Limited Limited Limited n/a n/a Seismic Safety $ 0 NIS Limited Limited Limited n/a n/a Tax Delinquency and Felony Conviction $ 0 NIS REQD REQD REQD REQD n/a Termination of Contract $10,000 NIS REQD REQD REQD REQD n/a Veteran’s Preference $ 0 NIS REQD REQD REQD REQD n/a

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Airport Concessions Disadvantage Business Enterprise (ACDBE) Notes:

1. Language relative to solicitation for ACDBEs does not need to be included in AIP funded solicitations, since in no case are concessions activities funded with federal funds.

2. Airport Sponsors must include the appropriate Civil Rights – Title VI language in their solicitation notices when they seek proposals for concessions.

3. For ACDBE agreements, use the column for Non-AIP Contracts.

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APPE ND IX A – CONTRACT PROVISIONS

A 1 A C C E S S T O R E C O R D S A N D R E P O R T S

A 1 . 1 S O U R C E

2 CFR § 200.334

2 CFR § 200.337

FAA Order 5100.38

A 1 . 2 A P P L I C A B I L I T Y

2 CFR § 200.334 requires a Sponsor to retain records pertinent to a Federal award for a period of three years from submission of final closure documents. 2 CFR § 200.337 establishes that Sponsors must provide Federal entities the right to access records pertinent to the Federal award. FAA policy extends these requirements to the Sponsor’s contracts and subcontracts of AIP funded projects.

Contract Types – The Sponsor must include this provision in all contracts and subcontracts of AIP funded projects.

Use of Provision – No mandatory language provided. The following language is acceptable to the FAA with meeting the intent of this requirement. If the Sponsor prefers to use different language, the Sponsor’s language must fully satisfy the requirements of 2 CFR §§ 200.334 and 200.337.

A 1 . 3 M O D E L C O N T R A C T C L A U S E

ACCESS TO RECORDS AND REPORTS

The Contractor must maintain an acceptable cost accounting system. The Contractor agrees to provide the Owner, the Federal Aviation Administration and the Comptroller General of the United States or any of their duly authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to the specific contract for the purpose of making audit, examination, excerpts and transcriptions. The Contractor agrees to maintain all books, records and reports required under this contract for a period of not less than three years after final payment is made and all pending matters are closed.

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A 2 A F F I R M A T I V E A C T I O N R E Q U I R E M E N T

A 2 . 1 S O U R C E

41 CFR Part 60-4

Executive Order 11246

A 2 . 2 A P P L I C A B I L I T Y

Minority Participation. Sponsors are required to set goals for minority participation in AIP funded projects exceeding $10,000. The goals for minority participation derive from Economic Area (EA) and Standard Metropolitan Statistical Area (SMSA) as established in Volume 45 of the Federal Register dated 10/3/80. Page 65984 contains a table of all EAs and SMSAs and the associated minority participation goals.

To find the goals for minority participation, a Sponsor must either refer to the Federal Register Notice or to the Department of Labor online document, “Participation Goals for Minorities and Females”. EAs and SMSAs span state boundaries. A Sponsor may have to refer to entries for adjacent states in order to locate the goal for the project location.

Female Participation. Executive Order 11246 has set a goal of 6.9% nationally for female participation for all construction projects. This value remains constant for all counties and states.

Contract Types –

Construction – The Sponsor must incorporate this notice in all solicitations for bids or requests for proposals for AIP funded construction work contracts and subcontracts that exceed $10,000.

Construction work means construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings, highways or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection and other onsite functions incidental to the actual construction.

Equipment – The Sponsor must incorporate this notice in any equipment project exceeding $10,000 that involves installation of equipment onsite (e.g., electrical vault equipment). This provision does not apply to equipment acquisition projects where the manufacture of the equipment takes place offsite at a manufacturer’s plant (e.g., firefighting and snow removal vehicles).

