FINAL SPECIFICATIONS w NTB NH 032 1 011.pdf

STATE OF HAWAII

DEPARTMENT OF TRANSPORTATION

HIGHWAYS

HONOLULU, HAWAII

SPECIAL PROVISIONS

PROPOSAL, CONTRACT,

BOND AND PLANS

FOR

KAAHUMANU AVENUE SIDEWALK GAPS

MAUI LANI PARKWAY TO MAHALANI STREET

FEDERAL-AID PROJECT NO. NH-032-1(011)

DISTRICT OF WAILUKU

ISLAND OF MAUI

NH-032-1(011)

NTB-1 10/16/24

NOTICE TO BIDDERS

Hawaii Revised Statutes (HRS), Chapter 103D

The receiving of bids for KAAHUMANU AVENUE SIDEWALK GAPS, MAUI LANI

PARKWAY TO MAHALANI STREET, DISTRICT OF WAILUKU, ISLAND OF MAUI,

FEDERAL-AID PROJECT NO. NH-032-1(011), will begin as of the HIePRO Release Date.

Bidders shall register and submit complete bids through HIePRO only. Refer to the following

HIePRO link for important information on Vendor Registration:

https://hiepro.ehawaii.gov/welcome.html.

The solicitation plans, specifications, proposal, and additional documents designated or incorporated by reference shall be available in HIePRO.

HIePRO OFFER DUE DATE & TIME is December 10, 2024, at 2:00 p.m., Hawaii Standard

Time (HST). Bidders shall submit and upload the complete proposal to HIePRO prior to the offer due date and time. Proposals received after said due date and time shall not be considered. Any additional support documents explicitly designated as confidential and/or proprietary shall be uploaded as a separate file to HIePRO. Bidders shall not include confidential and/or proprietary documents as part of their proposal. The record of each bidder and their respective proposal shall be open to public inspection. FAILURE TO

UPLOAD THE PROPOSAL TO HIePRO SHALL BE GROUNDS FOR REJECTION.

The scope of work consists of constructing new concrete curb and gutter, and sidewalk on the south side of Kaahumanu Avenue between Mile Post (M.P.) 0.92 and M.P. 1.11. The Project also includes replacing and upgrading existing guardrails and end treatments to meet current standards and installing 1-1/2 Inch Hot Mix Asphalt (HMA) pavement (Mix No. IV), at guardrail front, under, NTB-2 10/16/24 behind, and beyond end terminals. The estimated cost of construction is between $600,000.00 and

$800,000.00.

To be eligible for award, bidders shall possess a valid State of Hawaii General Engineering

"A" license prior to the award of contract.

A virtual pre-bid conference is scheduled for November 1, 2024, at 10:00 a.m., HST. Please call Microsoft Teams to join the pre-bid conference at 1-808-829-4853, Phone Conference

ID: 783 107 903#. All prospective bidders and/or their respective representatives are encouraged to attend, however, attendance is not mandatory. All information presented at the pre-bid conference shall be provided for clarification and information only. Any amendments to the solicitation shall be made by formal addendum and posted in HIePRO.

All Request for Information (RFI) questions and Substitution Requests shall be submitted in

HIePRO no later than November 12, 2024, at 2:00 p.m., HST. RFI questions received after the stated deadline shall not be addressed. Substitution Requests received after the stated deadline shall not be considered. Verbal RFI(s) shall not receive a response. All responses to RFI questions shall be provided for clarification and information only and issued by formal addendum. Any amendments to the solicitation shall be made by formal addendum and posted in HIePRO.

If there is a conflict between the solicitation and information stated in the pre-bid conference, the meeting minutes, and/or the responses to RFI questions, the solicitation shall govern and control, unless as amended by formal addendum.

Campaign contributions by State and County Contractors. Contractors are hereby notified of the applicability of HRS § 11-355 which states that campaign contributions are prohibited from specified State or county government contractors during the term of the contract if the contractors are paid with funds appropriated by a legislative body. For more information, contact the Campaign

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Spending Commission at (808) 586-0285.

Protests. Any protest of this solicitation shall be submitted in writing to the Director of

Transportation, in accordance with HRS § 103D-701 and Hawaii Administrative Rules § 3-126.

The Equal Employment Opportunity Regulations of the Secretary of Labor implementing

Executive Order 11246, as amended, shall be complied with on this project.

The United States (U.S.) Department of Transportation Regulation entitled

49, Code of Federal Regulations (CFR), Part 21, is applicable to this project. Bidders are hereby notified that the Hawaii Department of Transportation (HDOT) shall affirmatively ensure that the contract entered pursuant to this advertisement shall be awarded to the lowest responsible bidder without discrimination on the grounds of race, color, national origin, or sex (as directed by 23 CFR

Part 200).

The U.S. Department of Transportation Regulations entitled "Participation by Disadvantaged

Business Enterprise in Department of Transportation Financial Assistance Programs", Title 49, CFR, Part 26, is applicable to this project. Bidders are hereby notified that the HDOT shall strictly enforce full compliance with all the requirements of the Disadvantaged Business Enterprise program with respect to this project.

