Any contract for the sale, lease, or other transfer of land acquired, cleared or improved with assistance provided under this Agreement shall contain, if such land is located in an area identified by the Director of FEMA as having special flood hazards and in which the sale of flood insurance has been made available under the National Flood Insurance Act of 1968, as amended, 42 USC 4001 et seq., provisions obligating the transferee and its successors or assigns to obtain and maintain, during the ownership of such land, such flood insurance as required with respect to financial assistance for acquisition or construction purposes under Section 102(a) of the Flood Disaster Protection Act of 1973. Such provisions shall be required notwithstanding the fact that the construction on such land is not itself funded with assistance provided under this Agreement.
In its compliance with the Flood Disaster Protection requirements of this Agreement, COUNTY hereby agrees to comply with the provisions of Executive Order 11988, relating to evaluation of flood hazards.
29. Indemnification
CITY agrees to indemnify, defend, and hold harmless COUNTY and its agents, board members, elected and appointed officials and officers, employees, volunteers, and authorized representatives from any and all losses, liabilities, charges, damages, claims, liens, causes of action, awards, judgments, costs, and expenses (including, but not limited to, expert fees, fees of County Counsel, costs of staff time, and investigation costs) of whatever kind or nature, which arise out of or are in any way connected with any act or omission of CITY or CITY’s officers, agents, employees, independent contractors, sub-contractors of any tier, or authorized representatives. Without limiting the generality of the foregoing, the same shall include bodily and personal injury or death to any person or persons; damage to any property, regardless of where located, including the property of COUNTY; and any workers’ compensation claim or suit arising from or connected with any services performed pursuant to this Agreement on behalf of CITY by any person or entity.
CITY acknowledges that CITY, and all contractors hired by CITY to perform services under this Agreement, are aware of and understand the Immigration Reform and Control Act ("IRCA"). CITY is and shall remain in compliance with the IRCA and shall ensure that only contractors hired by CITY to perform services under this Agreement are in compliance with the IRCA. In addition, CITY agrees to indemnify, defend, and hold harmless the County, its agents, board members, elected and appointed officials and officers, employees, volunteers, and authorized representatives, from any liability, damages or causes of action arising out of or relating to any claims that CITY’s employees or the employees of any contractor hired by CITY, are not authorized to work in the United States for CITY or its contractor and/or any other claims based upon alleged IRCA violations committed by CITY or its contractor(s).
30. Insurance
CITY in order to protect COUNTY and its board members, officials, agents, officers, and employees against all claims and liability for death, injury, loss and damage as a result of CITY’s actions in connection with the performance of CITY’s obligations, as required in this Agreement, shall secure and maintain insurance as described below. CITY shall not perform any work under this Agreement until CITY has obtained all insurance required under this section and the required certificates of insurance and all required endorsements have been
filed with the COUNTY’s authorized insurance representative. Receipt of evidence of insurance that does not comply with all applicable insurance requirements shall not constitute a waiver of the insurance requirements set forth herein. The required documents must be signed by the authorized representative of the insurance company shown on the certificate.
Upon request, CITY shall supply proof that such person is an authorized representative thereof, and is authorized to bind the named underwriter(s) and their company to the coverage, limits and termination provisions shown thereon. The CITY shall promptly deliver to the COUNTY’s authorized insurance representative, a certificate of insurance, and all required endorsements, with respect to each renewal policy, as necessary to demonstrate the maintenance of the required insurance coverage for the term specified herein. Such certificates and endorsements shall be delivered to insurance representative prior to the expiration date of any policy and bear a notation evidencing payment of the premium thereof if so requested. CITY shall immediately pay any deductibles and self-insured retentions under all required insurance policies upon the submission of any claim by CITY or COUNTY as an additional insured. a. Workers’ Compensation and Employers’ Liability Insurance Requirement - In the event CITY has employees who may perform any services pursuant to this Agreement, CITY shall submit written proof that CITY is insured against liability for workers’ compensation in accordance with the provisions of section 3700 of the California Labor Code.
CITY shall require any contractor or sub-contractor to provide workers’ compensation for all of the contractor’s or sub-contractor’s employees, unless the contractor’s or sub-contractor’s employees are covered by the insurance afforded by CITY. If any class of employees engaged in work or services performed under this Agreement is not covered by Labor Code section 3700, CITY shall provide and/or require each contractor or sub-contractor to provide adequate insurance for the coverage of employees not otherwise covered.
CITY shall also maintain employers’ liability insurance with limits of one million dollars ($1,000,000) for bodily injury or disease.
b. Liability Insurance Requirements:
1. CITY shall maintain in full force and effect, at all times during the term of this Agreement, the following insurance:
(a) Commercial General Liability Insurance including, but not limited to, Contractual Liability Insurance (specifically concerning the indemnity provisions of this Agreement with the County), Products-Completed Operations Hazard, Personal Injury (including bodily injury and death), and Property Damage for liability arising out of CITY’s performance of work under this Agreement. The Commercial General Liability insurance shall contain no exclusions or limitation for independent contractors working on the behalf of the named insured. CITY shall maintain the Products-Completed Operations Hazard coverage for the longest period allowed by law following termination of this Agreement. The amount of said insurance coverage required by this Agreement shall be the policy limits, which shall be at least one million dollars ($1,000,000) each occurrence and two million dollars ($2,000,000) aggregate. (b) Automobile Liability Insurance against claims of Personal Injury (including bodily injury and death) and Property Damage covering all owned, leased, hired, and non-owned vehicles used in the performance of
services pursuant to this Agreement with combined limits for Bodily Injury and Property Damage liability of at least one million dollars ($1,000,000) each occurrence.
(2) The Commercial General Liability and Automobile liability Insurance required herein shall include an endorsement naming the COUNTY and COUNTY’s board members, officials, officers, agents and employees as additional insureds for liability arising out of this Agreement and any operations related thereto. Said endorsement shall be provided using one of the following three options: (i) on ISO form CG 20 10 11 85; or (ii) on ISO form CG 20 37 10 01 plus either ISO form CG 20 10 10 01 or CG 20 33 10 01; or (iii) on such other forms which provide coverage at least equal to or better than form CG 20 10 11 85.
(3) Any self-insured retentions in excess of $100,000 must be declared on the Certificate of Insurance or other documentation provided to COUNTY and must be approved by the COUNTY Risk Manager.
(4) If any of the insurance coverages required under this Agreement is written on a claims-made basis, CITY at its option, shall either (i) maintain said coverage for at least three (3) years following the termination of this Agreement with coverage extending back to the effective date of this Agreement; (ii) purchase an extended reporting period of not less than three (3) years following the termination of this Agreement; or (iii) acquire a full prior acts provision on any renewal or replacement policy. c. Cancellation of Insurance — The above stated insurance coverages required to be maintained by CITY shall be maintained until the completion of all of CITY’s obligations under this Agreement except as otherwise indicated herein. Each insurance policy supplied by the CITY must be endorsed to provide that the coverage shall not be suspended, voided, cancelled or reduced in coverage or in limits except after ten (10) days written notice in the case of non-payment of premiums, or thirty (30) days written notice in all other cases. Such notice shall be by certified mail, return receipt requested. This notice requirement does not waive the insurance requirements stated herein. CITY shall immediately obtain replacement coverage for any insurance policy that is terminated, canceled, non-renewed, or whose policy limits have been exhausted or upon insolvency of the insurer that issued the policy. d. All insurance shall be issued by a company or companies admitted to do business in California and listed in the current "Best’s Key Rating Guide" publication with a minimum of a "A-; VII" rating. Any exception to these requirements must be approved by the COUNTY Risk Manager.
e. If CITY is, or becomes during the term of this Agreement, self-insured or a member of a self-insurance pool, CITY shall provide coverage equivalent to the insurance coverages and endorsements required above. COUNTY will not accept such coverage unless COUNTY determines, in its sole discretion and by written acceptance, that the coverage proposed to be provided by CITY is equivalent to the above-required coverages.
f. All insurance afforded by CITY pursuant to this Agreement shall be primary to and not contributing to all insurance or self-insurance maintained by COUNTY. An endorsement shall be provided on all policies, except professional liability/errors and omissions, which shall waive any right of recovery (waiver of subrogation) against the COUNTY.
g. Insurance coverages in the minimum amounts set forth herein shall not be construed to relieve CITY for any liability, whether within, outside, or in excess of such coverage, and regardless of solvency or insolvency of the insurer that issues the coverage; nor shall it preclude COUNTY from taking such other actions as are available to it under any other provision of this Agreement or otherwise in law.
h. Failure by CITY to maintain all such insurance in effect at all times required by this Agreement shall be a material breach of this Agreement by CITY. COUNTY, at its sole option, may terminate this Agreement and obtain damages from CITY resulting from said breach. Alternatively, COUNTY may purchase such required insurance coverage, and without further notice to CITY, COUNTY shall deduct from sums due to CITY any premiums and associated costs advanced or paid by COUNTY for such insurance. If the balance of monies obligated to CITY pursuant to this Agreement is insufficient to reimburse COUNTY for the premiums and any associated costs, CITY agrees to reimburse COUNTY for the premiums and pay for all costs associated with the purchase of said insurance. Any failure by COUNTY to take this alternative action shall not relieve CITY of its obligation to obtain and maintain the insurance coverages required by this Agreement.
i. Subcontractor Requirements
(1) If CITY hires a consultant to provide professional services, such as architectural or engineering services under this Agreement, CITY shall require its consultant to provide Professional Liability (Errors and Omissions) Insurance, for liability arising out of, or in connection with, the performance of all required services under this Agreement, with coverage equal to the policy limits which shall not be less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) aggregate. (2) During the construction of the Activity, CITY shall require that all contractors hired by CITY to perform work on the Activity Premises maintain the following insurance coverages at all times during the performance of said work:
(a) Commercial General Liability Insurance including Products-Completed Operations Hazard, Personal Injury (including bodily injury and death), and Property Damage for liability arising out of Contractor’s performance of work. The amount of said insurance coverage required by this Agreement shall be the policy limits, which shall be at least one million dollars ($1,000,000) each occurrence and two million dollars ($2,000,000) aggregate.
(b) Automobile Liability Insurance against claims of Personal Injury (including bodily injury and death) and Property Damage covering all owned, leased, hired, and non-owned vehicles, with combined limits for Bodily
Injury and Property Damage liability of at least one million dollars ($1,000,000) each occurrence.
31. Captions and Interpretation
Paragraph headings in this Agreement are used solely for convenience, and shall be wholly disregarded in the construction of this Agreement.
The Recitals listed at the beginning of this Agreement are hereby incorporated into this Agreement.
No provision of this Agreement shall be interpreted for or against a party because that party or its legal representative drafted such provision, and this Agreement shall be construed as if jointly prepared by the parties.
32. Successors and Assigns of COUNTY
This Agreement shall be binding upon and inure to the benefit of the successors to or assigns of COUNTY.
33. Liens and Encumbrances
Without the prior consent of COUNTY, CITY shall not transfer, pledge, hypothecate, or encumber the Project/Activity property during the Change in Use Restriction Period.
34. Assignment and Subletting
CITY shall not assign any right, title or interest it may acquire by reason of this Agreement nor sublet any Project/Activity premises except upon first obtaining the written consent of COUNTY.
35. Concurrent Remedy
No right or remedy herein conferred on or reserved to COUNTY is exclusive of any other right or remedy herein or by law or equity provided or permitted, but each shall be cumulative of every other right or remedy given hereunder or now or hereafter existing by law or in equity or by statute or otherwise, and may be enforced concurrently therewith or from time to time.
36. Non Waiver
No covenant or condition of this Agreement to be performed by CITY can be waived except by the written consent of COUNTY. Forbearance or indulgence by COUNTY in any regard whatsoever shall not constitute a waiver of the covenant or condition to be performed by CITY. A waiver of one covenant or condition by COUNTY does not grant or imply a waiver of any other covenant or condition to be performed by CITY. COUNTY shall be entitled to invoke any remedy available to COUNTY under this Agreement or by law or in equity despite said forbearance or indulgence.
37. Incorporation of Prior Agreements and Amendments
This Agreement, including all attachments hereto and any reference to pertinent federal or State laws and regulations, contains the entire Agreement between the PARTIES, relating to the services, rights, obligations and covenants contained herein and assumed by the PARTIES respectively. No inducements, representations or promises have been made, other than those recited in this Agreement. No oral promise, modification, change or inducement shall be effective or given any force or effect. This Agreement may be modified in writing only, signed by the PARTIES in interest at the time of modification.
38. Severability
Should any part, term, portion or provision of this Agreement be finally decided to be in conflict with any law of the United States or the State of California, or otherwise be unenforceable or ineffectual, the validity of the remaining parts, terms, portions, or provisions shall be deemed severable and shall not be affected thereby, provided such remaining portions or provisions can be construed in substance to constitute the agreement which the PARTIES intended to enter into in the first instance.
39. Signatory Authority
Each individual executing this Agreement on behalf of each party represents and warrants that he/she is duly authorized to execute and deliver this Agreement on behalf of such party and that this Agreement is binding on such party in accordance with its terms. CITY shall, prior to Agreement execution by COUNTY’s Board of Supervisors, deliver to COUNTY a copy of the resolution or minute order of CITY’s governing body authorizing the execution of this Agreement.
40. Procedure to Modify and Limitation of Term of Agreement a. Except as otherwise provided herein, the terms of this Agreement may only be modified by the written consent of the PARTIES hereto.
b. The expiration of this Agreement shall be determined as provided in Paragraph
1.f. of this Agreement.
41. Execution
This Agreement is effective upon the date indicated herein above. It is the product of negotiation and all PARTIES are equally responsible for authorship of this Agreement. Section 1654 of the California Civil Code shall not apply to the interpretation of this Agreement.
42. Notices
Notices shall be sufficiently given hereunder if personally served upon the Clerk of the Board of Supervisors of the COUNTY or the Clerk of the CITY, or if sent by United States mail, postage prepaid, as follows:
directed to COUNTY, addressed to:
Planning and Natural Resources Department
Clerk of the Board of Supervisors
County Administrative Center
1115 Truxtun Avenue, Fifth Floor
Bakersfield, California 93301
or directed to CITY, addressed to:
City Clerk
City of Shafter
336 Pacific Avenue
Shafter, CA 93263
43. Construed According to California Law
The provisions of this Agreement shall be construed in accordance with the laws of the State of California.
44. Venue
This Agreement has been entered into and is to be performed in the County of Kern, California. Accordingly, the PARTIES agree that the venue of any action relating to this Agreement shall be in the County of Kern.
45. Opinions and Determinations
Where the terms of this Agreement provide for action to be based upon the opinion, judgment, approval, review, discretion, option, or determination of either COUNTY or CITY, such terms are not intended to be and shall not be construed as permitting such opinion, judgment, approval, review, discretion, option, or determination to be arbitrary, capricious, or unreasonable.
46. No Third Party Beneficiaries
It is expressly understood and agreed that the enforcement of these terms and conditions and all rights of action relating to such enforcement, shall be strictly reserved to COUNTY and CITY. Nothing contained in this Agreement shall give or allow any claim or right of action whatsoever by any other third person. It is the express intention of COUNTY and CITY that any such person or entity, other than COUNTY and CITY, receiving services or benefits under this Agreement shall be deemed an incidental beneficiary only.
