FY24_Contract_Provisions_Guide_508.pdf

Contract Provisions Guide Navigating Contract Provisions for Recipient and Subrecipient Contracts Under FEMA Awards

Version 2, Effective October 1, 2024

(FI-207-21-0001)

Procurement Under Grants Division

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Introduction Recipients and subrecipients of grant funding from the Federal Emergency Management Agency (FEMA) will often use contractors to help them carry out work under their awards. These contracts are a commercial transaction between the recipients and subrecipients and their contractor, and FEMA has no contractual relationship with the recipient’s or subrecipient’s contractors. Although FEMA is not a party to the contract, if a recipient or subrecipient is using federal funding to pay for the contract, the recipient or subrecipient must comply with applicable federal laws, including the federal procurement standards.

The federal procurement standards for recipients and subrecipients are described in Title 2 of the Code of Federal Regulations (C.F.R.), Part 200, sections 200.317- 200.327. 2 C.F.R. §

200.327 states that “recipient’s or subrecipient’s contracts must contain the applicable provisions described in Appendix II of this part” (emphasis added).

Prior to purchasing goods and services under a FEMA award, recipients and subrecipients must be mindful of the date the federal award is made or the disaster declared because this date determines the applicable federal procurement standards including the required contract provisions in 2 C.F.R.

Part 200. This document applies to all FEMA awards made or disasters declared on or after October 1, 2024, and includes the Office of Management and Budget (OMB) Revisions to the federal procurement standards effective on October 1, 2024. For FEMA financial assistance programs subject to BABAA, recipient and subrecipient contracts for infrastructure projects must include a BABAA provision.

The BABAA provision is applicable to FEMA awards made on or after October 23, 2023.

For FEMA awards made or disasters declared between November 12, 2020, through September 30, 2024, please refer to the Contract Provisions Guide dated June 2021 for the required federal contract provisions. For FEMA awards made or disasters declared before November 12, 2020, please refer to the Contract Provisions Template for required federal contract provisions. For questions regarding applicable federal procurement standards including the required contract provisions, please contact the FEMA Procurement Under Grants Division.

This document is designed to help FEMA recipients and subrecipients navigate Appendix II to Part 200 —Contract Provisions for Non-Federal Entity Contracts Under Federal Awards. Additionally, this document also describes contract clauses where 2 C.F.R. Part 200 requires clauses to be included but does not mandate specific language. In those cases, FEMA has provided suggested language in this document. In addition to the contract clauses required by 2 C.F.R. Part 200, this document includes recommended contract clauses that are pursuant to FEMA’s authorities. FEMA does not recommend incorporating by reference. FEMA recommends including the name of the recipient or subrecipient conducting the purchase under a FEMA award in the blank sections when using sample language from this Guide.

This document provides:

https://www.ecfr.gov/on/2024-10-01/title-2/subtitle-A/chapter-II/part-200/subpart-D/subject-group-ECFR45ddd4419ad436d https://www.ecfr.gov/on/2024-10-01/title-2/section-200.327 https://www.ecfr.gov/on/2024-10-01/title-2/part-200/appendix-Appendix%20II%20to%20Part%20200 https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions#subject https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions#subject https://www.fema.gov/sites/default/files/documents/fema_contract-provisions-guide_6-14-2021.pdf https://www.fema.gov/sites/default/files/2020-07/fema_pdat_contract-provisions-template.pdf

Suggested language or references to find suggested language for some of the federally required clauses.

Required language for clauses that require recipient and subrecipient contracts to include specific language.

Sample language for some of the federally recommended clauses.

This document does not provide:

Sample language for certain federally required or recommended clauses that must be drafted in accordance with the recipient’s or subrecipient’s applicable laws, rules, and procedures.

Contract provisions required by applicable state, tribal, or local laws or rules separate from the federal procurement standards.

Many of the provisions described in this document only apply when certain circumstances are present, such as the type of work being procured, the dollar amount, or the date when it is procured.

Each section will describe the applicable requirements. See Table A for applicability of required contract provisions and Table B for recommended contract provisions by FEMA.

NOTE: The recipient or subrecipient is solely responsible for ensuring that all language included in its contracts meets the requirements of 2 C.F.R. Part 200, including 2 C.F.R. § 200.327 and Appendix II. Additionally, the required language noted below is current as of the date of the publication of this document and it is the recipient’s and subrecipient’s responsibility to ensure the required language used in the contract is consistent with applicable statutes. While the Contract Provisions Guide provides general guidance, recipients or subrecipients should reach out to their applicable FEMA grant program representative(s) if they have specific questions on the applicability of the contract provisions to a particular FEMA grant program.