Bidders shall read the Disadvantaged Business Enterprise Requirements, included in this solicitation, which establishes the program requirements pursuant to Title 49, CFR, Part 26, and includes the requirements of certification, method of award, and evidence of good faith. All

Bidders shall email Larry Hail, Project Manager, at larry.d.hail@hawaii.gov, the following:

Business Enterprise Contract Goal Verification and Good Faith Efforts and

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Commitment Agreement - Trucking and Business Enterprise

Confirmation and Commitment Agreement -no later than December 16, 2024, at 4:30 p.m., HST. Failure to provide the respective documents shall be grounds for rejection of bid.

Driving While Impaired (DWI) Education. The HDOT encourages all organizations contracted with HDOT to have an employee education program preventing DWI. DWI is defined as operating a motor vehicle while impaired by alcohol or other legal or illegal substances. T h e

HDOT promotes this type of program to accomplish our mission to provide a safe environment for motorists, bicyclists, and pedestrians utilizing our State highways, and expects its contractors to do so as well.

For additional information, contact Larry Hail, Project Manager, by phone at

(808) 873-3567, or by email at larry.d.hail@hawaii.gov.

The State reserves the right to reject any or all proposals and to waive any defects in said proposals in the best interest of the public.

ROBIN K. SHISHIDO

Deputy Director of Transportation for Highways

HIePRO RELEASE DATE: October 28, 2024

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TABLE OF CONTENTS

Notice To Bidders

Instructions for Contractor’s Licensing

Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity (Executive Order 11246)

Disadvantaged Business Enterprise (DBE) Requirements

Disadvantaged Business Enterprise (DBE) Confirmation and Commitment Agreement –Trucking Company

Disadvantaged Business Enterprise (DBE) Confirmation and Commitment Agreement

– Subcontractor, Manufacturer, or Supplier

Disadvantaged Business Enterprise (DBE) Contract Goal Verification and Good Faith Efforts (GFE) Documentation for Construction

Required Contract Provisions Federal-Aid Construction Contracts

Special Provisions Title Page

Special Provisions:

DIVISION 100 - GENERAL PROVISIONS

Section Description Pages

101 Terms, Abbreviations and Definitions 101-1a - 101-13a 102 Bidding Requirements and Conditions 102-1a - 102-8a 103 Award and Execution of Contract 103-1a - 103-4a 104 Scope of Work 104-1a - 104-2a 105 Control of Work 105-1a - 105-3a 106 Material Restrictions and Requirements 106-1a - 106-2a 107 Legal Relations and Responsibility to Public 107-1a - 107-3a 108 Prosecution and Progress 108-1a - 108-25a 109 Measurement and Payment 109-1a - 109-2a

DIVISION 200 – EARTHWORKS

Section Description Pages 201 Clearing and Grubbing 201-1a 203 Roadway Excavation and Embankment 203-1a - 203-2a 209 Temporary Water Pollution, Dust, and Erosion

Control 209-1a - 209-28a

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DIVISION 300 – BASES

304 Aggregate Base Course 304-1a

DIVISION 400 – PAVEMENTS

401 Hot Mix Asphalt (HMA) Pavement 401-1a - 401-4a 415 Cold Planing of Existing Pavement 415-1a

DIVISION 600 – INCIDENTIAL CONSTRUCTION

606 Guardrail 606-1a 629 Pavement Markings 629-1a – 629-2a 631 Traffic Control, Regulatory, Warning, and

Miscellaneous Signs 631-1a

634 Portland Cement Concrete Sidewalks 634-1a 636 E-Construction 636-1a – 636-3a 637 Slotted Drains 637-1a 638 Portland Cement Concrete Curb and Gutter 638-1a 641 Hydro Mulch Seeding 641-1a 671 Protection of Endangered Species 671-1a – 671-5a 699 Mobilization 699-1a

DIVISION 700 – MATERIALS

702 Bituminous Materials 702-1a 750 Traffic Control Sign and Marker Materials 750-1a – 750-2a 755 Pavement Marking Materials 755-1a

Requirement of Chapter 104, HRS Wages and Hours of Employees on Public Works Law

Federal Wage Rates

Proposal Title Page Proposal .................................................................................................. P-1 – P-7 Proposal Schedule .................................................................................. P-8 – P-9

Surety Bid Bond

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Sample Forms

Contract

Performance Bond (Surety)

Performance Bond

Labor and Material Payment Bond (Surety)

Labor and Material Payment Bond

Disclosure of Lobbying Activities (Standard Form - LLL and LLL-A)

Statement of Compliance (Form WH-348)

Chapter 104, HRS Compliance Certificate

END OF TABLE OF CONTENTS

FED

rev 08.10.22

DISADVANTAGED BUSINESS ENTERPRISE REQUIREMENTS

I. GENERAL

This project is subject to Title 49, Code of Federal Regulations, Part 26, entitled

"Participation by Disadvantaged Business Enterprise in Department of Transportation

Financial Assistance Programs," hereinafter referred to as the ("DBE Regulations") and is incorporated and made a part of this contract herein by this reference. The following shall be incorporated as part of the contract documents for compliance. If any requirements herein are in conflict with the general provisions or special provisions applicable to this project, the requirements herein shall prevail unless specifically superseded or amended in the special provisions or by addendum.

