FFP Project Contract Insertion.pdf

State of Wisconsin Department of Administration (DOA) – Division of Energy, Housing and Community Resources (DEHCR) Flexible Facilities Program (FFP) Project Contract Terms & Conditions

FFP Project Contract Terms & Conditions (Page 1 of 11) AttachFFP-03-03 Form v.2025-05-07

WISCONSIN FLEXIBLE FACILITIES PROGRAM (FFP) PROJECT

CONTRACT TERMS & CONDITIONS

For Prime Contractors and Subcontractors

This document must be included in all construction and non-construction prime contracts and subcontracts for an FFP project.

Contents Overview:

1. Uniform Cost Principles

2. Recipient Integrity and Performance Matters

3. Conflict of Interest Restrictions

4. SAM.gov Debarment and Suspension

5. SAM.gov Records

6. Lobbying Restrictions and Disclosure of Lobbying Activities

7. Domestic Preference Expectation

8. Build America Buy America (BABA) Exemption (Conditional)

9. Consideration for Small Businesses, Women-Owned, Minority-Owned, and Disabled Veteran-Owned Businesses and

Labor Surplus Area Firms

10. Drug-Free Workplace

11. Environmental Laws

12. Solid Waste Disposal Act

13. Clean Air Act

14. Protections for Whistleblowers

15. Encouraging Seat Belt Use

16. Reducing Text Messaging While Driving

17. Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment

18. Publications

19. Assurances with Compliance with Civil Rights Requirements

20. Equal Opportunity Contract Clause

21. Labor – Mechanics & Laborers (i.e., Construction Workers)

(a) Contract Work Hours and Safety Standards Act (CWHSSA)

(b) Davis-Bacon Act (DBA) Exemption (Conditional)

(c) Copeland “Anti-Kickback” Act (40 U.S.C. 3145) Exemption (Conditional)

(d) Fair Labor Practices - Fair Wages, Payroll Reporting, & Monitoring Requirements

(e) Labor Standards Records Retention

22. Termination Clauses in Contracts

23. Records and Inspection

24. General Compliance

25. False Statements

State of Wisconsin Department of Administration (DOA) – Division of Energy, Housing and Community Resources (DEHCR)

FFP Project Contract Terms & Conditions (Page 2 of 11) AttachFFP-03-03 Form v.2025-05-07

Overview:

The Flexible Facilities Program (FFP) is funded by the U.S. Department of Treasury’s Capital Projects Fund (CPF), and administered by the State of Wisconsin Department of Administration (DOA) – Division of Energy, Housing and Community Resources (DEHCR). The contracting entity (the “contractor” hereafter) signing the contract to which this document is attached agrees to comply with the requirements of section 604 of the Social Security Act (the Capital Projects Fund Statute), as added by section 9901 of the American Rescue Plan Act of 2021, and guidance issued by the Treasury and DEHCR regarding the foregoing. The contractor also agrees to comply with all other applicable federal statutes, regulations, and executive orders, including but not limited to applicable statutes and regulations prohibiting discrimination in programs receiving federal financial assistance and all applicable federal environmental laws and regulations. The contractor shall provide for such compliance by other parties in any agreements it enters into with other parties relating to the FFP project.

The FFP requirements applicable to the contract award include, without limitation, the following:

1. Uniform Cost Principles: Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 CFR Part 200, other than such provisions as Treasury may determine are inapplicable to the FFP grant and associated contracts, and subject to such exceptions as may be otherwise provided by Treasury or DOA-DEHCR.

2. Recipient Integrity and Performance Matters: Recipient Integrity and Performance Matters pursuant to which the award term set forth in 2 CFR Part 200, Appendix XII to Part 200 is hereby incorporated by reference.

3. Conflict of Interest Restrictions: Conflict of interest restrictions and requirements in accordance with 2 CFR Part 200.112, 2 CFR Part 200.318 and 2 CFR Part 200.319(b).

2 CFR Part 200.112. All conflicts must be disclosed by the contractor to the owner of this contract prior to contract execution, and will be reported to Treasury, as deemed appropriate, by the State of Wisconsin.