Professional Services – The Sponsor must incorporate this notice in any professional service agreement if the professional services agreement includes tasks that meet the definition of construction work [as defined by the U.S. Department of Labor (DOL)] and exceeds $10,000.

Examples include installation of monitoring systems (e.g., noise, environmental, etc.).

Property/Land – The Sponsor must incorporate this notice in any agreement associated with land acquisition if the agreement includes construction work (defined above) that exceeds $10,000. Examples include demolition of structures or installation of boundary fencing.

https://www.dol.gov/ofccp/TAguides/TAC_FedContractors_JRF_QA_508c.pdf

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Use of Provision – MANDATORY TEXT. The Sponsor must:

(a) Incorporate the text of this provision in its solicitations without modification.

(b) Incorporate the applicable minority participation goal and the covered area by geographic name.

(c) Not simply insert a reference to the 1980 Federal Register Notice.

A 2 . 3 M A N D A T O R Y S O L I C I T A T I O N C L A U S E

NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO

ENSURE EQUAL EMPLOYMENT OPPORTUNITY

1. The Offeror’s or Bidder’s attention is called to the “Equal Opportunity Clause” and the “Standard Federal Equal Employment Opportunity Construction Contract Specifications” set forth herein.

2. The goals and timetables for minority and female participation, expressed in percentage terms for the Contractor’s aggregate workforce in each trade on all construction work in the covered area, are as follows:

Timetables

Goals for minority participation for each trade: [Sponsor must insert established goal]

Goals for female participation in each trade: 6.9%

These goals are applicable to all of the Contractor’s construction work (whether or not it is Federal or federally assisted) performed in the covered area. If the Contractor performs construction work in a geographical area located outside of the covered area, it shall apply the goals established for such geographical area where the work is actually performed. With regard to this second area, the Contractor also is subject to the goals for both its federally involved and nonfederally involved construction.

The Contractor’s compliance with the Executive Order and the regulations in 41 CFR Part 60-4 shall be based on its implementation of the Equal Opportunity Clause, specific affirmative action obligations required by the specifications set forth in 41 CFR 60-4.3(a) and its efforts to meet the goals. The hours of minority and female employment and training must be substantially uniform throughout the length of the contract, and in each trade, and the Contractor shall make a good faith effort to employ minorities and women evenly on each of its projects. The transfer of minority or female employees or trainees from Contractor to Contractor or from project to project for the sole purpose of meeting the Contractor’s goals shall be a violation of the contract, the Executive Order and the regulations in 41 CFR Part 60-4.

Compliance with the goals will be measured against the total work hours performed.

3. The Contractor shall provide written notification to the Director of the Office of Federal Contract Compliance Programs (OFCCP) within 10 working days of award of any construction subcontract in excess of $10,000 at any tier for construction work under the contract resulting from this solicitation.

The notification shall list the name, address, and telephone number of the subcontractor; employer identification number of the subcontractor; estimated dollar amount of the subcontract; estimated starting and completion dates of the subcontract; and the geographical area in which the subcontract is to be performed.

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4. As used in this notice and in the contract resulting from this solicitation, the “covered area” is [Sponsor must insert state, county, and city].

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A 3 B R E A C H O F C O N T R A C T T E R M S

A 3 . 1 S O U R C E

2 CFR Part 200, Appendix II(A)

A 3 . 2 A P P L I C A B I L I T Y

This provision requires Sponsors to incorporate administrative, contractual or legal remedies in the event that a contractor violates or breaches contract terms. The Sponsor must also include appropriate sanctions and penalties.

Contract Types – This provision is required for all contracts that exceed the simplified acquisition threshold as stated in 2 CFR Part 200, Appendix II (A). This threshold is occasionally adjusted for inflation and is $250,000.

Use of Provision – No mandatory language provided. The following language is acceptable to the FAA as meeting the intent of this requirement. If the Sponsor uses different language, the Sponsor’s language must fully satisfy the requirements of 2 CFR Part 200. Select either “contractor” or “consultant” as applicable.