Contract Provisions Quick Reference Guide Table A and Table B are designed to help FEMA recipients and subrecipients conduct a quick reference of the applicability of a specific contract provision and whether sample contract language is included within this Guide to incorporate within the recipient’s or subrecipient’s contract.

The Tables are divided between the required contract provisions set forth under 2 C.F.R. Part 200 Appendix II and those that FEMA recommends in addition to those required by 2 C.F.R. Part 200.

Table A: Required Contract Provisions Provision

(Appendix II Section)

Applicability Sample Contract

Language Included

Grant Program Applicability

1 Legal/contractual /administrative remedies for breach of contract (A)

Contract is greater than the Federal simplified acquisition threshold (SAT), currently $250,000.

No. Based on the recipient’s or subrecipient’s procedures.

All. NOTE: AFG must include a penalty clause in all contracts for any AFG-funded vehicle.

2 Termination for cause and convenience (B)

Contract is greater than $10,000.

No. Based on the recipient’s or subrecipient’s procedures.

All

3 Equal Employment Opportunity (C)

Contracts and subcontracts for construction work; exact language from 41 C.F.R.

§ 60-1.4(b) required.

Yes. Exact language from 41 C.F.R. § 60- 1.4(b) included.

All

4 Davis-Bacon Act (D) Contracts and subcontracts for construction work over $2,000; required language at 29 C.F.R. § 5.5(a).

Yes, via reference to required language at 29 C.F.R. § 5.5(a).

Required for EMPG, HSGP, NSGP, THSGP, PSGP, TSGP, IPR, and HHPD.

5 Copeland “Anti- Kickback” Act (D)

Contracts and subcontracts for construction work over $2,000.

Yes Required for EMPG, HSGP, NSGP, THSGP, PSGP, TSGP, IPR, and HHPD.

https://www.fema.gov/grants/preparedness/firefighters https://www.fema.gov/grants/preparedness/emergency-management-performance https://www.fema.gov/grants/preparedness/homeland-security https://www.fema.gov/grants/preparedness/nonprofit-security https://www.fema.gov/grants/preparedness/tribal-homeland-security https://www.fema.gov/grants/preparedness/port-security https://www.fema.gov/grants/preparedness/transit-security https://www.fema.gov/grants/preparedness/intercity-passenger-rail-amtrak https://www.fema.gov/emergency-managers/risk-management/dam-safety/rehabilitation-high-hazard-potential-dams https://www.fema.gov/grants/preparedness/emergency-management-performance https://www.fema.gov/grants/preparedness/homeland-security https://www.fema.gov/grants/preparedness/nonprofit-security https://www.fema.gov/grants/preparedness/tribal-homeland-security https://www.fema.gov/grants/preparedness/port-security https://www.fema.gov/grants/preparedness/transit-security https://www.fema.gov/grants/preparedness/intercity-passenger-rail-amtrak https://www.fema.gov/emergency-managers/risk-management/dam-safety/rehabilitation-high-hazard-potential-dams

Provision (Appendix II

Section)

Applicability Sample Contract

Language Included

Grant Program Applicability

6 Contract Work Hours and Safety Standards Act (E)

Contracts and subcontracts over $100,000 and if for mechanics or laborers;

exact language required from 29 C.F.R. § 5.5(b).

Yes. Exact language required from 29 C.F.R. § 5.5(b).

All

7 Rights to inventions made under a contract or agreement (F)

Funding agreement. Yes This clause is not required under the

PA, HMGP, FMA,

BRIC, PDM, FMAG,

HMGP Post Fire, CCP, DCM, IHP-ONA, or Safeguarding Tomorrow RLF programs, as FEMA Awards under these programs do not meet the definition of “funding agreement”.

8 Clean Air Act and federal Water Pollution Control Act (G)

Contracts and subcontracts greater than $150,000.

Yes All

9 Debarment and Suspension (H)

Contracts and subcontracts greater than $25,000.

Yes All

10 Byrd Anti-Lobbying Amendment (I)

Contracts and subcontracts greater than $100,000. Clause and certification required.

Yes. Clause and certification.

All

11 Procurement of Recovered Materials (J)

Only applies if a recipient or subrecipient is a state or political subdivision of a state; work involves the use of materials, and the contract is for more than $10,000. NOTE: Not applicable for Indian Tribal governments and nonprofit organizations.

