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North Dakota Parks and Recreation Department

Recreation Division – 701-328-5357 – parkrec@nd.gov

Recreational Trail Program (RTP)

Program Manual

http://www.parkrec.nd.gov/recreation/grants/rtp/rtpoverview.html

Moving Ahead for Progress in the 21st Century (MAP-21)

Effective October 1, 2012 through September 30, 2014.

Revised 11/29/2013

Table of Contents

Introduction 3

General Information 3

Program Overview 3

Title VI 4

RTP Funding 4

Eligibility 4

“40-30-30” Requirement 5

Project Timeline 6

Eligible Projects/Expenses 6

Ineligible Projects/Expenses 7

Land Acquisitions and Easements 7

Control and Tenure 8

Application Process and Review 9

Technical Review 9

Recreational Trail Program Advisory Committee (RTPAC) 9

Pair-Based Scoring Process and Example 9

Environmental and Historical Requirements and Project Clearance 10

State Historic Preservation Office (SHPO) Requirements 11

Other Environmental Considerations 12

Project Expenditure and Reimbursement Process 12

Contributions and Expenses 12

Local Share 12

Federal Matching Share 13

Procurement 13

Reimbursement 15

Progress Reports 17

Amendments 17

Project Termination 18

Project Site Retention & Future Responsibilities 18

Signage Requirement 19

Attachments

A- Sample Online Application 20

B- FHWA 1273 Synopsis 33

C- FHWA Form 1273 34

D- Federal Register Rules and Regulations, 58

Vol. 75, No. 177, dated September 14, 2010, pages 55663-55676

E- Title VI Sub-recipient Assurances and Non-discrimination Provisions 67

North Dakota Parks and Recreation Department

Recreation Division – 701-328-5357 – parkrec@nd.gov

RECREATIONAL TRAIL PROGRAM

Program Manual

***NEW PROGRAM ITEMS IN THE MANUAL ARE HIGHLIGHTED IN YELLOW***

Introduction

The North Dakota Parks and Recreation Department (NDPRD) in cooperation with the North

Dakota Division Office of the Federal Highway Administration (FHWA) has prepared this manual

to answer questions relating to project application and management.

General Information

Program Overview

The Recreational Trails Program (RTP) is a federal-aid assistance program to help states provide

and maintain recreational trails for both motorized and non-motorized trail use. The program

provides funds for all kinds of recreational trail uses, such as pedestrian uses (hiking, running,

and wheelchair use), bicycling, in-line skating, equestrian use, cross-country skiing,

snowmobiling, canoe/kayak trails, off-road motorcycling, all-terrain vehicle riding, four-wheel

driving, or using other off-road motorized vehicles.

The Moving Ahead for Progress in the 21st Century Act (MAP-21) reauthorized the Recreational

Trails Program (RTP) through Federal fiscal years 2013 and 2014 as a set aside from the new

Transportation Alternatives Program. The RTP funds come from the Federal Highway Trust Fund,

and represent a portion of the motor fuel excise tax collected from non-highway recreational fuel

use: fuel used for off-highway recreation by snowmobiles, all-terrain vehicles, off-highway

motorcycles, and off-highway light trucks.

The U.S. Department of Transportation, Federal Highway Administration (USDOT/FHWA)

administers the RTP program. The Governor of the state of North Dakota has designated the

North Dakota Parks and Recreation Department (NDPRD) as the agency responsible for

administering apportionments made to the state. RTP funds represent a portion of the federal

gasoline tax attributed to recreation on non-gasoline tax supported roads. The federal

government prescribes many of the regulations governing this program.

NDPRD, along with the Recreational Trail Program Advisory Committee (RTPAC), intends that

RTP grant funding be used to enhance trail opportunities by achieving results that would not

otherwise be possible. RTP grants are for projects that are primarily recreational in nature,

rather than serving a more utilitarian transportation function. The following is a list of eligible

projects:

 New construction (first priority for RTP funding)

 Maintenance of existing trails (re-routes)

 Trail amenities

 Purchase and lease of recreational trail construction and maintenance equipment

 Land or easement acquisition

 Trail accessibility assessment

Title VI

Sponsors who are Title VI compliant may coordinate bidding and procurement on their own.

Sponsors must follow the original procurement process for reimbursement. All bidding,

procurement and construction must adhere to Title VI requirements. Additional information on

the Title VI Program is available on the North Dakota Parks and Recreation Department website

at: http://www.parkrec.nd.gov/information/department/attachments/title_6_program.pdf.

Sponsors who are not Title VI compliant will work with NDPRD during the bidding and

procurement process. Project reimbursement in this manner will require project

reimbursement (20%) from sponsor to NDPRD.

RTP Funding

The Recreation Trails Program funds up to 80% of eligible costs for trail projects. At the time of

application the project sponsor must have at least 20% of the total project cost available. The

local share may include tax sources (appropriations), bond issues or force account contributions.

The donated value of land, cash, labor, equipment and materials may also be used.

Individual grant awards are limited to a minimum of $10,000 and a maximum of $200,000.

NDPRD and the RTPAC reserve the right to change the minimum/maximum dollar amounts in

order to ensure the complete expenditure of RTP funds. A second cycle may be offered to

ensure total expenditure of funds.

Eligibility

(Please note equipment projects, only federal, state and municipal agencies qualify for funding;

a use agreement will need to be signed by the project sponsor). Grants may be awarded to any

of the following:

 Non-profit organizations - A qualified non-profit organization is one that meets the

following criteria:

o Registered with the State of North Dakota as a non-profit for a minimum of 5

years.

o Will name a successor at the time of any change in organizational status (for

example, dissolution). A qualified successor is any party that meets the eligibility

criteria to apply for RTP funds and is capable of complying with all RTP

responsibilities. NDPRD recommends, whenever possible, a government agency

be sought as a successor. A successor organization must agree, in writing, to

complete all RTP project responsibilities should the original organization’s status

change.

 Title VI of the Civil Rights Act of 1964 ensures that no person in the United States shall,

on the grounds of race, color, or national origin, be excluded from participation in, be

denied the benefits of, or be otherwise subjected to discrimination, including sex, age,

disability, low-income, or LEP discrimination, under any program or activity for which

the Recipient receives Federal financial assistance. The Civil Rights Restoration Act of

1987 clarified the original intent of Congress, with respect to Title VI and other Non-

discrimination requirements (The Age Discrimination Act of 1975, and Section 504 of the

Rehabilitation Act of 1973) by restoring the broad, institutional-wide scope and

coverage of these non-discrimination statutes and requirements to include all programs

and activities of the Recipient, so long as any portion of the program is Federally-

assisted.

 Municipal agencies (cities, towns, counties, school districts, etc.)

 State agencies (North Dakota Parks and Recreation Department, North Dakota Forest

Service, North Dakota Game and Fish).

 Federal government agencies (Bureau of Land Management, U.S. Forest Service, National

Park Service, etc.)

 Other government entities (regional governments, etc.)

Potential project sponsors with active or previously awarded grants through NDPRD must be in

full compliance with federal and state programs to be eligible for funding.

“40-30-30” Requirement

RTP Legislation (23 U.S.C. 206) requires that States use 40 percent of their funds in a fiscal year

for diverse recreational trail use; 30 percent for motorized recreation; and 30 percent for non-

motorized recreation. The diverse, motorized, and non-motorized percentages are minimum

requirements that must be met. A project for diverse motorized use (such as snowmobile and

off-road motorcycle use) may satisfy the 40 percent diverse use requirement and the 30 percent

motorized use requirement simultaneously. A project for diverse non-motorized use (such as

pedestrian and bicycle use) may satisfy the 40 percent diverse use requirement and the 30

percent non-motorized use requirement simultaneously.

To provide more flexibility in RTP project selection, FHWA established five categories to account

for the 40-30-30 requirements:

1) Non-motorized project for a single use: A project primarily intended to benefit only one

mode of non-motorized recreational trail use, such as pedestrian use only, water trails

(canoe/kayak), or equestrian use only. RTP projects serving various pedestrian uses (such

as walking, hiking, wheelchair use, running, bird-watching, nature interpretation,

backpacking, etc.) constitute a single use for the purposes of this category. A project

serving various non-motorized human-powered snow uses (such as skiing, snowshoeing,

etc.) constitutes single use for this category.

2) Non-motorized diverse use project: A project primarily intended to benefit more than one

mode of non-motorized recreational use such as: walking, bicycling, and skating; both

pedestrian and equestrian use; and pedestrian use in summer and cross-country ski use

in winter.

3) Diverse use project including both motorized and non-motorized uses: A project intended

to benefit both non-motorized recreational trail use and motorized recreational trail use.

This category includes projects where motorized use is permitted, but is not the

predominant beneficiary. This category includes RTP projects where motorized and non-

motorized uses are separated by season, such as equestrian use in summer and

snowmobile use in winter.

4) Motorized single use project: A project primarily intended to benefit only one mode of

motorized recreational use, such as snowmobile trail grooming. A project may be

classified in this category if the project also benefits some non-motorized uses (it is not

necessary to exclude non-motorized uses), but the primary intent must be for the benefit

of motorized use.

5) Motorized diverse use project: A project primarily intended to benefit more than one

mode of motorized recreational use, such as: motorcycle and ATV use; or ATV use in

summer and snowmobile use in winter. A project may be classified in this category if the

project also benefits some non-motorized uses (it is not necessary to exclude non-

motorized uses), but the primary intent must be for the benefit of motorized use.

Projects in categories 1 and 2 apply towards the 30 percent non-motorized use requirement.

Projects in categories 2, 3, and 5 apply towards the 40 percent diverse trail use requirement.

Projects in categories 4 and 5 apply towards the 30 percent motorized use requirement.

Project Timeline

When applying for project funding, the project sponsor must be ready to begin construction upon

grant approval. This requirement includes having all local match available and all project planning

complete. Once the project sponsors are notified of their project approval and funding level, they

have 18 months to complete the project.

Eligible Projects/Expenses

Projects will be ranked based on the categories below with construction of new recreation trails

being given the highest priority.

1. Construction of new recreation trails: For projects on federal land, the most important

requirement is that the federal agency land manager must approve of the project in

accordance with other applicable federal laws and regulations. This category may include

construction of new trail bridges, or providing appropriate signage along a trail.

2. Restoration of existing trails: Restoration may be interpreted broadly to include any kind

of non-deferred trail maintenance, restoration, rehabilitation, or relocation. This category

may include maintenance and restoration of trail bridges, or providing appropriate

signage along a trail.

3. Development and rehabilitation of trailside and trailhead facilities and trail linkages: This

may be interpreted broadly to include development or rehabilitation of any trailside and

trailhead facility. The definition of “rehabilitation” means extensive trail repair needed to

bring a facility up to standards suitable for public use due to natural disasters or acts of

nature. Trailside and trailhead facilities must have a direct relationship with a

recreational trail.

4. Purchase and lease of recreational trail construction and maintenance equipment:

Purchase and lease of any trail construction and maintenance equipment, provided the

equipment is used primarily to construct and maintain recreational trails. This provision

does not include purchase of equipment which may be used for purposes unrelated to

recreational trails. For example, a lawn mower purchased under this program must be

used primarily for trail and trailside maintenance, not to maintain open lawn areas or

sport fields. (Please note equipment projects, only federal, state and municipal agencies

qualify for funding; a use agreement will need to be signed by the project sponsor).

5. Acquisition: See the Land Acquisitions and Easements section below; please note, RTP

legislation prohibits condemnation of any kind of interest in property. Therefore,

acquisition of any kind of interest in property must be from a willing landowner or seller.

Ineligible Projects/Expenses

 Condemned Land as Matching Value: RTP legislation prohibits using RTP funds for

condemnation of any kind of interest in property. An RTP project may be located on land

condemned with funds from other sources. However, it is not permissible to use the value

of condemned land toward the match requirement for an RTP project.

 Feasibility Studies: Trail feasibility studies are not a use permitted in the RTP legislation.

The permissible uses relate to actual on-the- ground trail projects.

 Environmental Evaluation and Documentation: Projects intended solely for the purpose

of covering environmental evaluation and documentation costs are not permissible.

However, reasonable environmental evaluation and documentation costs, including costs

associated with environmental permits and approvals, may be included as part of an

approved project’s engineering costs. Costs incurred developing the environmental

evaluation, necessary permits, as well as engineering costs may not exceed 20% of the

total funded project cost.