A 3 . 3 M O D E L C O N T R A C T C L A U S E

BREACH OF CONTRACT TERMS

Any violation or breach of terms of this contract on the part of the [Contractor | Consultant] or its subcontractors may result in the suspension or termination of this contract or such other action that may be necessary to enforce the rights of the parties of this agreement.

Owner will provide [Contractor | Consultant] written notice that describes the nature of the breach and corrective actions the [Contractor | Consultant] must undertake in order to avoid termination of the contract. Owner reserves the right to withhold payments to Contractor until such time the Contractor corrects the breach or the Owner elects to terminate the contract. The Owner’s notice will identify a specific date by which the [Contractor | Consultant] must correct the breach. Owner may proceed with termination of the contract if the [Contractor | Consultant] fails to correct the breach by the deadline indicated in the Owner’s notice.

The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder are in addition to, and not a limitation of, any duties, obligations, rights and remedies otherwise imposed or available by law.

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A 4 B U Y A M E R I C A N P R E F E R E N C E

A 4 . 1 S O U R C E

Title 49 USC § 50101

Executive Order 14005, Ensuring the Future is Made in All of America by All of America’s Workers

Bipartisan Infrastructure Law (Pub. L. No. 117-58), Build America, Buy America (BABA)

A 4 . 2 A P P L I C A B I L I T Y

The Buy American Preference incorporates statutory requirements and policies outlined in the in 49 USC § 50101, Executive Order 14005, and BABA.

Section 50101 of 49 USC requires that all steel and manufactured goods used on AIP projects be produced in the United States. This section also gives the FAA the ability to issue a waiver to a Sponsor to use non-domestic material on an AIP funded project subject to meeting certain conditions. A Sponsor may request that the FAA issue a waiver from the Buy American Preference requirements if the FAA finds that:

1) Applying the provision is not in the public interest.

2) The steel or manufactured goods are not available in sufficient quantity or quality in the United

States.

3) The cost of components and subcomponents produced in the United States is more than

60 percent of the total components of a facility or equipment, and final assembly has taken place in the United States. Items that have an FAA standard specification item number (such as specific airport lighting equipment) are considered the equipment.

4) Applying this provision would increase the cost of the overall project by more than 25 percent.

Executive Order 14005 advances the Administration’s priority to use terms and conditions of Federal financial assistance awards to maximize the use of goods, products, and materials produced in, and services offered in, the United States. The Order directs, to the extent appropriate and consistent with applicable law, agencies shall partner with the Hollings Manufacturing Extension Partnership (MEP) to conduct supplier scouting in order to identify American companies that are able to produce goods, products, and materials in the United States that meet Federal procurement needs, prior to consideration of using non-domestic products.

The Bipartisan Infrastructure Law, Build America, Buy America (BABA) Act strengthens Made in America Laws and bolsters America’s industrial base, protects national security, and supports high-paying jobs.

Under BABA, iron, steel and certain construction materials are required to be 100% produced in the United States.

Under the Bipartisan Infrastructure Law (Pub. L. No. 117-58) BABA three waivers are available for iron and steel, manufactured products, and construction materials when a Federal agency finds that –

1) Applying the domestic content procurement preference would be inconsistent with the public interest (a “public interest waiver”);

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2) 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 (a “nonavailability waiver”); or

3) 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 (an “unreasonable cost waiver”).

BABA defines construction materials, items that are or consists primarily of non-ferrous metals, plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables), glass (including optic glass), lumber or drywall.

Items that consist of two or more of the aforementioned materials that have been combined together through a manufacturing process, and items that include at least one of the listed materials combined with a material that is not listed through a manufacturing process, should be treated as manufactured products, rather than as construction materials. For example, a plastic framed sliding window should be treated as a manufactured product while plate glass should be treated as a construction material.