2 CFR Part 200.318. Entities must maintain written standards of conduct covering conflicts of interest and governing the actions of its employees engaged in the selection, award, and administration of contracts. No employee, officer, agent, or board member with a real or apparent conflict of interest may participate in the selection, award, or administration of a contract supported by the Federal award. A conflict of interest includes when the employee, officer, agent, or board member, any member of their immediate family, their partner, or an organization that employs or is about to employ any of the parties indicated herein, has a financial or other interest in or a tangible personal benefit from an entity considered for a contract. An employee, officer, agent, and board member of a grantee or subrecipient may neither solicit nor accept gratuities, favors, or anything of monetary value from contractors.

However, the grantee or subrecipient may set standards for situations where the financial interest is not substantial or a gift is an unsolicited item of nominal value. The grantee's or subrecipient's standards of conduct must also provide for disciplinary actions to be applied for violations by its employees, officers, agents, or board members.

2 CFR Part 200.319(b). To ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, or invitations for bids must be excluded from competing on those procurements.

4. SAM.gov Debarment and Suspension: OMB Guidelines to Agencies on Governmentwide Debarment and

Suspension (Non-procurement) through the System for Award Management (SAM.gov at https://sam.gov/content/entity-information), pursuant 2 CFR Part 180, including the requirement to include a term or condition in all lower tier covered transactions (contracts and subcontracts described in 2 CFR Part 180, subpart B) that the award is subject to 2 CFR Part 180 and Treasury’s implementing regulation at 31 CFR Part 19.

5. SAM.gov Records: “Recipient Integrity and Performance Matters,” pursuant to which the award term set forth in 2

CFR Part 200, Appendix XII to Part 200, hereby incorporated by reference, pertaining to entity records on SAM.gov.

6. Lobbying Restrictions and Disclosure of Lobbying Activities: The new restrictions on lobbying per 31 CFR Part 21.

The contractor is to comply with lobbying certification and lobbying disclosure requirements for the FFP project.

If the amount of the award under this contract is greater than $100,000.00, the contractor certifies that to the best of their knowledge and belief, that:

(a) No Federal appropriated funds have been paid or will be paid, by or on behalf of the contractor, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative https://sam.gov/ https://sam.gov/entity-information https://sam.gov/

State of Wisconsin Department of Administration (DOA) – Division of Energy, Housing and Community Resources (DEHCR)

FFP Project Contract Terms & Conditions (Page 3 of 11) AttachFFP-03-03 Form v.2025-05-07 agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

(b) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, contractor shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions [accessed at:

https://www.ojp.gov/sites/g/files/xyckuh241/files/media/document/disclosure.pdf].

(c) The contractor shall require that the language of this certification be included in the contract award documents for all subawards at all tiers (including subcontracts and contracts under grants, loans, and cooperative agreements) and that all subcontractors shall certify and disclose accordingly.

The certification in this contract is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

7. Domestic Preference Expectation: In accordance with the domestic preference provisions of 2 CFR Part 200.322, the contractor agrees, to the greatest extent practicable and consistent with law, to provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products).

8. Build America Buy America (BABA) Exemption (Conditional): A general exemption has been granted by Treasury from the domestic preference requirements of Executive Order 14005: Ensuring the Future is Made in All of America by All of America’s Workers (January 25, 2021) and the Build America Buy America Act (2 CFR 184, enacted as part of the Infrastructure Investment and Jobs Act on November 15, 2021) for projects funded by the Treasury’s Capital Projects Fund (CPF). They are not applicable to FFP projects unless otherwise triggered by another federal funding source for the CPF-funded project, which is specified in this contract.

9. Consideration for Small Businesses, Women-Owned, Minority-Owned, and Disabled Veteran-Owned

Businesses and Labor Surplus Area Firms: The contractor and their subcontractors (all tiers) shall take all affirmative steps to ensure small businesses, woman-owned, minority-owned and disabled veteran-owned businesses, and labor surplus area firms are considered for sources of supplies and services in accordance with 2 CFR Part 200.321 and Department policy, and as defined below:

• Small Business – A business firm that matches the revenue and employment status of a small business in their industry, as specified in 13 CFR Part 121.101 and the North American Industry Classification System (NAICS).