 Law Enforcement: Routine law enforcement is not a use permitted in the RTP

legislation.

 Planning: Trail planning is not a permissible use of RTP funds.

 Sidewalks: RTP funds will not normally be used to provide paths or sidewalks along or

adjacent to public roads or streets, unless the path or sidewalk is needed to complete a

missing link between other recreational trails.

 Roads: RTP funds may not be used to improve roads for general passenger vehicle use.

 Overhead: The regular operating expenses such as rent, building upkeep, utilities and all

fixed costs associated with a business, agency or group.

 Indirect Costs: Only direct costs that can be identified specifically with a particular final

cost objective directly related to the trail project are eligible.

Land Acquisitions and Easements

 Acquisition Costs: The following land acquisition costs are allowable and eligible for

reimbursement under the Recreational Trails Program:

o The appraised fair market value of fee simple title or an easement for the use of

real property acquired by negotiated purchase.

o The purchase price for an easement or fee title to real property acquired below

appraised value.

o The donated land value (the difference between the purchase price and appraised

value) may be used as a match for federal funds to purchase that parcel of land,

purchase other pieces of property, or develop facilities.

o Similarly, lands for which 100% of the value is donated may only be used as the

organization’s share of a project to purchase other land or build facilities.

o Appraisal fees.

o Boundary surveys, title search, legal filling fees.

 Ineligible Costs: Costs ineligible for reimbursement in an acquisition project include:

o The purchase of real property to which the project sponsor became committed

prior to federal approval.

o Legal fees other than for filling and fines and penalties paid by the project sponsor.

o Incidental costs relating to real property acquisition and interests in real property

unless allowable under the Uniform Relocation Assistance and Real Property

Acquisition Policies Act.

o Taxes for which the local sponsor would not have been liable to pay.

o Damage judgments arising out of acquisition whether determined by judicial

decision, arbitration or otherwise.

 Easements: In some instances, the applicant will not be able to purchase the property

but can acquire an easement. An easement must be for a period of at least 25 years.

During the time period, the easement cannot be revoked at will by the landowner

unless the applicant or state is guilty of an infraction of the easement. The land must

still be retained in public trail use for the duration of the easement period even though

the easement has been revoked. Provisions stated in the easement cannot be

detrimental to the proposed recreational development.

A draft copy of the easement must accompany the application for acquisition and

development projects. If an easement has been or is to be executed prior to the

submission of a development project application, a draft copy of the easement should

be sent to the NDPRD for review. Advance approval of such agreements may help

ensure the eligibility of the site for funding. Negotiations for easements must follow

general negotiated land purchase regulations including the requirements of the

Uniform Relocation Assistance and Real Property Acquisition Policies Act.

Control and Tenure

Adequate control must be established by an applicant over any land (public or private) to be

improved/ developed with RTP grant funds, including documentation of the fee title, lease,

easement, or use agreement. Lease, easement and use agreement terms must be for a term no

less than 25 years.

The application must identify all outstanding rights or interests held by others on land upon which

the project is proposed. A signed letter explaining control and tenure must be submitted for all

projects not located on Federal Lands. The applicant will be required to submit a signed approval

from the official responsible for management of the project property.

Application Process and Review

The following information outlines the review process for each submitted application. A sample

application can be found at the end of this document (see Attachment A on page 20).

Metropolitan Planning Organizations

Project sponsors that fall into one of the Metropolitan Planning Organizations’ jurisdictions must

provide evidence that their project is in compliance with the MPO Long Range Transportation

Plan. These areas include Bismarck-Mandan, Grand Forks, and Fargo.

Technical Review

Once a potential sponsor submits an application, NDPRD staff will review the application for

completeness, eligibility, the sponsor’s current grant status, match, property ownership,

local/regional/federal approval, etc. Staff will forward eligible applications to the Recreational

Trails Program Advisory Committee (RTPAC) for further consideration.

Recreational Trail Program Advisory Committee (RTPAC)

RTPAC membership represents a broad range of motorized and non-motorized trail users and

associations. A total of nine committee members are appointed by the Director of the North

Dakota Parks and Recreation Department and must be recreational trail users and represent trail

interests (hiking, biking, horseback riding, paddling, OHV and snowmobile). Committee members

are appointed for 3-year terms. Upon completion of a 3-year term, NDPRD will advertise for

replacement of the committee member. If no eligible candidates are received, the existing

committee member will be given the option to renew their term. In North Dakota the committee

serves as the evaluation committee that reviews and prioritizes grant applications and

recommends projects for funding.

The project evaluation allows committee members to bring their knowledge of statewide and

local recreation patterns, resources, and needs into consideration. Reviewers may rank a project

based upon their evaluation of site suitability, fiscal consideration, commitment to long-term

operation and maintenance, superior design, superior leverage of funding and partnership, ADA

compliance, and project presentation, heritage and legacy context, regional issues, and the basic

intent of MAP-21.

For a current committee list, please visit:

http://www.parkrec.nd.gov/recreation/grants/rtp/attachments/rtpac_member_list.pdf.

Pair-Based Scoring Process and Example

Pair-based scoring is a ranking methodology in which each project is individually ranked against

each other project, one project at a time. In the example below, 7 applications were received

and ranked. The numbers 1-7 correspond with the assigned application numbers. Projects are

then compared starting with project number 1 vs. project number 2. The better of the two

projects is then marked on the score sheet. Then project 1 is compared to project 3 and again

the better project is marked on the score sheet. This process is repeated until project 1 has

been compared to all other applications. Project 2 is then compared against all other projects

excluding project 1, then project 3 against all others excluding 1 and 2, etc., until each has been

compared to all other projects and project preference has been established. Points are assigned

based on the number of times a project is chosen.

Project #

Total Times Chosen

Pair Ranking

1 vs. 2, 1 vs.3, 1 vs. 4, 1 vs. 5, 1 vs. 6, 1 vs. 7

2 vs. 3, 2 vs. 4, 2 vs. 5, 2 vs. 6, 2 vs. 7

3 vs. 4, 3 vs. 5, 3 vs. 6, 3 vs. 7

4 vs. 5, 4 vs. 6, 4 vs. 7

5 vs. 6, 5 vs. 7

6 vs. 7

____21_____ Total Points - The sum of all points should be 21.

In this example project number 4 was selected the most times and is ranked #1, followed by

project 5 and so on. Once the projects have been ranked by all committee members, the scores

will be averaged and the highest ranking projects will be submitted for environmental and

historical review and clearance.

Environmental and Historical Requirements and Project Clearance

Documentation of compliance with the National Environmental Policy Act (NEPA) and other

Federal environmental laws, regulations, and Executive Orders must be provided as part of an

authorized project under the RTP. FHWA procedures in 23 CFR 771 apply to the RTP. Each project

must be evaluated to determine the environmental impacts; however, most RTP projects will

qualify as Categorical Exclusions (CE) under NEPA (23 CFR 771.117) if they meet the following

requirements:

 Does not have significant impacts to planned growth or land use for the area;

 Does not require the relocation of a significant number of people;

 Do not have a significant impact on any natural, cultural, recreational, historic or other

resource;

 Does not involve significant air, noise, or water quality impacts;

 Does not have significant impacts on travel patterns;

 Does not otherwise have any significant environmental impacts.

The following project types are CE by definition and do not require further review:

 Rehabilitation contained within the footprints of existing trails and trailhead facilities;

 Re-grading within the footprints of existing trails or trail parking areas;

 Striping and/or re-striping of existing facilities;

 Replacement, renovation, or rehabilitation of existing signs, kiosks, or markers;

 Alterations to existing facilities in order to make them accessible to the elderly and

handicapped persons;

 Repair or replacement of existing fencing, guardrails, retaining walls, or berms within

existing facilities, including areas needed for construction and staging.

After the Recreational Trails Program Advisory Committee (RTPAC) reviews and ranks the

applications, the selected projects will be sent to the following agencies to meet the

environmental review requirements:

 North Dakota Department of Health

 North Dakota Department of Transportation

 North Dakota Game and Fish

 North Dakota Parks and Recreation Department

 North Dakota State Historical Society

 North Dakota Water Commission

 US Army Corps of Engineers

 US Department of Agriculture

 US Fish and Wildlife Service

All projects must be approved by these agencies before funding can be awarded.

State Historic Preservation Office (SHPO) Requirements

The SHPO will be contacted to assure that the project proposal complies with State laws

regarding archaeology on lands or historic properties.

 Any project element calling for alteration, rehabilitation, renovation, or demolition of a

historically, culturally, or architecturally significant property or property contributing to

the integrity of a cohesive older neighborhood or historic district needs to be cleared by

the SHPO on a case-by-case basis.

 Photographs of impacted properties 45 years of age or older need to be submitted along

with a narrative describing the project, including plans and specifications, as appropriate.

Any available historical information on the property should also be submitted.

 It is illegal to disturb an archaeological site or to remove an archaeological site or to

remove an archaeological object from public or private lands unless that activity is

authorized under a permit.

 If human remains are found during an excavation, the local law enforcement office must

be contacted to determine if they are Native American or are evidence of a crime scene.

If other archaeological materials are found during a ground disturbing activity, contact the SHPO

at 701-328-2666. The SHPO can check to see if your project area has been surveyed and can give

you a current list of archaeological consultants. Only professional archaeologists or persons

working for recognized scientific organizations may apply for an archaeological permit.

Other Environmental Considerations

 Wetlands: Impacts to wetlands must be considered and may result in trail route or

structure changes. All applications will be reviewed by NDPRD Grant staff for wetland

impacts using the U.S. Fish and Wildlife’s Wetland Mapper available at

http://www.fws.gov/wetlands/data/.

 Threatened and Endangered Species: The occurrence of a protected species could be an

important issue to consider during the development of an RTP project. Projects will be

reviewed by the U.S. Fish and Wildlife Service and the North Dakota National Heritage

Inventory Program.

 Hazardous Wastes and Contaminated Properties: Contaminated sites may be

encountered during the development of RTP projects. Abandoned railroad lines being

converted into trails are of particular concern. Site assessments and appropriate steps for

remediation may be necessary.

 Noxious Weeds: Project sponsors are responsible for the spread of noxious weeds in

conjunction with the trail project.

Project Expenditure and Reimbursement Process

Contributions and Expenses

To be eligible for reimbursement funds, project costs must be incurred after the federal project

approval date. Donations of equipment, labor, and materials must be contributed after federal

grant approval. Cash contributions may be received at any time.

The bidding and procurement process must also begin after the federal project approval date,

which will be indicated on your final award letter. Please note a pre-approval award letter will be

sent out to all projects that are ranked high enough to be funded; final approval will be contingent

upon Solicitation of View (SOV) letters and responses. Upon successful completion of reviews, a

final award letter, to include the project start/completion date, will be provided to the sponsor.

Local Share

Local match may include donated/volunteer labor, donated equipment and materials, and force

account.

 Donated Labor: The time of a person donating services will be valued at a rate paid as a

general laborer (per North Dakota Job Service’s General Laborer Rate for the project area

location, documented and provided by sponsor to NDPRD) unless the person is

professionally skilled in the work being performed on the project (i.e. mason doing work

on a retaining wall). When this is the case, the wage rate this individual is normally paid

for performing this service may be charged to the project. The rates for labor should not

include payroll additives or overhead costs. Evidence of the skilled labor rates must

accompany the reimbursement request. Volunteer labor may be used as match only and

is never a reimbursable item.

 Donated Equipment and Materials: Donated equipment and materials may be used as

match only and are never reimbursable items. The value of the donated materials and

equipment rental rates must be documented through an invoice or official letter from the

donor/vendor.

 Force Account: Force account is different than volunteer labor or donated equipment and

supplies. Force account refers to the use of a project sponsor’s staff, equipment, and/or

materials. All or part of the project sponsor’s share may be provided through force

account, but force account is never a reimbursable item. Documentation must be

verifiable from the project sponsor’s records, and must be reasonable and necessary for

efficient completion of the project.

Federal Matching Share

The federal share through the RTP for projects is limited to 80 percent except under the following

circumstances:

 A Federal agency project sponsor may provide its own funds toward RTP projects as

additional Federal share up to 95 percent of the project cost. The limitation is intended

to ensure commitment to the project from State, local, or private co-sponsors. Under this

provision, a Federal agency project sponsor may provide any amount of funds, provided

the total Federal share does not exceed 95 percent.