The Buy America Preference requirements flow down from the Sponsor to first tier contractors, who are responsible for ensuring that lower tier contractors and subcontractors are also in compliance.

Note: The Buy American Preference does not apply to temporary equipment a contractor uses as a tool of its trade and which does not remain as part of the project.

Required Documentation

The FAA Buy American Requests. All applications (requests) for an FAA Buy American Preference Waiver includes, at minimum, a completed Content Percentage Worksheet and Final Assembly Questionnaire. Additional information may be requested from the applicant by the FAA. Airport Sponsors, consultants, construction contractors, or equipment manufacturers are responsible for completing and submitting waiver applications. The FAA is unable to make a determination on waiver requests with incomplete information. Sponsors must confirm with the bidder or offeror to assess the adequacy of the waiver request and associated information prior to forwarding a waiver request to the FAA for action. All FAA waivers forms are available from the FAA Buy American Requirements webpage.

Proprietary Confidentiality. Exemption 4 of the Freedom of Information Act protects "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.

Proprietary manufacturing and design information submitted to the Federal Aviation Administration for the purposes of receiving a Buy American Waiver shall not be disclosed outside the FAA. The FAA will provide a written notification to the Airport Sponsor, manufacturer(s), contractor(s) or supplier(s) when a waiver determination is complete.

Timing of Waiver Requests. Sponsors desiring a Type 2 waiver should submit their waiver request, with justification, before issuing a solicitation for bids or a request for proposal for a project.

The Sponsor must submit a Type 2, Type 3, or Type 4 waiver request prior to executing the contract.

The FAA will generally not consider waiver requests after execution of the contract except where extraordinary and extenuating circumstances exist.

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The Buy American Notice of Determination (NOD) Process. The FAA Reauthorization Act of 2018 requires that all approved waivers must be posted to the FAA’s website and remain posted for public comment for 10 days, before becoming effective. All FAA waivers must complete the NOD process.

Sponsors are encouraged to wait until approved waivers become effective before executing AIP projects.

Buy American Conformance Lists. The FAA Office of Airports maintains listings of projects and products that have received a waiver from the Buy American Preference requirements for project specific and nationwide use. Each of these conformance lists is available online at www.faa.gov/airports/aip/buy_american/. Products listed on the FAA Nationwide Buy American Conformance list do not require additional submittal of domestic content information. Nationwide waivers expire five years from the date issued, unless revoked earlier by the FAA.

Facility Waiver Requests. For construction of a facility, the Sponsor may submit the waiver request after bid opening, but prior to contract execution. Examples of facility construction include terminal buildings, terminal renovation, and snow removal equipment buildings.

Contract Types –

Construction and Equipment – The Sponsor must meet the Buy American Preference requirements of 49 USC § 50101 and BABA for all AIP funded projects that require materials that are or consists primarily of iron, steel or manufactured goods and construction materials.

Professional Services – Professional service agreements (PSAs) do not normally result in a deliverable that meets the definition of a manufactured product. However, the emergence of various project delivery methods has created situations where task deliverables under a PSA may include a manufactured product. If a PSA includes providing a manufactured good as a deliverable under the contract, the Sponsor must include the Buy American Preference provision in the agreement.

Property – Most land transactions do not involve acquiring a manufactured product. However, under certain circumstances, a property acquisition project could result in the installation of a manufactured product. For example, the installation of property fencing, gates, doors and locks, etc. represent manufactured products acquired under an AIP funded land project that must comply with Buy American Preferences.

Use of Provisions – No mandatory language provided. The following language is acceptable to the FAA and meets the intent of this requirement. If the Sponsor uses different language, the Sponsor’s revised language must fully comply with 49 USC § 50101 and BABA.