Registered small businesses may be found in directories available on the U.S. Small Business Administration website.

• Minority-Owned Business Enterprise- (MBE)* – A firm that is at least 51% owned, controlled, and actively managed by one or more members of an eligible minority group member; is a sole proprietorship, corporation, LLC, or joint ventures; is organized in a for profit basis and currently performing a useful business function; and is not held in trust. If the business is a subsidiary or affiliate, the parent company must be at least 51% owned by a minority or minority owners. Eligible racial ethnic categories include: American Indian, Asian-Indian, Asian-Pacific, Black, Eskimo or Aleut, Hispanic, and Native Hawaiian [Wis. Stat. § 16.287(1) and Wis. Admin. Code §§ 84.01(29)(a-e)].

• Women-Owned Business Enterprise (WBE)* – A firm that is at least 51% owned, controlled, and actively managed by one or more women; is a sole proprietorship, corporation, LLC, or joint ventures; is organized in a for profit basis and currently performing a useful business function; and if held in trust, it must be a woman or women as the owner, beneficiary, and trustee of the trust. If the business is a subsidiary or affiliate, the parent company must be at least 51% owned by a woman or women owners.

• Disabled Veteran-Owned Business (DVB)* – A firm that it least 51% owned, controlled, and actively managed by one or more service-disabled veterans; is a sole proprietorship, corporation, LLC, or joint ventures; is organized in a for profit basis and currently performing a useful business function; and is not held in trust. If the business is a subsidiary or affiliate, the parent company must be at least 51% owned by a service-disabled veteran owner or service-disabled veteran owners. The headquarters must be located in Wisconsin. A disabled veteran is defined as having a Certificate of Release or Discharge from Active Duty (Form DD214); being a resident of Wisconsin; having https://www.ojp.gov/sites/g/files/xyckuh241/files/media/document/disclosure.pdf https://www.ecfr.gov/current/title-2/subtitle-A/chapter-II/part-200/subpart-D/subject-group-ECFR45ddd4419ad436d/section-200.322 https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers https://www.ecfr.gov/current/title-2/subtitle-A/chapter-I/part-184 https://www.ecfr.gov/current/title-13/section-121.101 http://www.ntis.gov/products/naics.aspx https://dsbs.sba.gov/search/dsp_dsbs.cfm;jsessionid=61A3B0BCD43029504CCE3865F221C0D9.cfusion?CFID=170340&CFTOKEN=612094beebab94f7-6526C72A-A74A-ADC3-C8E28986A6465A6B https://dsbs.sba.gov/search/dsp_dsbs.cfm;jsessionid=61A3B0BCD43029504CCE3865F221C0D9.cfusion?CFID=170340&CFTOKEN=612094beebab94f7-6526C72A-A74A-ADC3-C8E28986A6465A6B https://docs.legis.wisconsin.gov/statutes/statutes/16/i/287 https://docs.legis.wisconsin.gov/code/admin_code/adm/84/02 https://docs.legis.wisconsin.gov/code/admin_code/adm/84/02

State of Wisconsin Department of Administration (DOA) – Division of Energy, Housing and Community Resources (DEHCR)

FFP Project Contract Terms & Conditions (Page 4 of 11) AttachFFP-03-03 Form v.2025-05-07 a Disability Rating of at least 0% with the Department of Veteran’s Affairs or an Armed Services Branch [Wis. Stat. § 16.283(1)(b) and Wis. Admin. Code § 82.22].

• Labor Surplus Area Firm – A business that operates in a “labor surplus area” as designated by the U.S.

Department of Labor (USDOL). USDOL publishes a list of LSAs on a fiscal year basis on the USDOL Labor Surplus Area website [https://www.dol.gov/agencies/eta/lsa].

*A directory of MBE, WBE and DVB firms may be accessed on the Wisconsin Supplier Diversity Program website [https://supplierdiversity.wi.gov/Pages/Home.aspx].

10. Drug-Free Workplace: The Government-wide Requirements for Drug-Free Workplace, 31 CFR Part 20 is hereby incorporated by reference.