IN WITNESS THEREOF, the parties have caused this Agreement to be executed by their respective officers and agents hereunto duly authorized as of the day and year first above written.
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/
/
/
APPROVED AS TO CONTENT:
Planning and Natural Resources Department
BY______________________________
Lorelei H. Oviatt, AICP, Director
COUNTY OF KERN
BY______________________________
Chairman, Board of Supervisors
________________________________________
Printed Name
“COUNTY”
APPROVED AS TO FORM:
Office of County Counsel
BY______________________________
Kathleen S. Rivera, Chief Deputy
CITY OF SHAFTER
BY______________________________
___________________________________________
Printed Name
____________________________________________
Insert Title
“CITY”
\\PSBFILE01\Vol1_PLNR\CEDD\PLANNING\Peterson\Projects\18.22.1 - City of Shafter Library Chess Garden\12. Agreement\Draft Agreement3.doc
WITHHELD CONTRACT FUNDS CERTIFICATION
Public Contract Code Section 22300 requires the inclusion in invitations for public agency bids and in public agency contracts a provision which will, at the expense of the contractor, permit the substitution of securities of equal value for any construction progress monies withheld to ensure performance under a contract. Therefore, as a contractor on Project No. , entitled:
.
□ I do not intend to substitute securities for monies withheld and thereby avail myself of the process and rights provided in Public Contract Code Section 22300. □ I do intend to exercise my option as specified in Public Contract Code Section 22300 and hereby agree to the following:
1. I will establish an escrow agreement satisfactory to the County, with a state or federally chartered bank, which shall contain at a minimum provisions governing inter alia:
a. The amount of securities to be deposited;
b. The type of securities to be deposited, (eligible securities for deposit are described in Government Code Section 16430);
c. The providing of powers of attorney or other documents necessary for the transfer of the securities deposited;
d. The terms and conditions of conversion to cash to provide funds to meet defaults by the Contractor including, but not limited to, termination of the Contractor=s control over the work, stop notices filed pursuant to law, assessment of liquidated damages or other amounts to be kept or retained under the provisions of the contract;
e. The decrease in value of securities on deposit; and
f. The termination of the escrow agreement upon completion of the contract and acceptance by the COUNTY.
2. I will obtain written consent of the surety to any such agreement; and
3. I will attach to each progress payment submitted a notarized copy of escrow instructions executed by agents thereof and on bank letterhead as proof that such an account has been established. Such instructions will set forth that securities deposited shall not be withdrawn for any purpose (with contractor’s complete and unreserved agreement) without prior written approval by the County of Kern with respect to the project herein above referenced.
Contractor
By
(Signature)
Business Address
(Title)
Place of Residence
CDA-200 (July, 1992)
MEETING LABOR STANDARDS CONTRACT REQUIREMENTS
PRECONSTRUCTION CHECKLIST FOR CONTRACTORS
A. Introduction
The following checklist has been prepared to assist contractors and subcontractors in meeting their contractual labor standards responsibilities under federally assisted construction projects. All major administrative and procedural activities have been covered in the sequence they will occur as the construction project proceeds. Careful attention to and use of the checklist should result in a minimum number of problems with respect to labor standards.
B. Explanatory Notes
The word "County" can mean, as is appropriate to agreements between contracting entities; Kern County, or City, or District, or Local Development Corporation.
The word "employer" as used below refers to the project contractor, each subcontractor, or each lower-tier subcontractor. Payrolls and other documentary evidence of compliance are required to be delivered to the responsible County department for review. This delivery procedure is as follows:
1. Each lower-tier subcontractor, after careful review, delivers required documents to his/her respective subcontractor.
2. Each subcontractor, after checking his/her own and those of each lower-tier subcontractor, delivers required documents to the project prime contractor.
3. The prime contractor, after reviewing all weekly payrolls and other required documentation, including his/her own, and correcting violations where necessary, delivers all documents to the County.
NOTE: All employers should check each of the following statements as being true. If any statement is not true, the contractor should contact the County for special guidance.
C. Before construction begins, each employer has:
1. not been debarred or otherwise made ineligible to participate in any Federal or Federally assisted project.
2. received appropriate contract provisions covering labor standards requirements.
3. reviewed and understands all labor standards contract provisions.
4. received the Wage Decision which pertains to the contract.
5. requested through the County and received the minimum wage for each classification that will be working on the project and which was
not included on the wage decision; has not allowed any such trade classification to work on the project before receiving the requested minimum wage.
6. requested and received certification on his/her apprentice program from the U. S. Department of Labor – Office of Apprenticeship and delivered a copy thereof to the County prior to employment of apprentices on the project. Likewise, "trainee" program certification from USDOL/OA, if applicable, must be so delivered.
7. registered with the California Department of Industrial relations pursuant to Labor Code section 1725.5, or verified that the contract is not subject to the requirements of Chapter 1 of Part 7, Division 2 of the Labor Code
D. At construction start, the employer has:
1. notified the County of the proposed construction start date in writing.
2. received written Notice to Proceed from the County.
3. placed each of the following on a bulletin board prominently located on the project site which can be easily seen by the workers (and replaced if lost or unreadable any time during construction):
Wage Decision
Notice to Employee (WH 1321)
Equal Employment Opportunity is the Law
4. obtained the worker's name, mailing address, the last four numbers of the last four number of the Social Security Number or employee identification number for payroll purposes, before assigning each project worker to work,
5. obtained proof of each apprentice's individual registration in an approved apprenticeship program from the USDOL/OA.
6. informed each worker of:
a. his/her work classification as it will appear on the weekly payroll and on the project Wage Decision.
b. his/her duties of work.
c. the U. S. Department of Labor's requirement on this project that the worker is either a journeyman, apprentice, or laborer –
If a journeyman, he/she is to be paid a journeyman's minimum project wage decision rate, or more;
If an apprentice, he/she is to be paid not less than the apprentice's rate for the trade based on his/her year of apprenticeship; or
If a laborer, he/she is to do a laborer's work only (not use any tool or tools of a trade) and not perform any part of a journeyman's work and is to be paid the laborer's minimum project wage decision rate or more.
7. understood the requirements that each laborer or mechanic who performs work on the project in more than one classification within the same work week shall be classified and paid at the highest wage rate applicable to any of the work which he/she performed unless the following requirements are met:
a. Accurate daily time records shall be maintained. These records must show the time worked in each classification, the rate of pay for each classification, and must be signed by the workman. b. The payroll shall show the hours worked in each classification and the wage rate paid for each classification.
c. The payroll shall be signed by the workman or a signed copy of the daily time record shall be attached thereto.
8. informed each worker of his/her hourly wages (not less than the minimum wage rate for his/her work which is stated in the project Wage Decision), explaining provisions for:
a. time and a half for all hours worked in excess of 8 in a day or 40 in a calendar week as provided for in the Contract Work Hours Safety Standards Act and in the State Labor Code,
b. fringe benefits, if any (see project Wage Decision for any required), and
c. deductions from his/her pay.
9. informed each worker that he/she is subject to being interviewed on the job by the responsible County department, HUD, Department of Labor, or other U. S. Government Inspector, to confirm that his/her employer is complying with all labor requirements.
10. informed each journeyman and each apprentice that a journeyman must be on the job at all times when an apprentice is working.
E. During Construction, each employer:
1. has not selected, assigned, paid different pay rates to, transferred, upgraded, demoted, laid off, nor dismissed any project worker because of race, color, religion, sex, or national origin.
2. has employed all registered apprentices referred to him/her through normal channels up to the applicable ratio of apprentices to journeymen in each trade used by the employer.
3. will maintain basic employment records accessible to inspection by the County or U. S. Government representative.
4. will comply with all health and safety standards.
5. has paid all workers weekly.
6. has submitted original weekly payrolls —
a. prepared on recommended Form WH-347: available from:
Superintendent of Documents
Government Printing Office
Washington, D. C. 20402
Contractors who wish to purchase these forms are urged to enter their orders promptly because the Superintendent of Documents takes six weeks to fill orders. It is permissible for contractors to reproduce the forms.
NOTES:
Any alternate payroll form used should be cleared with the County before the employer starts work on a project. A computer printout, for example, is acceptable provided all data shown on the front and back of Payroll Form WH-347 is on, or included with, the payrolls delivered to the County.
Some employers place all project workers on Payroll Form WH347. The County does not review those project workers, listed on the payroll, who perform work that is descriptive of any of the following job titles which are exempt from labor requirements:
project superintendent
project engineer
supervisory foreman (less than 20% of time as working
foreman)
messenger
clerical worker (timekeeper, payroll clerk, bookkeeper) b. Front page of payroll (Form WH-347)
1) Heading (6 "blocks" of information)
i) Name of Contractor or Subcontractor. Box is marked,
whether contractor (prime) or subcontractor and name of employer is stated.
ii) Address. Street address or P. O. Box, City, State, and Zip Code of employer is stated.
iii) Payroll No. Each weekly payroll is numbered in
sequential order starting with Payroll No. "1".
Payroll for final work week is marked “Final."
iv) For Week Ending. The last date of the work week is
stated in this "block."
v) Project and Location. Name of project and community in which located.
vi) Project or Contract No. CD Project and/or Contract
Number.
2) Internal Revenue Service (IRS) Employer Identification Number. The initial payroll submission from each contractor and subcontractor shall contain the applicable IRSEmployer's Identification Number written in the upper right corner of Form WH-347.
3) Body (9 Columns of information)
i) Column 1 – Name, Address, and last four numbers of
the Social Security Number or employee identification
number of Employee (Worker). Name stated as it
appears on pay check.
Worker's best mailing address and the last four numbers of the social security number or the employee
identification number is stated on Payroll No. 1 or the payroll on which the worker's name first appears.
If worker’s address changes while working on the
project, that worker's new address is stated on next
applicable payroll.
If any two or more workers have the same name, their
last four numbers of their social security numbers or their employee identification numbers are included on each
weekly payroll to denote separate identification.
ii) Column 2 – No. of Withholding Exemptions. For
employer's convenience – entry not required by County.
iii) Column 3 - Work Classification. Must be included as it appears on the project Wage Decision (with Group
Number, if any), denotes the work which the worker
actually performed. State Federal classification, even
when a higher State wage is paid.
NOTE:If the applicable classification is not included in the Wage Decision, contractor should call the
responsible County department immediately, and
request classification by Additional Classification
Process via HUD.
Apprentice. If worker is an apprentice, the type of
apprentice (Electrical, Plumbing, Cement Mason, etc.) is included in this column each time the apprentice's name appears on a weekly payroll,
Split Classification. If worker has performed more than one class of work during the work week, such as
carpenter and laborer, the division of work will be shown on separate lines of the payroll. An accurate daily time record must show the exact hours of work performed
daily in each class of work, and must be signed by the
affected workman,
Each class of work he/she performed is stated in
Column 3 in separate "blocks." His/her name is
repeated in corresponding "blocks" in Column 1,
The breakdown of hours worked daily under each work
classification is stated in Column 4, and total for week in Column 5,
The applicable wage rate for each classification of work is stated in Column 6,
The payroll is signed by the workman in the related
"blocks" or a signed copy of the daily time records are attached to the payroll,
If the above is not done, the worker must be paid at least the highest minimum wage rate of all the classes of work performed for all hours worked.
NOTES:
Average Pay of Two Classes of Work is Not Acceptable.
The employer shall not pay a "semi-journeyman" or
semi-skilled laborer the average of journeyman's and
laborer's rates. The actual hours each worker uses tools of trade (journeyman) and each hour he does not use
tools of the trade (laborer) must be recorded in separate "blocks" in Column 3 of the payroll.
Helper. The work classification of "helper" is not
accepted by the Department of HUD, unless included in
the Wage Decision issued by the Secretary of Labor for
the project. Any employee listed as "helper" in absence of such classification in the Wage Decision must be paid the journeyman's rate for hours he uses tools of the
trade.
iv) Column 4 - Day and Date. Label the columns within
Column 4 with the days of the work week and the
corresponding dates of the month.
Hours Worked Each Day:
Row O – Overtime Hours are stated for all time worked
in excess of 8 hours in any day or 40 hours in any
calendar week.
Row S – Straight Hours are stated for each day worked
up to 8 hours in any day or 40 hours in any calendar
week.
v) Column 5 - Total Hours.
Row O – Total overtime hours worked during the work
week (sum of 7 sub-columns in Column 4).
Row S – Total straight hours worked during the work
week (sum of 7 sub-columns in Column 4), maximum of
40 hours.
vi) Column 6 - Rate of Pay.
Row O – Must not be less than 1-1/2 times the worker's
basic hourly rate of pay (State Labor Code) stated in
Column 6, Row S.
Row S – Actual wage paid, which must not be less than
the minimum wage rate for the work classification stated in Column 3 (see Federal Wage Decision and State
Prevailing Wage, use whichever is higher).
Apprentices. If a copy of the apprentice's registration certificate from the State BAT has not been submitted to County by employer (through the prime contractor),
apprentice must be paid journeyman's rate.
Piece Worker. Piece work must be stated in Column 6
at an hourly rate computed as the gross pay for the work week (work on the project) divided by the total number of hours worked on the project during the work week.
vii) Column 7 - Gross Amount Earned.
Upper Left – Equals straight hours shown in Column 5,
Row S times straight rate of pay shown in Column 6,
Row S plus overtime hours (if any) shown in Column 5,
Row O times overtime rate of pay shown in Column 6,
Row O.
Lower Right – Equals gross amount earned on project
shown in Column 7, Upper Left plus the gross amount
earned for all worked performed by worker during the
work week on other projects, jobs, contracts, etc.
viii) Column 8 - Deductions. Each deduction made
(especially “Other Deductions”) is required by law, or
voluntarily authorized by the worker in writing before the work week began, or provided in a bargaining
agreement to be deducted from the respective worker's
pay.
Other – All deductions in this sub-column have been
specifically identified in the space provided between item (1) and (2) on the back of Payroll Form WH-347(left side of form).
ix) Column 9 - Net Wages Paid for Week. Total gross
amount earned shown in Column 7, Lower Right minus
total deductions shown in Column 8.
c. Back of Payroll (Form WH-347), each employer has:
1) completed all blank spaces and understands the penalties for falsification,
identified all “Other” deductions shown in the sub-column of Column 8 on the front of the form,
checked Item 4 if fringe benefits are included in the Wage Decision for any of his/her workers -
4(a) - if fringe benefits are paid to approved fund(s), or 4(b) - paid directly to each affected worker - included in paycheck for the work week - his/her paycheck
representing at least the pay of the applicable
minimum wage rate plus the amount of required
fringe benefits.
provided detail of exceptions to section 4(a) or 4(b), such as s split in fringe benefits where vacation is paid in cash and all other fringes are paid to a plan,
remarked on rate of pay calculations, such as the calculation of an overtime rate when fringe benefits are paid in cash, 2) manually signed (with a “wet signature”) the payroll in ink in the "block" marked signature, and stated his/her title. 3) verified the person who signed the payroll is the employer or an official of the employer who is legally authorized to act for the employer.
d. Weekly Payroll Review. Each employer has promptly reviewed the weekly payroll for compliance with all labor requirements (using this checklist) and made necessary corrections.
