HomeMy WebLinkAboutA - 25-10-RFP EXHIBIT E - Contract Provisions for Non-Federal Entities
Procurement Division 1225 Main Street, Sebastian, FL 32958 Phone: 772-388-8231
(Rev. 12/2024) Page 1 of 20
CONTRACT PROVISIONS FOR NON -FEDERAL ENTITY CONTRACTS
UNDER FEDERAL AWARDS
(APPENDIX II TO 2 CFR PART 200)
All contracts made by a non-Federal entity under a Federal award must contain provisions covering the following,
as applicable. These provisions are required and apply under certain conditions when federal funds are expended
to make purchases from this solicitation by the City or for any contracts resulting from this procurement process.
1.1 TERMINATION FOR CAUSE AND CONVENIENCE
1.1.1. Remedies for violation or breach of contract: Remedies for violation or breach of contract are
addressed under General Terms and Conditions.
1.1.2. Termination for cause and convenience: Termination for cause and for convenience are addressed
under General Terms and Conditions.
1.2 EQUAL EMPLOYMENT OPPORTUNITY
1.2.1. Any contract that uses federal funds to pay for construction work is a “federally assisted
construction contract” and must include the equal opportunity clause found in 2 C.F.R. Part 200,
unless otherwise stated in 41 C.F.R. Part 60.7 .
1.2.2. The regulation at 41 C.F.R. § 60-1.4(b) requires, except as otherwise provided or exempted in 41
C.F.R. Part 60, the insertion of the following contract clause: “During the performance of this
contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment
because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor
will take affirmative action to ensure that applicants are employed, and that
employees are treated during employment without regard to their race, color, religion, sex, sexual
orientation, gender identity, or national origin. Such action shall include, but not be limited to the
following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff
or termination; rates of pay or other forms of compensation; and selection for training, including
apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants
for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the
contractor, state that all qualified applicants will receive consideration for employment without regard to
race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or
applicant for employment because such employee or applicant has inquired about, discussed, or disclosed
the compensation of the employee or applicant or another employee or applicant.
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This provision shall not apply to instances in which an employee who has access to the compensation
information of other employees or applicants as a part of such employee's essential job functions discloses
the compensation of such other employees or applicants to individuals who do not otherwise have access
to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance
of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer,
or is consistent with the contractor's legal duty to furnish information.
(4) The contractor will send to each labor union or representative of workers with which he has a collective
bargaining agreement or other contract or understanding, a notice to be provided advising the said labor
union or workers' representatives of the contractor's commitments under this section, and shall post copies
of the notice in conspicuous places available to employees and applicants for employment.
(5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and
of the rules, regulations, and relevant orders of the Secretary of Labor.
(6) The contractor will furnish all information and reports required by Executive Order 11246 of
September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto,
and will permit access to his books, records, and accounts by the administering agency and the Secretary
of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or
with any of the said rules, regulations, or orders, this contract may be canceled,
terminated, or suspended in whole or in part and the contractor may be declared ineligible for further
Government contracts or federally assisted construction contracts in accordance with procedures
authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed
and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation,
or order of the Secretary of Labor, or as otherwise provided by law.
(8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the
provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules,
regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246
of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The
contractor will take such action with respect to any subcontract or purchase order as the administering
agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation
with a subcontractor or vendor as a result of such direction by the administering agency, the contractor
may request the United States to enter into such litigation to protect the interests of the United States. The
applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own
employment practices when it participates in federally assisted construction work: Provided, that if the
applicant so participating is a state or local government, the above
equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such
government which does not participate in work on or under the contract. The applicant agrees that it will
assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the
compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations,
and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the
Procurement Division 1225 Main Street, Sebastian, FL 32958 Phone: 772-388-8231
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Secretary of Labor such information as they may require for the supervision of such compliance, and that
it will otherwise assist the administering agency in the discharge of the agency's primary responsibility
for securing compliance. The applicant further agrees that it will refrain from entering into any contract
or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor
debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted
construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for
violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the
administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In
addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering
agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this
grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant
under the program with respect to which the failure or refund occurred until satisfactory assurance of
future compliance has been received from such applicant; and refer the case to the Department of Justice
for appropriate legal proceedings.”
1.3 DAVIS-BACON ACT
1.3.1. This statute requires that contractors must pay wages to laborers and mechanics at a rate not less
than the prevailing wages specified in the Secretary of Labor’s wage determination. Additionally,
contractors are required to pay wages at least once per week.