II. POLICY

It is the policy of the U.S. Department of Transportation (“USDOT”) and the State of

Hawaii, Department of Transportation and its political subdivisions (“Department”) that

Disadvantaged Business Enterprises (“DBE”), as defined in the DBE Regulations, have an equal opportunity to receive and participate in federally assisted contracts.

III. DBE ASSURANCES

Each contract signed with a prime contractor (and each subcontract the prime contractor signs with a subcontractor) shall include the following assurance:

“The contractor, sub-recipient, or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract.

The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of USDOT assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate which may include, but is not limited to; 1) withholding monthly progress payments; 2) assessing sanctions; 3) liquidated damages; and/or 4) disqualifying the contractor from future bidding as non-responsible.”

The prime contractor agrees to include the above statements in any subsequent contracts that it enters into with other contractors and shall require those contractors to include similar statements in further agreements.

IV. BIDDER/OFFEROR RESPONSIBILITIES

All bidders/offerors are required to register with the Department’s OCR, DBE Section, using the Bidder Registration Form, which can be downloaded from the Department’s website at http://hidot.hawaii.gov/administration/ocr/dbe/dbe-program-forms/. Certified

DBEs are considered registered with the Department and are not required to submit a http://hidot.hawaii.gov/administration/ocr/dbe/dbe-program-forms/ rev 08.10.22

Bidder Registration Form. All other bidders/offerors are required to complete this form which may be faxed to (808) 831-7944, e-mailed to HDOT-DBE@hawaii.gov, or mailed to the HDOT DBE Section at 200 Rodgers Boulevard, Honolulu, Hawaii, 96819.

Registered bidders/offerors are posted on the website listed above.

Bidders/offerors, subcontractors, manufacturers, vendors or suppliers, and trucking companies shall fully inform themselves with respect to the requirements of the DBE

Regulations. Particular attention is directed to the following matters:

A. Bidders/offerors shall take all necessary steps to ensure that DBEs have an opportunity to participate in this contract.

B. DBEs may participate as a consultant, prime contractor, subcontractor, trucking company, or vendor of materials or supplies. DBEs may also team with other

DBEs or non-DBE firms as part of a joint venture or partnership.

C. Agreements between a bidder/offeror and a DBE in which an DBE promises not to provide subcontracting quotations to other bidders/offerors are strictly prohibited.

D. A DBE shall be certified by the Department under the appropriate North

American Industry Classification System (NAICS) code and work in their registered field of work in order for credit to be allowed.

E. Information regarding the current certification status of DBEs is available on the internet at https://hdot.dbesystem.com/.

F. Commercially Useful Function (“CUF”). An DBE must perform a CUF. This means that an DBE must be responsible for the execution of a distinct element of the work, must carry out its responsibility by actually performing, managing, and supervising at least 30% of the work involved by using its own employees and equipment, must negotiate price, determine quality and quantity, order and install material (when applicable), and must pay for the material itself.1

To determine whether an DBE is performing a CUF, the Department must evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the contract is commensurate with the work it is actually performing, the DBE credit claimed for performance of the work, and other relevant factors. The prime contractor is responsible to ensure that the DBE performs a CUF.

V. PROPOSAL REQUIREMENTS

A. DBEs must be certified by the bid opening date.

The use of joint checks payable to an DBE subcontractor and supplier may be allowed to purchase materials and supplies under limited circumstances. See VII USE OF JOINT CHECKS UNDER THE DBE PROGRAM rev 08.10.22

B. DBE subcontractors, manufacturers, suppliers, trucking companies, and any second tier subcontractors shall be listed on the respective DBE forms as specified below in order to receive credit.

C. The following forms are due to the Department’s Project Manager or designee by the close of business, 4:30 P.M. Hawaii Standard Time (HST), five (5) days after bid opening:2

1. DBE Confirmation and Commitment Agreement. This form must be signed by the bidder/offeror and each DBE subcontractor, manufacturer, supplier, or trucking company. Information to be provided on the form shall include, among other things, the project number, the DBE’s NAICS codes, description of work, bid items with corresponding price information, prime contractor name and contact information DBE name and contact information and subcontractor name and contact information if the DBE is a second tier subcontractor.

2. DBE Contract Goal Verification and Good Faith Efforts (GFE)

Documentation for Construction. List the dollar amount of all subcontractors, manufacturers, suppliers, and trucking companies (both

DBE and non-DBE firms). Bidder/offeror must also list the DBE project goal on this form (See paragraph D below regarding goal calculation).

The bidder/offeror must submit documentation demonstrating how the

DBE goal was met or how the bidder/offeror attempted to meet the goal if the goal was not met. This documentation shall include quotations for both DBE and non-DBE subcontractors when a non-DBE is selected over a DBE for the project. Documentation of good faith efforts is required irrespective of whether the bidder/offeror met the DBE project goal.

The above forms must be complete and provide the necessary information to properly evaluate bids/proposals. Failure to provide any of the above shall be cause for bid/proposal rejection.

D. Calculation of the DBE contract goal for this project is the proportionate contract dollar value of work performed, materials, and goods to be supplied by DBEs.

