RFQ Appendix C- DOE-SR Mandatory Clauses.pdf

Department of Energy

Realty Agreement for Carbon

Pollution-Free Projects at Savannah River Site

Request for Qualifications (RFQ)

Appendix C

DOE Mandatory Clauses

APPENDIX C

DOE Mandatory Clauses

The Qualified Offerors may be required to incorporate the clauses in this Appendix into the transaction documents, depending on the specifics of the final negotiated terms and conditions of the project.

AGREEMENT NOT TO INTERFERE WITH DOE’S WORK:

Selectee’s access, operations and activities shall be conducted in a manner that will not materially interfere with DOE or its contractors’ operations at the Savannah River Site.

Minor foreseeable impacts, such as increases in traffic on the site are anticipated and are exempted from this provision. DOE and Selectee shall cooperate to reasonably modify realty agreement activities to avoid or minimize impacts on DOE’s operations.

Selectee also agrees, upon DOE’s request, to cooperate with DOE to make reasonable modifications to realty agreement/project activities to accommodate new, or changes to existing, DOE facilities, programs, projects, or activities.

RETIRED ENERGY ATTRIBUTE CERTIFICATES FROM SITE HOSTED PROJECT:

DOE Savannah River (DOE-SR) seeks energy attribute certificates (EACs) representing the zero-carbon nature of the electricity generated from this hosted Project to meet various goals related to CFE. Based on current information, DOE-SR requires approximately 170,000 EACs annually to offset consumption of non-CFE. As such, DOE-SR requires that Offerors include in their proposal a portion of the EACs from the Project to be retired on DOE-SR’s behalf on an annual basis through the sooner of the duration of the Realty Agreement or when 100% of all energy consumed at SRS is produced off-grid and onsite for at least three (3) consecutive years and in accordance with the language below:

For each year of the realty agreement a number of the EACs generated by the onsite Project that is proportional to the Lessee’s share of the total installed solar power generation capacity at SRS shall be retired on DOE-SR’s behalf in a EAC tracking system listed on EPA’s website, such as NAR or M-RETS, that allows registration from generators outside their geographic territory (see https://www.epa.gov/green-power-markets/renewable-energy-tracking-systems). Offeror shall complete an annual attestation form (provided), no later than 12/31 each year summarizing EAC retirements on DOE-SR’s behalf, including certificate identification number, generation type, quantity, certificate vintage date, and retirement date. Since the number of EACs required to fully offset the consumption of non-CFE at SRS will vary from year to year, the number of EACs to be retired under this clause will vary, however the number of https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.epa.gov%2Fgreen-power-markets%2Frenewable-energy-tracking-systems&data=05%7C02%7Cmatt.vick%40emcbc.doe.gov%7Cf78bdde55dad4dd4116208dc387e2f40%7C42610bbc5b07459c9fe7b40cbaa91cf4%7C0%7C0%7C638447361855589179%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C0%7C%7C%7C&sdata=tazA5NWWxWZr1DZf%2B3VJVCJSJPUaAXWGrECYAZPKjUE%3D&reserved=0 https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.epa.gov%2Fgreen-power-markets%2Frenewable-energy-tracking-systems&data=05%7C02%7Cmatt.vick%40emcbc.doe.gov%7Cf78bdde55dad4dd4116208dc387e2f40%7C42610bbc5b07459c9fe7b40cbaa91cf4%7C0%7C0%7C638447361855589179%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C0%7C%7C%7C&sdata=tazA5NWWxWZr1DZf%2B3VJVCJSJPUaAXWGrECYAZPKjUE%3D&reserved=0

EACs to be retired by the Lessee shall not exceed 80% of the total number of EACs created by the solar facility in any given year.

ANTI-KICKBACK PROCEDURES

(a) Definitions.

“Kickback,” as used in this clause, means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to the Selectee, Selectee’s employee, subcontractor, or subcontractor employee for the purpose of improperly obtaining or rewarding favorable treatment in connection with the Realty Agreement or associated agreements for this solicitation or in connection with a subcontract relating to the Realty Agreement or primary agreements.

“Person,” as used in this clause, means a corporation, partnership, business association of any kind, trust, joint-stock company, or individual.

“Prime contract,” as used in this clause, means a Realty Agreement or associated agreements entered into by the United States.

“Subcontract,” as used in this clause, means a contract or contractual action entered into by the Selectee or a subcontractor of the Selectee for the purpose of obtaining supplies, materials, equipment, or services of any kind.