Each Lower-tier Subcontractor has delivered his/her weekly payroll to the respective subcontractor within three (3) calendar days from the last date of the work week.
Each subcontractor has received a payroll from each of his/her lower-tier subcontractors; reviewed each and his/her own payroll; required necessary corrections; and delivered all of such payrolls to the prime contractor within five (5) calendar days from the last date of the work week.
Contractor has received a payroll from each subcontractor and each lower-tier subcontractor; monitored each including his/her own payroll; required necessary corrections; and collectively delivered them to the County within seven (7) work days of the last date of the respective work week.
F. After Project Completion, each employer:
will keep all weekly payrolls related to the project for three (3) years after the contractor's project completion date or until all project audit issues are resolved, whichever is later.
Revised: April 2016
M A T E R I A L C O V E R E D A T P R O J E C T
P R E C O N S T R U C T I O N C O N F E R E N C E
PURPOSE
AGENDA
I. Contractor/Subcontractor Information Sheet Form CDA-100 II. Section 3 Compliance Instructions
III. Executive Order No. 11246, amended by Executive Order No. 11375, Equal Employment Opportunity
IV. Contractor's Ratio of Apprentices to Journeymen AND Proving Employee Apprentice Status
V. Project Wage Determination
VI. Fringe Benefit Statement
VII. U.S. Department of Labor Form WH-347, Weekly Payroll Sheet VIII. Working Subcontractors
IX. Record of Employee Interview, Form HUD 11
PRECONST_Revised_12_12_22
Revised 2022
Preconstruction Conference
PRECONSTRUCTION CONFERENCE
PURPOSE
HUD requires that CDBG recipients hold a conference with the principal project contractor and all available subcontractors prior to the actual start of project construction. Seven days lead notice of conference date is required by HUD. The purpose of the Conference is to inform project contractors of their responsibilities relating to Equal Employment Opportunity, Federal Labor Standards, and general contract compliance.
AGENDA
I. Contractor/Subcontractor Information Sheet, Form CDA-100 A. Required for completion of County's Contract and Subcontract Activity Report to HUD.
B. This form is used to document whether the contractor/subcontractor is a:
1. Minority Contractor
2. Woman Contractor
3. Contractor whose contract was procured by Competitive Bidding C. Submission is required prior to issuance of "NOTICE TO PROCEED." D. Construction cannot start until proper review and approval by County.
II. Section 3 Compliance Instructions
A. The purpose of Section 3 is to ensure that employment and other economic opportunities generated by the HUD financial assistance on this project shall, to the greatest extent feasible, and consistent with existing federal, state and local laws and regulations, be directed to low - and very low - income persons, particularly those who are recipients of government assistance for housing or residents of the community in which the federal assistance is spent.
B. Under Part 75, Section 3 applies to those projects that receive HUD financial assistance exceeding $200,000, for all contracts and subcontracting opportunities. If this project exceeds that assisted threshold, it is subject to the Section 3 requirements. Section 3 does not apply to material supply contracts.
C. Please consult the Section 3 Compliance Instructions contained in the project
Preconstruction Conference
specification manual for more details regarding project Section 3 compliance.
III. Executive Order No. 11246, amended by Executive Order No. 11375, Equal Employment Opportunity.
A. The purpose of Executive Order No. 11246, as amended by Executive Order No. 11375, is to assure that project contractors and subcontractors will not discriminate against project employees in regard to their race, color, religion, sex or national origin.
B. For federally funded construction contracts in excess of $10,000, contractors and subcontractors are required to make a good faith effort to ensure that 19.1% of all work hours are performed by minority workers and that 6.9% of all work hours are performed by women.
C. Written Affirmative Action Plans are required for federally funded construction prime contracts of $1,000,000 or more and for subcontracts of $100,000 or more.
D. All contractors and subcontractors working on federally-assisted construction projects are required, by the U.S. Department of Labor, Employment Standards Administration, Office of Federal Contract Compliance Programs (OFFCP) to collect race and gender information on construction employees, classified by trade. This information must be maintained not only for this project, but for all work your firm is performing, whether it is federally funded or not. The U. S. Department of Labor reserves the right to review this information in the future.
E. HUD may impose sanctions such as contract suspension or termination and/or debarment in future federally funded construction projects in cases of noncompliance.
IV. Contractor's Ratio of Apprentices to Journeymen AND Proving Employee Apprentice Status
A. The purpose of the Contractor's Ratio of Apprentices to Journeymen is to comply with the California Labor Code regarding employment of apprentices on public works projects.
B. The contractor or subcontractor shall apply for a certificate from the local craft Joint Apprenticeship Council, approving the contractor's or subcontractor's participation in an apprenticeship program.
C. The ratio of apprentices to journeymen in any craft or trade employed on a public works project is to be no less than one apprentice to each five Journeymen.
Preconstruction Conference
D. Noncompliance requires withholding of fifty dollars ($50.00) from progress payments for each day of noncompliance.
E. For each apprentice listed on project payrolls, the contractor or subcontractor shall submit with the first payroll the apprentice is listed on, current registration information from the U. S. Department of Labor - Office of Apprenticeship. Copies of Apprentice Agreements will no longer be accepted as proof of registration in an approved program. ALSO, each apprentice who is listed on project payrolls must have listed for them what type of apprentice (Electrical, Plumbing, Cement Mason, etc.) they are.
V. Project Wage Determination
A. The Wage Determination lists the minimum wages to be paid all non-supervisory employees.
B. Listed are the different Hourly Rates of Pay for all employees depending upon each employee's Labor Classification and Group Number.
C. All employees listed on any project payrolls are to be listed by their proper Labor Classification Title and Group Number as found in the project Wage Determination for the type of work they actually perform.
VI. Fringe Benefit Statement
A. The purpose of the “Fringe Benefit Statement” is to have the contractor/subcontractor provide additional information regarding fringe benefits paid into an “...approved plan, fund, or program.”
B. Listed are the hourly rates for the various categories of fringe benefits, and the name & address of the fund to which the fringe benefits are being paid into, for each labor classification being used on the job-site.
C. The information provided on this Statement is used to assist the project monitor in payroll reviews to verify that employees are receiving the required total wage package (the basic rate plus fringe benefit per hour).
D. The “Fringe Benefit Statement” is to be submitted by the prime contractor and each subcontractor (who has not already indicated that fringe benefits are being paid in cash to the employee) with the first weekly Certified Payroll for work performed.
VII. U. S. Department of Labor Form WH-347, Weekly Payroll Sheet
Preconstruction Conference
A. The purpose of Form WH-347, Weekly Payroll Sheet, is to verify that all project employees are being paid weekly and correctly. The use of any other payroll form will be acceptable only if its format includes all the information needed to meet HUD requirements. All payrolls submitted must be originals, with “wet signatures” on the Statements of Compliance.
B. The Weekly Payroll Sheet is to be submitted to the County/Owner/Architect or Engineer once a week, each week, that work was done on this project.
C. Weekly Payroll Computations will be checked for both mathematical accuracy and for any non-permissible deductions.
D. Untimely submittal or submittal with errors will require holding up of progress payments, until this form is received.
E. Prime Contractors and subcontractors must retain their basic payroll records (payroll register, individual earning cards, check stubs, etc.) for a three year period after completion of the project.
F. If requested, contractors shall make their Superintendent's log book available to the payroll reviewer for payroll compliance review purposes.
VIII. Working Subcontractors
A. The payment of prevailing wage rates established by HUD provide that the wage protections afforded apply to laborers and mechanics employed on federally-assisted construction contracts regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Additionally, all laborers and mechanics must be paid unconditionally and not less often than once per week. There is no exception to this protection for self-employed laborers or mechanics, including owners of businesses, sole-proprietors, partners, corporate officers, or others.
B. “Laborers and mechanics” may not certify to the payment of their own prevailing wages EXCEPT where the laborer or mechanic is the owner of a business working on the site of the work with his/her own crew.
C. Payrolls submitted reporting singe or multiple owners certifying that they have paid to themselves the prevailing wage for their craft are unacceptable; rather, such laborers or mechanics must instead be carried on the certified payroll of the contractor or subcontractor (the “responsible employer”) for whom they are working and with whom they have executed a contract.
Preconstruction Conference
D. Whatever method of compensation computation is utilized, the amount of weekly compensation divided by the actual hours of work performed for that week must result in an “effective” hourly wage rate for that week that is not less than the prevailing hourly rate for the type of work involved. The name, work classification, actual hours of work, effective hourly wage rate, and wage payment of each self-employed laborer and mechanic must be reported and certified on the responsible employer’s weekly payroll.
E. More extensive guidance for the Federal prevailing wage requirements and compliance standards for self-employed laborers and mechanics (also referred to as “working subcontractors”) is detailed in Labor Relations Letter No. LR-96-01, dated December 2, 1996. Additional information is also provided regarded HUD’s compliance and certification parameters for owner-operators of power equipment and truck drivers.
IX. Record of Employee Interview, Form HUD-11
A. Interviews will be conducted by County/Owner/Architect or Engineer staff or their designee.
B. Required to document the confirmation that::
1. Project Employees are working in the correct classification; and
2. For the correct pay.
B. Random samples of each contractor/subcontractor(s) workforce will be interviewed throughout the course of the project.
D. Comparisons of interview forms with the Weekly Payroll Sheets and Prevailing Wage Decision will assure proper payment to project workforce.
E. Failure to resolve discrepancies within a reasonable period of time will cause future progress payments to be held up.
F. County/Owner/Architect or Engineer staff who administer the HUD-11 forms are hereby reminded that they are to indicate “None” in the Remarks sections of the form when there is nothing additional to report from the actual interview or the comparison of the HUD-11 form to the payroll and the project wage decision. The HUD-11 interviewer and payroll examiner are each to sign and date the form in the spaces provided when they have completed the interview and examination.
§ 200.302 Financial Management
(a) Each state must expend and account for the Federal award in accordance with state laws and procedures for expending and accounting for the state's own funds. In addition, the state's and the other non-Federal entity's financial management systems, including records documenting compliance with Federal statutes, regulations, and the terms and conditions of the Federal award, must be sufficient to permit the preparation of reports required by general and program-specific terms and conditions; and the tracing of funds to a level of expenditures adequate to establish that such funds have been used according to the Federal statutes, regulations, and the terms and conditions of the Federal award. See also § 200.450.
(b) The financial management system of each non-Federal entity must provide for the following (see also §§ 200.334, 200.335, 200.336, and 200.337):
(1) Identification, in its accounts, of all Federal awards received and expended and the Federal programs under which they were received. Federal program and Federal award identification must include, as applicable, the Assistance Listings title and number, Federal award identification number and year, name of the Federal agency, and name of the pass-through entity, if any. (2) Accurate, current, and complete disclosure of the financial results of each Federal award or program in accordance with the reporting requirements set forth in §§ 200.328 and 200.329. If a Federal awarding agency requires reporting on an accrual basis from a recipient that maintains its records on other than an accrual basis, the recipient must not be required to establish an accrual accounting system. This recipient may develop accrual data for its reports on the basis of an analysis of the documentation on hand. Similarly, a pass-through entity must not require a subrecipient to establish an accrual accounting system and must allow the subrecipient to develop accrual data for its reports on the basis of an analysis of the documentation on hand.
(3) Records that identify adequately the source and application of funds for federally-funded activities.
These records must contain information pertaining to Federal awards, authorizations, financial obligations, unobligated balances, assets, expenditures, income and interest and be supported by source documentation.
(4) Effective control over, and accountability for, all funds, property, and other assets. The non-Federal entity must adequately safeguard all assets and assure that they are used solely for authorized purposes. See § 200.303.
(5) Comparison of expenditures with budget amounts for each Federal award. (6) Written procedures to implement the requirements of § 200.305. (7) Written procedures for determining the allowability of costs in accordance with subpart E of this part and the terms and conditions of the Federal award.
NOLOBBY.EXB (Rev. 7-97) Page 1 of 2 EXHIBIT "E"
DISCLOSURE OF LOBBYING ACTIVITIES
Complete this form to disclose Lobbying activities pursuant to 31 U.S.C. 1352 (See page 2 for public burden disclosure)
1. Type of Federal Action:
a. contract
b. grant
c. cooperative agreement
d. loan
e. loan guarantee
f. loan insurance
2. Status of Federal Action:
a. bid/offer/application
b. initial award
c. post award
3. Report Type:
a. initial filing
b. material change
For Material Change Only:
year___________ quarter______________
date of last report__________________ __
4. Name and Address of Reporting Entity:
Prime Subawardee
Tier , if known:
Congressional District, if known:
5. If Reporting Entity in No. 4 is Subawardee, Enter
Name and Address of Prime:
Congressional District, if known:
6. Federal Department/Agency: 7. Federal Program Name/Description:
CFDA Number, if applicable: _____________________
8. Federal Action Number: 9. Award Amount:
$
10a. Name and Address of Lobbying Registrant:
(if individual, last name, first name, MI)
b. Individuals Performing Services: (including address if different from No. 10a.)
(last name, first name, MI)
11. Information requested through this form is authorized by title 31 U.S.C. section 1352. This disclosure of lobbying activities is a material representation of fact upon which reliance was placed the tier above when this transaction was made or entered into. This disclosure is required pursuant to 31 U.S.C. 1352. This information will be available for public inspection. Any person who fails to file the required disclosure shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each failure.
Signature:________________________________________________ Print Name:_______________________________________________ Title:_____________________________________________________ Telephone No.:_______________________ Date:_______________ Federal Use Only:
Approved by OMB
0348-0046
Authorized for Local Reproduction
Standard Form LLL (Rev. 7-97)
NOLOBBY.EXB (Rev. 7-97) Page 2 of 2 EXHIBIT "E"
INSTRUCTIONS FOR COMPLETION OF SF-LLL DISCLOSURE OF LOBBYING ACTIVITIES This disclosure form shall be completed by the reporting entity, whether subawardee or prime Federal recipient, at the initiation or receipt of a covered Federal action, or a material change to a previous filing, pursuant to title 31 U.S.C. section 1352. The filing of a form is required for each payment or agreement to make payment to any lobbying entity for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer of employee of Congress, or an employee of a Member of Congress in connection with a covered Federal action. Complete all items that apply for both the initial filing and material change report. Refer to the implementing guidance published by the Office of Management and Budget for additional information.
1. Identify the type of covered Federal action for which lobbying activity is and/or has secured to influence the outcome of a covered Federal action.
2. Identify the status of the covered Federal action.
3. Identify the appropriate classification on this report. If this is a follow-up report caused by a material change to the information previously reported, enter the year and quarter in which the change occurred. Enter the date of the last previously submitted report by this reporting entity for this covered Federal action.
4. Enter the full name, address, city, state and zip code of the reporting entity. Include Congressional District, if known. Check the appropriate classification of the reporting entity that designates if it is, or expects to be, a prime or subaward recipient. Identify the tier of the subawardee, e.g., the first subawardee of the prime is the 1st tier. Subawards include but are not limited to subcontracts, subgrants and contract awards under grants.