DBE credit shall not be given for mobilization, force account items and allowance items. This DBE contract goal is applicable to all the contract work performed for this project and is calculated as follows:

1. DBE contract goal percentage = Contract Dollar Value of the work to be performed by DBE subcontractors and manufacturers, plus 60% of the contract dollar value of DBE suppliers, divided by the sum of all contract items (sum of all contract items is the total amount for comparison of bids less mobilization, force account items, and allowance items).

In computing calendar days, the day from which the period begins to run is not counted, and when the last day of the period is a Saturday, Sunday, or Federal or State holiday, the period extends to the next day that is not a

Saturday, Sunday, or holiday.

2. The Department shall adjust the bidder’s/offeror’s DBE contract goal to the amount of the project goal if it finds that the bidder/offeror met the goal but erroneously calculated a lower percentage. If the amount the bidder/offeror submits as its contract goal exceeds the project goal, the bidder/offeror shall be held to the higher goal.

VI. COUNTING DBE PARTICIPATION TOWARDS CONTRACT GOAL

A. Count the entire amount of the portion of a contract (or other contract not covered by paragraph B below) that is performed by the DBE’s own forces. Include the cost of supplies and materials obtained by the DBE for the work on the contract, including supplies purchased or equipment leased by the DBE (except supplies and equipment the DBE subcontractor purchases or leases from the prime contractor or its affiliate).

B. Count the entire amount of fees or commissions charged by an DBE firm for providing a bona fide service, such as professional, technical, consultant, or managerial services, or for providing bonds or insurance specifically required for the performance of a USDOT-assisted contract, toward DBE goals, provided the

Department determines the fee to be reasonable and not excessive as compared with fees customarily allowed for similar services.

C. When an DBE subcontracts part of the work of its contract to another firm, the value of the subcontracted work may be counted toward DBE goals only if the

DBE's subcontractor is itself an DBE. Work that an DBE subcontracts to a non-

DBE firm does not count toward DBE goals.

D. When an DBE performs as a participant in a joint venture, count a portion of the total dollar value of the contract equal to the distinct, clearly defined portion of the work of the contract that the DBE performs with its own forces toward DBE goals.

E. Count expenditures to an DBE contractor toward DBE goals only if the DBE is performing a CUF on that contract.

F. The following is a list of appropriate DBE credit to be allowed for work to be performed by an DBE subcontractor. Count expenditures with DBEs for materials or supplies toward DBE goals as provided in the following:

1. If the materials or supplies are obtained from an DBE manufacturer, count

100 percent of the cost of the materials or supplies toward DBE goals;

2. For purposes of determining DBE goal credit, a manufacturer is a firm that operates or maintains a factory or establishment that produces (on the premises) the materials, supplies, articles, or equipment required under the contract and of the general character described by the specifications;

rev 08.10.22

3. If the materials or supplies are purchased from an DBE regular dealer, count 60 percent of the cost of the materials or supplies toward DBE goals;

4. For purposes of determining DBE goal credit, a regular dealer is a firm that owns, operates, or maintains a store, warehouse, or other establishment in which the materials, supplies, articles or equipment of the general character described by the specifications and required under the contract are bought, kept in stock, and regularly sold or leased to the public in the usual course of business;

5. To be a regular dealer, the firm must be an established, regular business that engages, as its principal business and under its own name, in the purchase and sale or lease of the products in question;

6. A person may be a regular dealer in such bulk items as petroleum products, steel, cement, gravel, stone, or asphalt without owning, operating, or maintaining a place of business as provided in the DBE

Regulations, if the person both owns and operates distribution equipment for the products. Any supplementing of a regular dealers' own distribution equipment shall be by a long-term lease agreement and not on an ad hoc or contract-by-contract basis;

7. Packagers, brokers, manufacturers' representatives, or other persons who arrange or expedite transactions are not regular dealers;

8. With respect to materials or supplies purchased from an DBE, which is neither a manufacturer nor a regular dealer, count the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies, or fees or transportation charges for the delivery of materials or supplies required on a job site, toward DBE goals, provided that the Department determines the fees to be reasonable and not excessive as compared with fees customarily allowed for similar services. Do not count any portion of the cost of the materials and supplies themselves toward DBE goals; however,

9. If a firm is not currently certified as an DBE in accordance with standards of this part at the time of the execution of the contract, do not count the firm's participation toward any DBE goals, except as provided for in

§26.87(i);

10. Do not count the dollar value of work performed under a contract with a firm after it has ceased to be certified toward the Department’s overall goal; and

11. Do not count the participation of an DBE subcontractor toward a contractor's final compliance with its DBE obligations on a contract until the amount being counted has actually been paid to the DBE.