There are two types of FAA Buy American certifications. The Sponsor must incorporate the appropriate certifications of compliance with FAA Buy American Preference in the solicitation:

• Construction Projects involving the replacement, rehabilitation, reconstruction of airfield surfaces such as on runways, taxiways, taxilanes, aprons, roadways, parking lots, etc. – Insert the Certificate of compliance to FAA Buy American Preference based on Construction Projects.

http://www.faa.gov/airports/aip/buy_american/

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• Equipment and Buildings Projects involving and including the acquisition of equipment such as snow removal equipment, navigational aids, wind cones, and the construction of buildings such as hangars, terminal development, lighting vaults, aircraft rescue & firefighting buildings, etc. - Insert the Certificate of Compliance with FAA Buy American Preference Based on Equipment/Building Projects.

A 4 . 3 M O D E L S O L I C I T A T I O N C L A U S E S

A 4 . 3 . 1 C e r t i f i c a t i o n o f C o m p l i a n c e w i t h F A A B u y A m e r i c a n P r e f e r e n c e S t a t e m e n t

FAA BUY AMERICAN PREFERENCE

The Contractor certifies that its bid/offer is in compliance with 49 USC § 50101, BABA and other related Made in America Laws,1 U.S. statutes, guidance, and FAA policies, which provide that Federal funds may not be obligated unless all iron, steel and manufactured goods used in AIP funded projects are produced in the United States, unless the Federal Aviation Administration has issued a waiver for the product; the product is listed as an Excepted Article, Material Or Supply in Federal Acquisition Regulation subpart 25.108; or is included in the FAA Nationwide Buy American Waivers Issued list.

The bidder or offeror must complete and submit the certification of compliance with FAA’s Buy American Preference, BABA and Made in America laws included herein with their bid or offer. The Airport Sponsor/Owner will reject as nonresponsive any bid or offer that does not include a completed certification of compliance with FAA’s Buy American Preference and BABA.

The bidder or offeror certifies that all constructions materials, defined to mean an article, material, or supply other than an item of primarily iron or steel; a manufactured product; cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives that are or consist primarily of: non-ferrous metals; plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables); glass (including optic glass); lumber; or drywall used in the project are manufactured in the U.S.

1 Per Executive Order 14005 “Made in America Laws” means all statutes, regulations, rules, and Executive Orders relating to federal financial assistance awards or federal procurement, including those that refer to “Buy America” or “Buy American,” that require, or provide a preference for, the purchase or acquisition of goods, products, or materials produced in the United States, including iron, steel, and manufactured products offered in the United States.

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A 4 . 3 . 2 C e r t i f i c a t i o n o f C o m p l i a n c e w i t h F A A B u y A m e r i c a n P r e f e r e n c e – C o n s t r u c t i o n P r o j e c t s

As a matter of bid responsiveness, the bidder or offeror must complete, sign, date, and submit this certification statement with its proposal. The bidder or offeror must indicate how it intends to comply with 49 USC § 50101, BABA and other related Made in America Laws, U.S. statutes, guidance, and FAA policies, by selecting one of the following certification statements. These statements are mutually exclusive. Bidder must select one or the other (i.e., not both) by inserting a checkmark () or the letter “X”.

Bidder or offeror hereby certifies that it will comply with 49 USC § 50101, BABA and other related U.S. statutes, guidance, and policies of the FAA by:

a) Only installing iron, steel and manufactured products produced in the United States;

b) Only installing construction materials defined as: an article, material, or supply – other than an item of primarily iron or steel; a manufactured product; cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives that are or consist primarily of non-ferrous metals; plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables); glass (including optic glass); lumber or drywall that have been manufactured in the United States.

c) Installing manufactured products for which the Federal Aviation Administration (FAA) has issued a waiver as indicated by inclusion on the current FAA Nationwide Buy American Waivers Issued listing; or

d) Installing products listed as an Excepted Article, Material or Supply in Federal Acquisition Regulation Subpart 25.108.

By selecting this certification statement, the bidder or offeror agrees:

a) To provide to the Airport Sponsor or the FAA evidence that documents the source and origin of the iron, steel, and/or manufactured product.

b) To faithfully comply with providing U.S. domestic products.

c) To refrain from seeking a waiver request after establishment of the contract, unless extenuating circumstances emerge that the FAA determines justified.

d) Certify that all construction materials used in the project are manufactured in the U.S.