11. Environmental Laws: Generally applicable federal environmental laws and regulations, as summarized in DOA –

DEHCR’s FFP Environmental Report Template.

12. Solid Waste Disposal Act: Pursuant to 2 CFR Part 200.323, the contractor represents and warrants that in its performance under the Agreement, contractor shall comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

13. Clean Air Act: If the contractor’s prime contract or subcontract for the FFP project is in excess of $150,000, the contractor must comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. §§ 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. §§ 1251-1387) and agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with the FFP Grant Award. Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).

14. Protections for Whistleblowers:

(a) In accordance with 41 U.S.C. § 4712, contractor may not discharge, demote, or otherwise discriminate against an employee in reprisal for disclosing to any of the list of persons or entities provided below, information that the employee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant.

(b) The list of persons and entities referenced in the paragraph above includes the following:

1) A member of Congress or a representative of a committee of Congress;

2) An Inspector General;

3) The Government Accountability Office;

4) A Treasury employee responsible for contract or grant oversight or management;

5) An authorized official of the Department of Justice or other law enforcement agency;

6) A court or grand jury; or

7) A management official or other employee of Grantee or DOA – DEHCR, contractor, or subcontractor who has the responsibility to investigate, discover, or address misconduct.

(c) Grantee shall inform its employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce.

15. Encouraging Seat Belt Use: To promote increasing seat belt use in the United States and pursuant to Executive Order

13043, 62 FR 19217 (Apr. 18, 1997), contractors are encouraged to adopt and enforce on-the-job seat belt policies and programs for their employees when operating company-owned, rented or personally owned vehicles.

https://docs.legis.wisconsin.gov/statutes/statutes/16/i/283 https://docs.legis.wisconsin.gov/statutes/statutes/16/i/283 https://docs.legis.wisconsin.gov/code/admin_code/adm/82/22 https://www.dol.gov/agencies/eta/lsa https://www.dol.gov/agencies/eta/lsa https://www.dol.gov/agencies/eta/lsa https://supplierdiversity.wi.gov/Pages/Home.aspx https://supplierdiversity.wi.gov/Pages/Home.aspx https://energyandhousing.wi.gov/Documents/Flexible%20Facilities/FFP%20Environmental%20Report%20%28Template%29.docx

State of Wisconsin Department of Administration (DOA) – Division of Energy, Housing and Community Resources (DEHCR)

FFP Project Contract Terms & Conditions (Page 5 of 11) AttachFFP-03-03 Form v.2025-05-07

16. Reducing Text Messaging While Driving: Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), the contractor is encouraged to adopt and enforce policies that ban text messaging while driving, and Grantee should establish workplace safety policies to decrease accidents caused by distracted drivers.

17. Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment: The FFP funds may not be used to procure or obtain any covered telecommunication and video surveillance services or equipment as described in 2 CFR Part 200.216, including covered telecommunication and video surveillance services or equipment provided or produced by entities owned or controlled by the People’s Republic of China and telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).

18. Publications: Any publications produced with funds from this contract award must display the following language:

“This project [is being] [was] supported, in whole or in part, by federal award number CFDA # 21.029, awarded to [name of FFP project grantee] via the Wisconsin Department of Administration by the U.S. Department of the Treasury.”

19. Assurances with Compliance with Civil Rights Requirements: The following equal opportunity and Civil Rights compliance laws for which the associated requirements apply to FFP project contracts:

1. Executive Order 11246 as amended by EO 11375

2. Executive Order 12250

3. Executive Order 13160

4. Executive Order 13166

5. Title VI of the Civil Rights Act of 1964

6. Title IX of the Education Amendments of 1972

7. Section 504 of the Rehabilitation Act of 1973

8. Age Discrimination Act of 1975

(a) As a condition of receipt of federal funding under this contract, the contractor provides the following assurances with respect to the fulfillment of the contract:

1) Title VI of the Civil Rights Act of 1964. The contractor will ensure its current and future compliance with Title VI of the Civil Rights Act of 1964, as amended, which prohibits exclusion from participation, denial of the benefits of, or subjection to discrimination under programs and activities receiving federal financial assistance, of any person in the United States on the ground of race, color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by the Department of the Treasury Title VI regulations at 31 CFR Part 22 and other pertinent executive orders such as Executive Order 13166, directives, circulars, policies, memoranda, and/or guidance documents.

