FLORIDA DEPARTMENT OF TRANSPORTATION

SUPPLEMENTAL CONDITIONS FOR CONSTRUCTION

The following conditions apply to all contracts involving the Florida Department of Transportation (FDOT) and must be incorporated into the agreement to ensure compliance with FDOT standards and requirements.

1. Number of Responses: A minimum of three responses are needed for an initial solicitation funded by the Florida Department of Transportation. If three responses are not received this solicitation will be extended or reissued. A reissued solicitation without 3 responses will need permission from FDOT to proceed.

2. Advertisement: Advertisement must be a minimum of 21 day, or 30 days for construction projects estimated to cost more than $500,000.

3. Bonding Requirements: Pursuant to Chapter 255, Section 05, Florida Statutes, all Contractor’s performing public work for a local agency are required to execute a payment and performance bond with a local surety insurer prior to commencing work.

A link to the payment and performance bond approved by the Agency Name is found in the "Contract Terms and Conditions" or "Draft Contract."

4. Buy America Requirements § 23 CFR 635.410

(a) The provisions of this section shall prevail and be given precedence over any requirements of this subpart which are contrary to this section. However, nothing in this section shall be construed to be contrary to the requirements of § 635.409(a) of this subpart.

(b) No Federal-aid highway construction project is to be authorized for advertisement or otherwise authorized to proceed unless at least one of the following requirements is met:

(1) The project either:

(i) Includes no permanently incorporated steel or iron materials, or

(ii) if iron or steel products are to be used, all manufacturing processes, including application of a coating, for these materials must occur in the United States. Coating includes all processes which protect or enhance the value of the material to which the coating is applied.

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(2) The recipient has standard contract provisions that require the use of domestic materials and products, including iron or steel products, to the same or greater extent as the provisions set forth in this section.

(3) The recipient elects to include alternate bid provisions for foreign and domestic iron or steel products which comply with the following requirements. Any procedure for obtaining alternate bids based on furnishing foreign iron or steel products which is acceptable to the Division Administrator may be used. The contract provisions must

(i) require all bidders to submit a bid based on furnishing domestic iron or steel products, and

(ii) clearly state that the contract will be awarded to the bidder who submits the lowest total bid based on furnishing domestic iron or steel products unless such total bid exceeds the lowest total bid based on furnishing foreign iron or steel products by more than 25 percent.

(4) When iron or steel products are used in a project, the requirements of this section do not prevent a minimal use of foreign iron or steel products, if the cost of such materials used does not exceed one-tenth of one percent (0.1 percent) of the total contract cost or $2,500, whichever is greater. For purposes of this paragraph, the cost is that shown to be the value of the steel and iron products as they are delivered to the project.

(c) No Federal-aid highway construction project is to be authorized for advertisement or otherwise authorized to proceed unless the manufactured products used and permanently incorporated in such project are produced in the United States. To meet the requirement in this paragraph (c), the manufactured product must meet the following:

(1) The following definitions apply to this section:

(i) Component means an article, material, or supply, whether manufactured or unmanufactured, incorporated directly into a manufactured product or, where applicable, an iron or steel product.

(ii) Excluded materials means section 70917(c) materials as defined in 2 CFR 184.3.

(iii) Iron or steel products means articles, materials, or supplies that consist wholly or predominantly of iron or steel or a combination of both.

(iv) Manufactured products means articles, materials, or supplies that have been processed into a specific form and shape, or combined with other articles, materials, or supplies to create a product with different properties than the individual articles, materials, or supplies. If an item is classified as an iron or steel product, an excluded material, or

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6/22/2026 https://www.ecfr.gov/current/title-23/section-635.410#p-635.410(c) https://www.ecfr.gov/current/title-2/section-184.3 other product category as specified by law or in 2 CFR part 184, then it is not a manufactured product. However, an article, material, or supply classified as a manufactured product may include components that are iron or steel products, excluded materials, or other product categories as specified by law or in 2 CFR part 184. Mixtures of excluded materials delivered to a work site without final form for incorporation into a project are not a manufactured product.

(v) Manufacturer, in the case of manufactured products, means the entity that performs the final manufacturing process that produces a manufactured product.

(vi) Predominantly of iron or steel or a combination of both means that the cost of the iron and steel content exceeds 50 percent of the total cost of all its components. The cost of iron and steel is the cost of the iron or steel mill products (such as bar, billet, slab, wire, plate, or sheet), castings, or forgings utilized in the manufacture of the product and a good faith estimate of the cost of iron or steel components.

(vii) Produced in the United States, in the case of manufactured products, means:

(A) For projects obligated on or after October 1, 2025, the product was manufactured in the United States; and

(B) For projects obligated on or after October 1, 2026, the product was manufactured in the United States and the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product.