G. The following factors are used in counting DBE participation for trucking companies:

1. The DBE must be responsible for the management and supervision of the entire trucking operation for which it is responsible on a particular rev 08.10.22 contract, and there cannot be a contrived arrangement for the purpose of meeting DBE goals;

2. The DBE must itself own and operate at least one (1) fully licensed, insured, and operational truck used on the contract;

3. The DBE receives credit for the total value of the transportation services it provides on the contract using trucks it owns, insures, and operates using drivers it employs;

4. The DBE may lease trucks from another DBE firm, including an owner-operator who is certified as an DBE. The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the contract;

5. The DBE may also lease trucks from a non-DBE firm, including from an owner-operator. The DBE that leases trucks equipped with drivers from a non-DBE is entitled to credit for the total value of transportation services provided by non-DBE leased trucks equipped with drivers not to exceed the value of transportation services on the contract provided by DBE-owned trucks or leased trucks with DBE employee drivers. Additional participation by non-DBE owned trucks equipped with drivers receives credit only for the fee or commission it receives as a result of the lease arrangement. If a recipient chooses this approach, it must obtain written consent from the appropriate Department operating administration.

EXAMPLE: DBE firm X uses two (2) of its own trucks on a contract, leases two (2) trucks from DBE Firm Y and six (6) trucks from non-DBE

Firm Z. DBE credit would be awarded for the total value of transportation services provided by Firm X and Firm Y, and may also be awarded for the total value of transportation services provided by four (4) of the six (6) trucks provided by Firm Z. In all, full credit would be allowed for the participation of eight (8) trucks. With respect to the other two (2) trucks provided by Firm Z, DBE credit could be awarded only for the fees or commissions pertaining to those trucks Firm X receives as a result of the lease with Firm Z;

6. The DBE may lease trucks without drivers from a non-DBE truck leasing company. If the DBE leases trucks from a non-DBE truck leasing company and uses its own employees as drivers, it is entitled to credit for the total value of these hauling services.

EXAMPLE: DBE Firm X uses two (2) of its own trucks on a contract. It leases two (2) additional trucks from non-DBE Firm Z. Firm X uses its own employees to drive the trucks leased from Firm Z. DBE credit would be awarded for the total value of the transportation services provided by all four (4) trucks; and

7. For purposes of determining whether a trucking firm performs a CUF, a lease must indicate that the DBE has exclusive use of and control over the truck. This does not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, so long as the lease gives the DBE absolute priority for use of the leased truck. Leased trucks must display the name and identification number of the DBE.

rev 08.10.22

H. The bidder/offeror may be a joint venture or partnership that has a certified DBE as a partner. A “Joint Venture” means an association between an DBE firm and one (1) or more other firms to carry out a single, for-profit, business enterprise for which the parties combine their property, capital, efforts, skills and knowledge, and in which the DBE is responsible for a distinct, clearly defined portion of the work of the contract, and whose share in the capital contribution, control, management, risks and profits are commensurate with its ownership interest.

I. Effects of a Summary Suspension of an DBE. When an DBE’s certification is suspended, the DBE may not be considered to meet a contract goal on a new contract and any work it does on a contract received during the suspension shall not be counted towards the overall goal. The DBE may continue to perform work under an existing contract executed before the DBE received a Notice of

Suspension and may be counted towards the contract goal during the period of suspension as long as the DBE is performing a CUF under the existing contract.

J. Effects of Decertification of an DBE. Should an DBE become decertified during the term of the subcontract for reasons beyond the control of and with no fault or negligence on the part of the contractor, the work remaining under the subcontract may be credited towards the contract goal, but are not included in the overall accomplishments.

Should the DBE be decertified after contract award and before notice to proceed, the contractor must still meet the DBE goal by either: a) withdrawing the subcontract from the DBE and expending good faith efforts to replace it with an

DBE that is currently certified for that same work; or b) continuing with the subcontract with the decertified firm and expending good faith efforts to find other work not already subcontracted out to DBEs in an amount to meet the DBE goal either by; 1) increasing the participation of other DBEs on the project; 2) documenting good faith efforts; or 3) by a combination of the above.

VII. USE OF JOINT CHECKS UNDER THE DBE PROGRAM

A. The following guidelines apply to the use of joint checks:

1. The second party (typically the prime contractor) acts solely as a guarantor;

2. The DBE must release the check to the supplier;

3. The use of joint checks is a commonly recognized business practice;

4. The Department must approve the use of joint checks prior to use by contractors and/or DBEs. As part of this approval process the Department will analyze industry practice to confirm that the use of joint checks is commonly employed outside of the DBE program for non-DBE subcontractors on both federal and state funded contracts. Using joint checks shall not be approved if it conflicts with other aspects of the DBE

Regulations regarding CUF; and

5. The Department will monitor the use of joint checks closely to avoid abuse.

B. Contractors and DBEs should review the following general guidelines when determining whether to use joint checks closely to avoid abuse:

1. That standard industry practice applies to all contractors (federal and state contracts);

2. Use of joint checks must be available to all subcontractors;

3. Material industry sets the standard industry practice, not prime contractors;

4. Short term, not to exceed reasonable time (i.e., one (1) year, two (2) years) to establish/increase a credit line with the material supplier;

5. No exclusive arrangement between one (1) prime and one (1) DBE in the use of joint checks that might bring the independence of the DBE into question;

6. Non-proportionate ratio of DBE's normal capacity to size of contract and quantity of material to be provided under the contract;

7. The DBE is normally responsible to install and furnish the work item; and

8. The DBE must be more than an extra participant in releasing the check to the material supplier.

C. The Department shall allow the use of joint checks if the following general conditions are met:

1. DBE submits request to the Department for action;

2. There is a formalized agreement between all parties that specify the conditions under which the arrangement shall be permitted;

3. There is a full and prompt disclosure of the expected use of joint checks;

4. The Department will provide prior approval;

5. DBE remains responsible for all other elements of 49 CFR 26.55(c)(1);

6. The agreement states clearly and determines that independence is not threatened because the DBE retains final decision making responsibility;

7. The Department will determine that the request is not an attempt to artificially inflate DBE participation;

8. Standard industry practice is only one (1) factor;

9. The Department will monitor and maintain oversight of the arrangement by reviewing cancelled checks and/or certification statement of payment;

and

10. The Department will verify there is no requirement by prime contractor that the DBE is to use a specific supplier nor the prime contractor’s negotiated unit price.