5. If the organization filing the report in item 4 checks "Subawardee," then enter the full name, address, city, state and zip code of the prime Federal recipient. Include Congressional District, if known.
6. Enter the name of the Federal agency making the award or loan commitment. Include at least one organizational level below agency name, if known. For example, Department of Transportation, Unites States Coast Guard.
7. Enter the Federal program name or description for the covered Federal action (item 1). If known, enter the full Catalog of Federal Domestic Assistance (CFDA) number for grants, cooperative agreements, loans, and loan commitments.
8. Enter the most appropriate Federal identifying number available for the Federal action identified in item 1 (e.g., Request for Proposal [RFP] number, Invitation for Bid [IFB] number, grant announcement, number, the contract, grant, or loan award number, the application/proposal control number assigned by the Federal agency). Include prefixes, e.g., "RFP-DE-90-001."
9. For a covered Federal action where there has been an award or loan commitment by the Federal agency, enter the Federal amount of the award/loan commitment for the prime entity identified in item 4 or 5.
10. (a) Enter the full name, address, city, state and zip code of the lobbying registrant under the Lobbying Disclosure Act of 1995 engaged by the reporting entity identified in item 4 to influence the covered Federal action. (b) Enter the full names of the individual(s) performing services, and include full address if different from 10 (a). Enter Last Name, First Name, and Middle Initial (MI).
11. The certifying official shall sign and date the form, print his/her name, title and telephone number.
According to the Paperwork Reduction Act, as amended, no persons are required to respond to a collection of information unless it displays a valid OMB Control Number. The valid OMB control number for this information collection is OMB No. 0348-0046. Public reporting burden for this collection of information is estimated to average 10 minutes per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project (0348-0046), Washington, DC 20503.
HUD-4010 U.S. Department of Housing and Urban Development Federal Labor Standards Provisions Office of Davis-Bacon and Labor Standards A. APPLICABILITY
The Project or Program to which the construction work covered by this Contract pertains is being assisted by the United States of America, and the following Federal Labor Standards Provisions are included in this Contract pursuant to the provisions applicable to such Federal assistance. (1) MINIMUM WAGES
(i) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment, computed at rates not less than those contained in the wage determination of the Secretary of Labor (which is attached hereto and made a part hereof), regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under Section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of 29 CFR 5.5(a)(1)(iv); also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs, which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period.
Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, that the employer’s payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under 29 CFR 5.5(a)(1)(ii) and the Davis-Bacon poster (WH1321)) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place, where it can be easily seen by the workers.
(ii) Additional Classifications.
(A) Any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. HUD shall approve an additional classification and wage rate and fringe benefits therefor only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification in the wage determination;
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the contractor, the laborers and mechanics to be employed in the classification (if known), or their representatives, and HUD or its designee agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), a report of the action taken shall be sent by HUD or its designee to the Administrator of the Wage and Hour Division (“Administrator”), Employment Standards Administration, U.S. Department of Labor, Washington, D.C. 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise HUD or its designee or will notify HUD or its designee within the 30-day period that additional time is necessary. (Approved by the Office of Management and Budget (“OMB”) under OMB control number 1235-0023.)
(C) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, or HUD or its designee do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), HUD or its designee shall refer the questions, including the views of all interested parties and the recommendation of HUD or its designee, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise HUD or its designee or will notify HUD or its designee within the 30-day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB Control Number 1235-0023.)
(D) The wage rate (including fringe benefits, where appropriate) determined pursuant to subparagraphs (1)(ii)(B) or (C) of this paragraph, shall be paid to all workers performing work in the classification under this Contract from the first day on which work is performed in the classification.
(iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
(iv) If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, that the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. (Approved by the Office of Management and Budget under OMB Control Number 1235-0023.)
(2) Withholding. HUD or its designee shall, upon its own action or upon written request of an authorized representative of the U.S. Department of Labor, withhold or cause to be withheld from the contractor under this contract or any other Federal contract with the same prime contractor, or any other Federallyassisted contract subject to Davis-Bacon prevailing wage requirements which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers
and mechanics, including apprentices, trainees and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee or helper, employed or working on the site of the work, all or part of the wages required by the contract, HUD or its designee may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. HUD or its designee may, after written notice to the contractor, disburse such amounts withheld for and on account of the contractor or subcontractor to the respective employees to whom they are due. The U.S.
Department of Labor shall make such disbursements in the case of direct Davis-Bacon Act contracts. (3) Payrolls and basic records.
(i) Maintaining Payroll Records. Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification(s), 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 Section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made, and actual wages paid.
Whenever the Secretary of Labor has found, under 29 CFR 5.5(a)(1)(iv), 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 Section 1(b)(2)(B) of the Davis-Bacon Act, the contractor 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. Contractors 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 trainees, and the ratios and wage rates prescribed in the applicable programs. (Approved by the Office of Management and Budget under OMB Control Numbers 1235-0023 and 1215-0018)
(ii) Certified Payroll Reports.
(A) The contractor shall submit weekly, for each week in which any contract work is performed, a copy of all payrolls to HUD or its designee if the agency is a party to the contract, but if the agency is not such a party, the contractor will submit the payrolls to the applicant sponsor, or owner, as the case may be, for transmission to HUD or its designee. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR
5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead, the payrolls 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 WH347 is available for this purpose from the Wage and Hour Division Web site at https://www.dol.gov/agencies/whd/forms or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and
subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to HUD or its designee if the agency is a party to the contract, but if the agency is not such a party, the contractor will submit the payrolls to the applicant sponsor, or owner, as the case may be, for transmission to HUD or its designee, the contractor, or the Wage and Hour Division of the U.S. Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this subparagraph for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to HUD or its designee. (Approved by the Office of Management and Budget under OMB Control Number 1235-0008.)
(B) Each payroll submitted shall be accompanied by a “Statement of Compliance,” signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following:
(1) That the payroll for the payroll period contains the information required to be provided under 29 CFR 5.5(a)(3)(ii), the appropriate information is being maintained under 29 CFR 5.5(a)(3)(i), and that such information is correct and complete; (2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract 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 29 CFR Part 3;
(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; and (C) 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 (a)(3)(ii)(b).
(D) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 3729 of Title 31 of the United States Code.
(iii) The contractor or subcontractor shall make the records required under subparagraph (a)(3)(i) available for inspection, copying, or transcription by authorized representatives of HUD or its designee or the U.S. Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, HUD or its designee may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. 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. (4) Apprentices and Trainees.
(i) 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 Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services, 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 contractor 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 above, shall be paid not less than the applicable wage rate on the 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 contractor 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 contractor’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 journeymen 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, fringe benefits shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, 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.
(ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed, unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S.
Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee’s level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding
journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the work actually performed.
In addition, any trainee 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. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal employment opportunity. The utilization of apprentices, trainees, and journeymen under 29 CFR Part 5 shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30.
(5) Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR Part 3, which are incorporated by reference in this Contract. (6) Subcontracts. The contractor or subcontractor will insert in any subcontracts the clauses contained in subparagraphs (1) through (11) in this paragraph (a) and such other clauses as HUD or its designee may, by appropriate instructions, require, and a copy of the applicable prevailing wage decision, and also 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 the contract clauses in this paragraph.
(7) Contract termination; debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract and for debarment as a contractor and a subcontractor as provided in 29 CFR
5.12. (8) Compliance with Davis-Bacon and Related Act Requirements. All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by reference in this Contract.
(9) Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this Contract shall not be subject to the general disputes clause of this Contract. Such disputes shall be resolved in accordance with the procedures of the U.S. Department of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and HUD or its designee, the U.S. Department of Labor, or the employees or their representatives.
(10) Certification of Eligibility. (i) By entering into this Contract, the contractor 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 Section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR Part 24. (ii) No part of this Contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of Section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR Part 24.
(iii) Anyone who knowingly makes, presents, or submits a false, fictitious, or fraudulent statement, representation or certification is subject to criminal, civil and/or administrative sanctions, including fines, penalties, and imprisonment (e.g., 18 U.S.C. §§ 287, 1001, 1010, 1012; 31 U.S.C. §§ 3729, 3802. (11) Complaints, Proceedings, or Testimony by Employees. No laborer or mechanic, to whom the wage, salary, or other labor standards provisions of this Contract are applicable, shall be discharged or in any other manner discriminated against by the contractor or any subcontractor because such employee has filed any complaint or instituted or caused to be instituted any proceeding or has testified or is about to testify in any proceeding under or relating to the labor standards applicable under this Contract to his employer.
B. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
The provisions of this paragraph (b) are applicable where the amount of the prime contract exceeds $100,000. As used in this paragraph, the terms “laborers” and “mechanics” include watchmen and guards. (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 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 one and one-half times the basic rate of pay for all hours worked in excess of 40 hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in subparagraph B(1) of this paragraph, the contractor, and any subcontractor responsible therefor, shall be liable for the unpaid wages. 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 watchmen and guards, employed in violation of the clause set forth in subparagraph B(1) of this paragraph, in the sum set by the U.S. Department of Labor at 29 CFR 5.5(b)(2) for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of 40 hours without payment of the overtime wages required by the clause set forth in subparagraph B(1) of this paragraph. In accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. § 2461 Note), the DOL adjusts this civil monetary penalty for inflation no later than January 15 each year.
(3) Withholding for unpaid wages and liquidated damages. HUD or its designee shall, upon its own action or upon written request of an authorized representative of the U.S. Department of Labor, withhold or cause to be withheld from any moneys payable on account of work performed by the contractor or subcontractor under any such contract, or any other Federal contract with the same prime contract, or any other Federally-assisted contract subject to the Contract Work Hours and Safety Standards Act which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages, as provided in the clause set forth in subparagraph B(2) of this paragraph. (4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in subparagraph B(1) through (4) of this paragraph and also a clause requiring the subcontractors to include
these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in subparagraphs B(1) through (4) of this paragraph.
C. HEALTH AND SAFETY
The provisions of this paragraph (c) are applicable where the amount of the prime contract exceeds $100,000.
(1) No laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his or her health and safety, as determined under construction safety and health standards promulgated by the Secretary of Labor by regulation. (2) The contractor shall comply with all regulations issued by the Secretary of Labor pursuant to 29 CFR Part 1926 and failure to comply may result in imposition of sanctions pursuant to the Contract Work Hours and Safety Standards Act, (Public Law 91-54, 83 Stat 96), 40 U.S.C. § 3701 et seq. (3) The contractor shall include the provisions of this paragraph in every subcontract, so that such provisions will be binding on each subcontractor. The contractor shall take such action with respect to any subcontractor as the Secretary of Housing and Urban Development or the Secretary of Labor shall direct as a means of enforcing such provisions.
STATE OF CALIFORNIA LABOR CODE REQUIREMENTS
Unless specified otherwise, any reference in this Section to subcontractor shall also include the prime construction contractor.
Labor Code Requirements
Attention is directed to the following requirements of the Labor Code:
(a) Hours of Labor
Eight hours labor constitutes a legal day's work. DISTRICT or any subcontractor under DISTRICT shall forfeit, as a penalty to the Planning and Natural Resources Department, $25 for each worker employed in the execution of the construction under the contract by DISTRICT or subcontractor for each calendar day during which that worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week in violation of the requirements of the Labor Code, and in particular, Section 1810 to Section 1815, thereof, inclusive, except that work performed by employees of DISTRICT in excess of 8 hours per day, and 40 hours during any one week, shall be permitted upon compensation for all hours worked in excess of 8 hours per day at not less than one and one-half times the basic rate of pay, as provided in Section 1815 thereof. (b) Prevailing Wage
1. In respect to the Grant funded construction, DISTRICT and any subcontractor under DISTRICT shall comply with Labor Code Sections 1774 and 1775. Pursuant to Section 1775, DISTRICT and any subcontractor under DISTRICT shall forfeit to the Planning and Natural Resources Department a penalty of not more than fifty dollars ($50) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of Industrial Relations for the work or craft in which the worker is employed for any public work done under the contract by DISTRICT or by any subcontractor under DISTRICT in violation of the requirements of the Labor Code and in particular, Labor Code Sections 1770 to 1780, inclusive. The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of the mistake, inadvertence, or neglect of DISTRICT or subcontractor in failing to pay the correct rate of prevailing wages, or the previous record of DISTRICT or subcontractor in meeting their respective prevailing wage obligations, or the willful failure by DISTRICT or subcontractor to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rate of prevailing wages is not excusable if DISTRICT or subcontractor had knowledge of the obligations under the Labor Code. In addition to the penalty and pursuant to Labor Code Section 1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by DISTRICT or subcontractor. If a worker employed by a subcontractor on a public works project is not paid the general prevailing per diem wages by the subcontractor, the prime contractor of the project or DISTRICT is not liable for the penalties described above unless the prime contractor or DISTRICT had knowledge of that failure of the subcontractor to pay the specified prevailing rate of wages to those workers or unless the prime contractor or DISTRICT fails to comply with all of the following requirements:
a. The contract executed between DISTRICT and the subcontractor for the performance of work on the public works project shall include a copy of the requirements in Sections 1771, 1775, 1776, 1777.5, 1813 and 1815 of the Labor Code.
b. DISTRICT shall monitor the payment of the specified general prevailing rate of per diem wages by the subcontractor to the employees, by periodic review of the certified payroll records of the subcontractor. c. Upon becoming aware of the subcontractor's failure to pay the specified prevailing rate of wages to the subcontractor's workers, DISTRICT shall diligently take corrective action to halt or rectify the failure, including, but not limited to, retaining sufficient funds due the subcontractor for work performed on the public works project.
d. Prior to making final payment to the subcontractor for work performed on the public works project, DISTRICT shall obtain an affidavit signed under penalty of perjury from the subcontractor that the subcontractor has paid the specified general prevailing rate of per diem wages to the subcontractor's employees on the public works project and any amounts due pursuant to Section 1813 of the Labor Code.
2. Pursuant to Section 1775 of the Labor Code, the Division of Labor Standards Enforcement shall notify DISTRICT on a public works project within 15 days of the receipt by the Division of Labor Standards Enforcement of a complaint of the failure of a subcontractor on that public works project to pay workers the general prevailing rate of per diem wages. If the Division of Labor Standards Enforcement determines that employees of a subcontractor were not paid the general prevailing rate of per diem wages and if DISTRICT did not retain sufficient money under the contract to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, DISTRICT shall withhold an amount of moneys due the subcontractor sufficient to pay those employees the general prevailing rate of per diem wages if requested by the Division of Labor Standards Enforcement. DISTRICT shall pay any money retained from and owed to a subcontractor upon receipt of notification by the Division of Labor Standards Enforcement that the wage complaint has been resolved. If notice of the resolution of the wage complaint has not been received by DISTRICT within 180 days of the filing of a valid notice of completion or acceptance of the public works project, whichever occurs later, DISTRICT shall pay all moneys retained from the subcontractor to COUNTY. These moneys shall be retained by COUNTY pending the final decision of an enforcement action.