The bidder or offeror hereby certifies it cannot comply with the 100 percent Buy American

Preferences of 49 USC § 50101(a) but may qualify for a Type 3 or Type 4 waiver under 49 USC § 50101(b). By selecting this certification statement, the apparent bidder or offeror with the apparent low bid agrees:

a) To the submit to the Airport Sponsor or FAA within 15 calendar days of being selected as the responsive bidder, a formal waiver request and required documentation that supports the type of waiver being requested.

b) That failure to submit the required documentation within the specified timeframe is cause for a non-responsive determination that may result in rejection of the proposal.

c) To faithfully comply with providing U.S. domestic products at or above the approved U.S. domestic content percentage as approved by the FAA.

Issued on May 24, 2023 Page 11

d) To furnish U.S. domestic product for any waiver request that the FAA rejects.

e) To refrain from seeking a waiver request after establishment of the contract, unless extenuating circumstances emerge that the FAA determines justified.

Required Documentation

Type 2 Waiver (Nonavailability) - The iron, steel, manufactured goods or construction materials or manufactured goods are not available in sufficient quantity or quality in the United States. The required documentation for the Nonavailability waiver is

a) Completed Content Percentage Worksheet and Final Assembly Questionnaire

b) Record of thorough market research, consideration where appropriate of qualifying alternate items, products, or materials including;

c) A description of the market research activities and methods used to identify domestically manufactured items capable of satisfying the requirement, including the timing of the research and conclusions reached on the availability of sources.

Type 3 Waiver – The cost of components and subcomponents produced in the United States is more than 60 percent of the cost of all components and subcomponents of the “facility/project.” The required documentation for a Type 3 waiver is:

a) Completed Content Percentage Worksheet and Final Assembly Questionnaire including;

b) Listing of all manufactured products that are not comprised of 100 percent U.S. domestic content

(excludes products listed on the FAA Nationwide Buy American Waivers Issued listing and products excluded by Federal Acquisition Regulation Subpart 25.108; products of unknown origin must be considered as non-domestic products in their entirety).

c) Cost of non-domestic components and subcomponents, excluding labor costs associated with final assembly and installation at project location.

d) Percentage of non-domestic component and subcomponent cost as compared to total “facility” component and subcomponent costs, excluding labor costs associated with final assembly and installation at project location.

Type 4 Waiver (Unreasonable Costs) - Applying this provision for iron, steel, manufactured goods or construction materials would increase the cost of the overall project by more than 25 percent. The required documentation for this waiver is:

a) A completed Content Percentage Worksheet and Final Assembly Questionnaire from

b) At minimum two comparable equal bids and/or offers;

c) Receipt or record that demonstrates that supplier scouting called for in Executive Order 14005, indicates that no domestic source exists for the project and/or component;

d) Completed waiver applications for each comparable bid and/or offer.

Issued on May 24, 2023 Page 12

False Statements: Per 49 USC § 47126, this certification concerns a matter within the jurisdiction of the Federal Aviation Administration and the making of a false, fictitious, or fraudulent certification may render the maker subject to prosecution under Title 18, United States Code.

Date Signature

Company Name Title

Issued on May 24, 2023 Page 13

A 4 . 3 . 3 C e r t i f i c a t i o n o f C o m p l i a n c e w i t h F A A B u y A m e r i c a n P r e f e r e n c e – E q u i p m e n t / B u i l d i n g P r o j e c t s

As a matter of bid responsiveness, the bidder or offeror must complete, sign, date, and submit this certification statement with their proposal. The bidder or offeror must indicate how they intend to comply with 49 USC § 50101, and other Made in America Laws, U.S. statutes, guidance, and FAA policies by selecting one on the following certification statements. These statements are mutually exclusive. Bidder must select one or the other (not both) by inserting a checkmark () or the letter “X”.