1.3.2. The Davis-Bacon Act only applies to the Emergency Management Performance Grant Program,
Homeland Security Grant Program, Nonprofit Security Grant Program, Tribal Homeland Security
Grant Program, Port Security Grant Program, Transit Security Grant Program, Intercity Passenger
Rail Program, and Rehabilitation of High Hazard Potential Dams Program. Unless otherwise stated
in a program’s authorizing statute, it does not apply to other FEMA grant and cooperative
agreement programs, including the PA Program.
1.3.3. If the Davis-Bacon Act applies, a copy of the Department of Labor’s current prevailing wage
determination will be included in the solicitation. The contractor and subcontractors accept the
prevailing wage determination by submitting a proposal.
1.3.4. § 5.5 Contract provisions and related matters.
(a) Required contract clauses. The Agency head will cause or require the contracting officer to
require the contracting officer to insert in full, or (for contracts covered by the Federal Acquisition
Regulation (48 CFR chapter 1)) by reference, in any contract in excess of $2,000 which is entered
into for the actual construction, alteration and/or repair, including painting and decorating, of a
public building or public work, or building or work financed in whole or in part from Federal funds
or in accordance with guarantees of a Federal agency or financed from funds obtained by pledge
of any contract of a Federal agency to make a loan, grant or annual contribution (except where a
different meaning is expressly indicated), and which is subject to the labor standards provisions of
any of the laws referenced by § 5.1, the following clauses (or any modifications thereof to meet
the particular needs of the agency, Provided, That such modifications are first approved by the
Department of Labor):
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(1) Minimum wages —
(i) Wage rates and fringe benefits. All laborers and mechanics employed or working upon
the site of the work (or otherwise working in construction or development of the project
under a development statute), 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 basic hourly 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. As provided in
paragraphs (d) and (e) of this section, the appropriate wage determinations are effective by
operation of law even if they have not been attached to the contract. Contributions made or
costs reasonably anticipated for bona fide fringe benefits under the Davis-Bacon Act (40
U.S.C. 3141(2)(B)) on behalf of laborers or mechanics are considered wages paid to such
laborers or mechanics, subject to the provisions of paragraph (a)(1)(v) of this section; 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 must be paid the appropriate wage rate and fringe benefits on the
wage determination for the classification(s) of work actually performed, without regard to
skill, except as provided in paragraph (a)(4) of this section. 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 classifications and wage
rates conformed under paragraph (a)(1)(iii) of this section) and the Davis-Bacon poster
(WH-1321) must 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) Frequently recurring classifications.
(A) In addition to wage and fringe benefit rates that have been determined to be
prevailing under the procedures set forth in 29 CFR part 1, a wage determination
may contain, pursuant to § 1.3(f), wage and fringe benefit rates for classifications
of laborers and mechanics for which conformance requests are regularly submitted
pursuant to paragraph (a)(1)(iii) of this section, provided that:
(1) The work performed by the classification is not performed by a
classification in the wage determination for which a prevailing wage rate
has been determined;
(2) The classification is used in the area by the construction industry; and
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(3) The wage rate for the classification bears a reasonable relationship to
the prevailing wage rates contained in the wage determination.
(B) The Administrator will establish wage rates for such classifications in
accordance with paragraph (a)(1)(iii)(A)(3) of this section. Work performed in such
a classification must be paid at no less than the wage and fringe benefit rate listed
on the wage determination for such classification.
(iii) Conformance.
(A) The contracting officer must require that any class of laborers or mechanics,
including helpers, which is not listed in the wage determination and which is to be
employed under the contract be classified in conformance with the wage
determination. Conformance of an additional classification and wage rate and
fringe benefits is appropriate 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; and
(2) The classification is used 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) The conformance process may not be used to split, subdivide, or otherwise
avoid application of classifications listed in the wage determination.
(C) If the contractor and the laborers and mechanics to be employed in the
classification (if known), or their representatives, and the contracting officer agree
on the classification and wage rate (including the amount designated for fringe
benefits where appropriate), a report of the action taken will be sent by the
contracting officer by email to DBAconformance@dol.gov. The Administrator, or
an authorized representative, will approve, modify, or disapprove every additional
classification action within 30 days of receipt and so advise the contracting officer
or will notify the contracting officer within the 30-day period that additional time
is necessary.
(D) In the event the contractor, the laborers or mechanics to be employed in the
classification or their representatives, and the contracting officer do not agree on
the proposed classification and wage rate (including the amount designated for
fringe benefits, where appropriate), the contracting officer will, by email to
DBAconformance@dol.gov, refer the questions, including the views of all
interested parties and the recommendation of the contracting officer, to the
Administrator for determination. The Administrator, or an authorized
Procurement Division 1225 Main Street, Sebastian, FL 32958 Phone: 772-388-8231
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representative, will issue a determination within 30 days of receipt and so advise
the contracting officer or will notify the contracting officer within the 30-day period
that additional time is necessary.