Yes All https://www.fema.gov/assistance/public https://www.fema.gov/grants/mitigation/hazard-mitigation https://www.fema.gov/grants/mitigation/learn/flood-mitigation-assistance https://www.fema.gov/grants/mitigation/learn/building-resilient-infrastructure-communities https://www.fema.gov/grants/mitigation/learn/pre-disaster https://www.fema.gov/assistance/public/fire-management-assistance https://www.fema.gov/grants/mitigation/learn/post-fire https://www.fema.gov/assistance/individual/disaster-survivors#counseling https://www.fema.gov/assistance/individual/disaster-survivors#case https://www.fema.gov/assistance/individual/housing https://www.fema.gov/fact-sheet/femas-safeguarding-tomorrow-revolving-loan-fund-program https://www.fema.gov/fact-sheet/femas-safeguarding-tomorrow-revolving-loan-fund-program https://www.ecfr.gov/current/title-37/chapter-IV/part-401/section-401.2#p-401.2(a)

Provision (Appendix II

Section)

Applicability Sample Contract

Language Included

Grant Program Applicability

12 Prohibition on Contracting for Covered Telecommunications Equipment or Services (K)

Contracts and subcontracts under FEMA declaration or grant award issued on or after November 12, 2020.

Yes All

13 Domestic Preferences for Procurements (L)

Contracts under FEMA declaration or grant award issued on or after November 12, 2020.

Yes All

14 Build America, Buy America Act

(BABAA) (M)

Infrastructure projects under applicable grant awards issued on or after January 2, 2023.

Yes FEMA financial assistance programs subject to BABBA.

Table B: Recommended Contract Provisions Provision Applicability Sample Contract

Language Included 1 Access to Records All Yes 2 Contract Changes or Modifications All No. It depends on nature of contract and end-item procured.

3 DHS Seal, Logo, and Flags All Yes 4 Compliance with Federal Law, Regulations, and Executive Orders All Yes

5 No Obligation by Federal Government All Yes 6 Program Fraud and False or

Fraudulent Statements or Related Acts

All Yes

7 Socioeconomic Contracting All Yes 8 Copyright All procurements that may involve creation of copyrightable material.

Yes

9 Build America, Buy America Act (BABAA) for Architectural and/or Engineering Contracts

FEMA financial assistance programs subject to

BABAA.

Yes

10 Providing Good, Safe Jobs to Workers All Yes 11 Buy Clean PA, BRIC, and HMGP Yes https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions%22%20/l%20%22subject https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions%22%20/l%20%22subject https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions%22%20/l%20%22subject https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions%22%20/l%20%22subject https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions#subject https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions#subject https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions#subject https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions#subject https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions#subject

Required Contract Provisions

1. Remedies Contracts must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms and must provide for sanctions and penalties as appropriate.1

1.1 Applicability

This contract provision is required for contracts over the SAT,2 currently set at $250,000 for procurements made on or after June 20, 2018.3 For all other contracts at or below the SAT under FEMA programs, FEMA suggests including a remedies provision, but this is not required.

1.2 Additional Considerations

For FEMA’s Assistance to Firefighters Grant Program (AFG), recipients must include a penalty clause in all contracts for any AFG-funded vehicle, regardless of dollar amount.4 In that situation, the contract must include a clause addressing that non-delivery by the contract’s specified date or other vendor nonperformance will require a penalty of no less than $100 per day until such time that the vehicle, compliant with the terms of the contract, has been accepted by the recipient.5 This penalty clause should, however, account for force majeure or acts of God. AFG recipients should refer to the applicable year’s Notice of Funding Opportunity (NOFO) for additional information.

2. Termination for Cause and Convenience Contracts must address termination for cause and for convenience by the recipient or subrecipient, including the manner by which it will be carried out and the basis for settlement.6

1 2 C.F.R. Part 200, Appendix II, § A.

2 FEMA Grant Programs Directorate Information Bulletin No. 434, Increases and Changes to the Micro- Purchase and Simplified Acquisition Thresholds (Aug. 28, 2018), https://www.fema.gov/sites/default/files/2020- 08/ib_434_changes_micro_purch_simp_acquisition_thresholds.pdf. For procurements subject to 2 C.F.R. Part 200 that were made before June 20, 2018, the SAT was $150,000.

3 2 C.F.R. Part 200, Appendix II, § A.