3. Pursuant to the requirements in Section 1773 of the Labor Code, DISTRICT has obtained the general prevailing rate of wages (which rate includes employer payments for health and welfare, pension, vacation, travel time and subsistence pay as provided for in Section 1773.8 of the Labor Code, apprenticeship or other training programs authorized by Section 3093 of the Labor Code, and similar purposes) applicable to the work to be done, for straight time, overtime, Saturday, Sunday and holiday work. The holiday wage rate listed shall be applicable to all holidays recognized in the collective bargaining agreement of the particular craft, classification or type of workmen concerned.
4. The general prevailing wage rates and any applicable changes to these wage rates are available from the California Department of Industrial Relations' Internet Web Site at: http://www.dir.ca.gov.
5. The wage rates determined by the Director of Industrial Relations for the project refer to expiration dates.
Prevailing wage determinations with a single asterisk after the expiration date are in effect on the date of advertisement for bids and are good for the life of the contract. Prevailing wage determinations with double asterisks after the expiration date indicate that the wage rate to be paid for work performed after this date has been determined. If work is to extend past this date, the new rate shall be paid and incorporated in the contract.
DISTRICT shall contact the Department of Industrial Relations as indicated in the wage rate determinations to obtain predetermined wage changes.
6. Pursuant to Section 1773.2 of the Labor Code, general prevailing wage rates shall be posted by DISTRICT at a prominent place at the site of the work.
7. Changes in general prevailing wage determinations which conform to Labor Code Section 1773.6 and Title 8 California Code of Regulations Section 16204 shall apply to the project when issued by the Director of Industrial Relations at least 10 days prior to the date of the Notice to DISTRICT for the project.
8. COUNTY will not recognize any claim for additional compensation because of the payment by DISTRICT or its subcontractor of any wage rate in excess of the prevailing wage rate set forth in the contract. (c) Payroll Records
1. Attention is directed to the requirements in Labor Code Section 1776, a portion of which is quoted below.
Regulations implementing Labor Code Section 1776 are located in Sections 16016 through 16019 and Sections 16207.10 through 16207.19 of Title 8, California Code of Regulations. “Each contractor and subcontractor shall keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual
per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him or her in the connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct. b. The employer has complied with the requirements of Sections 1771, 1811, and 1815 for any work performed by his or her employees on the public works project. "The payroll records shall be certified and shall be available for inspection at all reasonable hours at the principal office of DISTRICT on the following basis:
a. Certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or his or her authorized representative on request. b. A certified copy of all payroll records enumerated in subdivision (a) shall be made available for inspection or furnished upon request to a representative of the body awarding the contract, the Division of Labor Standards Enforcement, and the Division of Apprenticeship Standards of the Department of Industrial Relations.
c. A certified copy of all payroll records shall be made available upon request by the public for inspection or for copies thereof. However, a request by the public shall be made through either the body awarding the contract, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement. If the requested payroll records have not been provided pursuant to paragraph (2), the requesting party shall, prior to being provided the records, reimburse the costs of preparation by DISTRICT, subcontractors, and the entity through which the request was made. The public shall not be given access to the records at the principal office of DISTRICT.
"The certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement or shall contain the same information as the forms provided by the division. "DISTRICT or subcontractor shall file a certified copy of the records with the entity that requested the records within 10 days after receipt of a written request.
"Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by the awarding body, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement shall be marked or obliterated in a manner so as to prevent disclosure of an individual's name, address and social security number. The name and address of DISTRICT and the subcontractor performing the contract shall not be marked or obliterated.
"The subcontractor shall inform the body awarding the contract of the location of the records including the street address, city and county, and shall, within five working days, provide a notice of a change of location and address.
"DISTRICT or subcontractor shall have 10 days in which to comply subsequent to receipt of a written notice requesting the records. In the event that DISTRICT or subcontractor fails to comply within the 10-day period, he or she shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit twenty-five dollars ($25) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, these penalties shall be withheld from progress payments then due. DISTRICT is not subject to a penalty assessment pursuant to this section due to the failure of a subcontractor to comply with this section.
2. The penalties specified in subdivision (g) of Labor Code Section 1776 for noncompliance with the requirements in Section 1776 may be deducted from any moneys due or which may become due to DISTRICT.
3. A copy of all payrolls shall be submitted weekly to DISTRICT. Payrolls shall contain the full name, address and social security number of each employee, the employee's correct classification, rate of pay, daily and weekly number of hours worked, itemized deductions made and actual wages paid. They shall also indicate apprentices and ratio of apprentices to journeymen. The employee's address and social security number need
only appear on the first payroll on which that name appears. The payroll shall be accompanied by a "Statement of Compliance" signed by the employer or the employer's agent indicating that the payrolls are correct and complete and that the wage rates contained therein are not less than those required by the contract. The "Statement of Compliance" shall be on forms furnished by the Department or on any form with identical wording.
DISTRICT shall be responsible for the submission of copies of payrolls of all subcontractors. DISTRICT and each subcontractor shall preserve their payroll records for a period of 3 years from the date of completion of the contract.
(d) Apprentices
Attention is directed to Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code and Title 8, California Code of Regulations Section 200 et seq. To ensure compliance and complete understanding of the law regarding apprentices, and specifically the required ratio thereunder, DISTRICT or subcontractor should, where some question exists, contact the Division of Apprenticeship Standards, 455 Golden Gate Avenue, San Francisco, CA 94102, or one of its branch offices prior to commencement of work on the public works contract. Responsibility for compliance with this section lies with DISTRICT.
(e) Workers' Compensation
Pursuant to the requirements in Section 1860 of the Labor Code, the subcontractor will be required to secure the payment of workers' compensation to the subcontractor's employees in conformance with the requirements in Section 3700 of the Labor Code. Prior to the commencement of work, the subcontractor shall sign and file with DISTRICT a certification in the following form:
"I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract."
This certification is included in the contract, and signature and return of the contract shall constitute signing and filing of the certificate.
(f) Suits to Recover Penalties and Forfeitures
1. Attention is directed to Sections 1730 to 1733, inclusive, of the Labor Code concerning suits to recover amounts withheld from payment for failure to comply with requirements of the Labor Code or contract provisions based on those laws.
2. Those sections provide that a suit on the contract for alleged breach thereof in not making the payment is the exclusive remedy of the subcontractor or the subcontractor's assignees with reference to amounts withheld for those penalties or forfeitures; and that the suit must be commenced and actual notice thereof received the amounts withheld from payment for those penalties and forfeitures is not a prerequisite for those suits, and these claims will not be considered.
(g) Required Registration with the California Department of Industrial Relations A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in the Labor Code, unless currently registered and qualified to perform public work pursuant to Section 1725.5 of the Labor Code . It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 of the Labor Code at the time the contract is awarded.
Pursuant to California Labor Code 1725.5, all contractors and subcontractors must be registered with the Department of Industrial Relations (DIR) in order to be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any public work contract. Detailed information about contractor’s responsibilities and online registration may be obtained on the State of California Department of Industrial Relations, Public Works website, http://www.dir.ca.gov/PublicWorks/PublicWorks.html
NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS
OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
(24 CFR, Subtitle A, Part 1, Section 1.5 Assurances Required) § 1.5 Assurances required.
(a) General.
(1) Every contract for Federal financial assistance to carry out a program or activity to which this part 1 applies, executed on or after January 3, 1965, and every application for such Federal financial assistance submitted on or after January 3, 1965, shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to such contract or application, contain or be accompanied by an assurance that the program or activity will be conducted and the housing, accommodations, facilities, services, financial aid, or other benefits to be provided will be operated and administered in compliance with all requirements imposed by or pursuant to this part 1. In the case of a contract or application where the Federal financial assistance is to provide or is in the form of personal property or real property or interest therein or structures thereon, the assurance shall obligate the recipient or, in the case of a subsequent transfer, the transferee, for the period during which the property is used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits, or for as long as the recipient retains ownership or possession of the property, whichever is longer. In all other cases the assurance shall obligate the recipient for the period during which Federal financial assistance is extended pursuant to the contract or application. The responsible Department official shall specify the form of the foregoing assurance for such program or activity, and the extent to which like assurances will be required of subgrantees, contractors and subcontractors, transferees, successors in interest, and other participants in the program or activity. Any such assurance shall include provisions which give the United States a right to seek its judicial enforcement.
(2) In the case of real property, structures or improvements thereon, or interests therein, acquired through a program of Federal financial assistance the instrument effecting any disposition by the recipient of such real property, structures or improvements thereon, or interests therein, shall contain a covenant running with the land assuring nondiscrimination for the period during which the real property is used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. In the case where Federal financial assistance is provided in the form of a transfer of real property or interests therein from the Federal Government, the instrument effecting or recording the transfer shall contain such a covenant. (3) In program receiving Federal financial assistance in the form, or for the acquisition, of real property or an interest in real property, to the extent that rights to space on, over, or under any such property are included as part of the program receiving such assistance, the nondiscrimination requirements of this part 1 shall extend to any facility located wholly or in part in such space. (b) Preexisting contracts—funds not disbursed. In any case where a contract for Federal financial assistance, to carry out a program or activity to which this part 1 applies, has been executed prior to January 3, 1965, and the funds have not been fully disbursed by the Department, the responsible Department official shall, where necessary to effectuate the purposes of this part 1, require an
assurance similar to that provided in paragraph (a) of this section as a condition to the disbursement of further funds.
(c) Preexisting contracts—periodic payments. In any case where a contract for Federal financial assistance, to carry out a program or activity to which this part 1 applies, has been executed prior to January 3, 1965, and provides for periodic payments for the continuation of the program or activity, the recipient shall, in connection with the first application for such periodic payments on or after January 3, 1965:
(1) Submit a statement that the program or activity is being conducted in compliance with all requirements imposed by or pursuant to this part 1 and
(2) provide such methods of administration for the program or activity as are found by the responsible Department official to give reasonable assurance that the recipient will comply with all requirements imposed by or pursuant to this part 1.
(d) Assurances from institutions.
(1) In the case of any application for Federal financial assistance to an institution of higher education, the assurance required by this section shall extend to admission practices and to all other practices relating to the treatment of students.
(2) The assurance required with respect to an institution of higher education, hospital, or any other institution, insofar as the assurance relates to the institution's practices with respect to admission or other treatment of persons as students, patients, or clients of the institution or to the opportunity to participate in the provision of services or other benefits to such persons, shall be applicable to the entire institution unless the applicant establishes, to the satisfaction of the responsible Department official, that the institution's practices in designated parts or programs of the institution will in no way affect its practices in the program of the institution for which Federal financial assistance is sought, or the beneficiaries of or participants in such program. If in any such case the assistance sought is for the construction of a facility or part of a facility, the assurance shall in any event extend to the entire facility and to facilities operated in connection therewith.
(e) Elementary and secondary schools. The requirements of this section with respect to any elementary or secondary school or school system shall be deemed to be satisfied if such school or school system (1) is subject to a final order of a court of the United States for the desegregation of such school or school system, and provides an assurance that it will comply with such order, including any future modification of such order, or
(2) submits a plan for the desegregation of such school or school system which the responsible official of the Department of Health and Human Services determines is adequate to accomplish the purposes of the Act and this part 1 within the earliest practicable time, and provides reasonable assurance that it will carry out such plan.
[38 FR 17949, July 5, 1973, as amended at 50 FR 9269, Mar. 7, 1985]
EQUAL OPPORTUNITY
(48 CFR 52.222-26)
(Sept 2016)
(a) Definitions. As used in this clause—
Compensation means any payments made to, or on behalf of, an employee or offered to an applicant as remuneration for employment, including but not limited to salary, wages, overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay, allowances, insurance and other benefits, stock options and awards, profit sharing, and retirement.
Compensation information means the amount and type of compensation provided to employees or offered to applicants, including, but not limited to, the desire of the Contractor to attract and retain a particular employee for the value the employee is perceived to add to the Contractor's profit or productivity; the availability of employees with like skills in the marketplace; market research about the worth of similar jobs in the relevant marketplace; job analysis, descriptions, and evaluations; salary and pay structures; salary surveys; labor union agreements; and Contractor decisions, statements and policies related to setting or altering employee compensation.
Essential job functions means the fundamental job duties of the employment position an individual holds. A job function may be considered essential if—
(1) The access to compensation information is necessary in order to perform that function or another routinely assigned business task; or
(2) The function or duties of the position include protecting and maintaining the privacy of employee personnel records, including compensation information.
Gender identity has the meaning given by the Department of Labor's Office of Federal Contract Compliance Programs, and is found at www.dol.gov/ofccp/LGBT/LGBT_FAQs.html.
Sexual orientation has the meaning given by the Department of Labor's Office of Federal Contract Compliance Programs, and is found at www.dol.gov/ofccp/LGBT/LGBT_FAQs.html.
United States means the 50 States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, and Wake Island. (b)(1) If, during any 12–month period (including the 12 months preceding the award of this contract), the Contractor has been or is awarded nonexempt Federal contracts and/or subcontracts that have an aggregate value in excess of $10,000, the Contractor shall comply with this clause, except for work performed outside the United States by employees who were not recruited within the United States. Upon request, the Contractor shall provide information necessary to determine the applicability of this clause.
(2) If the Contractor is a religious corporation, association, educational institution, or society, the requirements of this clause do not apply with respect to the employment of individuals of a particular religion to perform work connected with the carrying on of the Contractor's activities (41 CFR 60–
1.5).
(c)(1) The Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. However, it shall not be a violation of this clause for the Contractor to extend a publicly announced preference in employment to Indians living on or near an Indian reservation, in connection with employment opportunities on or near an Indian reservation, as permitted by 41 CFR 60–1.5. (2) The Contractor shall 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. This shall include, but not be limited to, (i) employment, (ii) upgrading, (iii) demotion, (iv) transfer, (v) recruitment or recruitment advertising, (vi) layoff or termination, (vii) rates of pay or other forms of compensation, and (viii) selection for training, including apprenticeship.
(3) The Contractor shall post in conspicuous places available to employees and applicants for employment the notices to be provided by the Contracting Officer that explain this clause. (4) The Contractor shall, 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. (5)(i) The Contractor shall 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 prohibition against discrimination does 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.
(ii) The Contractor shall disseminate the prohibition on discrimination in paragraph (c)(5)(i) of this clause, using language prescribed by the Director of the Office of Federal Contract Compliance Programs (OFCCP), to employees and applicants by—
(A) Incorporation into existing employee manuals or handbooks; and (B) Electronic posting or by posting a copy of the provision in conspicuous places available to employees and applicants for employment.
(6) The Contractor shall send, to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, the notice to be provided by the Contracting Officer advising the labor union or workers' representative of the Contractor's commitments under this clause, and post copies of the notice in conspicuous places available to employees and applicants for employment.
(7) The Contractor shall comply with Executive Order 11246, as amended, and the rules, regulations, and orders of the Secretary of Labor.
(8) The Contractor shall furnish to the contracting agency all information required by Executive Order 11246, as amended, and by the rules, regulations, and orders of the Secretary of Labor. The Contractor shall also file Standard Form 100 (EEO–1), or any successor form, as prescribed in 41 CFR part 60–1. Unless the Contractor has filed within the 12 months preceding the date of contract award, the Contractor shall, within 30 days after contract award, apply to either the regional Office of Federal Contract Compliance Programs (OFCCP) or the local office of the Equal Employment Opportunity Commission for the necessary forms.