(2) An article, material, or supply shall only be classified as an iron or steel product, a manufactured product, or other products as specified by law or in 2 CFR part 184. An iron or steel product must meet the requirements of paragraph (b) of this section. Except as otherwise provided in this paragraph (c), an article, material, or supply shall not be considered to fall into multiple categories. In some cases, an article, material, or supply may not fall under any of the above-listed categories. The classification of an article, material, or supply as falling into one of the categories listed in this paragraph (c) must be made based on its status at the time it is brought to the work site for incorporation into an infrastructure project. In general, the work site is the location of the infrastructure project at which the iron or steel product or manufactured product will be incorporated.

(i) With respect to precast concrete products that are classified as manufactured products, components of precast concrete products that consist wholly or predominantly of iron or steel or a combination of both shall meet the requirements of paragraph (b) of this section.

The cost of such components shall be included in the applicable calculation for purposes of determining whether the precast concrete product is produced in the United States.

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6/22/2026 https://www.ecfr.gov/current/title-2/part-184 https://www.ecfr.gov/current/title-2/part-184 https://www.ecfr.gov/current/title-2/part-184 https://www.ecfr.gov/current/title-23/section-635.410#p-635.410(b) https://www.ecfr.gov/current/title-23/section-635.410#p-635.410(c) https://www.ecfr.gov/current/title-23/section-635.410#p-635.410(b)

(ii) With respect to intelligent transportation systems and other electronic hardware systems that are installed in the highway right of way or other real property and classified as manufactured products, the cabinets or other enclosures of such systems that consist wholly or predominantly of iron or steel or a combination of both shall meet the requirements of paragraph (b) of this section. The cost of cabinets or other enclosures shall be included in the applicable calculation for purposes of determining whether systems referred to in the preceding sentence are produced in the United States.

(3) In determining whether the cost of components for manufactured products is greater than 55 percent of the total cost of all components, recipients shall determine the cost as follows:

(i) For components purchased by the manufacturer, the acquisition cost, including transportation costs to the place of incorporation into the manufactured product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or

(ii) For components manufactured by the manufacturer, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (c)(3)(i) of this section, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the manufactured product.

(4) The provisions of this paragraph (c) are separate and severable from one another and from the other provisions of this section. If any provision is stayed or determined to be invalid, the remaining provisions shall continue in effect.

(d) Standard recipient and Federal-aid contract procedures may be used to assure compliance with the requirements of this section.

5. Certification of Current Capacity

The Contractor must certify they have they financial capacity to complete the project by completing FDOT form 525-010-46 found in the “Submittal Questionnaire” under the FDOT Construction Forms question.

6. Change Orders

6.1. Without invalidating the Contract, and without notice to any Surety, the City may, at any time or from time to time, order additions, deletions, or revisions to the Work. These shall be authorized by Change Orders. Upon receipt of a Change Order signed by the City, the Contractor shall proceed with the Work involved. All such Work shall be executed

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6/22/2026 https://www.ecfr.gov/current/title-23/section-635.410#p-635.410(b) https://www.ecfr.gov/current/title-23/section-635.410#p-635.410(c)(3)(i) https://www.ecfr.gov/current/title-23/section-635.410#p-635.410(c)(3)(i) under the applicable conditions of the Contract Documents. If any Change Order causes an increase or decrease in the Contract Price, or an extension or shortening of the Contract Time, equitable adjustment shall be made by the City issuing a request to modify the Contract documents regardless of the cost of the request. A Change Order signed by the Contractor indicates their Contract therewith.

6.2. The City may authorize minor changes or alterations in the Work not involving extra cost and not inconsistent with the overall intent of the Contract Documents. These may be accomplished by a Field Order. If the Contractor believes that any minor change or alteration authorized by the City entitles them to an increase in the Contract Price or extension of Contract Time.

6.3. Additional Work performed by the Contractor, without authorization of a Change Order signed by the City, shall not entitle them to an increase in the Contract Price or an extension of the Contract Time, except in the case of an emergency.

6.4. Except as noted in Paragraph 12.3 above, performance of Change Order Work will not be authorized until the Change Order has been approved by the City. Change Order Work of indeterminate amount, such as additional excavation of unsuitable material where the total amount of material is unknown, will be authorized by the Consultant after City approval, on a “not to exceed” cost figure basis. Actual cost of Work so performed will be finalized in a later Change Order.

6.5. The City will execute appropriate Change Orders when so directed by the City Council, covering changes in the Work authorized to be performed. Work performed in an emergency, and any other claim of the Contractor for a change in the Contract Time or the Contract Price, which is approved by the City.

6.6. It is the Contractor’s responsibility to notify their Surety of any changes affecting the general scope of the Work or change in the Contract Price, and the amount of the applicable bonds shall be adjusted accordingly. The Contractor shall furnish proof of such adjustment to the City.

6.7. If the quantity of any of the Contract Unit Price Items is not exceeded by more than twenty-five percent (25%) of the quantity listed, no Contract Supplement for the additional Work will be required other than a Final Change Order for the actual amount installed. If any one of said quantities exceeds the quantity listed by more than twenty-five percent (25%), a Contract Supplement (Change Order) for the additional Work will be required before payment for such additional Work will be made. City Council approval must be obtained for such Work, before said Work can be authorized.