4 E.g., Fiscal Year 2023 Assistance to Firefighters Grant Program Notice of Funding Opportunity, available at https://www.grants.gov/search-results-detail/351954.

5 Id.

6 2 C.F.R. Part 200, Appendix II, § B.

https://www.fema.gov/sites/default/files/2020-08/ib_434_changes_micro_purch_simp_acquisition_thresholds.pdf https://www.fema.gov/sites/default/files/2020-08/ib_434_changes_micro_purch_simp_acquisition_thresholds.pdf https://www.grants.gov/search-results-detail/351954

2.1 Applicability

This contract provision is required for contracts and purchase orders exceeding $10,000.7 For contracts at or below $10,000, FEMA suggests including a termination for cause provision, but this is not required.

2.2 Additional Considerations

FEMA recommends that termination clauses be actionable and specific. For example, a termination clause that allows for 60-day notice of termination for a contract with a 30-day duration may not be actionable. Additionally, if a contract allows for due oral or written notice of termination, it should specify what is considered due oral or written notice.

3. Equal Employment Opportunity This contract provision promotes and ensures equal opportunity for all persons, without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin under federally assisted construction contracts.8

3.1 Applicability

This contract provision is required for all procurements that meet the definition of a “federally assisted construction contract,” unless otherwise stated in 41 C.F.R. Part 60.9

3.2 Key Definitions

Federally Assisted Construction Contract: The regulation at 41 C.F.R. § 60-1.3 defines a federally assisted construction contract as “any agreement or modification thereof between any applicant and a person for construction work which is paid for in whole or in part with funds obtained from the Government or borrowed on the credit of the Government pursuant to any federal program involving a grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any federal program involving such grant, contract, loan, insurance, or guarantee, or any application or modification thereof approved by the Government for a grant, contract, loan, insurance, or guarantee under which the applicant itself participates in the construction work.”

Construction Work: The regulation at 41 C.F.R. § 60-1.3 defines construction work as “the construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility

7 Id.

8 Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity.”

9 2 C.F.R. Part 200, Appendix II, § C.

https://www.federalregister.gov/executive-order/11246 https://www.federalregister.gov/citation/30-FR-12319 https://www.federalregister.gov/citation/30-FR-12935 https://www.ecfr.gov/on/2024-10-01/title-3/part-1964 https://www.federalregister.gov/executive-order/11375 https://www.federalregister.gov/executive-order/11246 services. The term also includes the supervision, inspection, and other onsite functions incidental to the actual construction.”

Contract: The regulation at 41 C.F.R. § 60-1.3 defines contract as “any Government contract or subcontract or any federally assisted construction contract or subcontract.”

NOTE: Additional definitions pertaining to this contract provision can be found at 41 C.F.R. § 60-1.3.

3.3 Required Language

The regulation at 41 C.F.R. § 60-1.4(b) requires, except as otherwise provided or exempted in 41 C.F.R. Part 60, the insertion of the following contract 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.

(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 https://www.law.cornell.edu/definitions/index.php?width=840&height=800&iframe=true&def_id=11ed7b108f4f698848db076411872c73&term_occur=26&term_src=Title:41:Subtitle:B:Chapter:60:Part:60-1:Subpart:A:60-1.4 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 such litigation to protect the interests of the United States.

The Applicant 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 applicant 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 Applicant 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 Applicant 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 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 Applicant 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 applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.”

4. Davis-Bacon Act This statute requires that contractors must pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in the Secretary of Labor’s wage determination. Additionally, contractors are required to pay wages at least once per week.10 Additional requirements are listed below, and relevant definitions are at 29 C.F.R. § 5.2. Recipients and subrecipients should refer to the applicable NOFO or other program guidance or contact their applicable FEMA grant representative for additional information on how to implement this requirement.

4.1 Applicability

When required by the federal program legislation, all prime construction contracts over $2,000 awarded by recipients or subrecipients must include a provision for compliance with the Davis-Bacon Act.11

The Davis-Bacon Act does not apply to all FEMA financial assistance programs. Recipients and subrecipients should refer to applicable NOFO or other program guidance or contact their applicable FEMA grant representative to determine if this provision is required for the procurement. However, the Davis-Bacon Act clause is not federally required for procurements under FEMA’s Public Assistance (PA) or Hazard Mitigation Assistance (HMA) Programs.

10 40 U.S.C. §§ 3141-3144 and 3146-3148. The Davis-Bacon Act is supplemented by Department of Labor regulations at 29 C.F.R. Part 5 (Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction).