(9) The Contractor shall permit access to its premises, during normal business hours, by the contracting agency or the OFCCP for the purpose of conducting on-site compliance evaluations and complaint investigations. The Contractor shall permit the Government to inspect and copy any books, accounts, records (including computerized records), and other material that may be relevant to the matter under investigation and pertinent to compliance with Executive Order 11246, as amended, and rules and regulations that implement the Executive Order. (10) If the OFCCP determines that the Contractor is not in compliance with this clause or any rule, regulation, or order of the Secretary of Labor, this contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts, under the procedures authorized in Executive Order 11246, as amended. In addition, sanctions may be imposed and remedies invoked against the Contractor as provided in Executive Order 11246, as amended; in the rules, regulations, and orders of the Secretary of Labor; or as otherwise provided by law.
(11) The Contractor shall include the terms and conditions of this clause in every subcontract or purchase order that is not exempted by the rules, regulations, or orders of the Secretary of Labor issued under Executive Order 11246, as amended, so that these terms and conditions will be binding upon each subcontractor or vendor.
(12) The Contractor shall take such action with respect to any subcontract or purchase order as the Director of OFCCP may direct as a means of enforcing these terms and conditions, including sanctions for noncompliance; provided, that if the Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of any direction, the Contractor may request the United States to enter into the litigation to protect the interests of the United States.
(d) Notwithstanding any other clause in this contract, disputes relative to this clause will be governed by the procedures in 41 CFR part 60–1.
ECONOMIC OPPORTUNITIES FOR LOW- AND VERY LOW-INCOME PERSONS A. The work to be performed under this contract is subject to the requirements of section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (section 3). The purpose of section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-assisted projects covered by section 3, shall, to the greatest extent feasible, be directed to lowand very low-income persons, particularly persons who are recipients of HUD assistance for housing.
B. The parties to this contract agree to comply with HUD's regulations in 24 CFR part 75, which implement section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the part 75 regulations.
C. The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the section 3 requirement, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin.
D. The contractor agrees to include this section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 75, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 75. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 75.
E. The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR part 75 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 CFR part 75.
F. Noncompliance with HUD's regulations in 24 CFR part 75 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts.
G. With respect to work performed in connection with section 3 covered Indian housing assistance, section 7(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under this contract. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian-owned Economic Enterprises. Parties to this contract that are subject to the provisions of section 3 and section 7(b) agree to comply with section 3 to the maximum extent feasible, but not in derogation of compliance with section 7(b).
UTILIZATION OF SMALL BUSINESS CONCERNS
(48 CFR 52.219-8)
(September 2023)
a) Definitions. As used in this contract—
HUBZone small business concern means a small business concern that meets the requirements described in 13 CFR 126.200, certified by the Small Business Administration (SBA) and designated by SBA as a HUBZone small business concern in the Dynamic Small Business Search (DSBS) and SAM.
Service-disabled veteran-owned small business concern—
(1) Means a small business concern—
(i) Not less than 51 percent of which is owned by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled veterans; and
(ii) The management and daily business operations of which are controlled by one or more servicedisabled veterans or, in the case of a service-disabled veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran.
(2) Service-disabled veteran means a veteran, as defined in 38 U.S.C. 101(2), with a disability that is service-connected, as defined in 38 U.S.C. 101(16).
Small business concern means a concern, including its affiliates, that is independently owned and operated, not dominant in its field of operation and qualified as a small business under the criteria and size standards in 13 CFR part 121, including the size standard that corresponds to the NAICS code assigned to the contract or subcontract.
Small disadvantaged business concern, consistent with 13 CFR 124.1001, means a small business concern under the size standard applicable to the acquisition, that— (1) Is at least 51 percent unconditionally and directly owned (as defined at 13 CFR 124.105) by— (i) One or more socially disadvantaged (as defined at 13 CFR 124.103) and economically disadvantaged (as defined at 13 CFR 124.104) individuals who are citizens of the United States; and (ii) Each individual claiming economic disadvantage has a net worth not exceeding the threshold at 13 CFR 124.104(c)(2) after taking into account the applicable exclusions set forth at 13 CFR 124.104(c)(2); and
(2) The management and daily business operations of which are controlled (as defined at 13.CFR 124.106) by individuals, who meet the criteria in paragraphs (1)(i) and (ii) of this definition.
Veteran-owned small business concern means a small business concern—
(1) Not less than 51 percent of which is owned by one or more veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more veterans; and
(2) The management and daily business operations of which are controlled by one or more veterans.
Women-owned small business concern means a small business concern— (1) That is at least 51 percent owned by one or more women, or, in the case of any publicly owned business, at least 51 percent of the stock of which is owned by one or more women; and (2) Whose management and daily business operations are controlled by one or more women. (b) It is the policy of the United States that small business concerns, veteran-owned small business concerns, service-disabled veteran-owned small business concerns, HUBZone small business concerns, small disadvantaged business concerns, and women-owned small business concerns shall have the maximum practicable opportunity to participate in performing contracts let by any Federal agency, including contracts and subcontracts for subsystems, assemblies, components, and related services for major systems. It is further the policy of the United States that its prime contractors establish procedures to ensure the timely payment of amounts due pursuant to the terms of their subcontracts with small business concerns, veteran-owned small business concerns, service-disabled veteran-owned small business concerns, HUBZone small business concerns, small disadvantaged business concerns, and women-owned small business concerns.
(c)(1) A joint venture qualifies as a small business concern if— (i) Each party to the joint venture qualifies as small under the size standard for the solicitation; or (ii) The protégé is small under the size standard for the solicitation in a joint venture comprised of a mentor and protégé with an approved mentor-protégé agreement under a SBA mentor-protégé program.
(2) A joint venture qualifies as—
(i) A service-disabled veteran-owned small business concern if it complies with the requirements in 13 CFR part 125; or
(ii) A HUBZone small business concern if it complies with the requirements in 13 CFR 126.616(a) through (c).
(d) The Contractor hereby agrees to carry out this policy in the awarding of subcontracts to the fullest extent consistent with efficient contract performance. The Contractor further agrees to cooperate in any studies or surveys as may be conducted by the United States Small Business Administration or the awarding agency of the United States as may be necessary to determine the extent of the Contractor's compliance with this clause.
(e)(1) The Contractor may accept a subcontractor's written representations of its size and socioeconomic status as a small business, small disadvantaged business, veteran-owned small business, service-disabled veteran-owned small business, or a women-owned small business if the subcontractor
represents that the size and socioeconomic status representations with its offer are current, accurate, and complete as of the date of the offer for the subcontract. (2) The Contractor may accept a subcontractor's representations of its size and socioeconomic status as a small business, small disadvantaged business, veteran-owned small business, service-disabled veteranowned small business, or a women-owned small business in the System for Award Management (SAM) if—
(i) The subcontractor is registered in SAM; and
(ii) The subcontractor represents that the size and socioeconomic status representations made in SAM are current, accurate and complete as of the date of the offer for the subcontract. (3) The Contractor may not require the use of SAM for the purposes of representing size or socioeconomic status in connection with a subcontract.
(4) In accordance with 13 CFR 121.411, 124.1015, 125.29, 126.900, and 127.700, a contractor acting in good faith is not liable for misrepresentations made by its subcontractors regarding the subcontractor's size or socioeconomic status.
(5) The Contractor shall confirm that a subcontractor representing itself as a HUBZone small business concern is certified by SBA as a HUBZone small business concern by accessing SAM or by accessing DSBS at https://web.sba.gov/pro-net/search/dsp_dsbs.cfm. If the subcontractor is a joint venture, the Contractor shall confirm that at least one party to the joint venture is certified by SBA as a HUBZone small business concern. The Contractor may confirm the representation by accessing SAM.
SMALL BUSINESS SUBCONTRACTING PLAN
48 CFR § 52.219-9
(OCT 2022)
(a) This clause does not apply to small business concerns. (b) Definitions. As used in this clause—
Alaska Native Corporation (ANC) means any Regional Corporation, Village Corporation, Urban Corporation, or Group Corporation organized under the laws of the State of Alaska in accordance with the Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1601, et seq.) and which is considered a minority and economically disadvantaged concern under the criteria at 43 U.S.C. 1626(e)(1). This definition also includes ANC direct and indirect subsidiary corporations, joint ventures, and partnerships that meet the requirements of 43 U.S.C. 1626(e)(2).
Commercial plan means a subcontracting plan (including goals) that covers the offeror's fiscal year and that applies to the entire production of commercial products and commercial services sold by either the entire company or a portion thereof (e.g., division, plant, or product line).
Commercial product means a product that satisfies the definition of “commercial product” in Federal Acquisition Regulation (FAR) 2.101.
Commercial service means a service that satisfies the definition of “commercial service” in FAR
2.101.
Electronic Subcontracting Reporting System (eSRS) means the Governmentwide, electronic, web-based system for small business subcontracting program reporting. The eSRS is located at http://www.esrs.gov.
Indian tribe means any Indian tribe, band, group, pueblo, or community, including native villages and native groups (including corporations organized by Kenai, Juneau, Sitka, and Kodiak) as defined in the Alaska Native Claims Settlement Act (43 U.S.C.A. 1601 et seq.), that is recognized by the Federal Government as eligible for services from the Bureau of Indian Affairs in accordance with 25 U.S.C. 1452(c). This definition also includes Indian-owned economic enterprises that meet the requirements of 25 U.S.C. 1452(e).
Individual subcontracting plan means a subcontracting plan that covers the entire contract period (including option periods), applies to a specific contract, and has goals that are based on the offeror's planned subcontracting in support of the specific contract, except that indirect costs incurred for common or joint purposes may be allocated on a prorated basis to the contract.
Master subcontracting plan means a subcontracting plan that contains all the required elements of an individual subcontracting plan, except goals, and may be incorporated into individual subcontracting plans, provided the master subcontracting plan has been approved.
Reduced payment means a payment that is for less than the amount agreed upon in a subcontract in accordance with its terms and conditions, for supplies and services for which the Government has paid the prime contractor.
Subcontract means any agreement (other than one involving an employer-employee relationship) entered into by a Federal Government prime Contractor or subcontractor calling for supplies or services required for performance of the contract or subcontract.
Total contract dollars means the final anticipated dollar value, including the dollar value of all options.
Untimely payment means a payment to a subcontractor that is more than 90 days past due under the terms and conditions of a subcontract for supplies and services for which the Government has paid the prime contractor.
(c)
(1) The Offeror, upon request by the Contracting Officer, shall submit and negotiate a subcontracting plan, where applicable, that separately addresses subcontracting with small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns. If the Offeror is submitting an individual subcontracting plan, the plan must separately address subcontracting with small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns, with a separate part for the basic contract and separate parts for each option (if any). The subcontracting plan shall be included in and made a part of the resultant contract. The subcontracting plan shall be negotiated within the time specified by the Contracting Officer. Failure to submit and negotiate the subcontracting plan shall make the Offeror ineligible for award of a contract. (2)
(i) The Contractor may accept a subcontractor's written representations of its size and socioeconomic status as a small business, small disadvantaged business, veteran-owned small business, service-disabled veteran-owned small business, or a women-owned small business if the subcontractor represents that the size and socioeconomic status representations with its offer are current, accurate, and complete as of the date of the offer for the subcontract.
(ii) The Contractor may accept a subcontractor's representations of its size and socioeconomic status as a small business, small disadvantaged business, veteran-owned small business, service-disabled veteran-owned small business, or a women-owned small business in the System for Award Management (SAM) if—
(A) The subcontractor is registered in SAM; and
(B) The subcontractor represents that the size and socioeconomic status representations made in SAM are current, accurate and complete as of the date of the offer for the subcontract.
(iii) The Contractor may not require the use of SAM for the purposes of representing size or socioeconomic status in connection with a subcontract. (iv) In accordance with 13 CFR 121.411, 124.1015, 125.29, 126.900, and 127.700, a contractor acting in good faith is not liable for misrepresentations made by its subcontractors regarding the subcontractor's size or socioeconomic status. (d) The Offeror's subcontracting plan shall include the following:
(1) Separate goals, expressed in terms of total dollars subcontracted, and as a percentage of total planned subcontracting dollars, for the use of small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns as subcontractors.
For individual subcontracting plans, and if required by the Contracting Officer, goals shall also
be expressed in terms of percentage of total contract dollars, in addition to the goals expressed as a percentage of total subcontract dollars. The Offeror shall include all subcontracts that contribute to contract performance, and may include a proportionate share of products and services that are normally allocated as indirect costs. In accordance with 43 U.S.C. 1626—
(i) Subcontracts awarded to an ANC or Indian tribe shall be counted towards the subcontracting goals for small business and small disadvantaged business concerns, regardless of the size or Small Business Administration certification status of the ANC or Indian tribe; and
(ii) Where one or more subcontractors are in the subcontract tier between the prime Contractor and the ANC or Indian tribe, the ANC or Indian tribe shall designate the appropriate Contractor(s) to count the subcontract towards its small business and small disadvantaged business subcontracting goals.
(A) In most cases, the appropriate Contractor is the Contractor that awarded the subcontract to the ANC or Indian tribe.
(B) If the ANC or Indian tribe designates more than one Contractor to count the subcontract toward its goals, the ANC or Indian tribe shall designate only a portion of the total subcontract award to each Contractor. The sum of the amounts designated to various Contractors cannot exceed the total value of the subcontract. (C) The ANC or Indian tribe shall give a copy of the written designation to the Contracting Officer, the prime Contractor, and the subcontractors in between the prime Contractor and the ANC or Indian tribe within 30 days of the date of the subcontract award.
(D) If the Contracting Officer does not receive a copy of the ANC's or the Indian tribe's written designation within 30 days of the subcontract award, the Contractor that awarded the subcontract to the ANC or Indian tribe will be considered the designated Contractor. (2) A statement of—
(i) Total dollars planned to be subcontracted for an individual subcontracting plan; or the Offeror's total projected sales, expressed in dollars, and the total value of projected subcontracts, including all indirect costs except as described in paragraph (g) of this clause, to support the sales for a commercial plan; (ii) Total dollars planned to be subcontracted to small business concerns (including ANC and Indian tribes);
(iii) Total dollars planned to be subcontracted to veteran-owned small business concerns; (iv) Total dollars planned to be subcontracted to service-disabled veteran-owned small business;
(v) Total dollars planned to be subcontracted to HUBZone small business concerns; (vi) Total dollars planned to be subcontracted to small disadvantaged business concerns (including ANCs and Indian tribes); and
(vii) Total dollars planned to be subcontracted to women-owned small business concerns. (3) A description of the principal types of supplies and services to be subcontracted, and an identification of the types planned for subcontracting to—
(i) Small business concerns;
(ii) Veteran-owned small business concerns;
(iii) Service-disabled veteran-owned small business concerns; (iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns; and
(vi) Women-owned small business concerns.
(4) A description of the method used to develop the subcontracting goals in paragraph (d)(1) of this clause.