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6.8. The Contractor and City acknowledge that timely project completion is essential, and both parties shall diligently negotiate each requested change order. If after good faith efforts to agree upon the appropriate adjustments to Contractor’s compensation, the parties are unable to agree on same, then the City may either (1) cause the work to be performed by City forces, (2) retain an outside contractor, or (3) require performance of the work described in such change order request. Any failure to agree on the appropriate adjustment to compensation, before commencement of the work, shall be resolved in a court of competent jurisdiction in Lee County, Florida.

7. Claims by Contractor:

7.1. General.

When the Contractor deems that extra compensation or a time extension is due beyond that agreed to by the Engineer, whether due to delay, additional work, altered work, differing site conditions, breach of Contract, or for any other cause, the Contractor shall follow the procedures set forth herein for preservation, presentation and resolution of the claim. Submission of timely notice of intent to file a claim, preliminary time extension request, time extension request, and the certified written claim, together with full and complete claim documentation, are each a condition precedent to the Contractor bringing any circuit court, arbitration, or other formal claims resolution proceeding against the Department for the items and for the sums or time set forth in the Contractor’s certified written claim. The failure to provide such notice of intent, preliminary time extension request, time extension request, certified written claim and full and complete claim documentation within the time required shall constitute a full, complete, absolute and irrevocable waiver by the Contractor of any right to additional compensation or a time extension for such claim.

7.2. Notice of Claim.

Notice of Extra Work. Where the Contractor deems that additional compensation or a time extension is due for work or materials not expressly provided for in the Contract or which is by written directive expressly ordered by the Engineer, the Contractor shall submit written notification to the Engineer of the intention to make a claim for additional compensation before beginning the work on which the claim is based, and if seeking a time extension, the Contractor shall also submit a preliminary request for time extension within ten calendar days after commencement of a delay and a request for Contract Time extension within thirty calendar days after the elimination of the delay. If such written notification is not submitted and the Engineer is not afforded the opportunity for keeping strict account of actual labor, material, equipment, and time, the Contractor waives the claim for additional

FDOT Construction Supplemental Conditions | Page 6 compensation or a time extension. Such notice by the Contractor, and the fact that the Engineer has kept account of the labor, materials and equipment, and time, shall not in any way be construed as establishing the validity of the claim or method for computing any compensation or time extension for such claim. On projects with an original Contract amount of $3,000,000 or less within 90-calendar days after final acceptance of the project and on projects with an original Contract amount greater than $3,000,000 within 180 calendar days after final acceptance of the project, the Contractor shall submit full and complete claim documentation and duly certified. However, for any claim or part of a claim that pertains solely to final estimate quantities disputes the Contractor shall submit full and complete claim documentation and duly certified, as to such final estimate claim dispute issues, within 90 or 180 calendar days, respectively, of the Contractor’s receipt of the Department’s final estimate.

If the Contractor fails to submit a certificate of claim, the Department will so notify the Contractor in writing. The Contractor shall have ten calendar days from receipt of the notice to resubmit the claim documentation, without change, with a certificate of, without regard to whether the resubmission is within the applicable 90 or 180 calendar day deadline for submission of full and complete claim documentation. Failure by the Contractor to comply with the ten-calendar day notice shall constitute a waiver of the claim.

7.3. Claims for Delay.

Where the Contractor deems that additional compensation or a time extension is due on account of delay, differing site conditions, breach of Contract, or any other cause other than for work or materials not expressly provided for in the Contract (Extra Work) or which is by written directive of the Engineer expressly ordered by the Engineer, the Contractor shall submit a written notice of intent to the Engineer within ten days after commencement of a delay to a controlling work item expressly notifying the Engineer that the Contractor intends to seek additional compensation, and if seeking a time extension, the Contractor shall also submit a preliminary request for time extension within ten calendar days after commencement of a delay to a controlling work item, as to such delay and providing a reasonably complete description as to the cause and nature of the delay and the possible impacts to the Contractor’s work by such delay, and a request for Contract Time extension within thirty calendar days after the elimination of the delay. On projects with an original Contract amount of $3,000,000 or less within 90 calendar days after final acceptance of the project, and on projects with an original Contract amount greater than $3,000,000 within 180 calendar days after final acceptance of the project, the Contractor shall submit full and complete documentation and duly.

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If the Contractor fails to submit a certificate of claim, the Department will so notify the Contractor in writing. The Contractor shall have ten calendar days from receipt of the notice to resubmit the claim documentation, without change, with a certificate of claim, without regard to whether the resubmission is within the applicable 90 or 180 calendar day deadline for submission of full and complete claim documentation. Failure by the Contractor to comply with the ten-calendar day notice shall constitute a waiver of the claim.