 Funds from Federal Programs: RTP funds may be matched with funds available under

other Federal funding programs, if the project also is eligible for funding under the other

Federal program. Federal funds received by any project sponsor from another Federal

program may be credited as if they were the non-Federal share, and may be used to

match RTP project funds up to 100 percent of the project cost.

Procurement

Please note this section is only applicable to project sponsors that are Title VI compliant. If the

sponsor is not Title VI compliant, the NDPRD will be coordinating the bidding and procurement

process.

Grant recipients are required to follow the State of North Dakota’s procurement guidelines

when purchasing goods or services needed to complete a project.

 Purchases $2,500 and below: Use adequate procedures to ensure commodities and

services are obtained at a fair and reasonable price, which may include the soliciting only

one informal bid or proposal. Rotate vendors solicited on an equitable basis (ref. N.D.A.C.

§ 4-12-08-02). “Fair and reasonable” price can be based on previous purchases, market

research, a published price list, or by simply soliciting more than one vendor. Remember,

“When in doubt, bid it out.”

 Purchases $2,500.01 to $25,000: Solicit no fewer than three vendors, insofar as practical,

to submit oral or written informal bids or proposals. If you do not receive three bids or

proposals, provide a written justification (e.g., “only two known vendors” or “contacted

three vendors, only two responded”).

 Purchases over $25,000: Solicit formal sealed bids or proposals with notice to approved

bidders on the State Bidders List (ref. N.D.C.C. § 54-44.4-14, N.D.A.C. Chapter 4-12-08).

Notice of bid opportunities must be placed weekly in a newspaper for a period of no less

than three weeks to ensure notice of a bid opportunity.

 Limited Competitive and Noncompetitive Procurements: Occasionally, circumstances

arise under which a fully competitive procurement process may be difficult or impossible.

Procurement is noncompetitive when there is no bidding process. Limited competition

occurs when competition is possible, but the requirements of the solicitation restrict

competition to particular bidders. (Ref. N.D.C.C. § 54-44.4-05, N.D.A.C. § 4-12-09). Project

sponsors must use the State’s Alternate Procurement Request form, SFN 51403 to

document this process and submit to NDPRD prior to entering into a contract or incurring

an expense which is classified as a limited competitive or noncompetitive purchase. In

accordance with federal regulations, NDPRD will then forward to FHWA for approval.

NDPRD will notify the project sponsor of FHWA’s decision within 10 business days of the

forms submittal along with a reason, if denied.

 Documentation Requirements: Each procurement transaction must be adequately

documented for audit and public record purposes. If the purchase is over $2,500, the

procurement file must have evidence that three vendors were solicited or document the

reason three bids were not obtained using the guidelines and forms listed above. Include

any required approvals, solicitation documents used, list of bidders solicited and

responses received. In addition a bid tab or summary must be included which includes

the name, address and phone number of the all bidders along with evaluation

worksheets, reasons for rejecting a particular bid, and method of award (e.g. purchasing

card or purchase order).

 Exemptions by Statute: Please note, certain commodities and services are not subject to

state procurement laws. The following commodities and services are exempted from

state procurement practices by N.D.C.C. § 54-44.4-02 And N.D.A.C. § 4-12-01-04, as

follows:

o Land, building, space, or the rental thereof, however before making a

commitment to obtain land for a RTP project, an appraisal must be submitted to

the Parks and Recreation Department for approval. The land is required to be

appraised by a certified general appraiser with federal experience according to the

Uniform Appraisal Standards for Federal Land Acquisitions (located on the web at

http://www.justice.gov/enrd/land-ack/Uniform-Appraisal-Standards.pdf).

No more than the appraised value can be paid.

o Telephone and telegraph service, electrical light, and power services.

o Department of Transportation materials, equipment, and supplies in accordance

with N.D.C.C. § 24-02-16.

o Specific commodities and services as determined by written directive by the

Director of OMB in N.D.A.C § 4-12-01-04 such as: A. contracts for public buildings

and public improvement contract bids, pursuant to N.D.C.C. Title 48. B. Contracts

for architect, engineer, and land surveying services pursuant to N.D.C.C. Chapter

54-44.7.

 Required Contract Language: Attached to this manual is FHWA Form 1273 and Title VI

nondiscrimination assurances, which are required to be included in its entirety in every

RTP contract between a project sponsor and any organization, group, agency or individual

they do business with (see attachments B and C). Failure to include this form will result in

forfeiture of RTP funds for the project portion covered by of the contract in question.

While including this form is a federal requirement, only certain portions may apply

depending on the contracted dollar amount or the location of the project (federal road

right of way). Please direct any questions relating to this form to NDPRD grant staff.

 Disadvantaged Business Enterprise Program: Project sponsors are encouraged to work

with disadvantaged businesses, including those owned by minorities, women, and socially

and economically disadvantaged individuals, when practical and applicable to the State’s

procurement guidelines. For more information on the ND Department of Transportation’s

Disadvantaged Business Enterprise Program, please visit

http://www.dot.nd.gov/divisions/civilrights/dbeprogram.htm.

Reimbursement

The project sponsor will not receive upfront funding at the time of project approval. Instead, the

sponsor must pay the bills and be reimbursed for a maximum of 80% of the expenses incurred

for the project. To avoid the risk of losing funding, reimbursement requests must be made every

6 months during the project period. Land donations will be credited towards the match of the

sponsor’s share of the project.

As in any program where a reimbursement is requested for a portion of the project costs,

adequate documentation and records are essential. There must be definite supporting

documentation (i.e. invoices and canceled checks) for each item of cost claimed- estimates are

not sufficient. NDPRD may request additional support documentation in order to process a

billing.

 Reimbursement Requests: The following is a list of documentation NDPRD will need to

process reimbursement requests:

o Grant Programs Reimbursement Request Form.

o Grant Programs Progress Report Form.

o Affidavit of publication, supplied by the newspaper when you advertise for bids.

o For purchases over $2,500, include any required approvals, solicitation

documents used, list of bidders solicited and responses received. In addition a

bid tab or summary must be included which includes the name, address and

phone number of the all bidders along with evaluation worksheets, reasons for

rejecting a particular bid, and method of award (e.g. purchasing card or purchase

order). Forms should be dated and signed by responsible official.

o Contractor invoices (or final progress payment, if countersigned by contractor

acknowledging payment of all prior charges, and if the cost of each major work

item is shown) and cancelled checks to contractor (copy of both sides).

o All other cancelled checks (copy of both sides).

o Copies of invoices. Not monthly statements.

o Individual earnings records for the calendar year or payroll journals. Should

show gross wages, withholdings and net pay for each pay period – See Force

Account Form.

o Equipment rental time records.

o Detailed schedule showing how you computed owned-equipment rental rates.

For donated equipment time, you must use hourly rates via a quote from a local

rent all or a published equipment billing chart for a municipality. See Equipment

Value Form.

All required forms are available at

http://www.parkrec.nd.gov/recreation/grants/rtp/reimbursementforms.html

 Partial Billings: A partial billing along with supporting documentation may be submitted

to NDPRD after portions of the work have been completed. Submit the completed

"Reimbursement Request Form." The state will retain 5% of the grant amount until the

project is complete and a final inspection completed. Supporting documentation needed

includes the following:

o Progress Report – Grant Programs Progress Report Form

o Expenditure Records indicated above

o Volunteer Logs

 Final Billings: In order for a project to be considered completed and ready for final billing,

it should be submitted within thirty days of the completion of the project or grant

expiration date, whichever comes first. Final project billings must be submitted to NDPRD

utilizing the process outlined above. Once a final billing is received NDPRD staff will

contact the project sponsor to discuss the completed RTP project and arrange for a final

inspection. Final project billing and grant closeout will not be completed until NDPRD has

conducted the final inspection and certified the project is indeed complete, meeting the

project description outlined in the grant application and/or project amendment.

 Reimbursement Request Form: A separate file should be established and maintained for

each RTP project. The project sponsor is responsible to track costs according to the

categories on the Grant Programs Reimbursement Request Form and must maintain an

auditable record for a period of not less than 3 years from the date of the final

reimbursement. A GRANT REIMBURSEMENT FORM MUST BE SUBMITTED FOR ALL

PAYMENT REQUESTS AND REIMBURSEMENTS. ONLY THE FORM PROVIDED BY NDPRD

WILL BE ACCEPTED.

Progress Reports

Project sponsors are required to submit progress reports with each reimbursement request or

at a minimum every six months to ensure that NDPRD is aware of the project’s progress. Please

use the “Grant Programs Progress Report” form located at:

http://www.parkrec.nd.gov/recreation/grants/rtp/attachments/grantprogramprogressreport.pdf.

Projects that have not shown progress for six months risk potential termination of RTP funding.

If no progress reports are received, NDPRD will assume no progress has been made.

Amendments

During the project period, various situations may result in changes or deviations from the Project

description. An amendment is necessary to add to, or alter the approved project. Changes that

may necessitate an amendment are increases or decreases in the grant amount, project scope

changes, or an extension of the project period.

 Changes in Project Scope: Only those items approved for the project are eligible for

federal assistance. Similarly, facilities must be constructed in the same location as

designated on the plans submitted with the application. Due to unforeseen changes in

project costs or revisions in the plans for the facility, certain items may have to be added

or deleted from the project after it is approved. These changes may require submission

to the Federal Government for approval. In the case of adding an item to the project,

construction on that item cannot begin until the amendment is approved.

The amount of federal assistance specified on the award letter is the maximum amount

reserved for that particular project. Costs over this amount have to be paid by the

applicant. All changes in project scope should be in accordance with the intent of the

original application, and must be justifiable. The need for the change must be

documented by a letter to the NDPRD, accompanied by revised cost estimates,

construction plans and maps.

 Project Period Extensions: All acquisition and development must take place within the

project period, which is identified in the award letter. The award letter is sent to the

project sponsor after the project has received Federal approval. For most projects, the

target date for project completion will be based on an 18 month project period. The

project sponsor is encouraged to complete the project as soon as possible as inflation can

add a 5% cost increase each year.

If the project cannot be completed during the period identified on the project letter, a

request must be submitted for a time extension. The request must justify why the project

cannot be completed before the expiration date. This justification should include a time

schedule for completing the remaining items. Typically no more than one six month

extension can be granted and then only under unforeseen circumstances. Work

performed after the project has expired will not be eligible for federal assistance. Final

payments for work done during the project period can be made after the project has

expired. These payments should specify the work had been completed before the project

expired.

 Submission of an Amendment Request: The sponsoring agency initiates the amendment

by submitting a request for the changes to NDPRD. This request should include all project

revisions desired, including cost estimates, maps or design plans, and justification of the

need for the changes. It is recommended the NDPRD be contacted prior to the submission

of the amendment request. Department staff will be able to provide advice on the

feasibility of an amendment approval. An amendment for a change in project scope can

be requested any time prior to the construction of the added item or acquisition of the

added tract. An amendment for an extension of time should be submitted forty-five days

before the project is scheduled to expire.

It is essential that amendment requests be kept to a minimum. Amendments are used to

cover items that could not be anticipated in the original project. Major deviations from

the original project will not be accepted. It is the responsibility of the project sponsor to

thoroughly determine the type of project prior to submission and, upon approval, carry

through with that project.

Project Termination

A project sponsor may request withdrawal of the project at any time prior to the first payment

or expenditure of grant funds. After the initial payment, the project may be rescinded, modified

or amended only by written mutual agreement between the project sponsor and NDPRD.

NDPRD may terminate the project in whole or in part, at any time before the date of completion,

if it is determined the project sponsor has failed to comply with the terms of the project proposal

or the intent of the program. Failure by the project sponsor to comply with the terms of the grant

may cause suspension of all obligations by and a return of any monies received. If a project is

terminated the project sponsor will be notified in writing of the determination and the reasons

for the termination, together with the effective date. Payments made to the project sponsor or

recovery of funds by the NDPRD under projects terminated for cause shall be in accord with the

legal rights and liabilities of the parties.