(5) A description of the method used to identify potential sources for solicitation purposes (e.g., existing company source lists, SAM, veterans service organizations, the National Minority Purchasing Council Vendor Information Service, the Research and Information Division of the Minority Business Development Agency in the Department of Commerce, or small, HUBZone, small disadvantaged, and women-owned small business trade associations). A firm may rely on the information contained in SAM as an accurate representation of a concern's size and ownership characteristics for the purposes of maintaining a small, veteran-owned small, service-disabled veteran-owned small, HUBZone small, small disadvantaged, and women-owned small business source list. Use of SAM as its source list does not relieve a firm of its responsibilities (e.g., outreach, assistance, counseling, or publicizing subcontracting opportunities) in this clause. (6) A statement as to whether or not the Offeror included indirect costs in establishing subcontracting goals, and a description of the method used to determine the proportionate share of indirect costs to be incurred with—
(i) Small business concerns (including ANC and Indian tribes); (ii) Veteran-owned small business concerns;
(iii) Service-disabled veteran-owned small business concerns; (iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns (including ANC and Indian tribes); and (vi) Women-owned small business concerns.
(7) The name of the individual employed by the Offeror who will administer the Offeror's subcontracting program, and a description of the duties of the individual. (8) A description of the efforts the Offeror will make to assure that small business, veteranowned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns have an equitable opportunity to compete for subcontracts.
(9) Assurances that the Offeror will include the clause of this contract entitled “Utilization of Small Business Concerns” in all subcontracts that offer further subcontracting opportunities, and that the Offeror will require all subcontractors (except small business concerns) that receive subcontracts in excess of the applicable threshold specified in FAR 19.702(a) on the date of subcontract award, with further subcontracting possibilities to adopt a subcontracting plan that complies with the requirements of this clause.
(10) Assurances that the Offeror will—
(i) Cooperate in any studies or surveys as may be required; (ii) Submit periodic reports so that the Government can determine the extent of compliance by the Offeror with the subcontracting plan;
(iii) After November 30, 2017, include subcontracting data for each order when reporting subcontracting achievements for indefinite-delivery, indefinite-quantity contracts with individual subcontracting plans where the contract is intended for use by multiple agencies;
(iv) Submit the Individual Subcontract Report (ISR) and/or the Summary Subcontract Report (SSR), in accordance with paragraph (l) of this clause using the Electronic Subcontracting Reporting System (eSRS) at http://www.esrs.gov. The reports shall provide information on subcontract awards to small business concerns (including ANCs and Indian tribes that are not small businesses), veteranowned small business concerns, service-disabled veteran-owned small business concerns, HUBZone small business concerns, small disadvantaged business concerns (including ANCs and Indian tribes that have not been certified by SBA as small disadvantaged businesses), women-owned small business concerns, and for NASA only, Historically Black Colleges and Universities and Minority Institutions. Reporting shall be in accordance with this clause, or as provided in agency regulations; (v) Ensure that its subcontractors with subcontracting plans agree to submit the ISR and/or the SSR using eSRS;
(vi) Provide its prime contract number, its unique entity identifier, and the email address of the Offeror's official responsible for acknowledging receipt of or rejecting the ISRs, to all first-tier subcontractors with subcontracting plans so they can enter this information into the eSRS when submitting their ISRs; and
(vii) Require that each subcontractor with a subcontracting plan provide the prime contract number, its own unique entity identifier, and the email address of the subcontractor's official responsible for acknowledging receipt of or rejecting the ISRs, to its subcontractors with subcontracting plans.
(11) A description of the types of records that will be maintained concerning procedures that have been adopted to comply with the requirements and goals in the plan, including establishing source lists; and a description of the offeror's efforts to locate small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns and award subcontracts to them. The records shall include at least the following (on a plant-wide or company-wide basis, unless otherwise indicated):
(i) Source lists (e.g., SAM), guides, and other data that identify small business, veteranowned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns. (ii) Organizations contacted in an attempt to locate sources that are small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, or women-owned small business concerns.
(iii) Records on each subcontract solicitation resulting in an award of more than the simplified acquisition threshold, as defined in FAR 2.101 on the date of subcontract award, indicating—
(A) Whether small business concerns were solicited and, if not, why not; (B) Whether veteran-owned small business concerns were solicited and, if not, why not; (C) Whether service-disabled veteran-owned small business concerns were solicited and, if not, why not;
(D) Whether HUBZone small business concerns were solicited and, if not, why not; (E) Whether small disadvantaged business concerns were solicited and, if not, why not; (F) Whether women-owned small business concerns were solicited and, if not, why not; and
(G) If applicable, the reason award was not made to a small business concern. (iv) Records of any outreach efforts to contact—
(A) Trade associations;
(B) Business development organizations;
(C) Conferences and trade fairs to locate small, HUBZone small, small disadvantaged, service-disabled veteran-owned, and women-owned small business sources; and
(D) Veterans service organizations.
(v) Records of internal guidance and encouragement provided to buyers through— (A) Workshops, seminars, training, etc.; and
(B) Monitoring performance to evaluate compliance with the program's requirements. (vi) On a contract-by-contract basis, records to support award data submitted by the offeror to the Government, including the name, address, and business size of each subcontractor.
Contractors having commercial plans need not comply with this requirement. (12) Assurances that the Offeror will make a good faith effort to acquire articles, equipment, supplies, services, or materials, or obtain the performance of construction work from the small business concerns that it used in preparing the bid or proposal, in the same or greater scope, amount, and quality used in preparing and submitting the bid or proposal. Responding to a request for a quote does not constitute use in preparing a bid or proposal. The Offeror used a small business concern in preparing the bid or proposal if—
(i) The Offeror identifies the small business concern as a subcontractor in the bid or proposal or associated small business subcontracting plan, to furnish certain supplies or perform a portion of the subcontract; or
(ii) The Offeror used the small business concern's pricing or cost information or technical expertise in preparing the bid or proposal, where there is written evidence of an intent or understanding that the small business concern will be awarded a subcontract for the related work if the Offeror is awarded the contract.
(13) Assurances that the Contractor will provide the Contracting Officer with a written explanation if the Contractor fails to acquire articles, equipment, supplies, services or materials or obtain the performance of construction work as described in (d)(12) of this clause. This written explanation must be submitted to the Contracting Officer within 30 days of contract completion.
(14) Assurances that the Contractor will not prohibit a subcontractor from discussing with the Contracting Officer any material matter pertaining to payment to or utilization of a subcontractor.
(15) Assurances that the offeror will pay its small business subcontractors on time and in accordance with the terms and conditions of the underlying subcontract, and notify the contracting officer when the prime contractor makes either a reduced or an untimely payment to a small business subcontractor (see 52.242–5). (e) In order to effectively implement this plan to the extent consistent with efficient contract performance, the Contractor shall perform the following functions:
(1) Assist small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns by arranging solicitations, time for the preparation of bids, quantities, specifications, and delivery schedules so as to facilitate the participation by such concerns.
Where the Contractor's lists of potential small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business subcontractors are excessively long, reasonable effort shall be made to give all such small business concerns an opportunity to compete over a period of time.
(2) Provide adequate and timely consideration of the potentialities of small business, veteranowned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns in all “make-or-buy” decisions.
(3) Counsel and discuss subcontracting opportunities with representatives of small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business firms. (4) Confirm that a subcontractor representing itself as a HUBZone small business concern is certified by SBA as a HUBZone small business concern by accessing SAM or by accessing the Dynamic Small Business Search (DSBS) at https://web.sba.gov/pronet/search/dsp_dsbs.cfm. (5) Provide notice to subcontractors concerning penalties and remedies for misrepresentations of business status as small, veteran-owned small business, HUBZone small, small disadvantaged, or women-owned small business for the purpose of obtaining a subcontract that is to be included as part or all of a goal contained in the Contractor's subcontracting plan.
(6) For all competitive subcontracts over the simplified acquisition threshold, as defined in FAR 2.101 on the date of subcontract award, in which a small business concern received a small business preference, upon determination of the successful subcontract offeror, prior to award of the subcontract the Contractor must inform each unsuccessful small business subcontract offeror in writing of the name and location of the apparent successful offeror and if the successful subcontract offeror is a small business, veteran-owned small
business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, or women-owned small business concern. (7) Assign each subcontract the NAICS code and corresponding size standard that best describes the principal purpose of the subcontract.
(f) A master subcontracting plan on a plant or division-wide basis that contains all the elements required by paragraph (d) of this clause, except goals, may be incorporated by reference as a part of the subcontracting plan required of the Offeror by this clause; provided— (1) The master subcontracting plan has been approved;
(2) The Offeror ensures that the master subcontracting plan is updated as necessary and provides copies of the approved master subcontracting plan, including evidence of its approval, to the Contracting Officer; and
(3) Goals and any deviations from the master subcontracting plan deemed necessary by the Contracting Officer to satisfy the requirements of this contract are set forth in the individual subcontracting plan.
(g) A commercial plan is the preferred type of subcontracting plan for contractors furnishing commercial products and commercial services. The commercial plan shall relate to the offeror's planned subcontracting generally, for both commercial and Government business, rather than solely to the Government contract. Once the Contractor's commercial plan has been approved, the Government will not require another subcontracting plan from the same Contractor while the plan remains in effect, as long as the product or service being provided by the Contractor continues to meet the definition of a commercial product or commercial service.
A Contractor with a commercial plan shall comply with the reporting requirements stated in paragraph (d)(10) of this clause by submitting one SSR in eSRS for all contracts covered by its commercial plan. A Contractor authorized to use a commercial subcontracting plan shall include in its subcontracting goals and in its SSR all indirect costs, with the exception of those such as the following: Employee salaries and benefits; payments for petty cash; depreciation; interest; income taxes; property taxes; lease payments; bank fees; fines, claims, and dues; original equipment manufacturer relationships during warranty periods (negotiated up front with the product); utilities and other services purchased from a municipality or an entity solely authorized by the municipality to provide those services in a particular geographical region; and philanthropic contributions. This report shall be acknowledged or rejected in eSRS by the Contracting Officer who approved the plan. This report shall be submitted within 30 days after the end of the Government's fiscal year.
(h) Prior compliance of the offeror with other such subcontracting plans under previous contracts will be considered by the Contracting Officer in determining the responsibility of the offeror for award of the contract.
(i) A contract may have no more than one subcontracting plan. When a contract modification exceeds the subcontracting plan threshold in FAR 19.702(a), or an option is exercised, the goals of the existing subcontracting plan shall be amended to reflect any new subcontracting opportunities. When the goals in a subcontracting plan are amended, these goal changes do not apply retroactively.
(j) Subcontracting plans are not required from subcontractors when the prime contract contains the clause at FAR 52.212–5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders— Commercial Products and Commercial Services, or when the subcontractor provides a commercial product or commercial service subject to the clause
at FAR 52.244–6, Subcontracts for Commercial Products and Commercial Services, under a prime contract.
(k) The failure of the Contractor or subcontractor to comply in good faith with (1) the clause of this contract entitled “Utilization Of Small Business Concerns,” or (2) an approved plan required by this clause, shall be a material breach of the contract and may be considered in any past performance evaluation of the Contractor.
(l) The Contractor shall submit ISRs and SSRs using the web-based eSRS at http://www.esrs.gov. Purchases from a corporation, company, or subdivision that is an affiliate of the Contractor or subcontractor are not included in these reports. Subcontract awards by affiliates shall be treated as subcontract awards by the Contractor. Subcontract award data reported by the Contractor and subcontractors shall be limited to awards made to their immediate next-tier subcontractors. Credit cannot be taken for awards made to lower tier subcontractors, unless the Contractor or subcontractor has been designated to receive a small business or small disadvantaged business credit from an ANC or Indian tribe. Only subcontracts involving performance in the United States or its outlying areas should be included in these reports with the exception of subcontracts under a contract awarded by the State Department or any other agency that has statutory or regulatory authority to require subcontracting plans for subcontracts performed outside the United States and its outlying areas.
(1) ISR. This report is not required for commercial plans. The report is required for each contract containing an individual subcontracting plan.
(i) The report shall be submitted semi-annually during contract performance for the periods ending March 31 and September 30. A report is also required for each contract within 30 days of contract completion. Reports are due 30 days after the close of each reporting period, unless otherwise directed by the Contracting Officer. Reports are required when due, regardless of whether there has been any subcontracting activity since the inception of the contract or the previous reporting period. When the Contracting Officer rejects an ISR, the Contractor shall submit a corrected report within 30 days of receiving the notice of ISR rejection.
(ii)
(A) When a subcontracting plan contains separate goals for the basic contract and each option, as prescribed by FAR 19.704(c), the dollar goal inserted on this report shall be the sum of the base period through the current option; for example, for a report submitted after the second option is exercised, the dollar goal would be the sum of the goals for the basic contract, the first option, and the second option. (B) If a subcontracting plan has been added to the contract pursuant to 19.702(a)(1)(iii) or 19.301–2(e), the Contractor's achievements must be reported in the ISR on a cumulative basis from the date of incorporation of the subcontracting plan into the contract.
(iii) When a subcontracting plan includes indirect costs in the goals, these costs must be included in this report.
(iv) The authority to acknowledge receipt or reject the ISR resides— (A) In the case of the prime Contractor, with the Contracting Officer; and
(B) In the case of a subcontract with a subcontracting plan, with the entity that awarded the subcontract.
(2) SSR.
(i) Reports submitted under individual subcontracting plans. (A) This report encompasses all subcontracting under prime contracts and subcontracts with an executive agency, regardless of the dollar value of the subcontracts. This report also includes indirect costs on a prorated basis when the indirect costs are excluded from the subcontracting goals. (B) The report may be submitted on a corporate, company or subdivision (e.g. plant or division operating as a separate profit center) basis, unless otherwise directed by the agency.
(C) If the Contractor or a subcontractor is performing work for more than one executive agency, a separate report shall be submitted to each executive agency covering only that agency's contracts, provided at least one of that agency's contracts is over the applicable threshold specified in FAR 19.702(a), and the contract contains a subcontracting plan. For DoD, a consolidated report shall be submitted for all contracts awarded by military departments/agencies and/or subcontracts awarded by DoD prime contractors.
(D) The report shall be submitted annually by October 30 for the twelve month period ending September 30. When a Contracting Officer rejects an SSR, the Contractor shall submit a revised report within 30 days of receiving the notice of SSR rejection. (E) Subcontract awards that are related to work for more than one executive agency shall be appropriately allocated.
(F) The authority to acknowledge or reject SSRs in eSRS, including SSRs submitted by subcontractors with subcontracting plans, resides with the Government agency awarding the prime contracts unless stated otherwise in the contract.
(ii) Reports submitted under a commercial plan.
(A) The report shall include all subcontract awards under the commercial plan in effect during the Government's fiscal year and all indirect costs. (B) The report shall be submitted annually, within thirty days after the end of the Government's fiscal year.
(C) If a Contractor has a commercial plan and is performing work for more than one executive agency, the Contractor shall specify the percentage of dollars attributable to each agency.
(D) The authority to acknowledge or reject SSRs for commercial plans resides with the Contracting Officer who approved the commercial plan.
SMALL BUSINESS PARTICIPATION REQUIREMENTS
(Applies only to projects where CDBG funding is more than $250,000 and less than $750,000) I. It is the policy of the HUD that small businesses and women business enterprises shall have the maximum practicable opportunity to participate in the performance of HUD funded contracts.