Bidder or offeror hereby certifies that it will comply with 49 USC § 50101, BABA and other related U.S. statutes, guidance, and policies of the FAA by:

a) Only installing steel and manufactured products produced in the United States;

b) Only installing construction materials defined as: an article, material, or supply – other than an item of primarily iron or steel; a manufactured product; cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives that are or consist primarily of non-ferrous metals; plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables); glass (including optic glass); lumber or drywall that have been manufactured in the United States.

c) Installing manufactured products for which the Federal Aviation Administration (FAA) has issued a waiver as indicated by inclusion on the current FAA Nationwide Buy American Waivers Issued listing; or

d) Installing products listed as an Excepted Article, Material or Supply in Federal Acquisition Regulation Subpart 25.108.

By selecting this certification statement, the bidder or offeror agrees:

a) To provide to the Airport Sponsor or FAA evidence that documents the source and origin of the steel and manufactured product.

b) To faithfully comply with providing U.S. domestic product.

c) To furnish U.S. domestic product for any waiver request that the FAA rejects.

d) To refrain from seeking a waiver request after establishment of the contract, unless extenuating circumstances emerge that the FAA determines justified.

The bidder or offeror hereby certifies it cannot comply with the 100 percent Buy American

Preferences of 49 USC § 50101(a) but may qualify for a Type 3 waiver under 49 USC § 50101(b). By selecting this certification statement, the apparent bidder or offeror with the apparent low bid agrees:

a) To submit to the Airport Sponsor or FAA within 15 calendar days of being selected as the responsive bidder, a formal waiver request and required documentation that supports the type of waiver being requested.

b) That failure to submit the required documentation within the specified timeframe is cause for a non-responsive determination that may result in rejection of the proposal.

c) To faithfully comply with providing U.S. domestic products at or above the approved U.S. domestic content percentage as approved by the FAA.

Issued on May 24, 2023 Page 14

d) To refrain from seeking a waiver request after establishment of the contract, unless extenuating circumstances emerge that the FAA determines justified.

Required Documentation

Type 2 Waiver (Nonavailability) - The iron, steel, manufactured goods or construction materials are not available in sufficient quantity or quality in the United States. The required documentation for the Nonavailability waiver is:

a) Completed Content Percentage Worksheet and Final Assembly Questionnaire

b) Record of thorough market research, consideration where appropriate of qualifying alternate items, products, or materials including;

c) A description of the market research activities and methods used to identify domestically manufactured items capable of satisfying the requirement, including the timing of the research and conclusions reached on the availability of sources.

Type 3 Waiver – The cost of the item components and subcomponents produced in the United States is more that 60 percent of the cost of all components and subcomponents of the “item”. The required documentation for a Type 3 waiver is:

a) Completed Content Percentage Worksheet and Final Assembly Questionnaire including;

b) Listing of all product components and subcomponents that are not comprised of 100 percent U.S. domestic content (Excludes products listed on the FAA Nationwide Buy American Waivers Issued listing and products excluded by Federal Acquisition Regulation Subpart 25.108 (products of unknown origin must be considered as non-domestic products in their entirety).

c) Cost of non-domestic components and subcomponents, excluding labor costs associated with final assembly at place of manufacture.

d) Percentage of non-domestic component and subcomponent cost as compared to total “item” component and subcomponent costs, excluding labor costs associated with final assembly at place of manufacture.

Type 4 Waiver (Unreasonable Costs) - Applying this provision for iron, steel, manufactured goods or construction materials, would increase the cost of the overall project by more than 25 percent. The required documentation for this waiver is:

a) Completed Content Percentage Worksheet and Final Assembly Questionnaire from

b) At minimum two comparable equal bidders and/or offerors;

c) Receipt or record that demonstrates that supplier scouting called for in Executive Order

14005, indicates that no domestic source exists for the project and/or component;

d) Completed waiver applications for each comparable bid and/or offer.