11 2 C.F.R. Part 200, Appendix II, § D.

https://www.law.cornell.edu/definitions/index.php?width=840&height=800&iframe=true&def_id=22edf9acbb0b836eba994727b86adedf&term_occur=16&term_src=Title:41:Subtitle:B:Chapter:60:Part:60-1:Subpart:A:60-1.4

4.2 Additional Requirements

If applicable, in addition to the requirements mentioned in the beginning of this section, the recipient or subrecipient must do the following:

The recipient or subrecipient must place a copy of the Department of Labor’s current prevailing wage determination in each solicitation. Contracts or subcontracts must be awarded on the condition that the prevailing wage determination is accepted. The recipient or subrecipient must report all suspected or reported violations to the federal agency.12

Contracts subject to the Davis-Bacon Act, must also include a provision for compliance with the Copeland “Anti-Kickback” Act.13 See Required Contract Provisions, Section 5. Copeland Anti- Kickback Act in this document for additional information. According to 29 C.F.R. § 5.5(a)(5), the regulatory requirements for the Copeland “Anti-Kickback” Act are incorporated by reference into the required contract provision, so a separate contract provision is not necessary. However, the recipient or subrecipient may include a separate contract provision specific to the Copeland “Anti- Kickback” Act.

Per Department of Labor’s implementing regulations for the Davis-Bacon Act, the recipient’s or subrecipient’s contractor and any subcontractors are required to insert, or incorporate by reference, the clauses contained at 29 C.F.R. § 5.5(a)(1)-(11)14 into any subcontracts.

Follow the other requirements of the Davis-Bacon Act and implementing regulations.15

4.3 Required Language16

If applicable per the standard described above, the recipient or subrecipient must include the provisions at 29 C.F.R. § 5.5(a)(1)-(11) in full into all applicable contracts, and all applicable contractors must include these provisions in full in any subcontracts.17

5. Copeland “Anti-Kickback” Act The Copeland "Anti-Kickback" Act prohibits workers on construction contracts from giving up wages that they are owed.18 Additional requirements are listed below, and relevant definitions are at 29 C.F.R. § 3.2. The applicable implementing regulations are intended to assist with enforcement of the

12 2 C.F.R. Part 200, Appendix II, § D.

13 Id.

14 29 C.F.R. § 5.5(a)(6).

15 40 U.S.C. §§ 3141-3144, 3146-3148; 29 C.F.R. § Part 5.

16 29 C.F.R. § 5.5(a).

17 29 C.F.R. § 5.5(a)(6).

18 40 U.S.C. § 3145. The Copeland “Anti-Kickback” Act is supplemented by Department of Labor regulations at 29 C.F.R. 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).

Davis-Bacon Act’s minimum wage provisions as well as various statutes with similar minimum wage provisions for federally assisted construction.19

5.1 Applicability

For all prime construction contracts above $2,000, when the Davis-Bacon Act also applies,20 recipients or subrecipients must include a provision in contracts and subcontracts for compliance with the Copeland “Anti-Kickback” Act.21 The Copeland “Anti-Kickback” Act does not apply to all FEMA financial assistance programs. Recipients or subrecipients should refer to applicable NOFO or other program guidance or contact their applicable FEMA grant representative to determine if this provision is required for the procurement. However, the Copeland “Anti-Kickback” Act clause is not federally required for procurements under FEMA’s PA or HMA Programs.

5.2 Additional Requirements

If applicable, the recipient or subrecipient must do the following:

Include a provision for compliance with the Copeland “Anti-Kickback” Act.22 According to the implementing regulations for the Davis-Bacon Act, the regulatory requirements for the Copeland “Anti-Kickback” Act are incorporated by reference into the required contract provision for the Davis-Bacon Act. Therefore, a separate contract provision is not necessary. However, the recipient or subrecipient may include a separate contract provision specific to the Copeland “Anti-Kickback” Act with language suggested below.

The Copeland “Anti-Kickback Act” prohibits each contractor or subcontractor from any form of persuading a person employed in construction, completion, or repair of public work to give up any part of their rightful compensation. The recipient or subrecipient must report all suspected or reported violations of the Copeland “Anti-Kickback Act” to FEMA.23

Each contractor and subcontractor must provide weekly reports of the wages paid during the prior week’s payroll period to each employee covered by the “Copeland Anti-Kickback” Act and the Davis-Bacon Act.24 The reports must be delivered to a representative of a federal or state agency in charge at the building or work site by the contractor or subcontractor within seven days of the payroll period’s payment date.25

Follow the other requirements of the Copeland “Anti-Kickback” Act and implementing regulations.26

19 29 C.F.R. § 3.1.