NDPRD may terminate the grants in whole, or in part at any time before the date of completion,

when all parties agree that the continuation of the project would not produce beneficial results

commensurate with the further expenditure of funds. The parties shall agree upon the

termination conditions, including the effective date and, in the case of partial termination, the

portion to be terminated. The project sponsor shall not incur new obligations for the terminated

portion after the effective date, and shall cancel as many outstanding obligations as possible.

Termination either for cause or for convenience requires the project in question be brought to a

state of recreational usefulness agreed upon by the project sponsor and NDPRD or all funds must

be returned.

Project Site Retention & Future Responsibilities

At the time of project approval, the project sponsor through the acceptance of funds, commits

that the facilities developed with federal assistance must remain open for general public use and

will be operated and maintained. If RTP monies are used for land acquisition the land must

remain in public trail use for perpetuity. If RTP monies are used for development, the site and

facility must remain in public trail use for 25 years or until the facilities become obsolete or are

at the end of their useable life.

Signage Requirement

Project sites funded through the Recreational Trails Program are required to display a sign stating

that the funding assistance for the site came through a partnership between the FHWA and

NDPRD.

Attachment A: Sample Online Application

All instructions are indicated by the use of italics.

Go to online application at the following location: http://idctech.net/NDRAM/ and the following screen will

appear.

This section allows you to signup and track your

project details. Once you login to your account your

information about your properties & trails will be

displayed to you.

>>Sign In

The My Application section allows you to fill out an

application for a new Land & Water Grant or

Recreational Trails Grant. Once the application is

filled out, you will receive updates via this system

from your state's administrator.

>>Sign In

The My Information section will allows you to

modify and change the information you provided

when you signed up to use the RAM system. If you

have any question just ask our staff.

>>Sign In

News & Awards

The Complete Inspection

The complete inspection section allows you enter inspection information

for the properties that you manage. This software will take information that use to be stored

non-conforming filing cabinets and place into highly efficient, state-of-the-art software program.

Click on Sign in, then you will be taken to the following screen.

701-328-5364 to request one.

Sponsors who do not know their login information, or who are unsure about their status should contact the grant administrator by phone at

701.328.5364.

Sponsors who have never received a grant from the Land and Water Conservation Fund or the Recreational Trails Fund must register (by

clicking the REGISTER button) as a new sponsor in order to apply for a grant.

EXISTING LOGIN

User Name:

Password:

SIGN-IN

Forget Your Password?

NEW LOGIN

New Users may click here to register and use the system.

After successful login the following screen will be displayed.

Welcome

Welcome to the RAM System. To proceed, you may select from the menu options on the left side of your web browser. You currently have

57 Recreational Properties that are ready for inspection. You can see which properties these are by clicking on the "My Projects" menu

item.

 Click on 'My Projects' to view the Recreational Properties that you help manage.

 Click on 'My Applications' to view your current Applications, and to create new

Applications.

 Click on 'My Information' to view and edit your Personal Contact Information

as well as your User Name and Password.

 Click on 'News & Awards' to read the current News, and to see what awards

have been handed out, and to whom they went.

 Click on 'Inspections' to review old Recreational Property Inspections.

Click on My Applications to create a new RTP application.

My Applications

Welcome to the application section. On this screen, the managing entity can view all of the applications you or the managing entity you

are associated with have submitted, track the status of those applications, and drill deeper into the application information. If you do not

see the ability to add a new application, then you need to be associated with a managing entity, please contact the grant

administrator by phone at 701.328.5364.

CREATE NEW LWCF APPLICATION

CREATE NEW RTP APPLICATION

LWCF

Property Name

Last Updated

RTP Project Name

Click Create New RTP Application then fill out application and upload required documents.

Fill in project name and click save then a new icon will appear that says “Upload Documents.” Click on this

button to upload all required and support documentation.

Application Page

Recreational Trail Program (RTP) grant awards are available to the State of North Dakota, political subdivisions and nonprofit

organizations in order to assist in the development, maintenance or rehabilitation of recreational trails. The RTP is an assistance program

of the U.S. Department of Transportation's Federal Highway Administration (FHWA). The program is administered by the Recreation

Division of the North Dakota Parks and Recreation Department.

Project proposals must be approved at the state and federal levels. A Recreation Trails Committee of private, state and federal

individuals evaluates and ranks the projects. Projects selected at the state level are submitted to the FHWA for federal review and

approval.

RTP grants reimburse up to 80 percent of the cost for development, maintenance or rehabilitation of recreational trails. The maximum

federal grant award is determined annually. Engineering fees exceeding more that 20% of total project cost are not eligible for

reimbursement. Project sponsors cannot be reimbursed for funds that are incurred before an application is approved and a local grant

agreement is signed.

A application deadline is established each year. Applications must be submitted on or before that date. Late or incomplete applications

will not be considered.

You may press SAVE at any time, as long as you have filled out a bare minimum of the application. A Red * will appear next to those

fields that are required. Once you have successfully saved your application, you will be able to add federal and local funding sources by

pressing the newly visible ADD FEDERAL FUNDING SOURCE and ADD LOCAL FUNDING SOURCE buttons located at both the top

and bottom of the page. At this time you will also be able to upload documents to this application.

Trail Project Name:

Description of Proposed Project:

Property Location Information

Urban or Rural Development:

Urban

Address Line 1:

Address Line 2:

Either Choose a City or Select 'Other' and Type one in the Box Provided:

Abercrombie

If Other:

County:

Adams

State:

Either Choose a Zip Code or Select 'Other' and Type one in the Box

Provided:

58001

If Other:

Township: N

Range: W

Township Section:

Township, Range & Section

Length of New Trail: (in miles)

Length of Total Trail (in miles) if

Project is an Extension:

General Funding and Property Information

Total Cost:

Fund Amount:

Is this Project an Extension to an Existing Trail Project?

Yes

Who Holds the Title to the Project Land?

Projects must be completed within 18 months of grant award to meet

Federal Highway Administration Guidelines.

Estimated Start Date:

(mm/dd/yyyy)

Estimated End Date: (mm/dd/yyyy)

Classification of Land:

State Federal Local Private

Check all of the uses the Project impacts:

Walking/Hiking Bicycling Horseback Riding Cross-

Country Skiing

In-line Skating Snowmobiling ATV Riding Off-road

Motorcycling

4x4 Trucking Other:

Does the Project fall substantially within a federal highway right-of-

way?

Yes

SAVE

Federal Funding Sources __________________

Local Funding Sources ____________________

Adding sources to this section certifies that the sponsor has their share of money available and has earmarked these

funds for use on this project. It is necessary to have 20% of the total project cost available.

**All RTP projects must meet accessibility guidelines in compliance with the Americans with Disabilities Act of 1990,

Section 504 of the Rehabilitation Act of 1973 and the Architectural Barriers Act. For more information refer to the U.S.

Access Board at www.access-board.gov. Look for the Reg Neg Committee 1999 Report: Accessibility Guidelines for

Outdoor Developed Areas.

Requirement-

Each application must address each of the following requirements in the order they appear below:

1. A project description sufficient to understand the project. Indicate

prominently whether this is primarily a maintenance request, an

enhancement to an existing trail, new development, acquisition, length

of trail etc. Please explain if the application is for one or more phases

of a multi-phase project.

2. Clearly defined goals for the project (with a delineation of which user

groups would benefit from the project).

3. Costs associated with the project (with estimates of the following

components: material/service purchases including hardware, paint,

lumber, sand/gravel concrete, landscape materials, signs,

design/engineering services and contractor services).

4. Evidence of local/area support (e.g., council resolutions, minutes of

public meetings, letters of support, etc.). Evidence of MPO support

must be included if applicable.

5. Availability/access to 20% match for eligible elements of the project

proposal. Matching funds must not be from other federal sources such

as Transportation Enhancement through the Department of

Transportation. A resolution from the sponsor of the project regarding

the availability of funds will be required prior to any award of a grant.

6. Identification of the sponsor of the project: This organization or unit

of government will be legally responsible for the project.

7. Evidence of applicant capability (e.g., ability to carry out project, and

for development projects, to operate, maintain, and protect trail and

facilities when completed).

8. Written Assurances (if applicable). Produce leases or written

assurances that the project will be open for public use.

Evaluation Criterion-

All applications must address the following criteria in the order that they appear. Failure to provide this information may

result in the disqualification of this application.

1. Site and project quality: consideration of the needs of the intended

trail user group(s); aesthetic quality of the trail location;

appropriateness of the trail for the intended or existing uses; clarity,

detail, and quality of project plan/design; quality of existing

development (if any) on site or in corridor; attention to safety,

accessibility and health considerations.

2. Public need for and benefit of project: safety concerns, urgency of

action, potential to lose the opportunity, number of people who would

benefit from the project when compared to cost. Why should this

project be funded? How many people could be expected to use the

trail over the course of the year as a result of funding the project?

3. Context of the project in a wider plan: demonstrated compatibility

with local/region/area trail plans and the Statewide Comprehensive

Outdoor Recreation Plan. For proposed facilities, what relationship

does the proposed development/acquisition have to other outdoor

recreation facilities and trails?

4. Attention to the potential environmental impact of the project and

efforts to mitigate adverse effects: Possible areas of consideration

include but are not limited to: noise, odors, dust, surface erosion, fish

and wildlife populations, damage to wetlands, or other ecologically

sensitive natural resources or historical/archeological remains. A

cultural review letter or document should be included with the

application. All applications are subject to review by the State

Historical Society.

5. Impact on adjoining landowners in the vicinity of the project:

Identify adverse impacts that might be realized as a result of

completing the project, and how the projects design attempts to

mitigate adverse impacts. How might the project improve conditions

for adjacent landowners?

Certifications Regarding Debarment, Suspension and Other Responsibility Matters, Drug-Free Workplace

Requirements and Lobbying

Persons submitting this form should refer to the regulations referenced below for complete instructions:

Certification Regarding Debarment, Suspension, and Other Responsibility Matters – Primary Covered Transactions – The

prospective primary participant further agrees by submitting this proposal that it will include the clause titles, “Certification

Regarding Debarment, Suspension, Ineligibility and voluntary Exclusion – Lower Tier Covered Transaction,” provided by

the department or agency entering into this covered transaction, without modification, in all lower tier covered

transactions and in all solicitations for lower tier covered transactions. See below for language to be used; use this form

for certification and sign; Certification Regarding Drug- Free Workplace Requirements-Alternate I. (Grantees Other Than

Individuals) and Alternate II. (Grantees Who are Individuals) – (See Appendix C of Subpart D of 43 CFR Part 12)

Checking the boxes on this form and submitting it provides for compliance with certification requirements under 43 CFR

Parts 12 and 18. The certifications shall be treated as a material representation of fact upon which reliance will be placed

when the funding agency determines to award the covered transaction, grant, cooperative agreement or loan.

PART A: Certification Regarding Debarment, Suspension, and Other Responsibility Matters – Primary Covered

Transactions

CHECK IF THIS CERTIFICATION IS FOR A PRIMARY COVERED TRANSACTION AND IS APPLICABLE.

1. The prospective primary participant certifies to the best of its

knowledge and belief, that it and its principals:

1. Are not presently debarred, suspended, proposed for

debarment, declared ineligible, or voluntarily excluded from

covered transactions by any Federal department or agency;

2. Have not within a three-year period preceding this proposal

been convicted of or had a civil judgment rendered against

them for commission of fraud or a criminal offense in

connection with obtaining, attempting to obtain, or performing

a public (Federal, State or local) transaction or contract under a

public transaction; violation of Federal or State antitrust

statutes or commission of embezzlement, theft, forgery,

bribery, falsification or destruction of records, making false

statements, or receiving stolen property;

3. Are not presently indicted for or otherwise criminally or civilly

charged by a governmental entity (Federal, State or local) with

commission of any of the offenses enumerated in paragraph

(1)(b) of this certification; and

4. Have not within a three-year period preceding this

application/proposal had one or more public transactions

(Federal, State or local) terminated for cause or default

2. Where the prospective primary participant is unable to certify to any

of the statements in this certification, such prospective participant

shall attach an explanation to this proposal.

Part B: Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion – Lower Tier

Covered Transactions

CHECK IF THIS CERTIFICATION IS FOR A LOWER TIER COVERED TRANSACTION AND IS APPLICABLE.

1. The prospective lower tier participant certifies, by submission of this

proposal, that neither it nor its principals is presently debarred,

suspended, proposed for debarment, declared ineligible, or voluntarily

excluded from participation in this transaction by any Federal

department or agency.