(E) The contracting officer must promptly notify the contractor of the action taken
by the Wage and Hour Division under paragraphs (a)(1)(iii)(C) and (D) of this
section. The contractor must furnish a written copy of such determination to each
affected worker or it must be posted as a part of the wage determination. The wage
rate (including fringe benefits where appropriate) determined pursuant to paragraph
(a)(1)(iii)(C) or (D) of this section must 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.
(iv) Fringe benefits not expressed as an hourly rate. 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 may either pay the benefit as stated
in the wage determination or may pay another bona fide fringe benefit or an hourly cash
equivalent thereof.
(v) Unfunded plans. 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, in accordance with the criteria set forth in § 5.28, 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.
(vi) Interest. In the event of a failure to pay all or part of the wages required by the contract,
the contractor will be required to pay interest on any underpayment of wages.
(2) Withholding —
(i) Withholding requirements. The [write in name of Federal agency or the recipient of
Federal assistance] may, upon its own action, or must, upon written request of an
authorized representative of the Department of Labor, withhold or cause to be withheld
from the contractor so much of the accrued payments or advances as may be considered
necessary to satisfy the liabilities of the prime contractor or any subcontractor for the full
amount of wages and monetary relief, including interest, required by the clauses set forth
in paragraph (a) of this section for violations of this contract, or to satisfy any such
liabilities required by any other Federal contract, or federally assisted contract subject to
Davis-Bacon labor standards, that is held by the same prime contractor (as defined in §
5.2). The necessary funds may be withheld from the contractor under this contract, any
other Federal contract with the same prime contractor, or any other federally assisted
contract that is subject to Davis-Bacon labor standards requirements and is held by the
Procurement Division 1225 Main Street, Sebastian, FL 32958 Phone: 772-388-8231
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same prime contractor, regardless of whether the other contract was awarded or assisted by
the same agency, and such funds may be used to satisfy the contractor liability for which
the funds were withheld. In the event of a contractor's failure to pay any laborer or
mechanic, including any apprentice or helper working on the site of the work (or otherwise
working in construction or development of the project under a development statute) all or
part of the wages required by the contract, or upon the contractor's failure to submit the
required records as discussed in paragraph (a)(3)(iv) of this section, the [Agency] may on
its own initiative and after written notice to the contractor, sponsor, applicant, owner, or
other entity, as the case may be, 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.
(ii) Priority to withheld funds. The Department has priority to funds withheld or to be
withheld in accordance with paragraph (a)(2)(i) or (b)(3)(i) of this section, or both, over
claims to those funds by:
(A) A contractor's surety(ies), including without limitation performance bond
sureties and payment bond sureties;
(B) A contracting agency for its reprocurement costs;
(C) A trustee(s) (either a court-appointed trustee or a U.S. trustee, or both) in
bankruptcy of a contractor, or a contractor's bankruptcy estate;
(D) A contractor's assignee(s);
(E) A contractor's successor(s); or
(F) A claim asserted under the Prompt Payment Act, 31 U.S.C. 3901-3907.
(3) Records and certified payrolls —
(i) Basic record requirements —
(A) Length of record retention. All regular payrolls and other basic records must be
maintained by the contractor and any subcontractor during the course of the work
and preserved for all laborers and mechanics working at the site of the work (or
otherwise working in construction or development of the project under a
development statute) for a period of at least 3 years after all the work on the prime
contract is completed.
(B) Information required. Such records must contain the name; Social Security
number; last known address, telephone number, and email address of each such
worker; each worker's correct classification(s) of work actually performed; hourly
rates of wages paid (including rates of contributions or costs anticipated for bona
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fide fringe benefits or cash equivalents thereof of the types described in 40 U.S.C.
3141(2)(B) of the Davis-Bacon Act); daily and weekly number of hours actually
worked in total and on each covered contract; deductions made; and actual wages
paid.
(C) Additional records relating to fringe benefits. Whenever the Secretary of Labor
has found under paragraph (a)(1)(v) of this section that the wages of any laborer or
mechanic include the amount of any costs reasonably anticipated in providing
benefits under a plan or program described in 40 U.S.C. 3141(2)(B) of the Davis-
Bacon Act, the contractor must 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.
(D) Additional records relating to apprenticeship. Contractors with apprentices
working under approved programs must maintain written evidence of the
registration of apprenticeship programs, the registration of the apprentices, and the
ratios and wage rates prescribed in the applicable programs.