“Subcontractor,” as used in this clause, (1) means any person, other than the Selectee, who offers to furnish or furnishes any supplies, materials, equipment, or services of any kind to the Selectee or a subcontract the Selectee enters into in connection with the Realty Agreement or associated agreements, and (2) includes any person who offers to furnish or furnishes general supplies to the Selectee or a higher tier subcontractor.

“Subcontractor employee,” as used in this clause, means any officer, partner, employee, or agent of a subcontractor.

(b) 41 U.S.C. chapter 87, Kickbacks, prohibits any person from-

(1) Providing or attempting to provide or offering to provide any kickback.

(2) Soliciting, accepting, or attempting to accept any kickback; or

(3) Including, directly or indirectly, the amount of any kickback in the contract price charged by a prime Contractor to the United States or in the contract price charged by a subcontractor to a prime Contractor or higher tier subcontractor.

(c) Additional requirements

(1) The Selectee shall have in place and follow reasonable procedures designed to prevent and detect possible violations described in paragraph (b) of this clause in its own operations and direct business relationships.

(2) When the Selectee has reasonable grounds to believe that a violation described in paragraph (b) of this clause may have occurred, the Selectee shall promptly report in writing the possible violation. Such reports shall be made to the inspector general of the contracting agency, the head of the contracting agency if the agency does not have an inspector general, or the Attorney General.

(3) The Selectee shall cooperate fully with any Federal agency investigating a possible violation described in paragraph (b) of this clause.

(4) The Government Representative may:

(i) offset the amount of the kickback against any moneys owed by the United States under the Realty Agreement and/or

(ii) direct that the Selectee withhold from sums owed a subcontractor under the Realty Agreement the amount of the kickback.

(iii) may order that moneys withheld under subdivision (c)(4)(ii) of this clause be paid over to the Government unless the Government has already offset those moneys under subdivision (c)(4)(i) of this clause. In either case, the Selectee shall notify the Government Representative when the moneys are withheld.

(5) The Selectee agrees to incorporate the substance of this clause, including subparagraph (c)(5) but excepting subparagraph (c)(1), in all subcontracts under this Realty Agreement.

CONTRACT WORK HOURS AND SAFETY STANDARDS ACT - OVERTIME

COMPENSATION

(a) Overtime requirements. No Selectee or subcontractor contracting for any part of the Realty Agreement work which may require or involve the employment of laborers or mechanics shall require or permit any such laborers or mechanics in any workweek in which the individual is employed on such work to work in excess of 40 hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than 1-1/2 times the basic rate of pay for all hours worked in excess of 40 hours in such workweek.

(b) Violation; liability for unpaid wages; liquidated damages. The responsible Selectee and subcontractor are liable for unpaid wages if they violate the terms in paragraph (a) of this clause. In addition, the Selectee and subcontractor are liable for liquidated damages payable to the Government. The Government Representative will assess liquidated damages at the rate specified at 29 CFR 5.5(b)(2) per affected employee for each calendar day on which the employer required or permitted the employee to work in excess of the standard workweek of 40 hours without paying overtime wages required by the Contract

Work Hours and Safety Standards statute (found at 40 U.S.C. chapter 37). In accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 Note), the Department of Labor adjusts this civil monetary penalty for inflation no later than January 15 each year.

(c) Payrolls and basic records.

(1) The Selectee and its subcontractors shall maintain payrolls and basic payroll records for all laborers and mechanics, including guards and watchpersons, working on project during the Realty Agreement and shall make them available to the Government until 3 years after Realty Agreement completion. The records shall contain the name and last known address, telephone number, and email address of each employee; social security number of each such worker, each worker’s correct labor classification(s) of work actually performed, hourly rates of wages paid, daily and weekly number of hours actually worked, deductions made, and actual wages paid. The records need not duplicate those required for construction work by Department of Labor regulations at 29 CFR 5.5(a)(3) implementing the Construction Wage Rate Requirements statute.

(2) The Selectee and its subcontractors shall allow authorized representatives of the Government Representative or the Department of Labor to inspect, copy, or transcribe records maintained under paragraph (d)(1) of this clause. The Selectee or subcontractor also shall allow authorized representatives of the Government Representative or Department of Labor to interview employees in the workplace during working hours.

(d) Subcontracts. The Selectee or subcontractor shall insert the provisions set forth in paragraphs (a) through (d) of this clause in subcontracts that may require or involve the employment of laborers and mechanics, including guards and watchpersons, and require subcontractors to include these provisions in any such lower tier subcontracts. The Selectee shall be responsible for compliance by any sub-Selectee or lower-tier subcontractor with the provisions set forth in paragraphs (a) through (d) of this clause.