There shall be no Contractor entitlement to any monetary compensation or time extension for any delays or delay impacts, whatsoever, that are not to a controlling work item, and then as to any such delay to a controlling work item entitlement to any monetary compensation or time extension shall only be to the extent such is otherwise provided for expressly, except that in the instance of delay to a non-controlling item of work the Contractor may be compensated for the direct costs of idle labor or equipment only, at the rates set forth, and then only to the extent the Contractor could not reasonably mitigate such idleness.

If the Contractor provides the written notice of intent, the preliminary request for time extension, and the request for Contract Time extension in compliance with the aforementioned time and content requirements, the Contractor's claim for delay to a controlling work item will be evaluated as of the date of the elimination of the delay even if the Contractor's performance subsequently overcomes the delay.

7.4. Content of Written Claim.

As a condition precedent to the Contractor being entitled to additional compensation or a time extension under the Contract, for any claim, the Contractor shall submit a certified written claim to the Department which will include for each individual claim, at a minimum, the following information:

7.4.1. A detailed factual statement of the claim providing all necessary dates, locations, and items of work affected and included in each claim;

7.4.2. The date or dates on which actions resulting in the claim occurred or conditions resulting in the claim became evident;

7.4.3. Identification of all pertinent documents and the substance of any material oral communications relating to such claim and the name of the persons making such material oral communications;

7.4.4. Identification of the provisions of the Contract which support the claim and a statement of the reasons why such provisions support the claim, or alternatively, the provisions of the Contract which allegedly have been breached and the actions constituting such breach;

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7.4.5. A detailed compilation of the amount of additional compensation sought and a breakdown of the amount sought as follows:

7.4.5.1. documented additional job site labor expenses;

7.4.5.2. documented additional cost of materials and supplies;

7.4.5.3. a list of additional equipment costs claimed, including each piece of equipment and the rental rate claimed for each;

7.4.5.4. any other additional direct costs or damages and the documents in support thereof;

7.4.5.5. any additional indirect costs or damages and all documentation in support thereof.

7.4.6. A detailed compilation of the specific dates and the exact number of calendar days sought for a time extension, the basis for entitlement to time for each day, all documentation of the delay, and a breakout of the number of days claimed for each identified event, circumstance or occurrence.

Further, the Contractor shall be prohibited from amending either the bases of entitlement or the amount of any compensation or time stated for any and all issues claimed in the Contractor’s written claim submitted hereunder, and any circuit court, arbitration, or other formal claims resolution proceeding shall be limited solely to the bases of entitlement and the amount of any compensation or time stated for any and all issues claimed in the Contractor’s written claim submitted hereunder. This shall not, however, preclude a Contractor from withdrawing or reducing any of the bases of entitlement and the amount of any compensation or time stated for any and all issues claimed in the Contractor’s written claim submitted hereunder at any time.

7.5. Action on Claim.

The Engineer will respond in writing on projects with an original Contract amount of $3,000,000 or less within 90 calendar days of receipt of a complete claim submitted by a Contractor in compliance with 5-12.3, and on projects with an original Contract amount greater than $3,000,000 within 120 calendar days of receipt of a complete claim submitted by a Contractor in compliance with 5-12.3. Failure by the Engineer to respond to a claim in writing within 90 or 120 days, respectively, after receipt of a complete claim submitted by the Contractor in compliance with 2.5 constitutes a denial of the claim by the Engineer. If the Engineer finds the claim or any part thereof to be valid, such partial or whole claim will be allowed and paid for to the extent deemed valid and any time extension granted, if applicable, as provided in the Contract. No circuit court or arbitration proceedings on any

FDOT Construction Supplemental Conditions | Page 9 claim, or a part thereof, may be filed until after final acceptance per 5-11 of all Contract work by the Department or denial hereunder, whichever occurs last.

7.6. Pre-Settlement and Pre-Judgment Interest.

Entitlement to any pre-settlement or prejudgment interest on any claim amount determined to be valid subsequent to the Department’s receipt of a certified written claim in full compliance with 5-12.3, whether determined by a settlement or a final ruling in formal proceedings, the Department shall pay to the Contractor simple interest calculated at the Prime Rate (as reported by the Wall Street Journal as the base rate on corporate loans posted by at least 75% of the nation’s 30 largest banks) as of the 60th calendar day following the Department’s receipt of a certified written claim in full compliance with 5- 12.3, such interest to accrue beginning 60 calendar days following the Department’s receipt of a certified written claim in full compliance with 5-12.3 and ending on the date of final settlement or formal ruling.

7.7. Compensation for Extra Work or Delay (5-12.6)

Compensation for Extra Work: Notwithstanding anything to the contrary contained in the Contract Documents, the Contractor shall not be entitled to any compensation beyond that provided.