(ii) Certified payroll requirements —
(A) Frequency and method of submission. The contractor or subcontractor must
submit weekly, for each week in which any DBA- or Related Acts-covered work is
performed, certified payrolls to the [write in name of appropriate Federal agency] if
the agency is a party to the contract, but if the agency is not such a party, the
contractor will submit the certified payrolls to the applicant, sponsor, owner, or other
entity, as the case may be, that maintains such records, for transmission to the [write
in name of agency]. The prime contractor is responsible for the submission of all
certified payrolls by all subcontractors. A contracting agency or prime contractor
may permit or require contractors to submit certified payrolls through an electronic
system, as long as the electronic system requires a legally valid electronic signature;
the system allows the contractor, the contracting agency, and the Department of
Labor to access the certified payrolls upon request for at least 3 years after the work
on the prime contract has been completed; and the contracting agency or prime
contractor permits other methods of submission in situations where the contractor is
unable or limited in its ability to use or access the electronic system.
(B) Information required. The certified payrolls submitted must set out accurately
and completely all of the information required to be maintained under paragraph
(a)(3)(i)(B) of this section, except that full Social Security numbers and last known
addresses, telephone numbers, and email addresses must not be included on weekly
transmittals. Instead, the certified payrolls need only include an individually
identifying number for each worker (e.g., the last four digits of the worker's Social
Security number). The required weekly certified payroll information may be
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submitted using Optional Form WH-347 or in any other format desired. Optional
Form WH-347 is available for this purpose from the Wage and Hour Division
website at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/wh347/.pdf or
its successor website. It is not a violation of this section for a prime contractor to
require a subcontractor to provide full Social Security numbers and last known
addresses, telephone numbers, and email addresses to the prime contractor for its
own records, without weekly submission by the subcontractor to the sponsoring
government agency (or the applicant, sponsor, owner, or other entity, as the case
may be, that maintains such records).
(C) Statement of Compliance. Each certified payroll submitted must be
accompanied by a “Statement of Compliance,” signed by the contractor or
subcontractor, or the contractor's or subcontractor's agent who pays or supervises
the payment of the persons working on the contract, and must certify the following:
(1) That the certified payroll for the payroll period contains the information
required to be provided under paragraph (a)(3)(ii) of this section, the
appropriate information and basic records are being maintained under
paragraph (a)(3)(i) of this section, and such information and records are
correct and complete;
(2) That each laborer or mechanic (including each helper and apprentice)
working 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; and
(3) That each laborer or mechanic has been paid not less than the applicable
wage rates and fringe benefits or cash equivalents for the classification(s)
of work actually performed, as specified in the applicable wage
determination incorporated into the contract.
(D) Use of Optional Form WH-347. The weekly submission of a properly executed
certification set forth on the reverse side of Optional Form WH-347 will satisfy the
requirement for submission of the “Statement of Compliance” required by paragraph
(a)(3)(ii)(C) of this section.
(E) Signature. The signature by the contractor, subcontractor, or the contractor's or
subcontractor's agent must be an original handwritten signature or a legally valid
electronic signature.
(F) Falsification. The falsification of any of the above certifications may subject the
contractor or subcontractor to civil or criminal prosecution under 18 U.S.C. 1001
and 31 U.S.C. 3729.
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(G) Length of certified payroll retention. The contractor or subcontractor must
preserve all certified payrolls during the course of the work and for a period of 3
years after all the work on the prime contract is completed.
(iii) Contracts, subcontracts, and related documents. The contractor or subcontractor must
maintain this contract or subcontract and related documents including, without limitation,
bids, proposals, amendments, modifications, and extensions. The contractor or
subcontractor must preserve these contracts, subcontracts, and related documents during the
course of the work and for a period of 3 years after all the work on the prime contract is
completed.
(iv) Required disclosures and access —
(A) Required record disclosures and access to workers. The contractor or
subcontractor must make the records required under paragraphs (a)(3)(i) through
(iii) of this section, and any other documents that the [write the name of the agency]
or the Department of Labor deems necessary to determine compliance with the labor
standards provisions of any of the applicable statutes referenced by § 5.1, available
for inspection, copying, or transcription by authorized representatives of the [write
the name of the agency] or the Department of Labor, and must permit such
representatives to interview workers during working hours on the job.
(B) Sanctions for non-compliance with records and worker access requirements.
If the contractor or subcontractor fails to submit the required records or to make
them available, or refuses to permit worker interviews during working hours on the
job, the Federal agency may, after written notice to the contractor, sponsor,
applicant, owner, or other entity, as the case may be, that maintains such records or
that employs such workers, 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,
or to permit worker interviews during working hours on the job, may be grounds for
debarment action pursuant to § 5.12. In addition, any contractor or other person that
fails to submit the required records or make those records available to WHD within
the time WHD requests that the records be produced will be precluded from
introducing as evidence in an administrative proceeding under 29 CFR part 6 any of
the required records that were not provided or made available to WHD. WHD will
take into consideration a reasonable request from the contractor or person for an
extension of the time for submission of records. WHD will determine the
reasonableness of the request and may consider, among other things, the location of
the records and the volume of production.