WAGE RATE REQUIREMENTS (CONSTRUCTION), FORMERLY KNOWN AS THE DAVIS-

BACON ACT

The Government’s involvement in the oversight of the Wage Rate Requirements (Construction) are limited to monitoring the Project Owner’s responsibilities only during the construction period(s). This oversight involves validating the Project Owner ensures that any class of laborers or mechanics employed or working on the site are in compliance with the Wage Rate Requirements (Construction) wage classifications and standards.

PAYROLLS AND BASIC RECORDS

(a) Payrolls and basic records relating thereto shall be maintained by the Selectee during the course of the work and preserved for a period of 3 years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, last known https://www.law.cornell.edu/topn/bacon-davis_act https://www.law.cornell.edu/topn/bacon-davis_act address, telephone number and email address and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in 40 U.S.C. 3141(2)(B) (Construction Wage Rate Requirement statute), daily and weekly number of hours worked, deductions made, and actual wages paid. Whenever the Secretary of Labor has found, under paragraph (d) of the clause entitled Construction Wage Rate Requirements, that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in 40 U.S.C. 3141(2)(B), the Selectee shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Selectees employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and helpers, and the ratios and wage rates prescribed in the applicable programs.

(b) The Selectee shall submit weekly for each week in which any Realty Agreement work is performed a copy of all payrolls to the Government Representative. The payrolls submitted shall set out accurately and completely all the information required to be maintained under paragraph (a) of this clause, except that full social security numbers and last known home addresses shall not be included on weekly transmittals. Instead, the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee’s social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH-347 is available for this purpose and may be obtained from the U.S. Department of Labor Wage and Hour Division website at https://www.dol.gov/agencies/whd/forms. The Selectee is responsible for the submission of copies of payrolls by all subcontractors. Selectees and subcontractors shall maintain the full social security number and last known address of each covered worker and shall provide them upon request to the Government Representative, the Selectee, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a Selectee to require a subcontractor to provide addresses and social security numbers to the Selectee for its own records, without weekly submission to the Government Representative.

(c) Each payroll submitted shall be accompanied by a “Statement of Compliance”, signed by the Selectee or sublessee or his or her agent who pays or supervises the payment of the persons employed under the Realty Agreement and shall certify—

(1) That the payroll for the payroll period contains the information required to be maintained under paragraph (a) of this clause and that such information is correct and complete;

(2) That each laborer or mechanic (including each helper and apprentice) employed on the Realty Agreement during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in the Regulations, 29 CFR Part 3; and

(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract.

(d) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the “Statement of Compliance” required by subparagraph (b)(2) of this clause.

(e) The falsification of any of the certifications in this clause may subject the Selectee or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 3729 of Title 31 of the United States Code.

(f) The Selectee or subcontractor shall make the records required under paragraph (a) of this clause available for inspection, copying, or transcription by the Government Representative or the Department of Labor. The Selectee or subcontractor shall permit the Government Representative or the Department of Labor to interview employees during working hours on the job. If the Selectee or subcontractor fails to submit required records or to make them available, the Government Representative may, after written notice to the Contractor, take such action as may be necessary to cause the suspension of any further payment.

Furthermore, failure to submit the required records upon request or to make such records available, may be grounds for debarment action pursuant to 29 CFR 5.12.

APPRENTICES

(a) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship (OA), or with a State Apprenticeship Agency recognized by the OA, or in the first 90 days of probationary employment as an apprentice in such an apprenticeship program, even though not individually registered in the program, if certified by the OA or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice.

The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the Selectee as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated in this paragraph, shall be paid not less than the applicable wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a Selectee is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman’s hourly rate) specified in the Selectee’s or subcontractor’s registered program shall be observed.

Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice’s level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification.

If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event OA, or a State Apprenticeship Agency recognized by OA, withdraws approval of an apprenticeship program, the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

(b) Equal employment opportunity. The utilization of apprentices and journeymen under this clause shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30.

COMPLIANCE WITH COPELAND ACT REQUIREMENTS

The Selectee shall comply with the requirements of 29 CFR Part 3, which are hereby incorporated by reference in this agreement.

SUBCONTRACTS (LABOR STANDARDS)

(a) The Selectee or subcontractor shall insert in any construction, alteration or repair subcontracts the clauses required under 29 CFR 5.5(a). and such other clauses as the Government Representative may, by appropriate instructions, require, and a clause requiring subcontractors to include these clauses in any lower tier subcontracts. The Selectee shall be responsible for compliance by any sublessee or lower tier subcontractor with all the Realty Agreement clauses cited in this paragraph.