VIII. DEMONSTRATION OF GOOD FAITH EFFORTS FOR CONTRACT AWARD

A. When a project goal is not met, the Department shall conduct the initial review of

GFE submitted by the bidder/offeror and shall determine whether the bidder/offeror has performed the quality, quantity, and intensity of efforts that demonstrate a reasonably active and aggressive attempt to meet the contract goal in accordance with 49 CFR Part 26, Appendix A.

B. The bidder/offeror bears the responsibility of demonstrating that it met the contract goal, or if the contract goal was not met, by documenting the GFE it made in an attempt to meet the goal. It is the sole responsibility of the bidder/offeror to submit any and all documents, logs, correspondence, and any other records or information to the Department that will demonstrate that the bidder/offeror made good faith efforts to meet the DBE goal.

C. In its good faith evaluation, the Department shall perform the following as part of its evaluation: a) compare the bidder’s/offeror’s bid against the bids/offers of other bidders/offerors, and compare the DBEs and DBE work areas utilized by the bidder/offeror with the DBEs listed in other bids/offers submitted for this contract

(If other bidders obtained DBEs in a particular work area in which the low bidder did not, the Department shall take this into consideration in its evaluation); b) verify contacts by bidders/offerors with DBEs; and c) compare the DBE and the categories of DBE work targeted by the bidder/offeror for participation in the contract, with the total pool of available DBEs ready, willing and able to perform work on each particular subcontract targeted by the bidder/offeror.

D. Actions on the part of the bidder/offeror that will be considered demonstrative of good faith efforts include, but are not limited to, the following:

1. Whether the bidder/offeror submitted the required information (i.e., DBE name, address, NAICS code, description of work, project name, and number), and dollar amounts for all subcontractors, within five (5) days of bid opening;

2. Whether the bidder/offeror solicited through all reasonable and available means (e.g., attendance at pre-bid meetings, advertising and/or written notices) the interest of all certified DBEs who have the capability to perform part or all of the work to be included under the contract. The

Department will also consider whether the bidder/offeror solicited the participation of potential DBEs as early in the procurement process as practicable, and allowed sufficient time for the DBEs to properly inquire about the project and respond to the solicitation. The Department will also review whether the bidder/offeror took appropriate steps to follow up with interested DBEs in a timely manner to facilitate participation by DBEs in this project;

3. Whether the bidder/offeror identified and broke up portions of work that can be performed by DBEs in order to increase the likelihood that an DBE will be able to participate, and that the DBE goal could be achieved (e.g., breaking out contract items into economically feasible units to facilitate

DBE participation even when the bidder/offeror might otherwise prefer to self-perform these work items with its own forces);

4. Whether the bidder/offeror made available or provided interested DBEs with adequate information about the plans, specifications, and requirements of the project in a timely manner, and assisted them in responding to the bidder’s/offeror’s solicitation;

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5. Whether the bidder/offeror negotiated in good faith with interested DBEs.

Evidence of such negotiations includes documenting: a) the names, addresses and telephone numbers of DBEs that were contacted; b) a description of the information that was provided to DBEs regarding the plans and specifications; and c) detailed explanation for not utilizing individual DBEs on the project;

6. Whether the bidder/offeror solely relied on price in determining whether to use an DBE. The fact that there may be additional or higher costs associated with finding and utilizing DBEs are not, by itself, sufficient reasons for a bidder’s/offeror’s refusal to utilize an DBE, or the failure to meet the DBE goal, provided that such additional costs are not unreasonable. Also, the ability or desire of a bidder/offeror to perform a portion of the work with its own forces, that could have been undertaken by an available DBE, does not relieve the bidder/offeror of the responsibility to make good faith efforts to meet the DBE goal, and to make available and solicit DBE participation in other areas of the project to meet the DBE goal;

7. Whether the bidder/offeror rejected DBEs as being unqualified without sound reasons based on a thorough investigation of their capabilities. The

DBEs standing within the industry, membership in specific groups, organizations or associations, and political or social affiliation are not legitimate basis for the rejection or non-solicitation of bids from particular

DBEs;

8. Whether the bidder/offeror made efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance;

9. Whether the bidder/offeror made efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials or related assistance or services;

10. Whether the bidder/offeror effectively used the services of available minority/women community organizations, minority/women business groups, contractors’ groups, and local, state and federal minority/women business assistance offices or other organizations to provide assistance in recruitment and placement of DBEs;

11. Whether the bidder/offeror, who selects a non-DBE over an DBE subcontractor, has quotes of each DBE and non-DBE subcontractor submitted to the bidder for work on the contract; and for each DBE that was contacted but not utilized by the bidder/offeror for a contract, the bidder/offeror has a detailed written explanation for each DBE detailing the reasons for the bidder's/offeror's failure or inability to utilize, or to allow the DBE to participate in the contract; and

12. Whether other bidders/offerors met the goal and whether the apparent successful bidder/offeror could have met the goal with additional efforts.