(C) Required information disclosures. Contractors and subcontractors must
maintain the full Social Security number and last known address, telephone number,
and email address of each covered worker, and must provide them upon request to
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the [write in name of appropriate Federal agency] if the agency is a party to the
contract, or to the Wage and Hour Division of the Department of Labor. If the
Federal agency is not such a party to the contract, the contractor, subcontractor, or
both, must, upon request, provide the full Social Security number and last known
address, telephone number, and email address of each covered worker to the
applicant, sponsor, owner, or other entity, as the case may be, that maintains such
records, for transmission to the [write in name of agency], the contractor, or the
Wage and Hour Division of the Department of Labor for purposes of an investigation
or other compliance action.
(4) Apprentices and equal employment opportunity —
(i) Apprentices —
(A) Rate of pay. Apprentices will be permitted to work at less than the predetermined
rate for the work they perform when they are employed pursuant to and individually
registered in a bona fide apprenticeship program registered with the U.S.
Department of Labor, Employment and Training Administration, Office of
Apprenticeship (OA), or with a State Apprenticeship Agency recognized by the OA.
A person who is not individually registered in the program, but who has been
certified by the OA or a State Apprenticeship Agency (where appropriate) to be
eligible for probationary employment as an apprentice, will be permitted to work at
less than the predetermined rate for the work they perform in the first 90 days of
probationary employment as an apprentice in such a program. In the event the OA
or a State Apprenticeship Agency recognized by the OA withdraws approval of an
apprenticeship program, the contractor will no longer be permitted to use apprentices
at less than the applicable predetermined rate for the work performed until an
acceptable program is approved.
(B) Fringe benefits. Apprentices must 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 must be paid in accordance with that
determination.
(C) Apprenticeship ratio. The allowable ratio of apprentices to journeyworkers on
the job site in any craft classification must not be greater than the ratio permitted to
the contractor as to the entire work force under the registered program or the ratio
applicable to the locality of the project pursuant to paragraph (a)(4)(i)(D) of this
section. Any worker listed on a payroll at an apprentice wage rate, who is not
registered or otherwise employed as stated in paragraph (a)(4)(i)(A) of this section,
must be paid not less than the applicable wage rate on the wage determination for
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the classification of work actually performed. In addition, any apprentice performing
work on the job site in excess of the ratio permitted under this section must be paid
not less than the applicable wage rate on the wage determination for the work
actually performed.
(D) Reciprocity of ratios and wage rates. Where a contractor is performing
construction on a project in a locality other than the locality in which its program is
registered, the ratios and wage rates (expressed in percentages of the
journeyworker's hourly rate) applicable within the locality in which the construction
is being performed must be observed. If there is no applicable ratio or wage rate for
the locality of the project, the ratio and wage rate specified in the contractor's
registered program must be observed.
(ii) Equal employment opportunity. The use of apprentices and journeyworkers under this
part must 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 must insert in any subcontracts the clauses
contained in paragraphs (a)(1) through (11) of this section, along with the applicable wage
determination(s) and such other clauses or contract modifications as the [write in the name of the
Federal agency] may by appropriate instructions require, and a clause requiring the subcontractors
to include these clauses and wage determination(s) in any lower tier subcontracts. The prime
contractor is responsible for the compliance by any subcontractor or lower tier subcontractor with
all the contract clauses in this section. In the event of any violations of these clauses, the prime
contractor and any subcontractor(s) responsible will be liable for any unpaid wages and monetary
relief, including interest from the date of the underpayment or loss, due to any workers of lower-
tier subcontractors, and may be subject to debarment, as appropriate.
(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 Department of Labor set forth in 29
CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the
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contractor (or any of its subcontractors) and the contracting agency, 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 any person or
firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded
Government contracts by virtue of 40 U.S.C. 3144(b) or § 5.12(a).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award
of a Government contract by virtue of 40 U.S.C. 3144(b) or § 5.12(a).
(iii) The penalty for making false statements is prescribed in the U.S. Code, Title 18 Crimes
and Criminal Procedure, 18 U.S.C. 1001.
1.4 COMPLIANCE WITH THE COPELAND ‘ANTI-KICKBACK’ ACT
1.4.1. Compliance with the Copeland “Anti-Kickback” Act for all contracts subject to the Davis-Bacon
Act
1.4.2. Contractor. The contractor shall comply with 18 U.S.C. § 874, 40 U.S.C. § 3145, and the
requirements of 29 C.F.R. pt. 3 as may be applicable, which are incorporated by reference into this
contract.