2) Executive Order 13166 - Access to Services for Persons with Limited English Proficiency. The contractor acknowledges that Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency” [https://www.justice.gov/crt/executive-order-13166], seeks to improve access to federally assisted programs and activities for individuals who, because of national origin, have Limited English proficiency (LEP). The contractor understands that denying a person access to its programs, services, and activities because of LEP is a form of national origin discrimination prohibited under Title VI of the Civil Rights Act of 1964 and the Department of the Treasury’s implementing regulations. Accordingly, contractor shall initiate reasonable steps, or comply with the Department of the Treasury’s directives, to ensure that LEP persons have meaningful access to its programs, services, and activities. The contractor understands and agrees that meaningful access may entail providing language assistance services, including oral interpretation and written translation where necessary, to ensure effective communication in the contractor’s programs, services, and activities.

3) LEP Persons Consideration. The contractor agrees to consider the need for language services for LEP persons when the contractor develops applicable budgets and conducts programs, services, and activities. As a resource, the Department of the Treasury has published its LEP guidance at 70 FR 6067.

For more information on taking reasonable steps to provide meaningful access for LEP persons, please visit http://www.lep.gov.

4) Civil Rights Act Contract Clause. The contractor acknowledges and agrees that it must require any subcontractors, successors, transferees, and assignees to comply with assurances (1)-(3). above, and https://sam.gov/content/entity-information

State of Wisconsin Department of Administration (DOA) – Division of Energy, Housing and Community Resources (DEHCR)

FFP Project Contract Terms & Conditions (Page 6 of 11) AttachFFP-03-03 Form v.2025-05-07 agrees to incorporate the following language in every contract or agreement subject to Title VI and its regulations between contractor and its subcontractors, successors, transferees, and assignees:

Civil Rights Act Subcontract Clause:

The subcontractor, successor, transferee, and assignee shall comply with Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from excluding from a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by the Department of the Treasury’s Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract (or agreement). Title VI also includes protection to persons with “Limited English Proficiency” in any program or activity receiving federal financial assistance, 42 U.S.C. § 2000d et seq., as implemented by the Department of the Treasury’s Title VI regulations, 31 CFR Part 22, and herein incorporated by reference and made a part of this contract or agreement.

(b) The contractor shall cooperate with the owner of this contract, the FFP grantee, and the State of Wisconsin FFP in any enforcement or compliance review activities by the U.S. Department of the Treasury of the aforementioned obligations. Enforcement may include investigation, arbitration, mediation, litigation, and monitoring of any settlement agreements that may result from these actions.

20. Equal Opportunity Contract Clause:

Compliance with state and federal equal opportunity and nondiscriminatory practices in contracting and employment, per Wisconsin Statute 16.765, the Civil Rights Act of 1964, and EO 11246, as amended, is required.

41 CFR Part 60-1.4(b) Equal Opportunity Clause. [EO 11246, as amended by EO 11375]

Federally assisted construction contracts.

(a) Law and Provisions. Except as otherwise provided under 41 CFR Part 60, if the contractor has been awarded a construction contract for the federally assisted FFP project, then the contractor shall comply with, and include in all construction subcontracts for the FFP project, the equal opportunity clause provided under 41 CFR Part 60- 1.4(b), as listed on the pages that follow. This is required in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR Part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.”

(b) Contract Language. Except as otherwise provided, the FFP grantee, grant subrecipient, each prime contractor and each subcontractor is required to agree to the terms and include the following language as a condition of any contract for the FFP project:

The contractor signing this contract hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined in the regulations of the Secretary of Labor at 41 CFR Chapter 60, which is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, the following equal opportunity clause:

During the performance of this contract, the contractor agrees as follows:

(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following:

Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination;

rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.

https://docs.legis.wisconsin.gov/statutes/statutes/16/iv/765 https://www.ecfr.gov/current/title-41/subtitle-B/chapter-60/part-60-1/subpart-A/section-60-1.4 https://www.ecfr.gov/current/title-41/subtitle-B/chapter-60

State of Wisconsin Department of Administration (DOA) – Division of Energy, Housing and Community Resources (DEHCR)

FFP Project Contract Terms & Conditions (Page 7 of 11) AttachFFP-03-03 Form v.2025-05-07

(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.