20 2 C.F.R. Part 200, Appendix II, § D; 29 C.F.R. §§ 3.1, 3.3(c).

21 2 C.F.R. Part 200, Appendix II, § D.

22 Id.

23 Id.

24 29 C.F.R. § 3.3(b).

25 29 C.F.R. § 3.4(a).

26 40 U.S.C. § 3145; 29 C.F.R. Part 3.

5.3 Suggested Language

The following provides a sample contract clause:

“Compliance with the Copeland “Anti-Kickback” Act.

Contractor. The Contractor shall comply with 18 U.S.C. § 874, 40 U.S.C. § 3145, and the requirements of 29 C.F.R. Part 3 as may be applicable, which are incorporated by reference into this contract.

Subcontracts. The Contractor or Subcontractor shall insert in any subcontracts the clause above and such other clauses as FEMA may by appropriate instructions require, and a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Prime Contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all these contract clauses.

Breach. A breach of the contract clauses above may be grounds for termination of the contract, and for debarment as a contractor and subcontractor as provided in 29 C.F.R. § 5.12.”

6. Contract Work Hours and Safety Standards Act Where applicable,27 contracts must include a provision for compliance with statutory requirements on work hours and safety standards.28 Under 40 U.S.C. § 3702, each contractor must base wages for every mechanic and laborer on a standard 40-hour work week. Work over 40 hours is allowed, so long as the worker is paid at least one and a half times the base pay rate for all hours worked over 40 in the work week. Additionally, for construction work, under 40 U.S.C. § 3704, work surroundings and conditions for laborers and mechanics must not be unsanitary or unsafe. Relevant definitions are at 40 U.S.C. § 3701 and 29 C.F.R. § 5.2.

6.1 Applicability

This required contract provision applies to all procurements over $100,000 that involve the employment of mechanics, laborers, and construction work.29 These requirements do not apply to the purchase of supplies, materials, or articles ordinarily available on the open market, contracts for transportation or transmission of intelligence.30

27 40 U.S.C. §§ 3701-3708.

28 40 U.S.C. §§ 3702, 3704. The Contract Work Hours and Safety Standards Act is supplemented by Department of Labor regulations at 29 C.F.R. Part 5, 2 C.F.R. Part 200, Appendix II, §E.

29 2 C.F.R. Part 200, Appendix II, § E.

30 Id.

6.2 Additional Requirements

If applicable per the standard described above, the recipient or subrecipient must include the provisions at 29 C.F.R. § 5.5(b)(1)-(5), verbatim, into all applicable contracts, and all applicable contractors must include these provisions, in full, into any subcontracts.31

In addition to the required language from 29 C.F.R. § 5.5(b)(1)-(5), in any contract subject only to the Contract Work Hours and Safety Standards Act and not to any other statutes cited in 29 C.F.R. § 5.1, the recipient or subrecipient must also insert a clause meeting the requirements of 29 C.F.R. § 5.5(c). Specific language is not required, but FEMA has provided suggested language below.

6.3 Required Language

For the required contract provision, the language from 29 C.F.R. § 5.5(b)(1)-(5) is provided below for ease of reference. The language provided is current as of the date of publication of the Contract Provisions Guide. However, 29 C.F.R. § 5 may be updated periodically, such that recipients and subrecipients are encouraged to reference the regulations for the most current language.

“Compliance with the Contract Work Hours and Safety Standards Act.

(1) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (b)(1) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages and interest from the date of the underpayment. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchpersons and guards, employed in violation of the clause set forth in paragraph (b)(1) of this section, in the sum of $32 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (b)(1).

(3) Withholding for unpaid wages and liquidated damages—

(i) Withholding Process. The (insert name of recipient or subrecipient) may, upon its own action, or must, upon written request of an authorized representative of the Department of

31 29 C.F.R. § 5.5(b)(1), (4).