Issued on May 24, 2023 Page 15

False Statements: Per 49 USC § 47126, this certification concerns a matter within the jurisdiction of the Federal Aviation Administration and the making of a false, fictitious, or fraudulent certification may render the maker subject to prosecution under Title 18, United States Code.

Date Signature

Company Name Title

Issued on May 24, 2023 Page 16

A 5 C I V I L R I G H T S - G E N E R A L

A 5 . 1 S O U R C E

49 USC § 47123

A 5 . 2 A P P L I C A B I L I T Y

There are two separate civil rights provisions that apply to projects:

1. FAA General Civil Rights Provision and,

2. Title VI provisions, which are addressed in Appendix A6.

Contract Types – The General Civil Rights Provisions found in 49 USC § 47123, derived from the Airport and Airway Improvement Act of 1982, Section 520, apply to all Sponsor contracts regardless of funding source.

Use of Provision – MANDATORY TEXT. Each contract must include two civil rights provisions. The first general clause must be included in all contracts, lease agreements, or transfer agreements. An additional specific provision must be included; the applicable text is based on whether the contract is a general contract or whether the contract is a lease or transfer agreement. The Sponsor must incorporate the text of the appropriate general clause and specific clause without modification into the contract, lease, or transfer agreement.

The required clauses for each type of contact are summarized in the table below:

Contract Clause The Sponsor must include the contract clause in:

Clause Text is Included in Paragraph

Clause that is used for all contracts, lease agreements and transfer agreements

Every contract or agreement regardless of funding source.

A5.3.1

Clause that is used for general contract agreements

This applies to all contracts that do not involve property agreements. It applies to all contracts not covered by A5.3.3 regardless of funding source.

A5.3.2

Clause that is used for lease agreements and transfer agreements

This applies to all property agreements such leases of concession space in a terminal and leases where a physical portion of the airport is transferred for use. It applies to all contracts not covered by A5.3.2 regardless of funding source.

A5.3.3

Issued on May 24, 2023 Page 17

A 5 . 3 M A N D A T O R Y C O N T R A C T C L A U S E S

A 5 . 3 . 1 G e n e r a l C l a u s e t h a t i s u s e d f o r C o n t r a c t s , L e a s e A g r e e m e n t s , a n d T r a n s f e r A g r e e m e n t s

GENERAL CIVIL RIGHTS PROVISIONS

In all its activities within the scope of its airport program, the Contractor agrees to comply with pertinent statutes, Executive Orders, and such rules as identified in Title VI List of Pertinent Nondiscrimination Acts and Authorities to ensure that no person shall, on the grounds of race, color, national origin (including limited English proficiency), creed, sex (including sexual orientation and gender identity), age, or disability be excluded from participating in any activity conducted with or benefiting from Federal assistance.

This provision is in addition to that required by Title VI of the Civil Rights Act of 1964.

A 5 . 3 . 2 S p e c i f i c C l a u s e t h a t i s u s e d f o r G e n e r a l C o n t r a c t A g r e e m e n t s

The above provision binds the Contractor and subcontractors from the bid solicitation period through the completion of the contract.

A 5 . 3 . 3 S p e c i f i c C l a u s e t h a t i s u s e d f o r L e a s e A g r e e m e n t s o r T r a n s f e r A g r e e m e n t s

If the Contractor transfers its obligation to another, the transferee is obligated in the same manner as the Contractor.

The above provision obligates the Contractor for the period during which the property is owned, used or possessed by the Contractor and the airport remains obligated to the Federal Aviation Administration.

Issued on May 24, 2023 Page 18

A 6 C I V I L R I G H T S – T I T L E V I A S S U R A N C E

A 6 . 1 S O U R C E

49 USC § 47123

FAA Order 1400.11

A 6 . 2 A P P L I C A B I L I T Y

Title VI of the Civil…