II. The Contractor agrees to use his best efforts to carry out this policy in the award of his subcontracts to the fullest extent consistent with the efficient performance of this contract. Contractors may rely on written representations by subcontractors regarding their status as small businesses in lieu of an independent investigation.
III. A Small Business (SB) is a business, including its affiliates, which is independently owned and operated, not dominant in its field of operation in which it is bidding for government contracts, and qualified as a small business under the criteria in 13 CFR part 121. The size criterion entitled “Small Business Size Standards” is within this bid specification or request for proposal package for reference.
IV. Bidding Contractors shall make the maximum attempt feasible to achieve the County's objective for SB participation in CDBG funded contracts by performing the contract administration and compliance steps as follows:
A. Contract Administration: The contractor shall insert this clause in any subcontract involving CDBG funding of more than the simplified acquisition threshold, fixed at 41 U.S.C. 403 (11) (currently set at $250,000), monitor the subcontractor’s compliance, and maintain records of such compliance.
B. Contract Compliance: The Contractor shall evidence his/her understanding of and intent to comply with the County’s Planning and Natural Resources Department (PLNR) SB Plan by submitting, as an integral part of his/her bid, the following:
1. To verify attainment of County’s SB goals submit, with bid, Form SB-241 "SMALL BUSINESS
AND WOMAN BUSINESS ENTERPRISE UTILIZATION BID SUBMISSION TO THE COUNTY OF KERN"; and
2. When non-attainment occurs, submit, with bid, Form SB-242, "LIST OF NECESSARY AFFIRMATIVE STEPS TAKEN TO INVOLVE SMALL BUSINESSES (SBs)", including any additional documentation which provides evidence of the contractor’s efforts to attain the County’s SB goals, which is to include the following:
a. Statement of contractor’s efforts to enter into direct contact with SBs. b. Report of responses received from SBs, including proposals or bids and the contractor's response thereto.
c. Copies of correspondence sent to groups and individual SBs as notification of the contractor's intent to contract with SBs.
d. Report of specific contacts with small contractor's associations, small business development centers, or any other agency that may disseminate bid information to SBs. e. Description of specific efforts undertaken by prime contractors to encourage subcontractors to obtain SB participation.
The bid forms section within this bid specification or request for proposal package includes both SB Forms. Bidders are hereby notified that in the event they do not meet the County’s SB goal, their firm can still receive a CDBG funded contract if they performed all of the listed steps.
V. Bidders are hereby notified that the text of the entire SB Plan is available at PLNR upon request.
SMALL BUSINESS SUBCONTRACTING PROGRAM
(Applies only to projects where CDBG funding is more than $750,000) I. The Contractor agrees to establish and conduct a program which will enable small businesses to be considered fairly as subcontractors under this contract. The term "small business", as used in this clause, is defined at III. of the “Small Business Participation Requirements” contract clause. In this connection, the Contractor shall:
A. Designate a liaison officer who will administer the Contractor's Small Business Subcontracting Program.
B. Provide adequate and timely consideration of the potentialities of known small businesses in all "make-or-buy" decisions.
C. Assure small businesses will have an equitable opportunity to compete for subcontracts, particularly by arranging solicitations, time for the preparation of bids, quantities, specifications, and delivery schedules so as to facilitate the participation of small businesses.
D. Submit periodic reports of subcontracting to small businesses with respect to the records referred to in subparagraph (5), in such form and manner and at such time (not more often than quarterly) as Planning and Natural Resources Department (PLNR) SB Liaison Officer may prescribe.
E. Maintain records showing (i) procedures adopted to comply with the policies set forth in this clause, including the establishment of a source list of small businesses, (ii) awards to small businesses on the source list, and (iii) specific efforts to identify and award contracts to small businesses.
F. Cooperate with CEDD’s SB Liaison Officer in any studies and surveys; he/she may conduct, regarding small business procedures and practices of prime contractors.
II. The Contractor further agrees to insert, in any subcontract hereunder which may exceed $750,000, provisions which shall conform substantially to the language of this clause, including this paragraph II, and to notify the SB Liaison Officer of the names of such subcontractors.
EQUAL OPPORTUNITY FOR WORKERS WITH DISABILITIES
(48 CFR 52.222-36)
(June 2020)
(a) Equal opportunity clause. The Contractor shall abide by the requirements of the equal opportunity clause at 41 CFR 60-741.5(a), as of March 24, 2014. This clause prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by the Contractor to employ and advance in employment qualified individuals with disabilities. (b) Subcontracts. The Contractor shall include the terms of this clause in every subcontract or purchase order in excess of the threshold specified in Federal Acquisition Regulation (FAR) 22.1408(a) on the date of subcontract award, unless exempted by rules, regulations, or orders of the Secretary, so that such provisions will be binding upon each subcontractor or vendor. The Contractor shall act as specified by the Director, Office of Federal Contract Compliance Programs of the U.S. Department of Labor, to enforce the terms, including action for noncompliance. Such necessary changes in language may be made as shall be appropriate to identify properly the parties and their undertakings.
EQUAL OPPORTUNITY FOR
VETERANS
(48 CFR 52.222-35)
(JUNE 2020)
(a) Definitions. As used in this clause -
“Active duty wartime or campaign badge veteran,” “Armed Forces service medal veteran,” “disabled veteran,” “protected veteran,” “qualified disabled veteran,” and “recently separated veteran” have the meanings given at Federal Acquisition Regulation (FAR) 22.1301. (b) Equal opportunity clause. The Contractor shall abide by the requirements of the equal opportunity clause at 41 CFR 60-300.5(a), as of March 24, 2014. This clause prohibits discrimination against qualified protected veterans, and requires affirmative action by the Contractor to employ and advance in employment qualified protected veterans.
(c) Subcontracts. The Contractor shall insert the terms of this clause in subcontracts valued at or above the threshold specified in FAR 22.1303(a) on the date of subcontract award, unless exempted by rules, regulations, or orders of the Secretary of Labor. The Contractor shall act as specified by the Director, Office of Federal Contract Compliance Programs, to enforce the terms, including action for noncompliance. Such necessary changes in language may be made as shall be appropriate to identify properly the parties and their undertakings.
Employment Reports on
Veterans
(48 CFR 52.222-37)
(JUNE 2020)
(a) Definitions. As used in this clause, “active duty wartime or campaign badge veteran,” “Armed Forces service medal veteran,” “disabled veteran,” “protected veteran,” and “recently separated veteran,” have the meanings given in Federal Acquisition Regulation (FAR) 22.1301. (b) Unless the Contractor is a State or local government agency, the Contractor shall report at least annually, as required by the Secretary of Labor, on -
(1) The total number of employees in the contractor's workforce, by job category and hiring location, who are protected veterans (i.e., active duty wartime or campaign badge veterans, Armed Forces service medal veterans, disabled veterans, and recently separated veterans); (2) The total number of new employees hired during the period covered by the report, and of the total, the number of protected veterans (i.e., active duty wartime or campaign badge veterans, Armed Forces service medal veterans, disabled veterans, and recently separated veterans); and (3) The maximum number and minimum number of employees of the Contractor or subcontractor at each hiring location during the period covered by the report. (c) The Contractor shall report the above items by filing the VETS-4212 “Federal Contractor Veterans' Employment Report” (see “VETS-4212 Federal Contractor Reporting” and “Filing Your VETS-4212 Report” at http://www.dol.gov/vets/vets4212.htm).
(d) The Contractor shall file VETS-4212Reports no later than September 30 of each year. (e) The employment activity report required by paragraphs (b)(2) and (b)(3) of this clause shall reflect total new hires, and maximum and minimum number of employees, during the most recent 12-month period preceding the ending date selected for the report. Contractors may select an ending date -
(1) As of the end of any pay period between July 1 and August 31 of the year the report is due; or (2) As of December 31, if the Contractor has prior written approval from the Equal Employment Opportunity Commission to do so for purposes of submitting the Employer Information Report EEO-1 (Standard Form 100).
(f) The number of veterans reported must be based on data known to the contractor when completing the VETS-4212. The contractor's knowledge of veterans status may be obtained in a variety of ways, including an invitation to applicants to self-identify (in accordance with 41 CFR 60-300.42), voluntary self-disclosure by employees, or actual knowledge of veteran status by the contractor. This paragraph does not relieve an employer of liability for discrimination under 38 U.S.C. 4212. (g) The Contractor shall insert the terms of this clause in subcontracts valued at or above the threshold specified in FAR 22.1303(a) on the date of subcontract award, unless exempted by rules, regulations, or orders of the Secretary of Labor.
PUBLIC HEARINGS
CITY OF SHAFTER
CITY COUNCIL REPORT
MEETING DATE: February 20, 2024
FROM: Gabriel A. Gonzalez, City Manager
PREPARED BY: Rogelio Sanchez, Finance Director
SUBJECT: PUBLIC HEARING AND RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF SHAFTER ESTABLISHING UNMET TRANSIT
NEEDS FINDINGS FOR THE FISCAL YEAR 2024-2025
RECOMMENDATION
Council find the action is action is not defined as a “project” per Section 15378(b)(5) of the CEQA Guidelines; conduct a public hearing; and approve Resolution 2956, a Resolution of the City Council of the City of Shafter establishing Unmet Transit Needs findings for Fiscal Year 2024-2025.
BACKGROUND
The Transportation Development Act of 1971 (TDA), as amended, provides for the disbursement of funds from the Local Transportation Fund for various eligible transportation uses. The funds are distributed by the Kern Council of Governments (KernCOG) through its capacity as the Regional Transportation Planning Agency. An eligible claimant wishing to receive TDA funding through KernCOG must conduct an annual review of the transit needs of the individuals and groups in the community. This year’s submittal of the Public Hearing documentation is due to KernCOG by the end of April 2024.
Attached for Council consideration is Resolution 2956, a Resolution of the City Council of the City of Shafter Establishing Unmet Transit Needs Findings for Fiscal Year 2024- 2025. The public hearing on the matter has been properly advertised. Attached is a copy of the posted advertisement. Staff has not received any written comments on the matter. This public hearing must be conducted to receive oral comments concerning unmet transit needs which can be reasonably met and consider comments if any are received.
The transportation requests outside of the City limits are not within the jurisdiction of the City of Shafter and have been referred to KernCOG as the regional transportation planning authority.
ANALYSIS
None
FISCAL IMPACT
PUBLIC HEARING AND RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SHAFTER ESTABLISHING UNMET TRANSIT NEEDS FINDINGS FOR THE FISCAL YEAR 2024-2025 - 2 -
TDA Funds are annually budgeted and this funding source assists in the delivery of transit services in the community. There is no fiscal impact directly associated with holding the annual unmet transit needs public hearing. If unmet transit needs which can be reasonably met are identified, they will be taken into consideration during the 2024- 2025 budget development process.
CEQA ANALYSIS
The action is not defined as a “project” per Section 15378(b)(5) of the CEQA Guidelines because the action is establishing unmet transit needs findings for Fiscal Year 2024- 2025 and therefore, it is organizational and administrative activity that will not result in direct or indirect physical changes to the environment and not subject to CEQA.
APPROVED BY THE CITY ATTORNEY
No
ALTERNATIVES
None.
NEXT STEPS
KernCOG will take care of the next step.
ATTACHMENTS
1. Resolution 2956
2. Advertisement
RESOLUTION NO. 2956
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SHAFTER ESTABLISHING UNMET TRANSIT NEEDS FINDINGS FOR FISCAL YEAR 2024-2025 WHEREAS, the Transportation and Development Act Statues and Administrative Code for 1982 requires that before any allocation of Transportation Funds is made for a purpose not related to public transportation services that a public hearing be held to determine if there are unmet transit needs which can be reasonable met.
WHEREAS, pursuant to Public Utilities Code 99401.5, the City of Shafter is required to establish and define the terms “unmet transit needs” and “reasonable to meet.” WHEREAS, The City of Shafter has elected to use the same definition as the Kern Council of Governments (Kern COG) as adopted in Kern COG Resolution 90-04 which defines “unmet transit needs” and “reasonable to meet” as follows: “An unmet transit need exists if an individual of any age or physical condition is unable to transport himself or herself due to deficiencies in the existing transportation system. Excluded are 1) Those requests for minor operational improvements, and 2) Those improvements funded and scheduled for implementation in the following year. The term “reasonable to meet” is defined: A) Operational Feasibility. The requested improvement must be safe to operate, and there must be adequate roadways for transit vehicles; B) Duplication of Service. The proposed service shall not duplicate other transit services; C) Timing. The proposed services shall be in response to an existing, rather than a future need; and D) Service must meet the legally required farebox ratio (PUC Sections 99268.2, 99268.5 and CAC Section 6633.2, 663.5) with fares close to fares of similar service.” WHEREAS, a public hearing was held at a regular meeting of the City Council on February 20, 2024, for the purpose of receiving public testimony on Unmet Transit Needs and no oral or written comments establishing an unmet transit need which could be reasonably met were received.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Shafter as follows,
Section 1. The facts herein are true and correct.
Section 2. The City of Shafter adopts the definition of “unmet transit needs” and “reasonable to meet” as described above.
Section 3. after consideration of all available information, including that presented at the public hearing, that there are no unmet transit needs which can be reasonable met within the City of Shafter.
Shafter City Council Resolution 2956
February 20, 2024
PASSED AND ADOPTED THIS 20th DAY OF FEBRUARY, 2024.
__________________________
Chad Givens, Mayor
ATTEST:
__________________________
Yazmina Pallares, City Clerk
APPROVED AS TO FORM:
_______________________________
Marco A. Martinez, City Attorney
NOTICE OF PUBLIC HEARING
SHAFTER CITY COUNCIL
NOTICE IS HEREBY GIVEN that on February 20, 2024, at 6:00 p.m., the Shafter City Council will conduct a public hearing to consider the Unmet Transit Needs for Fiscal Year 2024/2025.
Said hearing is open to the public and all persons interested are invited to attend and be heard. Any person wishing to be heard, or wishing to present evidence either for or against the approval of said project is hereby notified and directed to either appear at the time and place aforesaid or send written comments to the City Clerk, City of Shafter, 336 Pacific Avenue, Shafter, CA 93263.
Should anyone challenge any proposed action which is the subject of a Public Hearing listed on this Notice, that person may be limited to raising those issues addressed at the Public Hearing, or in written correspondence delivered to the City Clerk at or prior to the Public Hearing.
You are encouraged to observe the City Council meeting live via YouTube https://www.youtube.com/user/CityofShafer/. If you wish to make a comment on a specific agenda item or public comment, please submit your comment via email by 5:00 P.M. on Tuesday, February 20, 2024 to the City Clerk at [email protected]. If you wish to make a written comment please submit your comment to the City Clerk, 336 Pacific Avenue, Shafter, CA 93263.
If you wish to make a comment during the live meeting by joining the conference via Zoom (include making live comments during the public comment period), callers must first register with the City Clerk at [email protected] before the meeting begins to receive instructions and the call-in number and code. All public comments are provided to the City Council and applicable Staff, for review and consideration by the Council prior to taking action on any matters listed on the agenda and are incorporated into the official record of the City Council meeting.
Yazmina Pallares, City Clerk
Dated: January 11, 2024
Publish Date: January 18, 2024