(b) Within 14 days after award of the Realty Agreement, the Selectee shall deliver to the Government Representative a completed Statement and Acknowledgment Form (SF1413) for each subcontract, including the subcontractor’s signed and dated acknowledgment that the clauses set forth in paragraph (a) of this clause have been included in the subcontract.

(c) Within 14 days after the award of any subsequently awarded subcontract the Selectee shall deliver to the Government Representative an updated completed SF 1413 for each additional subcontract.

REALTY AGREEMENT TERMINATION—DEBARMENT

A breach of the Realty Agreement clauses entitled Construction Wage Rate Requirements , Contract Work Hours and Safety Standards Act-- Overtime Compensation, Apprentices, Payrolls and Basic Records, Compliance with Copeland Act Requirements, Subcontracts (Labor Standards), Compliance with Construction Wage Rate Requirements and Related Regulation , or Certification of Eligibility may be grounds for termination of the Realty Agreement, and for debarment as a Selectee and subcontractor as provided in 29 CFR 5.12.

COMPLIANCE WITH CONSTRUCTION WAGE RATE REQUIREMENTS AND RELATED

REGULATIONS

All rulings and interpretations of the Construction Wage Rate Requirements and Related Acts contained in 29 CFR Parts 1, 3, and 5 are hereby incorporated by reference in this Realty Agreement.

DISPUTES CONCERNING LABOR STANDARDS

The United States Department of Labor has set forth in 29 CFR Parts 5, 6, and 7 procedures for resolving disputes concerning labor standards requirements. Such disputes shall be resolved in accordance with those procedures and not the Disputes clause of this agreement.

Disputes within the meaning of this clause include disputes between the Selectee (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives.

CERTIFICATION OF ELIGIBILITY

(a) By entering into this agreement, the Selectee certifies that neither it (nor he or she) nor any person or firm who has an interest in the Contractor’s firm is a person or firm ineligible to be awarded Government contracts by virtue of 40 U.S.C. 3144(b)(2) or 29 CFR 5.12(a)(1).

(b) No part of this Realty Agreement shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of 40 U.S.C. 3144(b)(2) or 29 CFR 5.12(a)(1).

(c) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C.

1001.

REALTY AGREEMENT RESTORATION OF PROJECT SITE:

Upon termination, expiration, revocation or relinquishment of this Realty Agreement, the Selectee, at DOE’s discretion, shall vacate the premises, remove its equipment, fixtures, appurtenances, and other improvements furnished and installed on the premises in connection with the Realty Agreement’s activities and shall restore the premises or facilities to the same or as good condition as existed on the date of entry under this Realty Agreement, excepting normal wear and tear. The Selectee shall remove all waste generated by the Project/Realty

Agreement and will remain responsible for the ultimate treatment and disposal of any waste generated by the Selectee. In the event that any item or part of the premises or facilities shall require repair, rebuilding or replacement resulting from loss or damage, the Selectee shall promptly give notice to DOE and, to the extent of its liability, shall, upon demand, either compensate DOE for such loss or damage or shall rebuild, replace or repair the item or items of the premises or facilities lost or damaged as DOE may elect. In the event the Selectee shall have effected any repair, rebuilding or replacement as required herein, DOE shall direct payment to the Selectee of so much of the proceeds of any insurance carried by the Selectee and made available to DOE on account of loss or damage to any item or part of the premises or facilities as may be necessary to enable the Selectee to effect such repair, rebuilding or replacement. In the event the Selectee shall not have been required to affect such repair, rebuilding or replacement and the insurance proceeds allocable to the loss or damage which has created the need for such repair, rebuilding or replacement have been paid to the Selectee, the Selectee shall promptly refund to DOE the amount of such proceeds.

CULTURAL RESOURCES, WILDLIFE, AND LAND AREAS:

(a) Selectee shall exercise reasonable care in the preservation of native vegetation and in the protection of wildlife on the site. If vegetation must be removed, the disturbed soils shall be re-vegetated or stabilized as appropriate. Selectee shall maintain an effective invasive plant species management program.

(b) Selectee and its Authorized Personnel shall cooperate with DOE to manage cultural resources, including but not limited to antiquities and historic properties on the site in accordance with the National Historic Preservation Act, 54 U.S.C. § 300101 et seq., and other applicable laws and regulations. Antiquities include, but are not limited to, Indian graves, campsites, relics, and artifacts. DOE may conduct or require Selectee to conduct a cultural resources survey prior to ground disturbance activities. Whenever cultural resources are discovered, Selectee shall notify DOE as soon as possible and protect the affected area and material from further disturbance until receiving both DOE approval and direction to proceed, which DOE shall provide as expeditiously as feasible. Any required mitigation will be at the expense of Selectee.