2. Where the prospective lower tier participant is unable to certify to any

of the statements in this certification, such prospective participant

shall attach an explanation to this proposal.

Part C: Certification Regarding Drug-Free Workplace Requirements

CHECK IF THIS CERTIFICATION IS FOR AN APPLICANT WHO IS NOT AN INDIVIDUAL

Alternate I. (Grantees Other Than Individuals)

1. The grantee certifies that it will or continue to provide a drug-free

workplace by:

1. (a) Publishing a statement notifying employees that the

unlawful manufacture, distribution, dispensing, possession, or

use of a controlled substance is prohibited in the grantee’s

workplace and specifying the actions that will be taken against

employees for violation of such prohibition;

2. (b) Establishing an ongoing drug-free awareness program to

inform employees about-

1. The dangers of drug abuse in the workplace;

2. The grantee’s policy of maintaining a drug-free

workplace;

3. Any available drug counseling, rehabilitation, and

employee assistance programs; and

4. The penalties that may be imposed upon employees for

drug abuse violations occurring in the workplace;

3. (c) Making it a requirement that each employee to be engaged

in the performance of the grant be given a copy of the

statement required by paragraph (a);

4. (d) Notifying the employee in the statement required by

paragraph (a) that, as a condition of employment under the

grant, the employee will –

1. Abide by the terms of the statement; and

2. Notify the employer in writing of his or her conviction

for a violation of a criminal drug statue occurring in the

workplace no later than five calendar days after such

conviction;

5. (e) Notifying the agency in writing, within 10 calendar days

after receiving notice under subparagraph (d)(2) from an

employee or otherwise receiving actual notice of such

conviction. Employers of convicted employees must provide

notice, including position title, to every grant officer on whose

grant activity the convicted employee was working, unless the

Federal agency has designated a central point for the receipt of

such notices. Notice shall include the identification numbers

(s) of each affected grant;

6. (f) Taking one of the following actions, within 30 calendar

days of receiving notice under subparagraph (d)(2), with

respect to any employee who is so convicted—

1. Taking appropriate personnel action against such an

employee, up to and including termination, consistent

with the requirements of the Rehabilitation Act of

1973, as amended; or

2. Requiring such employee to participate satisfactorily in

a drug abuse assistance or rehabilitation program

approved for such purposes by a Federal, State, or local

health, law enforcement, or other appropriate agency;

7. (g) Making a good faith effort to continue to maintain a drug-

free workplace through implementation of paragraphs

(a),(b),(c),(d),(e) and (f).

2. The grantee may insert in the space provided below the site(s) for the

performance of work done in connection with the specific grant: Place

of Performance (Street address, city, county, state, zip code)

Address Line 1:

Address Line 2:

City:

State:

Zip:

Check if there are workplaces on file that are not identified here

Part D: Certification Regarding Drug-Free Workplace Requirements

CHECK IF THIS CERTIFICATION IS FOR AN APPLICANT WHO IS AN INDIVIDUAL

Alternate II. (Grantees Who Are Individuals)

1. The grantee certifies that, as a condition of the grant, he or she will not

engage in the unlawful manufacture, distribution, dispensing,

possession, or use of a controlled substance in conducting any activity

with the grant;

2. If convicted of a criminal drug offense resulting from a violation

occurring during the conduct of any grant activity, he or she will

report the conviction, in writing, within 10 calendar days of the

conviction, to the grant officer or other designee, unless the Federal

agency designates a central point for the receipt of such notices. When

notice is made to such a central point, it shall include the identification

number (s) of each affected grant.

Part E: Certification Regarding Lobbying

Certification for Contracts, Grants, Loans, and Cooperative

CHECK IF CERTIFICATION IS FOR THE AWARD OF ANY OF THE FOLLOWING AND THE AMOUNT

EXCEEDS $100,000: A FEDERAL GRANT OR COOPERATIVE AGREEMENT; SUBCONTRACT, OR SUBGRANT

UNDER THE GRANT OR COOPERATIVE AGREEMENT.

CHECK IF CERTIFICATION IS FOR THE AWARD OF A FEDERAL LOAN EXCEEDING THE AMOUNT OF

$150,000, OR A SUBGRANT OR SUBCONTRACT EXCEEDING $100,000, UNDER THE LOAN

The undersigned certifies, to the best of his or her knowledge and belief, that:

1. No federal appropriated funds have been paid or will be paid, by or on

behalf of the undersigned, to any person for influencing or attempting

to influence an agency, a Member of Congress, and officer or

employee of Congress, or an employee of a Member of Congress in

connection with the awarding of any cooperative agreement, and the

extension, continuation, renewal, amendment, or modification of any

Federal contract, grant, load, or cooperative agreement.

2. If any funds other than Federal appropriated funds have been paid or

will be paid to any person for influencing or attempting to influence

an officer or employee of any agency, a Member of Congress, an

officer or employee of Congress, or an employee of a Member of

Congress in connection with this Federal contract, grant, loan, or

cooperative agreement, the undersigned shall complete and submit

Standard Form-LL, “Disclosure Form to Report Lobbying,” in

accordance with its instructions.

3. The undersigned shall require that the language of this certification be

included in the award documents for all subawards at all tiers

(including subcontracts, subgrants, and contracts under grants, loans,

and cooperative agreements) and that all subrecipients shall certify

accordingly.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or

entered unto. Submission of this certification is a prerequisite for making or entering into this transaction imposed by

Section 1352, title 31, U.S. Code. Any person who fails to tile the required certification shall be subject to a civil penalty of

not less than $10,000 and not more than $100,000 for each such failure.

As the authorized certifying official, I hereby certify that the above specified certifications are true.

SAVE

SUBMIT FOR REVIEW

Once all required and support documentation has been uploaded and you are satisfied with the information

entered in the application, click submit for review and final submission.

Attachment B: FHWA 1273 Synopsis

REQUIRED CONTRACT PROVISIONS FEDERAL-AID

CONSTRUCTION CONTRACTS (FHWA 1273)

APPLIES TO CONTRACTS AND RELATED SUBCONTRACTS:

ALL

Section I – General

Section VII - Subletting or Assigning the Contract

Section VIII - Safety: Accident Prevention

Section IX - False Statements Concerning Highway Projects

Section XI – Certification regarding Debarment, Suspension,

Ineligibility and Voluntary Exclusion

$10,000 or MORE

Section II - Nondiscrimination

Section III – Nonsegregated Facilities

> $2K and within the RIGHT-OF-

WAY of a FEDERAL-AID

HIGHWAY (*)

Section IV - Payment of Predetermined Minimum Wage

Section V - Statements and Payrolls

$100K or MORE

Section X – Implementation of Clean Air Act and Federal

Water Pollution Control Act

Section XII – Certification Regarding Use of Contract Funds

for Lobbying

N/A

Section VI - Record of Materials, Supplies, and Labor

Attachment A – Employment Preference for Appalachian

Contracts

*CONTACT FHWA FOR CLASSIFICATION DETERMINATIONS

Attachment C: FHWA Form 1273

FHWA-1273 -- Revised May 1, 2012

REQUIRED CONTRACT PROVISIONS

FEDERAL-AID CONSTRUCTION CONTRACTS

I. General

II. Nondiscrimination

III. Nonsegregated Facilities

IV. Davis-Bacon and Related Act Provisions

V. Contract Work Hours and Safety Standards Act Provisions

VI. Subletting or Assigning the Contract

VII. Safety: Accident Prevention

VIII. False Statements Concerning Highway Projects

IX. Implementation of Clean Air Act and Federal Water Pollution Control Act

X. Compliance with Governmentwide Suspension and Debarment Requirements

XI. Certification Regarding Use of Contract Funds for Lobbying

ATTACHMENTS

A. Employment and Materials Preference for Appalachian Development Highway System or

Appalachian Local Access Road Contracts (included in Appalachian contracts only)

I. GENERAL

1. Form FHWA-1273 must be physically incorporated in each construction contract funded

under Title 23 (excluding emergency contracts solely intended for debris removal). The

contractor (or subcontractor) must insert this form in each subcontract and further require its

inclusion in all lower tier subcontracts (excluding purchase orders, rental agreements and other

agreements for supplies or services).

The applicable requirements of Form FHWA-1273 are incorporated by reference for work done

under any purchase order, rental agreement or agreement for other services. The prime

contractor shall be responsible for compliance by any subcontractor, lower-tier subcontractor or

service provider.

Form FHWA-1273 must be included in all Federal-aid design-build contracts, in all subcontracts

and in lower tier subcontracts (excluding subcontracts for design services, purchase orders, rental

agreements and other agreements for supplies or services). The design-builder shall be

responsible for compliance by any subcontractor, lower-tier subcontractor or service provider.

Contracting agencies may reference Form FHWA-1273 in bid proposal or request for proposal

documents, however, the Form FHWA-1273 must be physically incorporated (not referenced) in

all contracts, subcontracts and lower-tier subcontracts (excluding purchase orders, rental

agreements and other agreements for supplies or services related to a construction contract).

2. Subject to the applicability criteria noted in the following sections, these contract provisions

shall apply to all work performed on the contract by the contractor's own organization and with

the assistance of workers under the contractor's immediate superintendence and to all work

performed on the contract by piecework, station work, or by subcontract.

3. A breach of any of the stipulations contained in these Required Contract Provisions may be

sufficient grounds for withholding of progress payments, withholding of final payment,

termination of the contract, suspension / debarment or any other action determined to be

appropriate by the contracting agency and FHWA.

4. Selection of Labor: During the performance of this contract, the contractor shall not use

convict labor for any purpose within the limits of a construction project on a Federal-aid

highway unless it is labor performed by convicts who are on parole, supervised release, or

probation. The term Federal-aid highway does not include roadways functionally classified as

local roads or rural minor collectors.

II. NONDISCRIMINATION

The provisions of this section related to 23 CFR Part 230 are applicable to all Federal-aid

construction contracts and to all related construction subcontracts of $10,000 or more. The

provisions of 23 CFR Part 230 are not applicable to material supply, engineering, or architectural

service contracts.

In addition, the contractor and all subcontractors must comply with the following policies:

Executive Order 11246, 41 CFR 60, 29 CFR 1625-1627, Title 23 USC Section 140, the

Rehabilitation Act of 1973, as amended (29 USC 794), Title VI of the Civil Rights Act of 1964,

as amended, and related regulations including 49 CFR Parts 21, 26 and 27; and 23 CFR Parts

200, 230, and 633.

The contractor and all subcontractors must comply with: the requirements of the Equal

Opportunity Clause in 41 CFR 60-1.4(b) and, for all construction contracts exceeding $10,000,

the Standard Federal Equal Employment Opportunity Construction Contract Specifications in 41

CFR 60-4.3.

Note: The U.S. Department of Labor has exclusive authority to determine compliance with

Executive Order 11246 and the policies of the Secretary of Labor including 41 CFR 60, and 29

CFR 1625-1627. The contracting agency and the FHWA have the authority and the

responsibility to ensure compliance with Title 23 USC Section 140, the Rehabilitation Act of

1973, as amended (29 USC 794), and Title VI of the Civil Rights Act of 1964, as amended, and

related regulations including 49 CFR Parts 21, 26 and 27; and 23 CFR Parts 200, 230, and 633.

The following provision is adopted from 23 CFR 230, Appendix A, with appropriate revisions to

conform to the U.S. Department of Labor (US DOL) and FHWA requirements.

1. Equal Employment Opportunity: Equal employment opportunity (EEO) requirements not to

discriminate and to take affirmative action to assure equal opportunity as set forth under laws,

executive orders, rules, regulations (28 CFR 35, 29 CFR 1630, 29 CFR 1625-1627, 41 CFR 60

and 49 CFR 27) and orders of the Secretary of Labor as modified by the provisions prescribed

herein, and imposed pursuant to 23 U.S.C. 140 shall constitute the EEO and specific affirmative

action standards for the contractor's project activities under this contract. The provisions of the

Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR 35

and 29 CFR 1630 are incorporated by reference in this contract. In the execution of this contract,

the contractor agrees to comply with the following minimum specific requirement activities of

EEO:

a. The contractor will work with the contracting agency and the Federal Government to ensure

that it has made every good faith effort to provide equal opportunity with respect to all of its

terms and conditions of employment and in their review of activities under the contract.

b. The contractor will accept as its operating policy the following statement:

"It is the policy of this Company to assure that applicants are employed, and that employees

are treated during employment, without regard to their race, religion, sex, color, national origin,

age or disability. Such action shall include: 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, pre-apprenticeship, and/or

on-the-job training."