(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.

(4) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

(5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.

(6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.

(7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.

(8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor.

The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:

Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.

The contractor further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the contractor so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.

The contractor agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.

The contractor further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to

State of Wisconsin Department of Administration (DOA) – Division of Energy, Housing and Community Resources (DEHCR)

FFP Project Contract Terms & Conditions (Page 8 of 11) AttachFFP-03-03 Form v.2025-05-07 the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order.

In addition, the contractor agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the contractor under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such contractor; and refer the case to the Department of Justice for appropriate legal proceedings.

(c) Subcontracts. Each nonexempt prime contractor or subcontractor shall include the equal opportunity clause in each of its nonexempt subcontracts.

(d) Inclusion of the equal opportunity clause by reference. [This is not a provision allowable for or applicable to FFP project construction contractors and subcontractors.]

(e) Incorporation by operation of the order. By operation of the order, the equal opportunity clause shall be considered to be a part of every contract and subcontract required by the order and the regulations in this part to include such a clause whether or not it is physically incorporated in such contracts and whether or not the contract between the agency and the contractor is written.

(f) Adaptation of language. Such necessary changes in language may be made in the equal opportunity clause as shall be appropriate to identify properly the parties and their undertakings.

[80 FR 54975, Sept. 11, 2015]

Wis. Stat. 16.765 Nondiscriminatory Contracting

Except as otherwise provided under Wis. Stat. § 16.765, if the contractor has been awarded a construction contract exceeding $10,000 for the publicly funded FFP project, then the contractor shall comply with, and include in all construction subcontracts that exceed $10,000 for the FFP project, the equal opportunity clause provided in this section.

(1) Grantees, subrecipients, contractors and subcontractors shall include in all contracts executed by them a provision obligating the contractor not to discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, developmental disability as defined in § 51.01 (5), sexual orientation as defined in § 111.32 (13m), or national origin and, except with respect to sexual orientation, obligating the contractor to take affirmative action to ensure equal employment opportunities.

(2) Grantees, subrecipients, contractors and subcontractors shall include the following provision in every contract executed by them:

“In connection with the performance of work under this contract, the contractor agrees not to discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, developmental disability as defined in § 51.01 (5), sexual orientation or national origin. This provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation;

and selection for training, including apprenticeship. Except with respect to sexual orientation, the contractor further agrees to take affirmative action to ensure equal employment opportunities. The contractor agrees to post in conspicuous places, available for employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of the nondiscrimination clause”. Pursuant to 2019 Wisconsin Executive Order 1, the contractor agrees it will hire only on the basis of merit and will not discriminate against any persons performing a contract or subcontract because of military or veteran status, gender identity or expression, marital or familial status, genetic information or political affiliation.

(3) Subsections (1) and (2) of § 16.765 shall not apply to contracts to meet special requirements or emergencies, if approved by the Department.

(4) Grantees, subrecipients, contractors and subcontractors shall take appropriate action to revise the standard contract forms under this section.

https://www.govinfo.gov/content/pkg/FR-2015-09-11/pdf/2015-22547.pdf https://docs.legis.wisconsin.gov/statutes/statutes/16/iv/765 https://docs.legis.wisconsin.gov/statutes/statutes/16/iv/765 https://docs.legis.wisconsin.gov/document/statutes/51.01(5) https://docs.legis.wisconsin.gov/document/statutes/111.32(13m) https://docs.legis.wisconsin.gov/document/statutes/51.01(5) https://docs.legis.wisconsin.gov/document/statutes/16.765(1) https://docs.legis.wisconsin.gov/document/statutes/16.765(2) https://docs.legis.wisconsin.gov/statutes/statutes/16/iv/765

State of Wisconsin Department of Administration (DOA) – Division of Energy, Housing and Community Resources (DEHCR)

FFP Project Contract Terms & Conditions (Page 9 of 11) AttachFFP-03-03 Form v.2025-05-07

(5) Compliance monitoring and the response to complaints will be conducted in accordance with Wis. Stat.