Compensation for Delay: Notwithstanding anything to the contrary contained in the Contract Documents, the additional compensation shall be the Contractor’s sole monetary remedy any delay other than to perform extra work caused by the Department unless the delay shall have been caused by acts constituting willful or intentional interference by the Department with the Contractor’s performance of the work and then only where such acts continue after Contractor's written notice to the Department of such interference. The parties anticipate that delays may be caused by or arise from any number of events during the term of the Contract, including, but not limited to, work performed, work deleted, supplemental Contracts, work orders, disruptions, differing site conditions, utility conflicts, design changes or defects, time extensions, extra work, right-of-way issues, permitting issues, actions of suppliers, subcontractors or other contractors, actions by third parties, suspensions of work by the Engineer, shop drawing approval process delays, expansion of the physical limits of the project to make it functional, weather, weekends, holidays, special events, suspension of Contract Time, or other events, forces or factors sometimes experienced in construction work. Such delays or events and their potential impacts on the performance by the Contractor are specifically contemplated and acknowledged by the parties in entering into this Contract, FDOT Construction Supplemental Conditions | Page 10 and shall not be deemed to constitute willful or intentional interference with the Contractor’s performance of the work without clear and convincing proof that they were the result of a deliberate act, without reasonable and good-faith basis, and specifically intended to disrupt the Contractor’s performance.

Compensation for Direct Costs, Indirect Costs, Expenses, and Profit thereon, of or from Delay: For any delay claim, the Contractor shall be entitled to monetary compensation for the actual idle labor (including supervisory personnel) and equipment, and indirect costs, expenses, and profit thereon, as provided for in 4-3.2.1(4) and solely for costs incurred beyond what reasonable mitigation thereof the Contractor could have undertaken.

7.8. Mandatory Claim Records.

After submitting to the Engineer a notice of intent to file a claim for extra work or delay, the Contractor must keep daily records of all labor, material and equipment costs incurred for operations affected by the extra work or delay. These daily records must identify each operation affected by the extra work or delay and the specific locations where work is affected by the extra work or delay, as nearly as possible. The Engineer may also keep records of all labor, material and equipment used on the operations affected by the extra work or delay. The Contractor shall, once a notice of intent to claim has been timely filed, and not less than weekly thereafter as long as appropriate, submit the Contractor’s daily records to the Engineer and be likewise entitled to receive the Department’s daily records.

The daily records to be submitted hereunder shall be done at no cost to the recipient.

7.9. Claims for Acceleration.

The Department shall have no liability for any constructive acceleration of the work, nor shall the Contractor have any right to make any claim for constructive acceleration nor include the same as an element of any claim the Contractor may otherwise submit under this Contract. If the Engineer gives express written direction for the Contractor to accelerate its efforts, such written direction will set forth the prices and other pertinent information and will be reduced to a written Contract Document promptly. No payment will be made on a Supplemental Contract for acceleration prior to the Department’s approval of the documents.

7.10. Certificate of Claim.

When submitting any claim, the Contractor shall certify under oath and in writing, in accordance with the formalities required by Florida law, that the claim is made in good faith, that the supportive data are accurate and complete to the Contractor’s best knowledge and belief, and that the amount of the claim accurately reflects what the Contractor in good faith believes to be the Department’s liability. Such certification must

FDOT Construction Supplemental Conditions | Page 11 be made by an officer or director of the Contractor with the authority to bind the Contractor.

7.11. Non-Recoverable Items.

The parties agree that for any claim the Department will not have liability for the following items of damages or expense:

7.11.1. Loss of profit, incentives or bonuses;

7.11.2. Any claim for other than extra work or delay;

7.11.3. Consequential damages, including, but not limited to, loss of bonding capacity, loss of submitting opportunities, loss of credit standing, cost of financing, interest paid, loss of other work or insolvency;

7.11.4. Acceleration costs and expenses, except where the Department has expressly and specifically directed the Contractor in writing “to accelerate at the Department’s expense”;

nor;

7.11.5. Attorney fees, claims preparation expenses and costs of litigation

7.12. Exclusive Remedies.

Notwithstanding any other provision of this Contract, the parties agree that the Department shall have no liability to the Contractor for expenses, costs, or items of damages other than those which are specifically identified as payable. In the event any legal action for additional compensation, whether on account of delay, acceleration, breach of contract, or otherwise, the Contractor agrees that the Department’s liability will be limited to those items which are specifically identified as payable.

7.13. Settlement Discussions.

The content of any discussions or meetings held between the Department and the Contractor to settle or resolve any claims submitted by the Contractor against the Department shall be inadmissible in any legal, equitable, arbitration or administrative proceedings brought by the Contractor against the Department for payment of such claim.

Dispute Resolution Board, State Arbitration Board and Claim Review Committee proceedings are not settlement discussions, for purposes of this provision.

7.14. Personal Liability of Public Officials.

In carrying out any of the provisions of the Contract or in exercising any power or authority granted to the Secretary of Transportation, Engineer or any of their respective employees or agents, there shall be no liability on behalf of any employee, officer or official of the Department for which such individual is responsible, either personally or as officials or

FDOT Construction Supplemental Conditions | Page 12 representatives of the Department. It is understood that in all such matters such individuals act solely as agents and representatives of the Department.