2. EEO Officer: The contractor will designate and make known to the contracting officers an

EEO Officer who will have the responsibility for and must be capable of effectively

administering and promoting an active EEO program and who must be assigned adequate

authority and responsibility to do so.

3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire,

supervise, promote, and discharge employees, or who recommend such action, or who are

substantially involved in such action, will be made fully cognizant of, and will implement, the

contractor's EEO policy and contractual responsibilities to provide EEO in each grade and

classification of employment. To ensure that the above agreement will be met, the following

actions will be taken as a minimum:

a. Periodic meetings of supervisory and personnel office employees will be conducted before

the start of work and then not less often than once every six months, at which time the

contractor's EEO policy and its implementation will be reviewed and explained. The meetings

will be conducted by the EEO Officer.

b. All new supervisory or personnel office employees will be given a thorough indoctrination

by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty

days following their reporting for duty with the contractor.

c. All personnel who are engaged in direct recruitment for the project will be instructed by the

EEO Officer in the contractor's procedures for locating and hiring minorities and women.

d. Notices and posters setting forth the contractor's EEO policy will be placed in areas readily

accessible to employees, applicants for employment and potential employees.

e. The contractor's EEO policy and the procedures to implement such policy will be brought to

the attention of employees by means of meetings, employee handbooks, or other appropriate

means.

4. Recruitment: When advertising for employees, the contractor will include in all

advertisements for employees the notation: "An Equal Opportunity Employer." All such

advertisements will be placed in publications having a large circulation among minorities and

women in the area from which the project work force would normally be derived.

a. The contractor will, unless precluded by a valid bargaining agreement, conduct systematic

and direct recruitment through public and private employee referral sources likely to yield

qualified minorities and women. To meet this requirement, the contractor will identify sources

of potential minority group employees, and establish with such identified sources procedures

whereby minority and women applicants may be referred to the contractor for employment

consideration.

b. In the event the contractor has a valid bargaining agreement providing for exclusive hiring

hall referrals, the contractor is expected to observe the provisions of that agreement to the extent

that the system meets the contractor's compliance with EEO contract provisions. Where

implementation of such an agreement has the effect of discriminating against minorities or

women, or obligates the contractor to do the same, such implementation violates Federal

nondiscrimination provisions.

c. The contractor will encourage its present employees to refer minorities and women as

applicants for employment. Information and procedures with regard to referring such applicants

will be discussed with employees.

5. Personnel Actions: Wages, working conditions, and employee benefits shall be established

and administered, and personnel actions of every type, including hiring, upgrading, promotion,

transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion,

sex, national origin, age or disability. The following procedures shall be followed:

a. The contractor will conduct periodic inspections of project sites to insure that working

conditions and employee facilities do not indicate discriminatory treatment of project site

personnel.

b. The contractor will periodically evaluate the spread of wages paid within each classification

to determine any evidence of discriminatory wage practices.

c. The contractor will periodically review selected personnel actions in depth to determine

whether there is evidence of discrimination. Where evidence is found, the contractor will

promptly take corrective action. If the review indicates that the discrimination may extend

beyond the actions reviewed, such corrective action shall include all affected persons.

d. The contractor will promptly investigate all complaints of alleged discrimination made to

the contractor in connection with its obligations under this contract, will attempt to resolve such

complaints, and will take appropriate corrective action within a reasonable time. If the

investigation indicates that the discrimination may affect persons other than the complainant,

such corrective action shall include such other persons. Upon completion of each investigation,

the contractor will inform every complainant of all of their avenues of appeal.

6. Training and Promotion:

a. The contractor will assist in locating, qualifying, and increasing the skills of minorities and

women who are applicants for employment or current employees. Such efforts should be aimed

at developing full journey level status employees in the type of trade or job classification

involved.

b. Consistent with the contractor's work force requirements and as permissible under Federal

and State regulations, the contractor shall make full use of training programs, i.e., apprenticeship,

and on-the-job training programs for the geographical area of contract performance. In the event

a special provision for training is provided under this contract, this subparagraph will be

superseded as indicated in the special provision. The contracting agency may reserve training

positions for persons who receive welfare assistance in accordance with 23 U.S.C. 140(a).

c. The contractor will advise employees and applicants for employment of available training

programs and entrance requirements for each.

d. The contractor will periodically review the training and promotion potential of employees

who are minorities and women and will encourage eligible employees to apply for such training

and promotion.

7. Unions: If the contractor relies in whole or in part upon unions as a source of employees, the

contractor will use good faith efforts to obtain the cooperation of such unions to increase

opportunities for minorities and women. Actions by the contractor, either directly or through a

contractor's association acting as agent, will include the procedures set forth below:

a. The contractor will use good faith efforts to develop, in cooperation with the unions, joint

training programs aimed toward qualifying more minorities and women for membership in the

unions and increasing the skills of minorities and women so that they may qualify for higher

paying employment.

b. The contractor will use good faith efforts to incorporate an EEO clause into each union

agreement to the end that such union will be contractually bound to refer applicants without

regard to their race, color, religion, sex, national origin, age or disability.

c. The contractor is to obtain information as to the referral practices and policies of the labor

union except that to the extent such information is within the exclusive possession of the labor

union and such labor union refuses to furnish such information to the contractor, the contractor

shall so certify to the contracting agency and shall set forth what efforts have been made to

obtain such information.

d. In the event the union is unable to provide the contractor with a reasonable flow of referrals

within the time limit set forth in the collective bargaining agreement, the contractor will, through

independent recruitment efforts, fill the employment vacancies without regard to race, color,

religion, sex, national origin, age or disability; making full efforts to obtain qualified and/or

qualifiable minorities and women. The failure of a union to provide sufficient referrals (even

though it is obligated to provide exclusive referrals under the terms of a collective bargaining

agreement) does not relieve the contractor from the requirements of this paragraph. In the event

the union referral practice prevents the contractor from meeting the obligations pursuant to

Executive Order 11246, as amended, and these special provisions, such contractor shall

immediately notify the contracting agency.

8. Reasonable Accommodation for Applicants / Employees with Disabilities: The contractor

must be familiar with the requirements for and comply with the Americans with Disabilities Act

and all rules and regulations established there under. Employers must provide reasonable

accommodation in all employment activities unless to do so would cause an undue hardship.

9. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment: The

contractor shall not discriminate on the grounds of race, color, religion, sex, national origin, age

or disability in the selection and retention of subcontractors, including procurement of materials

and leases of equipment. The contractor shall take all necessary and reasonable steps to ensure

nondiscrimination in the administration of this contract.

a. The contractor shall notify all potential subcontractors and suppliers and lessors of their

EEO obligations under this contract.

b. The contractor will use good faith efforts to ensure subcontractor compliance with their

EEO obligations.

10. Assurance Required by 49 CFR 26.13(b):

a. The requirements of 49 CFR Part 26 and the State DOT’s U.S. DOT-approved DBE

program are incorporated by reference.

b. The contractor or subcontractor shall not discriminate on the basis of race, color,

national origin, or sex in the performance of this contract. The contractor shall carry out

applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted

contracts. Failure by the contractor to carry out these requirements is a material breach of this

contract, which may result in the termination of this contract or such other remedy as the

contracting agency deems appropriate.

11. Records and Reports: The contractor shall keep such records as necessary to document

compliance with the EEO requirements. Such records shall be retained for a period of three

years following the date of the final payment to the contractor for all contract work and shall be

available at reasonable times and places for inspection by authorized representatives of the

contracting agency and the FHWA.

a. The records kept by the contractor shall document the following:

(1) The number and work hours of minority and non-minority group members and

women employed in each work classification on the project;

(2) The progress and efforts being made in cooperation with unions, when applicable, to

increase employment opportunities for minorities and women; and

(3) The progress and efforts being made in locating, hiring, training, qualifying, and

upgrading minorities and women;

b. The contractors and subcontractors will submit an annual report to the contracting agency

each July for the duration of the project, indicating the number of minority, women, and non-

minority group employees currently engaged in each work classification required by the contract

work. This information is to be reported on Form FHWA-1391. The staffing data should

represent the project work force on board in all or any part of the last payroll period preceding

the end of July. If on-the-job training is being required by special provision, the contractor will

be required to collect and report training data. The employment data should reflect the work

force on board during all or any part of the last payroll period preceding the end of July.

III. NONSEGREGATED FACILITIES

This provision is applicable to all Federal-aid construction contracts and to all related

construction subcontracts of $10,000 or more.

The contractor must ensure that facilities provided for employees are provided in such a manner

that segregation on the basis of race, color, religion, sex, or national origin cannot result. The

contractor may neither require such segregated use by written or oral policies nor tolerate such

use by employee custom. The contractor's obligation extends further to ensure that its employees

are not assigned to perform their services at any location, under the contractor's control, where

the facilities are segregated. The term "facilities" includes waiting rooms, work areas,

restaurants and other eating areas, time clocks, restrooms, washrooms, locker rooms, and other

storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas,

transportation, and housing provided for employees. The contractor shall provide separate or

single-user restrooms and necessary dressing or sleeping areas to assure privacy between sexes.

IV. DAVIS-BACON AND RELATED ACT PROVISIONS

This section is applicable to all Federal-aid construction projects exceeding $2,000 and to all

related subcontracts and lower-tier subcontracts (regardless of subcontract size). The

requirements apply to all projects located within the right-of-way of a roadway that is

functionally classified as Federal-aid highway. This excludes roadways functionally classified as

local roads or rural minor collectors, which are exempt. Contracting agencies may elect to apply

these requirements to other projects.

The following provisions are from the U.S. Department of Labor regulations in 29 CFR 5.5

“Contract provisions and related matters” with minor revisions to conform to the FHWA-1273

format and FHWA program requirements.

1. Minimum wages

a. 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 paragraph 1.d. 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 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 paragraph 1.b. of this section) and the Davis-

Bacon poster (WH–1321) 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.

b. (1) The contracting officer shall 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 shall be classified in conformance with the wage determination. The contracting officer

shall approve an additional classification and wage rate and fringe benefits therefore only when

the following criteria have been met:

(i) The work to be performed by the classification requested is not performed by a

classification in the wage determination; and

(ii) The classification is utilized in the area by the construction industry; and

(iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable

relationship to the wage rates contained in the wage determination.

(2) 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 shall be sent by the contracting officer to the Administrator of the Wage and

Hour Division, Employment Standards Administration, U.S. Department of Labor,

Washington, DC 20210. 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.

(3) 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 shall refer the questions, including the views of all interested parties and the

recommendation of the contracting officer, to the Wage and Hour Administrator for

determination. The Wage and Hour Administrator, or an authorized 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.

(4) The wage rate (including fringe benefits where appropriate) determined pursuant to

paragraphs 1.b.(2) or 1.b.(3) of this section, 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.

c. 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.

d. 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.

2. Withholding

The contracting agency 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 the contractor

under this contract, or any other Federal contract with the same prime contractor, or any other

federally-assisted 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, the contracting agency may, after written notice to the contractor, 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.

3. Payrolls and basic records

a. 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, 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.

b. (1) The contractor shall submit weekly for each week in which any contract work is

performed a copy of all payrolls to the contracting agency. 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 shall only need to include an individually identifying

number for each employee ( e.g. , the last four digits of the employee's social security number).

The required weekly payroll information may be submitted in any form desired. Optional Form

WH–347 is available for this purpose from the Wage and Hour Division Web site at

http://www.dol.gov/esa/whd/forms/wh347instr.htm 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 the contracting agency for transmission to the

State DOT, the FHWA or the Wage and Hour Division of the Department of Labor for purposes

of an investigation or audit of compliance with prevailing wage requirements. It is not a violation

of this section for a 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 the

contracting agency..

(2) 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:

(i) That the payroll for the payroll period contains the information required to be provided

under §5.5 (a)(3)(ii) of Regulations, 29 CFR part 5, the appropriate information is being

maintained under §5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information is

correct and complete;

(ii) 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

Regulations, 29 CFR part 3;

(iii) 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.