The Department may determine that an apparent successful bidder/offeror who fell short of meeting the goal, made good faith efforts when it met or exceeded the average DBE participation obtained by other bidders/offerors.

IX. ADMINISTRATIVE RECONSIDERATION.

If it is determined by the Department that the apparent successful bidder/offeror has failed to meet the provisions of 49 CFR Section 26.53(a), the bidder/offeror may submit a request for administrative reconsideration. If under the provisions of 49 CFR, Section

26.53(d), it is determined by the Department that the apparent successful bidder/offeror has failed to meet the provisions of this subsection, the bidder/offeror may submit a written request for administrative reconsideration.

A. Within five (5) working days of being informed in writing by the Department that the bidder/offeror has not documented sufficient GFE, a bidder/offeror may request administrative reconsideration. Bidders/offerors should make this request in writing to the following official:

Director of Transportation

Hawaii Department of Transportation

869 Punchbowl Street, Room 509

Honolulu, Hawaii 96813

B. The reconsideration official, or his or her designee (referred to as “reconsideration official”), shall not have played any role in the original determination that the bidder/offeror failed to meet the goal or make adequate good faith efforts to do so.

C. As part of this reconsideration, the bidder/offeror will have the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate GFE to do so. The bidder/offeror will have the opportunity to meet in person with the reconsideration official to discuss the issue of whether it met the goal or made adequate GFE to do so.

D. In an administrative reconsideration, the reconsideration official will review all previously submitted documents, oral and written arguments, and other evidence presented in the reconsideration, in making the decision.

E. The Department shall inform the bidder/offeror of the decision within thirty (30) days of the proceeding. The decision will state the Department’s findings, and explain the basis of those findings, with respect to whether or not the bidder/offeror met the contract goal, or whether or not the bidder/offeror made adequate GFE to achieve the contract goal.

F. The reconsideration decision is not administratively appealable to USDOT but is appealable under HRS 103D-709.

X. AWARD OF CONTRACT

A. In a sealed bid procurement, the Department reserves the right to reject any or all bids. The award of contract, if it is awarded, will be to the lowest responsive and responsible bidder who meets or exceeds the DBE project goal, or who makes rev 08.10.22 good faith efforts to meet or exceed the DBE project goal, as determined by the

Department.

B. If the lowest responsible bidder does not meet the DBE project goal and does not demonstrate to the satisfaction of the Department that it made good faith efforts to meet the DBE project goal, such bid shall be rejected as non-responsive. The

Department will then consider the next lowest responsive and responsible bidder for award in accordance with paragraph A above.

XI. REPLACEMENT OF AN DBE ON A PROJECT WITH A CONTRACT GOAL

Under this contract, the prime contractor shall utilize the specific DBE listed to perform the work and supply the materials for which each is listed unless the contractor obtains written consent from the Department to replace an DBE. If the Department’s consent is not provided, the contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE. The Department reserves the right to request copies of all DBE subcontracts.

The Department will require a contractor to make good faith efforts to replace an DBE that is terminated or has otherwise failed to complete its work on a contract with another certified DBE, to the extent needed to meet the contract goal. A prime contractor’s inability to find a replacement DBE at the original price is not sufficient to demonstrate that good faith efforts have been made to replace the original DBE. The fact that the contractor has the ability and/or desire to perform the contract work with its own forces does not relieve the contractor of the obligation to make good faith efforts to find a replacement DBE, and it is not a sound basis for rejecting a prospective replacement

DBE's reasonable quote.

The Department will require the prime contractor to promptly provide written notice to the project manager of the DBE's inability or unwillingness to perform and provide reasonable documentation.

The written notice by the contractor must include the following:

1. The date the contractor determined the certified DBE to be unwilling, unable or ineligible to perform work on the contract;

2. The projected date that the contractor shall require a substitution or replacement

DBE to commence work if consent is granted by the Department;

3. Documentation of facts that describe and cite specific actions or inactions on the part of the affected DBE that led to the contractor’s conclusion that the DBE is unwilling, unable, or ineligible to perform work on the contract;

4. A brief statement of the affected DBE’s capacity and ability or inability to perform the work as determined by the contractor;

5. Documentation of contractor’s good faith efforts to enable affected DBE to perform the work;

6. The current percentage of work completed on each bid item by the affected DBE;

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7. The total dollar amount currently paid per bid item for work performed by the affected DBE;

8. The total dollar amount per bid item remaining to be paid to the DBE for work completed but for which the DBE has not received payment, and with which the contractor has no dispute; and

9. The total dollar amount per bid item remaining to be paid to the DBE for work completed, for which the DBE has not received payment, and with which the contractor and DBE have a dispute.