Labor, withhold or cause to be withheld from the contractor so much of the accrued payments or advances as may be considered necessary to satisfy the liabilities of the prime contractor or any subcontractor for any unpaid wages; monetary relief, including interest; and liquidated damages required by the clauses set forth in this paragraph (b) on this contract, any other federal contract with the same prime contractor, or any other federally assisted contract subject to the Contract Work Hours and Safety Standards Act that is held by the same prime contractor (as defined in § 5.2). The necessary funds may be withheld from the contractor under this contract, any other federal contract with the same prime contractor, or any other federally assisted contract that is subject to the Contract Work Hours and Safety Standards Act and is held by the same prime contractor, regardless of whether the other contract was awarded or assisted by the same agency, and such funds may be used to satisfy the contractor liability for which the funds were withheld.

(ii) Priority to withheld funds. The Department has priority to funds withheld or to be withheld in accordance with paragraph (a)(2)(i) or (b)(3)(i) of this section, or both, over claims to those funds by:

(A) A contractor's surety(ies), including without limitation performance bond sureties and payment bond sureties;

(B) A contracting agency for its reprocurement costs;

(C) A trustee(s) (either a court-appointed trustee or a U.S. trustee, or both) in bankruptcy of a contractor, or a contractor's bankruptcy estate;

(D) A contractor's assignee(s);

(E) A contractor's successor(s); or

(F) A claim asserted under the Prompt Payment Act, 31 U.S.C. 3901-3907.

(4) Subcontracts. The contractor or subcontractor must insert in any subcontracts the clauses set forth in paragraphs (b)(1) through (5) of this section and a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor is responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (b)(1) through (5). In the event of any violations of these clauses, the prime contractor, and any subcontractor(s) responsible will be liable for any unpaid wages and monetary relief, including interest from the date of the underpayment or loss, due to any workers of lower-tier subcontractors, and associated liquidated damages and may be subject to debarment, as appropriate.

(5) Anti-retaliation. It is unlawful for any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, or to cause any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, any worker or job applicant for:

(i) Notifying any contractor of any conduct which the worker reasonably believes constitutes a violation of the Contract Work Hours and Safety Standards Act (CWHSSA) or its implementing regulations in this part;

(ii) Filing any complaint, initiating, or causing to be initiated any proceeding, or otherwise asserting or seeking to assert on behalf of themselves or others any right or protection under CWHSSA or this part;

(iii) Cooperating in any investigation or other compliance action, or testifying in any proceeding under CWHSSA or this part; or

(iv) Informing any other person about their rights under CWHSSA or this part.”

6.4 Suggested Language

For contracts that are subject only to the Contract Work Hours and Safety Standards Act and are not subject to the other laws referenced by 29 C.F.R. § 5.1 where an additional contract provision is required, FEMA suggests including the following language:

“Further Compliance with the Contract Work Hours and Safety Standards Act.

(1) The contractor or subcontractor must maintain regular payrolls and other basic records during the course of the work and must preserve them for a period of three years after all the work on the prime contract is completed for all laborers and mechanics, including guards and watchpersons, working on the contract. Such records must contain the name; last known address, telephone number, and email address; and social security number of each such worker;

each worker’s correct classification(s) of work performed; hourly rates of wages paid; daily and weekly number of hours actually worked; deductions made; and actual wages paid.

(2) Records to be maintained under this provision must be made available by the contractor or subcontractor for inspection, copying, or transcription by authorized representatives of the Department of Homeland Security, the Federal Emergency Management Agency, and the Department of Labor, and the contractor or subcontractor will permit such representatives to interview workers during working hours on the job.”

Rights to Inventions Made Under a Contract or Agreement

This contract provision outlines the rules governing the ownership of inventions created using federal funds. If the FEMA award meets the definition of funding agreement32 and the recipient or subrecipient enters any contract involving substitution of parties, assignment, or performance of

32 Funding agreement definition found under 37 C.F.R. § 401.2(a).

experimental, developmental, or research work under that funding agreement, then the recipient or subrecipient must comply with the requirements of 37 C.F.R. Part 401 and any implementing regulations issued by FEMA.

7.1 Applicability

This provision does not apply to all FEMA financial assistance programs. Recipients and subrecipients should refer to applicable NOFO or other program guidance or contact their applicable FEMA grant representative to determine if this provision is required for the procurement. However, the Rights to Inventions Made Under a Contract or Agreement clause is not required for procurements under FEMA’s PA Program.

7.2 Key Definitions

Funding Agreements: The regulation at 37 C.F.R. § 401.2(a) defines funding agreement as “any contract, grant, or cooperative agreement entered into between any federal agency, other than the Tennessee Valley Authority, and any contractor for the performance of experimental, developmental, or research work funded in whole or in part by the Federal Government. This term also includes any assignment, substitution of parties, or subcontract of any type entered into for the performance of experimental, developmental, or research work under a funding agreement as defined in the first sentence of this paragraph.”