(3) 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 paragraph 3.b.(2) of this section.

(4) 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 231 of

title 31 of the United States Code.

c. The contractor or subcontractor shall make the records required under paragraph 3.a. of this

section available for inspection, copying, or transcription by authorized representatives of the

contracting agency, the State DOT, the FHWA, or the 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, the FHWA may,

after written notice to the contractor, the contracting agency or the State DOT, 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

a. Apprentices (programs of the USDOL).

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, fringes 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.

b. Trainees (programs of the USDOL).

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 classification of 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.

c. Equal employment opportunity. The utilization of apprentices, trainees and journeymen

under this part shall be in conformity with the equal employment opportunity requirements of

Executive Order 11246, as amended, and 29 CFR part 30.

d. Apprentices and Trainees (programs of the U.S. DOT).

Apprentices and trainees working under apprenticeship and skill training programs which have

been certified by the Secretary of Transportation as promoting EEO in connection with Federal-

aid highway construction programs are not subject to the requirements of paragraph 4 of this

Section IV. The straight time hourly wage rates for apprentices and trainees under such programs

will be established by the particular programs. The ratio of apprentices and trainees to

journeymen shall not be greater than permitted by the terms of the particular program.

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 shall insert Form FHWA-1273 in any

subcontracts and also require the subcontractors to include Form FHWA-1273 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 29 CFR 5.5.

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

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.

a. 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).

b. 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).

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

1001.

V. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT

The following clauses apply to any Federal-aid construction contract in an amount in excess of

$100,000 and subject to the overtime provisions of the Contract Work Hours and Safety

Standards Act. These clauses shall be inserted in addition to the clauses required by 29 CFR

5.5(a) or 29 CFR 4.6. 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 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 (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 (1.) of

this section, in the sum of $10 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 (1.) of this section.

3. Withholding for unpaid wages and liquidated damages. The FHWA or the contacting

agency 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 other Federal

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 (2.) of this section.

4. Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set

forth in paragraph (1.) through (4.) of this section 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

paragraphs (1.) through (4.) of this section.

VI. SUBLETTING OR ASSIGNING THE CONTRACT

This provision is applicable to all Federal-aid construction contracts on the National Highway

System.

1. The contractor shall perform with its own organization contract work amounting to not less

than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total

original contract price, excluding any specialty items designated by the contracting agency.

Specialty items may be performed by subcontract and the amount of any such specialty items

performed may be deducted from the total original contract price before computing the amount

of work required to be performed by the contractor's own organization (23 CFR 635.116).

a. The term “perform work with its own organization” refers to workers employed or leased by

the prime contractor, and equipment owned or rented by the prime contractor, with or without

operators. Such term does not include employees or equipment of a subcontractor or lower tier

subcontractor, agents of the prime contractor, or any other assignees. The term may include

payments for the costs of hiring leased employees from an employee leasing firm meeting all

relevant Federal and State regulatory requirements. Leased employees may only be included in

this term if the prime contractor meets all of the following conditions:

(1) the prime contractor maintains control over the supervision of the day-to-day

activities of the leased employees;

(2) the prime contractor remains responsible for the quality of the work of the leased

employees;

(3) the prime contractor retains all power to accept or exclude individual employees from

work on the project; and

(4) the prime contractor remains ultimately responsible for the payment of predetermined

minimum wages, the submission of payrolls, statements of compliance and all other Federal

regulatory requirements.

b. "Specialty Items" shall be construed to be limited to work that requires highly specialized

knowledge, abilities, or equipment not ordinarily available in the type of contracting

organizations qualified and expected to bid or propose on the contract as a whole and in general

are to be limited to minor components of the overall contract.

2. The contract amount upon which the requirements set forth in paragraph (1) of Section VI is

computed includes the cost of material and manufactured products which are to be purchased or

produced by the contractor under the contract provisions.

3. The contractor shall furnish (a) a competent superintendent or supervisor who is employed by

the firm, has full authority to direct performance of the work in accordance with the contract

requirements, and is in charge of all construction operations (regardless of who performs the

work) and (b) such other of its own organizational resources (supervision, management, and

engineering services) as the contracting officer determines is necessary to assure the performance

of the contract.

4. No portion of the contract shall be sublet, assigned or otherwise disposed of except with the

written consent of the contracting officer, or authorized representative, and such consent when

given shall not be construed to relieve the contractor of any responsibility for the fulfillment of

the contract. Written consent will be given only after the contracting agency has assured that

each subcontract is evidenced in writing and that it contains all pertinent provisions and

requirements of the prime contract.

5. The 30% self-performance requirement of paragraph (1) is not applicable to design-build

contracts; however, contracting agencies may establish their own self-performance requirements.

VII. SAFETY: ACCIDENT PREVENTION

This provision is applicable to all Federal-aid construction contracts and to all related

subcontracts.

1. In the performance of this contract the contractor shall comply with all applicable Federal,

State, and local laws governing safety, health, and sanitation (23 CFR 635). The contractor shall

provide all safeguards, safety devices and protective equipment and take any other needed

actions as it determines, or as the contracting officer may determine, to be reasonably necessary

to protect the life and health of employees on the job and the safety of the public and to protect

property in connection with the performance of the work covered by the contract.

2. It is a condition of this contract, and shall be made a condition of each subcontract, which the

contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not

permit any employee, in performance of the contract, to work in surroundings or under

conditions which are unsanitary, hazardous or dangerous to his/her health or safety, as

determined under construction safety and health standards (29 CFR 1926) promulgated by the

Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety

Standards Act (40 U.S.C. 3704).

3. Pursuant to 29 CFR 1926.3, it is a condition of this contract that the Secretary of Labor or

authorized representative thereof, shall have right of entry to any site of contract performance to

inspect or investigate the matter of compliance with the construction safety and health standards

and to carry out the duties of the Secretary under Section 107 of the Contract Work Hours and

Safety Standards Act (40 U.S.C.3704).

VIII. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS

This provision is applicable to all Federal-aid construction contracts and to all related

subcontracts.

In order to assure high quality and durable construction in conformity with approved plans and

specifications and a high degree of reliability on statements and representations made by

engineers, contractors, suppliers, and workers on Federal-aid highway projects, it is essential that

all persons concerned with the project perform their functions as carefully, thoroughly, and

honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any

facts related to the project is a violation of Federal law. To prevent any misunderstanding

regarding the seriousness of these and similar acts, Form FHWA-1022 shall be posted on each

Federal-aid highway project (23 CFR 635) in one or more places where it is readily available to

all persons concerned with the project:

18 U.S.C. 1020 reads as follows:

"Whoever, being an officer, agent, or employee of the United States, or of any State or

Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any

false statement, false representation, or false report as to the character, quality, quantity, or cost

of the material used or to be used, or the quantity or quality of the work performed or to be

performed, or the cost thereof in connection with the submission of plans, maps, specifications,

contracts, or costs of construction on any highway or related project submitted for approval to

the Secretary of Transportation; or

Whoever knowingly makes any false statement, false representation, false report or false claim

with respect to the character, quality, quantity, or cost of any work performed or to be performed,

or materials furnished or to be furnished, in connection with the construction of any highway or

related project approved by the Secretary of Transportation; or

Whoever knowingly makes any false statement or false representation as to material fact in any

statement, certificate, or report submitted pursuant to provisions of the Federal-aid Roads Act

approved July 1, 1916, (39 Stat. 355), as amended and supplemented;

Shall be fined under this title or imprisoned not more than 5 years or both."

IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION

CONTROL ACT

This provision is applicable to all Federal-aid construction contracts and to all related

subcontracts.

By submission of this bid/proposal or the execution of this contract, or subcontract, as

appropriate, the bidder, proposer, Federal-aid construction contractor, or subcontractor, as

appropriate, will be deemed to have stipulated as follows:

1. That any person who is or will be utilized in the performance of this contract is not

prohibited from receiving an award due to a violation of Section 508 of the Clean Water Act or

Section 306 of the Clean Air Act.

2. That the contractor agrees to include or cause to be included the requirements of paragraph

(1) of this Section X in every subcontract, and further agrees to take such action as the

contracting agency may direct as a means of enforcing such requirements.

X. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY

AND VOLUNTARY EXCLUSION

This provision is applicable to all Federal-aid construction contracts, design-build contracts,

subcontracts, lower-tier subcontracts, purchase orders, lease agreements, consultant contracts or

any other covered transaction requiring FHWA approval or that is estimated to cost $25,000 or

more – as defined in 2 CFR Parts 180 and 1200.

1. Instructions for Certification – First Tier Participants:

a. By signing and submitting this proposal, the prospective first tier participant is providing the

certification set out below.

b. The inability of a person to provide the certification set out below will not necessarily result

in denial of participation in this covered transaction. The prospective first tier participant shall

submit an explanation of why it cannot provide the certification set out below. The certification

or explanation will be considered in connection with the department or agency's determination

whether to enter into this transaction. However, failure of the prospective first tier participant to

furnish a certification or an explanation shall disqualify such a person from participation in this

transaction.

c. The certification in this clause is a material representation of fact upon which reliance was

placed when the contracting agency determined to enter into this transaction. If it is later

determined that the prospective participant knowingly rendered an erroneous certification, in

addition to other remedies available to the Federal Government, the contracting agency may

terminate this transaction for cause of default.

d. The prospective first tier participant shall provide immediate written notice to the

contracting agency to whom this proposal is submitted if any time the prospective first tier

participant learns that its certification was erroneous when submitted or has become erroneous

by reason of changed circumstances.

e. The terms "covered transaction," "debarred," "suspended," "ineligible," "participant,"

"person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR

Parts 180 and 1200. “First Tier Covered Transactions” refers to any covered transaction between

a grantee or subgrantee of Federal funds and a participant (such as the prime or general contract).

“Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered

Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has

entered into a covered transaction with a grantee or subgrantee of Federal funds (such as the

prime or general contractor). “Lower Tier Participant” refers any participant who has entered

into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as

subcontractors and suppliers).

f. The prospective first tier participant agrees by submitting this proposal that, should the

proposed covered transaction be entered into, it shall not knowingly enter into any lower tier

covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily

excluded from participation in this covered transaction, unless authorized by the department or

agency entering into this transaction.

g. The prospective first tier participant further agrees by submitting this proposal that it will

include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and

Voluntary Exclusion-Lower Tier Covered Transactions," provided by the department or

contracting agency, entering into this covered transaction, without modification, in all lower tier

covered transactions and in all solicitations for lower tier covered transactions exceeding the

$25,000 threshold.

h. A participant in a covered transaction may rely upon a certification of a prospective

participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or

voluntarily excluded from the covered transaction, unless it knows that the certification is

erroneous. A participant is responsible for ensuring that its principals are not suspended,

debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility

of its principals, as well as the eligibility of any lower tier prospective participants, each

participant may, but is not required to, check the Excluded Parties List System website

(https://www.epls.gov/), which is compiled by the General Services Administration.

i. Nothing contained in the foregoing shall be construed to require the establishment of a

system of records in order to render in good faith the certification required by this clause. The

knowledge and information of the prospective participant is not required to exceed that which is

normally possessed by a prudent person in the ordinary course of business dealings.

j. Except for transactions authorized under paragraph (f) of these instructions, if a participant

in a covered transaction knowingly enters into a lower tier covered transaction with a person who

is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction,

in addition to other remedies available to the Federal Government, the department or agency may

terminate this transaction for cause or default.

* * * * *

2. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion –

First Tier Participants:

a. The prospective first tier participant certifies to the best of its knowledge and belief, that it

and its principals:

(1) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or

voluntarily excluded from participating in covered transactions by any Federal department or

agency;

(2) Have not within a three-year period preceding this proposal been convicted of or had a

civil judgment rendered against them for commission of fraud or a criminal offense in

connection with obtaining, attempting to obtain, or performing a public (Federal, State or local)

transaction or contract under a public transaction; violation of Federal or State antitrust statutes

or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records,

making false statements, or receiving stolen property;

(3) Are not presently indicted for or otherwise criminally or civilly charged by a

governmental entity (Federal, State or local) with commission of any of the offenses enumerated

in paragraph (a)(2) of this certification; and

(4) Have not within a three-year period preceding this application/proposal had one or more

public transactions (Federal, State or local) terminated for cause or default.

b. Where the prospective participant is unable to certify to any of the statements in this

certification, such prospective participant shall attach an explanation to this proposal.