The prime contractor shall send a copy of the written notice to replace a certified DBE on a contract to the affected DBE. The affected DBE may submit a written response within five (5) calendar days to the Department to explain its position on its performance on the committed work. The Department shall consider both the prime contractor’s request and

DBE’s stated position before approving the termination or substitution request, or determining if any action shall be taken against the contractor.

There shall be no substitution or termination of an DBE subcontractor at any time without the prior written consent of the Department. The Department will provide written consent only if the contractor has good cause, as determined by the Department, to terminate the DBE. Good cause may include, but is not limited to the following circumstances:

1. The DBE subcontractor fails or refuses to execute a written contract;

2. The listed DBE subcontractor fails or refuses to perform the work of its subcontract in a way consistent with normal industry standards;

3. The listed DBE subcontractor fails or refuses to meet the prime contractor's reasonable, nondiscriminatory bond requirements;

4. The listed DBE subcontractor becomes bankrupt, insolvent, or exhibits credit unworthiness;

5. The listed DBE subcontractor is ineligible to work on public works projects because of suspension and debarment proceedings pursuant to 2 CFR Parts 180, 215 and 1200 or applicable state law;

6. The Department has determined that the listed DBE subcontractor is not a responsible contractor;

7. The listed DBE subcontractor voluntarily withdraws from the project and provides to the Department written notice of its withdrawal;

8. The listed DBE is ineligible to receive DBE credit for the type of work required;

and

9. An DBE owner dies or becomes disabled with the result that the listed DBE contractor is unable to complete its work on the contract.

Upon approval from the Department to replace an DBE, the contractor’s good faith efforts shall be documented and submitted to the Department within seven (7) calendar days. This time period may be extended for another seven (7) calendar days upon request by the prime contractor.

If an DBE subcontractor is unable to perform work under the contract, and is to be rev 08.10.22 replaced, the contractor’s failure to obtain a substitute certified DBE or to make good faith efforts to obtain such a substitute DBE subcontractor to perform said work, may constitute a breach of this contract for which the Department may terminate the contract or pursue such remedy as deemed appropriate by the Department.

XII. CONTRACT COMPLIANCE

This contract is subject to contract compliance tracking, and the prime contractor and all subcontractors are required to report payments electronically in the HDOT online

Certification and Contract Compliance Management System (hereafter referred to as

“online tracking system”). The prime contractor shall report the date payment was made by the Department and shall report payment to all subcontractors for the audit period. The prime contractor and all subcontractors are responsible for responding by any noted response date or due date to any instructions or request for information, and to check the online tracking system on a regular basis to manage contact information and contract records.

The prime contractor is responsible for ensuring all subcontractors have completed all requested items and that their contact information is accurate and up-to-date. HDOT may require additional information related to the contract to be provided electronically through the online tracking system at any time before, during, or after contract award.

Information related to contractor access of the online tracking system will be provided to designated point of contact with each contractor upon award of the contract. The online tracking system is web-based and can be accessed at the following Internet address:

https://hdot.dbesystem.com/.

XIII. PAYMENT

A. The Department will make an estimate in writing each month based on the items of work performed and materials incorporated in the work and the value therefore at the unit prices or lump sum prices set forth in the contract. All progress estimates and payments will be approximate only and shall be subject to correction at any time prior to or in the final estimate and payment. The

Department will not withhold any amount from any payment to the contractor, including retainage.

B. The contractor shall pay all subcontractors within ten (10) calendar days after receipt of any progress payments from the Department. This clause applies to both DBE and non-DBE subcontractors, and all tiers of subcontracts.

C. The contractor will verify that payment or retainage has been released to the subcontractors or its suppliers within the specified time through entries in the

Department’s online tracking system during the corresponding monthly audits.

Prompt payment will be monitored and enforced through the contractor’s reporting of payments to its subcontractors and suppliers in the online tracking system.

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Subcontractors, including lower tier subcontractors and/or suppliers will confirm the timeliness and the payment amounts received utilizing the online tracking system. Discrepancies will be investigated by the DBE Program Office and the project engineer. Payments to the subcontractors, including lower tier subcontractors, and including retainage released after the subcontractor or lower tier subcontractor’s work has been completed to the Department’s satisfaction, will be reported by the Contractor or the subcontractor.

D. When any subcontractor has satisfactorily completed its work as specified in the subcontract, and there are no bona fide disputes, the contractor shall make prompt and full payment to the subcontractor of all monies due, including retainage, within ten (10) calendar days after the subcontractor’s work is satisfactorily completed. A subcontractor’s work is satisfactorily completed when all the tasks called for in the subcontract have been accomplished and documented, as required by the Department. The contractor must obtain the prior written approval from the Department before it can continue to withhold retainage from any subcontractor who has completed its portion of the work. This clause applies to both DBE and non-DBE subcontractors, and all tiers of subcontracts.

XIV. RECORDS

The contractor shall maintain and keep all records necessary for the Department to determine compliance with the contractor’s DBE obligations. The records shall be available at reasonable times and places for inspection by the Department and appropriate

Federal agencies. The records to be kept by the contractor shall include:

1. The names, race/ethnicity, gender, address, phone number, and contact person of all DBE and non-DBE consultants, subcontractors, manufacturers,…