1.4.3. Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clause above and
such other clauses as the Federal awarding agency may by appropriate instructions require, 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 of these contract clauses.
1.4.4. Breach. A breach of the contract clauses above may be grounds for termination of the contract,
and for debarment as a contractor and subcontractor as provided in 29 CFR § 5.12."
1.5 COMPLIANCE WITH THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT.
1.5.1. This required contract provision applies to all procurements over $100,000 that involve the
employment of mechanics, laborers, and construction work.36 These requirements do not apply to
the purchase of supplies or materials or articles ordinarily available on the open market, or
contracts for transportation or transmission of intelligence.
1.5.2. For the required contract provision, the language from 29 C.F.R. § 5.5(b)(1)-(4) is provided here
for ease of reference:
(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
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permit any such laborer or mechanic in any workweek in which he or she is employed on such
work to work in excess of forty hours in such workweek unless such laborer or mechanic receives
compensation at a rate not less than one and one-half times the basic rate of pay for all hours
worked in excess of forty hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the
clause set forth in paragraph (b)(1) of this section the contractor and any subcontractor responsible
therefor shall be liable for the unpaid wages. 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 paragraph (b)(1) of this section, in the sum
of $27 for each calendar day on which such individual was required or permitted to work in excess
of the standard workweek of forty hours without payment of the overtime wages required by the
clause set forth in paragraph (b)(1) of this section.
(3) Withholding for unpaid wages and liquidated damages. The (insert name of grant recipient or
subrecipient) shall upon its own action or upon written request of an authorized representative of
the 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 otherfederal
contract with the same prime contractor, 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
paragraph (b)(2) of this section.
(4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set
forth in paragraph (b)(1) through (4) of this section and also a clause requiring thesubcontractors
to include these clauses in any lower tier subcontracts. The prime contractorshall be responsible
for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in
paragraphs (b)(1) through (4) of this section.”
1.6 RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT
1.6.1. Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the
definition of “funding agreement” under 37 CFR § 401.2 (a) and the recipient or subrecipient
wishes to enter into a contract with a small business firm or nonprofit organization regarding the
substitution of parties, assignment or performance of experimental, developmental, or research
work under that “funding agreement,” the recipient or subrecipient must comply with the
requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and
Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and
any implementing regulations issued by the awarding agency.
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1.7 CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT
1.7.1. “Clean Air Act”
The contractor agrees to comply with all applicable standards, orders or regulations issued
pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq. The contractor agrees to report
each violation to the (insert name of non-federal entity entering into the contract) and understands
and agrees that the (insert name of the non-federal entity entering into the contract) will, in turn,
report each violation as required to assure notification to the Federal Emergency Management
Agency (FEMA), and the appropriate Environmental Protection Agency Regional Office.
The contractor agrees to include these requirements in each subcontract exceeding $150,000
financed in whole or in part with federal assistance provided by FEMA.
1.7.2. “Federal Water Pollution Control Act”
The contractor agrees to comply with all applicable standards, orders, or regulations issued
pursuant to the federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq. The
contractor agrees to report each violation to the (insert name of the non-federal entity entering into
the contract) and understands and agrees that the (insert name of the non-federal entity entering
into the contract) will, in turn, report each violation as required to assure notification to the (insert
name of the pass-through entity, if applicable), Federal Emergency Management Agency (FEMA),
and the appropriate Environmental Protection Agency Regional Office.
The contractor agrees to include these requirements in each subcontract exceeding $150,000
financed in whole or in part with federal assistance provided by FEMA.”
1.8 DEBARMENT AND SUSPENSION:
1.8.1. The debarment and suspension clause is required for all contracts and subcontracts for $25,000 or
more, all contracts that require the consent of an official of a federal agency, and all contracts for
federally required audit services
1.8.2. This contract is a covered transaction for purposes of 2 C.F.R. Part 180 and 2 C.F.R. Part 3000.
As such, the contractor is required to verify that none of the contractor’s principals (defined at 2
C.F.R. § 180.995) or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R.
§ 180.940) or disqualified (defined at 2 C.F.R. § 180.935). The contractor must comply with 2
C.F.R. Part 180, subpart C and 2 C.F.R. Part 3000, subpart C, and must include a requirement to
comply with these regulations in any lower tier covered transaction it enters into. This certification
is a material representation of fact relied upon by (insert name of recipient/subrecipient/applicant).