7.15. Auditing of Claims.

All claims filed against the Department shall be subject to audit at any time following the filing of the claim, whether or not such claim is part of a suit pending in the Courts of this State. The audit may be performed, at the Department’s sole discretion, by employees of the Department or by any independent auditor appointed by the Department, or both. The audit may begin after ten days written notice to the Contractor, subcontractor, or supplier. The Contractor, subcontractor, or supplier shall make a good faith effort to cooperate with the auditors. As a condition precedent to recovery on any claim, the Contractor, subcontractor, or supplier must retain sufficient records, and provide full and reasonable access to such records, to allow the Department’s auditors to verify the claim and failure to retain sufficient records of the claim or failure to provide full and reasonable access to such records shall constitute a waiver of that portion of such claim that cannot be verified and shall bar recovery thereunder. Further, and in addition to such audit access, upon the Contractor submitting a written claim, the Department shall have the right to request and receive, and the Contractor shall have the affirmative obligation to submit to the Department any and all documents in the possession of the Contractor or its subcontractors, materialmen or suppliers as may be deemed relevant by the Department in its review of the basis, validity or value of the Contractor’s claim.

Without limiting the generality of the foregoing, the Contractor shall upon written request of the Department make available to the Department’s auditors, or upon the Department’s written request, submit at the Department’s expense, any or all of the following documents:

7.15.1. Daily time sheets and foreman’s daily reports and diaries;

7.15.2. Insurance, welfare and benefits records;

7.15.3. Payroll register;

7.15.4. Earnings records;

7.15.5. Payroll tax return;

7.15.6. Material invoices, purchase orders, and all material and supply acquisition contracts;

7.15.7. Material cost distribution worksheet;

7.15.8. Equipment records (list of company owned, rented or other equipment used);

7.15.9. Contractor rental Contracts and subcontractor invoices;

7.15.10. Subcontractor payment certificates;

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7.15.11. Canceled checks for the project, including, payroll and Contractors;

7.15.12. Job cost report;

7.15.13. Job payroll ledger;

7.15.14. General ledger, general journal, (if used) and all subsidiary ledgers and journals together with all supporting documentation pertinent to entries made in these ledgers and journals;

7.15.15. Cash disbursements journal;

7.15.16. Financial statements for all years reflecting the operations on this project;

7.15.17. Income tax returns for all years reflecting the operations on this project;

7.15.18. All documents which reflect the Contractor’s actual profit and overhead during the years this Contract was being performed and for each of the five years prior to the commencement of this Contract;

7.15.19. All documents related to the preparation of the Contractor’s Submittal including the final calculations on which the Solicitation was based;

7.15.20. All documents which relate to each and every claim together with all documents which support the amount of damages as to each claim;

7.15.21. Worksheets used to prepare the claim establishing the cost components for items of the claim including, but not limited to, labor, benefits and insurance, materials, equipment, subcontractors, and all documents that establish which time periods and individuals were involved, and the hours and rates for such individuals.

8. Conflict of Interest

“No member, officer or employee of the City or of the locality during his tenure or for 2 years thereafter shall have any interest, direct or indirect, in this contract or the proceeds thereof."

9. Contractor Purchased Equipment for State or Local Ownership

This is not allowed for this project.

10. Disadvantages Business Enterprise (DBE)

Terms and conditions are found under form 275-030-11, if applicable, found in the Submission Questionnaire, under “FDOT Construction Forms”. While the DBE is no longer a requirement but does remain in the LAP checklists and LAP Agreement. The DBE language should be kept intact in the documents until the implementation of the update documents with changes. We are uploading the attached memorandum to every contract in GAP, and it will be uploaded once there is an executed contract in place for this project as well." (See memo under attachments)

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Florida Department of Transportation

RON DESANTIS

GOVERNOR

605 Suwannee Street

Tallahassee, FL 32399-0450

JARED W. PERDUE, P.E.

SECRETARY

www.fdot.gov

MEMORANDUM

DATE: December 1, 2025

COPIES: Contract File

SUBJECT: USDOT Interim Final Rule for DBE contracting guidelines

Pursuant to the enclosed correspondence dated November 20, 2025, enforcement of the U.S.

is hereby suspended for all current and future Department contracts until further notice.

Enclosures Important Changes to Business Certification Programs dated 11-20-2025 Guidance from USDOT DBE IFR Guidance.9-30-2025.pdf USDOT Interim Final Rule Regulations.gov USDOT Interim Final Rule Frequently Asked Questions FAQs

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Florida Department of Transportation

RON DESANTIS

GOVERNOR

605 Suwannee Street

Tallahassee, FL 32399-0450

JARED W. PERDUE, P.E.