§ 16.765.

(6) The contractor shall under this contract, if it exceeds $50,000, submit an Affirmative Action Plan or a Request for Exemption from Submitting an Affirmative Action Plan and a Contractor’s Subcontractor List to the Department of Administration (DOA) Division of Enterprise Operations, P.O. Box 7867, Madison, WI 53707-7867 or via email at DOADEOSBOPPrograms@wisconsin.gov within fifteen (15) working days after the execution of their contract. Failure to comply with the conditions of this requirement may result in the declaration of contractor ineligibility, the termination of the contract, and/or the withholding of funds.

21. Labor – Mechanics & Laborers (i.e., Construction Workers):

(a) Contract Work Hours and Safety Standards Act (CWHSSA). Where applicable, all contracts awarded for this project financed in whole or in part with the grant award in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. §§ 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. § 3702 of the Contract Work Hours and Safety Standards Act (CWHSSA), each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. Liquidated damages, if applicable, for violations are to be computed based on the guidance on the U.S. Department of Labor (USDOL) CWHSSA website. The requirements of 40 U.S.C. § 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.

i. If such certification is not provided, a contractor must provide a project employment and local impact report detailing:

• The number of contractors and sub-contractors working on the Project;

• The number of employees on the Project hired directly and hired through a third party;

• The wages and benefits of workers on the Project by classification; and

• Whether those wages are at rates less than those prevailing (As determined by the U.S. Secretary of

Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code (commonly known as the “Davis-Bacon Act”), for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the civil subdivision of the State (or the District of Columbia) in which the work is to be performed).

(b) Davis-Bacon Act (DBA) Exemption (Conditional). Contractors and subcontractors are not subject to Davis- Bacon Act compliance requirements for the FFP project (per an exemption allowed by Treasury for projects funded by the Capital Project Fund) unless DBA requirements are triggered by another funding source for the FFP project. If triggered by another funding source, the DBA requires contractors and subcontractors performing on federally funded or assisted contracts in excess of $2,000 for the construction, alteration, or repair (including painting and decorating) of public buildings or public works, to pay their laborers and mechanics employed under the contract no less than the prevailing wages and fringe benefits for corresponding work on similar projects in the area, as established by the federal wage rates published on SAM.gov.

(c) Copeland “Anti-Kickback” Act (40 U.S.C. 3145) Exemption (Conditional). FFP projects are not subject to Copeland “Anti-Kickback” Act compliance requirements unless the project is subject to the Davis-Bacon Act and Federal wages, if triggered by another funding source to the FFP project. The Copeland Act, as supplemented by the U.S. Department of Labor (USDOL) regulations (29 CFR Part 3, Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States), is only applicable to construction projects subject to the Federal wage standards (i.e., Davis-Bacon Act wage requirements). If DBA is triggered by another funding source for the FFP project, the Copeland Act is applicable. The Copeland Act provides that each contractor is prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The payroll reporting, monitoring, and recordkeeping specifications of 29 CFR Part 3 would apply.

(d) Fair Labor Practices - Fair Wages, Payroll Reporting, & Monitoring Requirements. Competitive wages and payroll documentation are required for construction laborer and mechanic job classifications. The contractor https://docs.legis.wisconsin.gov/statutes/statutes/16/iv/765 https://docs.legis.wisconsin.gov/statutes/statutes/16/iv/765 mailto:DOADEOSBOPPrograms@wisconsin.gov https://www.dol.gov/agencies/whd/government-contracts/cwhssa https://www.dol.gov/agencies/whd/government-contracts/cwhssa https://sam.gov/ https://www.ecfr.gov/current/title-29/subtitle-A/part-3 https://www.ecfr.gov/current/title-29/subtitle-A/part-3 https://www.ecfr.gov/current/title-29/subtitle-A/part-3

State of Wisconsin Department of Administration (DOA) – Division of Energy, Housing and Community Resources (DEHCR)

FFP Project Contract Terms & Conditions (Page 10 of 11) AttachFFP-03-03 Form v.2025-05-07 agrees to ensure workers in a laborer or mechanic job classification are paid wages and benefits in accordance with the applicable provisions summarized as follows:

1) If the Davis-Bacon Acts (DBA) is deemed to apply to this contract for the FFP project as required by another funding source other than the Flexible Facilities Program funds (which are not subject to DBRA compliance), then the contractor agrees to comply with all requirements of the DBA, Copeland Anti-Kickback, CWHSSA, and related laws for labor and wages.