If it is later determined that the contractor did not comply with 2 C.F.R. Part 180, subpart C and 2
C.F.R. Part 3000, subpart C, in addition to remedies available to (insert name of
recipient/subrecipient/applicant), the federal government may pursue available remedies,
including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply
with the requirements of 2 C.F.R. Part 180, subpart C and 2 C.F.R. Part 3000, subpart C while
this offer is valid and throughout the period of any contract that may arise from this offer. The
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bidder or proposer further agrees to include a provision requiring such compliance in its lower tier
covered transactions.”
1.9 BYRD ANTI-LOBBYING AMENDMENT:
1.9.1. The Byrd Anti-Lobbying Amendment clause and certification are required for contracts of more
than $100,000, and for subcontracts of more than $100,000.
1.9.2. “Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352 (as amended) Contractors who apply or bid
for an award of more than $100,000 shall file the required certification. Each tier certifies to the
tier above that it will not and has not used federally appropriated funds to pay any person or
organization for influencing or attempting to influence an officer or employee of any a gency, a
Member of Congress, officer or employee of Congress, or an employee of a Member of Congress
in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C.
§ 1352. Each tier shall also disclose any lobbying with non-federal funds that takes place in
connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up
to the recipient who in turn will forward the certification(s) to the federal awarding agency.”
1.10 PROCUREMENT OF RECOVERED MATERIALS (2 CFR 200.322):
1.10.1. In the performance of this contract, the Contractor shall make maximum use of products containing
recovered materials that are EPA-designated items unless the product cannot be acquired –
Competitively within a timeframe providing for compliance with the contract performance schedule;
Meeting contract performance requirements; or
At a reasonable price.
Information about this requirement, along with the list of EPA-designated items, is available at EPA’s
Comprehensive Procurement Guidelines webpage:
https://www.epa.gov/smm/comprehensive- procurement-guideline-cpg-program.
The Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid
Waste Disposal Act.
1.11 PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE
EQUIPMENT OR SERVICES:
1.11.1. “Prohibition on Contracting for Covered Telecommunications Equipment or Services
(a) Definitions. As used in this clause, the terms backhaul; covered foreign country; covered
telecommunications equipment or services; interconnection arrangements; roaming;
substantial or essential component; and telecommunications equipment or services have the meaning as
defined in FEMA Policy 405-143-1, Prohibitions on Expending FEMA Award Funds for Covered
Telecommunications Equipment or Services (Interim), as used in this clause—
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(b) Prohibitions.
(1) Section 889(b) of the John S. McCain National Defense Authorization Act for Fiscal Year2019,
Pub. L. No. 115-232, and 2 C.F.R. § 200.216 prohibit the head of an executive agency on or after
Aug.13, 2020, from obligating or expending grant, cooperative agreement, loan, or loan guarantee
funds on certain telecommunications products or from certain entities for national security reasons.
(2) Unless an exception in paragraph (c) of this clause applies, the contractor and its subcontractors
may not use grant, cooperative agreement, loan, or loan guarantee funds from the Federal
Emergency Management Agency to:
(i) Procure or obtain any equipment, system, or service that uses covered
telecommunications equipment or services as a substantial or essential component of any
system, or as critical technology of any system;
(ii) Enter into, extend, or renew a contract to procure or obtain any equipment, system, or
service that uses covered telecommunications equipment or services as a substantial or
essential component of any system, or as critical technology of any system;
(iii) Enter into, extend, or renew contracts with entities that use covered
telecommunications equipment or services as a substantial or essential component of any
system, or as critical technology as part of any system; or
(iv) Provide, as part of its performance of this contract, subcontract, or other contractual
instrument, any equipment, system, or service that uses covered telecommunications
equipment or services as a substantial or essential component of any system, or as critical
technology as part of any system.
(c) Exceptions.
(1) This clause does not prohibit contractors from providing—
(i) A service that connects to the facilities of a third-party, such as backhaul, roaming,
or interconnection arrangements; or
(ii) Telecommunications equipment that cannot route or redirect user data traffic or
permit visibility into any user data or packets that such equipment transmits or
otherwise handles.
(2) By necessary implication and regulation, the prohibitions also do not apply to:
(i) Covered telecommunications equipment or services that:
i. Are not used as a substantial or essential component of any system; and
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ii. Are not used as critical technology of any system.
(ii) Other telecommunications equipment or services that are not considered covered
telecommunications equipment or services.
(d) Reporting requirement.
(1) In the event the contractor identifies covered telecommunications equipment or services
used as a substantial or essential component of any system, or as critical technology as
part of any system, during contract performance, or the contractor is notified of such by a
subcontractor at any tier or by any other source, the contractor shall report the
information in paragraph (d)(2) of this clause to the recipient or subrecipient, unless
elsewhere in this contract are established procedures for reporting the information.