8. Clean Air Act and Federal Water Pollution Control Act Contracts must contain a provision requiring contractors to comply with the Clean Air Act33 and the Federal Water Pollution Control Act.34 Violations must be reported to FEMA and the Regional Office of the Environmental Protection Agency.35

8.1 Applicability

This contract provision is required for all procurements over $150,000.

8.2 Suggested Language

The following provides a sample contract clause:

“Clean Air Act.

The contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq.

33 42 U.S.C. §§ 7401-7671q. This also includes all applicable standards, orders, or regulations issued pursuant to the Clean Air Act.

34 33 U.S.C. §§ 1251-1387, as amended.

35 2 C.F.R. Part 200, Appendix II, § G.

The contractor agrees to report each violation to the (name of recipient or subrecipient entering the contract) and understands and agrees that the (name of the recipient or subrecipient entering the contract) will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.

The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by FEMA.

Federal Water Pollution Control Act

The contractor agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq.

The contractor agrees to report each violation to the (name of the recipient or subrecipient entering the contract) and understands and agrees that the (name of the recipient or subrecipient entering into the contract) will, in turn, report each violation as required to assure notification to the (name of the pass-through entity, if applicable), Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.

The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by FEMA.”

9. Suspension and Debarment Recipients, subrecipients, contractors, and subcontractors are subject to suspension and debarment regulations.36 Applicable contracts and subcontracts must include a provision requiring compliance with suspension and debarment regulations.37

9.1 Applicability

The suspension and debarment clause is required for all contracts and subcontracts for $25,000 or more, all contracts that require the consent of an official of a federal agency, and all contracts for federally required audit services.38

36 2 C.F.R. Part 180 (implementing Executive Order 12549, Debarment and Suspension (1986) and Executive Order 12689, Debarment and Suspension (1989)); 2 C.F.R. Part 3000 (Department of Homeland Security regulations for Nonprocurement Debarment and Suspension, implementing 2 C.F.R. Part 180).

37 2 C.F.R. § 180; 2 C.F.R. Part 200, Appendix II, § H; 2 C.F.R. § 3000.332.

38 2 C.F.R. § 180.220(b); 2 C.F.R. § 3000.220.

Local governments and nonprofits, even for procurements under $25,000, must also comply with the regulation requiring local governments and nonprofits to only award contracts to responsible vendors.39

9.2 Additional Requirements

The suspension and debarment regulations restrict awards, subawards, contracts, and subcontracts with parties that are suspended, debarred, or otherwise excluded, or declared ineligible for participation in federal assistance programs and activities.40

If applicable, a contract or subcontract must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM). SAM Exclusions is the list maintained by the General Services Administration that contains the names of parties that are suspended, debarred, or otherwise excluded, or declared ineligible under statutory or regulatory authority other than Executive Order 12549.41 SAM Exclusions can be accessed at www.SAM.gov.42

In general, an “excluded” party cannot receive a federal grant award or a contract considered to be a “covered transaction,” which includes parties that receive federal funding indirectly such as subawards and subcontracts. The key to the exclusion is whether there is a covered transaction. A covered transaction is a non-procurement transaction at either a primary or secondary tier.43

Specifically, a covered transaction includes the following contracts for goods or services under FEMA financial assistance programs:

The contract is at least $25,000;

The contract requires the approval of FEMA, regardless of amount;

The contract is for federally required audit services; or, It is a subcontract for $25,000 or more.44

39 2 C.F.R. § 200.318(h). For contracts and subcontracts under $25,000, a contract provision is only required if those contracts or subcontracts are for federally required audit services or require the consent of a federal agency. However, even where a contract provision is not required, local governments and nonprofits must still ensure they are only awarding contracts to responsible vendors.

40 2 C.F.R. Part 200, Appendix II, § H; 2 C.F.R. § 200.213; 2 C.F.R. Parts 180, 3000.

41 2 C.F.R. Part 200, Appendix II, § H.

42 2 C.F.R. § 180.530.

43 The regulations at 2 C.F.R. Parts 180 and 3000 are titled “nonprocurement” because they do not apply to procurements by the Federal Government but rather to federal financial assistance. There are separate debarment and suspension regulations covering procurements by the Federal Government. However, although the term “covered transactions” under 2 C.F.R.