2) If DBA is confirmed to not apply to this contract for the FFP project, the contractor agrees to comply with the requirement of having fair labor practices and fair wages in accordance with the following FFP labor standards:

• If the laborer or mechanic is a member of a collective bargaining agreement, the laborer or mechanic shall be paid wages and benefits in accordance with the collective bargaining agreement.

• If the laborer or mechanic is not a member of a collective bargaining agreement, the laborer or mechanic is entitled to wages and benefits in accordance with whichever is the higher of:

o Their regular hourly wage and fringe benefits rate for other similar work they perform for the contractor;

o An hourly wage rate (including cash wage plus fringe benefits rate) not less than a total wage and fringe hourly rate of $17.75 per hour.

• Apprentices shall be compensated according to the provisions of their Federal or State recognized apprenticeship documentation.

3) The contractor agrees to provide payroll documentation for its employees and payroll documentation for its subcontractors’ employees working on the project to verify fair labor practices, including providing certified payroll records to the owner of this contract no later than seven (7) days after the conclusion of each payroll period for all pay periods in which their employees work on the FFP project. Records are to be submitted weekly or bi-weekly, depending on the contractor’s regular payroll cycle.

In accordance with the CWHSSA recordkeeping requirements specified on the USDOL CWHSSA guidance, the payroll documentation will include the following:

• Contractor/employer company name;

• Payroll period dates;

• Employee names – for each laborer or mechanic working on the FFP project for construction (i.e., new construction, renovation, rehabilitation, expansion, demolition, and related infrastructure and equipment installation at the FFP project site)

• Each employee’s unique identification (ID) number (the assigned employee ID number or last four digits of their social security number);

• Each employee’s address

• Each employee’s telephone number

• Each employee’s job classification for work performed

• Number of hours each employee worked per day and total hours worked each week on the FFP project;

• Hourly rate of pay, including the hourly wage rate for straight-time (ST) hours (hours worked that total 40 and less during the work week) and overtime (OT) hours (hours worked over 40 in the work week);

• The total gross wages amount earned, and net wages amount paid to the employee after deductions;

• Hourly fringe benefits rates, including the hourly rate cash equivalent of each fringe benefit;

• Payroll deductions made for the pay period; and

• Additional payroll supporting documentation related to wages, fringe benefits plans and rates, records of payments made to employees and fringe benefits plans, and deductions (types, employee authorizations, etc.) on file, which must be provided upon request to the grantee, subrecipient, DOA, the U.S. Department of Treasury, and/or other state and federal agencies.

(e) Labor Standards Records Retention. Contractors must maintain these records during the course of the work and for a period of three (3) years after all the work on the prime contract is completed. They also must be made available to the contracting agency (including Department of Treasury and the State of Wisconsin, FFP grantee and subrecipient, if applicable) and the Department of Labor upon request. [Note: Grantees must retain all records for the FFP project, including the contracting and payroll and related records collected from contractors for seven (7) years in accordance with the FFP requirements.] https://webapps.dol.gov/elaws/elg/cwhssa.htm#who

State of Wisconsin Department of Administration (DOA) – Division of Energy, Housing and Community Resources (DEHCR)

FFP Project Contract Terms & Conditions (Page 11 of 11) AttachFFP-03-03 Form v.2025-05-07

22. Termination Clauses in Contracts: All contracts made by the contractor and owner of this contract under a federal award, as applicable must contain the contract provisions required under 2 CFR Part 200, Appendix II to Part 200 Contract Provisions for Non-Federal Entity Contracts Under Federal Awards. Specifically, contractor must ensure that all subcontracts in excess of $10,000 address termination for cause and for convenience, including the manner by which it will be affected and the basis for settlement.

23. Records and Inspection: The contractor…