(2) The Contractor shall report the following information pursuant to paragraph (d)(1) of this
clause:
(i) Within one business day from the date of such identification or notification: The contract
number; the order number(s), if applicable; supplier name; supplier unique entity identifier
(if known); supplier Commercial and Government Entity (CAGE) code (if known); brand;
model number (original equipment manufacturer number, manufacturer part number, or
wholesaler number); item description; and any readily available information about
mitigation actions undertaken or recommended.
(ii) Within 10 business days of submitting the information in paragraph (d)(2)(i) of this
clause: Any further available information about mitigation actions undertaken or
recommended. In addition, the contractor shall describe the efforts it undertook to
prevent use or submission of covered telecommunications equipment or services, and
any additional efforts that will be incorporated to prevent future use or submission of
covered telecommunications equipment or services.
(e) Subcontracts. The Contractor shall insert the substance of this clause, including this
paragraph (e), in all subcontracts and other contractual instruments.”
1.12 DOMESTIC PREFERENCES FOR PROCUREMENTS:
1.12.1. As appropriate, and to the extent consistent with law, the contractor should, to the greatest extent
practicable, provide a preference for the purchase, acquisition, or use of goods, products, or
materials produced in the United States. This includes, but is not limited to iron, aluminum, steel,
cement, and other manufactured products.
1.12.2. For purposes of this clause:
Produced in the United States means, for iron and steel products, that all manufacturing
processes, from the initial melting stage through the application of coatings, occurred in the United States.
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Manufactured products mean items and construction materials composed in whole or in part of non-
ferrous metals such as aluminum; plastics and po lymer-based products such as polyvinyl chloride pipe;
aggregates such as concrete; glass, including optical fiber; and lumber.
1.13 MINORITY BUSINESSES AND WOMEN’S BUSINESSES
1.13.1. As required by CFR Title 2, §200.321 (b)(6), Contractor must take the following affirmative steps
in the hiring of any subcontractors: i) Placing qualified small and minority businesses and women's
business enterprises on solicitation lists. ii) Assuring that small and minority businesses, and
women's business enterprises are solicited whenever they are potential sources. iii) Dividing total
requirements, when economically feasible, into smaller tasks or quantities to permit maximum
participation by small and minority businesses, and women's business enterprises. iv) Establishing
delivery schedules, where the requirement permits, which encourage participation by small and
minority businesses, and women's enterprises; and v) Using the services and assistance, as
appropriate, of such organizations as the Small Business Administration and the Minority Business
Development Agency of the Department of Commerce
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CONTRACT PROVISIONS FOR NON‐FEDERAL ENTITY CONTRACTS UNDER FEDERAL
AWARDS (FEDERAL PROGRAM REQUIREMENTS ‐ FEMA)
In addition to the contract provisions required under Appendix II to 2 CFR, Part 200, the following provisions are
required by the Federal Emergency Management Agency (“FEMA”) when federal funds are expended to make
purchases from this solicitation by the City or for any contracts resulting from this procurement process.
2.1 ACCESS TO RECORDS (34 CFR 80.36 (i)(10)): All vendors, contractors and subcontractors shall give
access to the City of Sebastian, the appropriate Federal agency, the Comptroller General of the United
States, or any of their duly authorized representative to any books, documents, papers, and records of the
vendor which is directly pertinent to this specific Bid for the purpose of making audit, examination,
excerpts, and transcriptions.
2.1.1. To the extent Contractor maintains information that is subject to a public record request, it shall
provide the public access to such records in accordance with, and subject to the applicable statutory
terms and fees. Failure to do so will be considered a material breach of the original Agreement
resulting in immediate termination with no penalty to City of Sebastian, and Contractor will
indemnify and hold the City of Sebastian harmless for any and all damages and expenses suffered
as a result of the material breach and contract termination.
2.2 DHS SEAL, LOGO, AND FLAGS: The Contractor shall not use the Department of Homeland Security
(“DHS”) seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without
specific FEMA preapproval.
2.3 COMPLIANCE WITH FEDERAL LAW, REGULATIONS, AND EXECUTIVE ORDERS: This is
an acknowledgment that FEMA financial assistance will be used to fund the contract only. The Contractor
will comply with all applicable federal laws, regulations, executive orders, FEMA policies, procedures,
and directives.
2.4 NO OBLIGATION BY FEDERAL GOVERNMENT: The Federal Government is not a party to this
contract and is not subject to any obligations or liabilities to the non‐Federal entity, contractor, or any
other party pertaining to any matter resulting from the contract.
2.5 PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS:
The Contractor acknowledges the 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and
Statements) applies to the Contractor’s actions pertaining to this contract.
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