SECRETARY

www.fdot.gov

MEMORANDUM

DATE: November 20, 2025

TO: Transportation Partners

FROM:

SUBJECT: Important Changes to Business Certification Programs

The purpose of this memorandum is to inform Florida-based federally funded transportation partners of recent changes in both state and federal law to reduce discriminatory practices included ged Business Enterprise (DBE) and Airport Concession Disadvantaged Business Enterprise (ACDBE) programs.

2025. Florida firmly believes the DBE and ACDBE programs must be repealed entirely and replaced with a program whose primary purpose is advocating for improving economic competitiveness and small business development.

Last month, USDOT issued an Interim Final Rule concerning its DBE and ACDBE programs, effectively removing the presumption based on race and sex with a focus on economic programs in Florida Law, replacing discriminatory requirements with a state-led program focused share with all transportation industry vendors links to the most recent USDOT guidance, Interim Final Rule, and Frequently Asked Questions.

While FDOT continues to work with USDOT to transition the state entirely away from the DBE and ACDBE programs, please consider this memorandum as a reminder of your responsibility to follow the new federal Interim Final Rule to prevent discriminatory contracting practices.

Separately, FDOT will launch a new state-led small business development program through the FDOT Business Growth and Engagement Office next year which will focus on economic competitiveness and small business development over any discriminatory methodology.

Additional information will be provided in the months ahead including:

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In the interim, if you become aware of a federally-funded transportation entity that is not in compliance with the new federal protections against discriminatory contracting practices, you are encouraged to notify the department at bge.office@dot.state.fl.us. Upon receipt, FDOT will notify the entity of the requirements of Federal law and further refer such complaint to the appropriate Federal authority.

Should you have any questions about these changes, please feel free to contact us at bge.office@dot.state.fl.us or 850-414-4747.

We thank you for your continued efforts to reduce congestion and prioritize the movement of our

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Office of the Secretary of Transportation

Office of Civil Rights 1200 New Jersey Avenue, S.E.

Washington, D.C. 20590

September 30, 2025

This guidance provides information about important changes that the U.S. Department of Transportation (“Department” or “DOT”) is requiring recipients of financial assistance from the Department to make with respect to the Disadvantaged Business Enterprise (“DBE”) and the Airport Concession Disadvantaged Business Enterprise (“ACDBE”) programs.

Background

Recipients of highway, transit, and airport funding distributed by DOT are subject to the requirements of the DBE program, under which they must set goals for participation by small businesses owned and controlled by “socially and economically disadvantaged” individuals.1

Recipients of airport funding are also subject to the requirements of the ACDBE program, which requires them to set similar goals with respect to airport concessionaries.2

Unfortunately, not all individuals have been treated equally under this program. Instead, Congress has mandated that DOT treat certain individuals—women and members of certain racial and ethnic groups—as “presumed” to be disadvantaged.3 Other individuals do not benefit from that presumption. This means that two similarly situated small business owners may face different standards for entering the program, based solely on their race, ethnicity, or sex.

On September 23, 2024, the U.S. District Court for the Eastern District of Kentucky determined that the DBE program’s use of race- and sex-based presumptions likely does not comply with the Constitution’s promise of equal protection under the law.4 Accordingly, the Court issued a

1 See Infrastructure Investment and Jobs Act (“IIJA”) § 11101(e), Pub. L. No. 117-58 (2021) (reauthorizing DBE program with respect to highway and transit funding); 49 U.S.C. § 47113(b) (DBE program for airport funding); 49 CFR part 26 (DOT implementing regulations).

2 See 49 U.S.C. § 47107(e); 49 CFR part 23.

3 Congress has provided that: (1) “women shall be presumed to be socially and economically disadvantaged individuals”; and (2) the term “socially and economically disadvantaged individuals” should otherwise be given the meaning given by section 8(d) of the Small Business Act and its implementing regulations. See IIJA § 11101(e)(2) (B); 49 U.S.C. §§ 47107(e)(1), 47113(a)(2). Section 8(d) of the Small Business Act and its implementing regulations create a rebuttable presumption that “Black Americans,” “Hispanic Americans,” “Native Americans,” “Asian Pacific Americans,” and “Subcontinent Asian Americans” are disadvantaged. See 15 U.S.C. § 637(d)(3); 13 CFR 124.103(b)(1).

4 Mid-America Milling Co. v. U.S. Dep’t of Transp., No. 3:23-cv-00072, 2024 WL 4267183 (Sept. 23, 2024).

FDOT Construction Supplemental Conditions | Page 18 preliminary injunction that prohibits DOT from mandating the use of race- and sex-based presumptions with respect to contracts on which the two plaintiff entities bid.

In accordance with the directives of the President and the Attorney General, DOT and the Department of Justice (“DOJ”) have evaluated the DBE and ACDBE programs. DOT and DOJ, consistent with the ruling of the District Court, have determined that the DBE program’s race- and sex-based presumptions do not comply with the Fifth Amendment’s Due Process Clause, which prohibits the Federal Government from depriving individuals of the equal protection of the laws.

On May 28, 2025, DOT (represented by DOJ), along with the plaintiffs in the litigation in the U.S.

District Court for the Eastern District of Kentucky, asked the Court to enter a Consent Order resolving a constitutional challenge to the DBE program.5 The motion is currently pending. In the proposed Consent Order, DOT stipulated and agreed that “the DBE program’s use of race- and sex-based presumptions of social and economic disadvantage . . . violates the equal protection component of the Due Process Clause of the Fifth Amendment of the U.S. Constitution.” The parties asked the Court to declare that “the use of DBE contract goals in a jurisdiction, where any DBE in that jurisdiction was determined to be eligible based on a race- or sex-based presumption, violates the equal protection component of the Due Process Clause of the Fifth Amendment,” and to hold and declare that DOT “may not approve any federal, state, or local DOT-funded projects with DBE contract goals where any DBE in that jurisdiction was determined to be eligible based on a race- or sex-based presumption.”

On June 25, 2025, the Solicitor General wrote to the Speaker of the House, consistent with 28 U.S.C. § 530D, to advise the Speaker that DOJ had concluded that the DBE program’s presumptions violate the Constitution, that DOJ would no longer defend the presumptions in court, and that DOJ had taken that position in ongoing litigation.6 DOT agrees with and adopts the Solicitor General’s analysis.

Interim Final Rule and Guidance

In light of DOT’s determination that the DBE program’s race- and sex-based presumptions are unconstitutional, DOT issued an interim final rule removing the presumptions from the DBE program regulations (“Interim Final Rule”).7 Because the ACDBE presumptions are functionally identical and suffer the same constitutional infirmity, the rule also removes the presumptions from the ACDBE regulations.

Accordingly, DOT issues the following guidance to recipients of DOT highway, transit, and airport funding.

5 Joint Motion for Entry of Consent Order, Mid-America Milling Co. v. U.S. Dep’t of Transp., No. 3:23-cv-00072 (E.D. Ky. May 28, 2025).

6 Letter from Solicitor General D. John Sauer to Hon. Mike Johnson (June 25, 2025), https://www.justice.gov/oip/media/1404871/dl?inline.

7 See Interim Final Rule, Disadvantaged Business Enterprise Program and Disadvantaged Business Enterprise in Airport Concessions Program Implementation Modifications, DBE Laws, Policy, and Guidance | US Department of Transportation (Sept. 30, 2025).

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Unified Certification Programs may not use race- or sex-based presumptions in determining DBE/ACDBE eligibility.

The Interim Final Rule removes race- and sex-based presumptions from the definitions of “socially and economically disadvantaged individual,” and instead provides that the owner of a DBE or ACDBE applicant must demonstrate on a case-by-case basis that the individual meets the criteria described in 49 CFR § 26.67.8

Section 26.67 provides, in turn, that an owner must:

(1) demonstrate that the owner is socially and economically disadvantaged based on his or her own experiences and circumstances that occurred within American society, and without regard to race or sex;

(2) submit to the certifier a personal narrative establishing the existence of disadvantage by a preponderance of the evidence based on individualized proof regarding specific instances of economic hardship, systemic barriers, and denied opportunities that impeded the owner’s progress or success in education, employment, or business, including obtaining financing on terms available to similarly situated, non-disadvantaged persons;

(3) state how and to what extent the impediments caused the owner economic harm, including a full description of type and magnitude, and establish the owner is economically disadvantaged in fact relative to similarly situated non-disadvantaged individuals; and

(4) state how and to what extent the impediments caused the owner economic harm, including a full description of type and magnitude; and

(5) attach to the Personal Narrative a current personal net worth statement and any other financial information the owner considers relevant.9

Each Unified Certification Program (“UCP”) established pursuant to 49 CFR § 26.81 must immediately begin to apply these new certification standards.

UCPs must reevaluate the eligibility of existing DBEs and ACDBEs.

The Interim Final Rule requires each UCP to reevaluate all current DBEs and ACDBEs, to recertify any DBE or ACDBE that meets the new certification standards, and to decertify any DBE or ACDBE that does not meet the new certification standards. The decertification procedures of 49 CFR § 26.87 do not apply to any decertification decisions under this process.10

The reevaluation process mandated by the Interim Final Rule will ensure a level playing field between existing participants and new applicants, while also eliminating the effects of the unconstitutional presumptions.

8 Interim Final Rule (§§ 23.3, 26.5).

9 Id. (§ 26.67).

10 Id. (§§ 23.81, 26.111).

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The Interim Final Rule sets out rules governing the transition to the new requirements.

The Interim Final Rule provides that until a UCP completes the reevaluation process outlined above, each recipient covered by that UCP may not: (1) include DBE contract goals or concession-specific ACDBE goals; or (2) count any participation toward overall DBE or ACDBE goals.11

These requirements will ensure that existing DBEs and ACDBEs do not continue to receive any benefits as a result of their certification under the old standards.

The Interim Final Rule provides that until a UCP completes the reevaluation process, no recipient covered by that UCP shall be…