2. Instructions for Certification - Lower Tier Participants:

(Applicable to all subcontracts, purchase orders and other lower tier transactions requiring prior

FHWA approval or estimated to cost $25,000 or more - 2 CFR Parts 180 and 1200)

a. By signing and submitting this proposal, the prospective lower tier is providing the

certification set out below.

b. The certification in this clause is a material representation of fact upon which reliance was

placed when this transaction was entered into. If it is later determined that the prospective lower

tier participant knowingly rendered an erroneous certification, in addition to other remedies

available to the Federal Government, the department, or agency with which this transaction

originated may pursue available remedies, including suspension and/or debarment.

c. The prospective lower tier participant shall provide immediate written notice to the person

to which this proposal is submitted if at any time the prospective lower tier participant learns that

its certification was erroneous by reason of changed circumstances.

d. The terms "covered transaction," "debarred," "suspended," "ineligible," "participant,"

"person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR

Parts 180 and 1200. You may contact the person to which this proposal is submitted for

assistance in obtaining a copy of those regulations. “First Tier Covered Transactions” refers to

any covered transaction between a grantee or subgrantee of Federal funds and a participant (such

as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered

transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier

Participant” refers to the participant who has entered into a covered transaction with a grantee or

subgrantee of Federal funds (such as the prime or general contractor). “Lower Tier Participant”

refers any participant who has entered into a covered transaction with a First Tier Participant or

other Lower Tier Participants (such as subcontractors and suppliers).

e. The prospective lower tier participant agrees by submitting this proposal that, should the

proposed covered transaction be entered into, it shall not knowingly enter into any lower tier

covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily

excluded from participation in this covered transaction, unless authorized by the department or

agency with which this transaction originated.

f. The prospective lower tier participant further agrees by submitting this proposal that it will

include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and

Voluntary Exclusion-Lower Tier Covered Transaction," without modification, in all lower tier

covered transactions and in all solicitations for lower tier covered transactions exceeding the

$25,000 threshold.

g. A participant in a covered transaction may rely upon a certification of a prospective

participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or

voluntarily excluded from the covered transaction, unless it knows that the certification is

erroneous. A participant is responsible for ensuring that its principals are not suspended,

debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility

of its principals, as well as the eligibility of any lower tier prospective participants, each

participant may, but is not required to, check the Excluded Parties List System website

(https://www.epls.gov/), which is compiled by the General Services Administration.

h. Nothing contained in the foregoing shall be construed to require establishment of a system

of records in order to render in good faith the certification required by this clause. The

knowledge and information of participant is not required to exceed that which is normally

possessed by a prudent person in the ordinary course of business dealings.

i. Except for transactions authorized under paragraph e of these instructions, if a participant in

a covered transaction knowingly enters into a lower tier covered transaction with a person who is

suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in

addition to other remedies available to the Federal Government, the department or agency with

which this transaction originated may pursue available remedies, including suspension and/or

debarment.

* * * * *

Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--

Lower Tier Participants:

1. The prospective lower tier participant certifies, by submission of this proposal, that neither it

nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible,

or voluntarily excluded from participating in covered transactions by any Federal department or

agency.

2. Where the prospective lower tier participant is unable to certify to any of the statements in

this certification, such prospective participant shall attach an explanation to this proposal.

* * * * *

XI. CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING

This provision is applicable to all Federal-aid construction contracts and to all related

subcontracts which exceed $100,000 (49 CFR 20).

1. The prospective participant certifies, by signing and submitting this bid or proposal, to the

best of his or her knowledge and belief, that:

a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the

undersigned, to any person for influencing or attempting to influence an officer or employee of

any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee

of a Member of Congress in connection with the awarding of any Federal contract, the making of

any Federal grant, the making of any Federal loan, the entering into of any cooperative

agreement, and the extension, continuation, renewal, amendment, or modification of any Federal

contract, grant, loan, or cooperative agreement.

b. If any funds other than Federal appropriated funds have been paid or will be paid to any

person for influencing or attempting to influence an officer or employee of any Federal agency, a

Member of Congress, an officer or employee of Congress, or an employee of a Member of

Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the

undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report

Lobbying," in accordance with its instructions.

2. This certification is a material representation of fact upon which reliance was placed when

this transaction was made or entered into. Submission of this certification is a prerequisite for

making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to

file the required certification shall be subject to a civil penalty of not less than $10,000 and not

more than $100,000 for each such failure.

3. The prospective participant also agrees by submitting its bid or proposal that the participant

shall require that the language of this certification be included in all lower tier subcontracts,

which exceed $100,000 and that all such recipients shall certify and disclose accordingly.

ATTACHMENT A - EMPLOYMENT AND MATERIALS PREFERENCE FOR

APPALACHIAN DEVELOPMENT HIGHWAY SYSTEM OR APPALACHIAN LOCAL

ACCESS ROAD CONTRACTS

This provision is applicable to all Federal-aid projects funded under the Appalachian Regional

Development Act of 1965.

1. During the performance of this contract, the contractor undertaking to do work which is, or

reasonably may be, done as on-site work, shall give preference to qualified persons who

regularly reside in the labor area as designated by the DOL wherein the contract work is situated,

or the subregion, or the Appalachian counties of the State wherein the contract work is situated,

except:

a. To the extent that qualified persons regularly residing in the area are not available.

b. For the reasonable needs of the contractor to employ supervisory or specially experienced

personnel necessary to assure an efficient execution of the contract work.

c. For the obligation of the contractor to offer employment to present or former employees as

the result of a lawful collective bargaining contract, provided that the number of nonresident

persons employed under this subparagraph (1c) shall not exceed 20 percent of the total number

of employees employed by the contractor on the contract work, except as provided in

subparagraph (4) below.

2. The contractor shall place a job order with the State Employment Service indicating (a) the

classifications of the laborers, mechanics and other employees required to perform the contract

work, (b) the number of employees required in each classification, (c) the date on which the

participant estimates such employees will be required, and (d) any other pertinent information

required by the State Employment Service to complete the job order form. The job order may be

placed with the State Employment Service in writing or by telephone. If during the course of the

contract work, the information submitted by the contractor in the original job order is

substantially modified, the participant shall promptly notify the State Employment Service.

3. The contractor shall give full consideration to all qualified job applicants referred to him by

the State Employment Service. The contractor is not required to grant employment to any job

applicants who, in his opinion, are not qualified to perform the classification of work required.

4. If, within one week following the placing of a job order by the contractor with the State

Employment Service, the State Employment Service is unable to refer any qualified job

applicants to the contractor, or less than the number requested, the State Employment Service

will forward a certificate to the contractor indicating the unavailability of applicants. Such

certificate shall be made a part of the contractor's permanent project records. Upon receipt of

this certificate, the contractor may employ persons who do not normally reside in the labor area

to fill positions covered by the certificate, notwithstanding the provisions of subparagraph (1c)

above.

5. The provisions of 23 CFR 633.207(e) allow the contracting agency to provide a

contractual preference for the use of mineral resource materials native to the Appalachian region.

6. The contractor shall include the provisions of Sections 1 through 4 of this Attachment A in

every subcontract for work which is, or reasonably may be, done as on-site work.

Rules and Regulations Federal

Vol. 75, No.

177

Tuesday, September

14,

2010

55663

This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

in the Federal Register and that

are

open

for

comment. Simply

type

‘‘

FFATA

subaward reporting

’’

(in

quotes)

the

Comment

Submission search box,

click

Go, and

the

instructions for

submitting comments. Comments

received

by the date

specified above

will be

included

as part of the

official

record

and

considered

preparing the

final

guidance.

education

and an

association

research

universities;

six

nonprofit organizations

and an

association

nonprofits; two

local

governmental organizations

and

association

of local

government

officials;

two

commercial

firms;

one

individual;

and 14

Federal agencies.

Some of the

comments concerned

subaward reporting under the

Transparency

Act but were not

directly

Marguerite Pridgen,

Office of

Federal

Financial Management,

Office

to the

content

of the

guidance.

For

example,

received comments

OFFICE OF MANAGEMENT AND

BUDGET

2 CFR Part 170

RIN 0348–AB61

Requirements for Federal Funding

Accountability and Transparency Act

Implementation

AGENCY

Office of

Federal Financial

Management,

Office of

Management

and

Budget (OMB).

ACTION

Interim

final

guidance to

agencies with opportunity

for

comment.

SUMMARY

OMB is

issuing interim final

guidance

agencies

establish

requirements

for

Federal financial

assistance applicants, recipients,

and

subrecipients

that are

necessary

for

the

implementation

of the

Federal Funding

Accountability

and

Transparency

Act

2006,

hereafter referred

to as

‘‘

the

Transparency

Act

’’

‘‘

the

Act

’’

This

interim

final

guidance provides

standard wording

for an

award

term

that

each

agency must include

in grant

and

cooperative agreement awards

makes

on or after

October

1, 2010, to

require

recipients

report information about

first-tier subawards

and

executive

compensation under

only

those awards.

This

implementation

of the

requirement

for

reporting

subawards

and

executive compensation under Federal

assistance awards parallels the

implementation

for

subcontracts

and

executive compensation under Federal

procurement contracts, which

is in

the

Federal Acquisition Regulation.

DATES

The

effective

date for

this

interim

final

guidance

September 14,

2010.

Comments

on the

interim final

guidance must

received

by no

later

than October

14,

2010.

ADDRESSES

Comments

may be sent

regulations.gov,

Federal E-Government

Web site that

allows

the

public

find,

review,

and

submit comments on

documents

that

agencies

have

published

Management

and

Budget,

725

17th

Street,

NW.,

Washington,

20503;

telephone 202–395–7844;

fax

202–395–

3952;

e-mail mpridgen@omb.eop.gov.

FOR

FURTHER INFORMATION

CONTACT:

Marguerite Pridgen,

Office of

Federal

Financial Management,

Office

Management

and

Budget,

telephone

(202)

395–7844 (direct)

or (202)

395–

3993

(main

office) and

e-mail:

mpridgen@omb.eop.gov.

SUPPLEMENTARY

INFORMATION:

Background

On June 6, 2008 [73 FR 32417],

the

Office of

Management

and

Budget

(OMB)

published proposed guidance to

Federal agencies with

award term

needed

implement requirements

subaward reporting under the

Federal Funding Accountability

and

Transparency

Act of 2006 (Pub. L.

109–

282, as

amended

section

6202

Public

Law

110–252, hereafter referred

to as

‘‘

the

Transparency

Act

’’

‘‘

the

Act

’’

The

guidance

was

proposed for

adoption

in a new part 33

within title

2 of the Code of

Federal Regulations

(CFR).

We are

adopting

the

interim final

guidance

in 2 CFR part 170, a

different

2 CFR part

than

part 33 in

which we

originally proposed

adopt

it in

June

2008. The

reason

is that part 33 now

within

newly created subchapter

CFR that is for OMB

guidance related to

pre-award responsibilities

(for

information

on the new 2 CFR

subchapters,

see the

notice

today’s

Federal Register that

adopts

2 CFR

part

25). The

content

of the

guidance

following

this

preamble

better suited

another

new

subchapter

for

guidance

national policy requirements, a

subchapter

that

includes

part

170.

received comments

from

entities

response

to the 2008

Federal

notice, including:

State

agencies

and two

associations

State

officials;

institutions

higher

that

suggested:

•

Specific

data

elements

that

either

should

included

in, or

excluded

from, the

information

that will

required

for each

subaward.

•

need

for

better definitions of

some data

elements

clarification of

the

information desired

in some

data

fields.

•

Using the same

information

technology systems

for

submission of

data on both: (1)

Subawards

under

Federal assistance awards subject

the

Transparency

Act’s

requirements;

and

(2)

subcontracts

that

entities receiving

Federal procurement contracts must

submit under

the

Act.

•

Other specific features

that it

would

important

include

those

information technology systems.

When

received them

in 2008,

referred comments

that do not

directly

relate

to the

policy guidance

the

appropriate Federal agency groups,

including

the

groups

that were

working

on the

design

systems

which

entities

will

submit

data to

fulfill their

reporting responsibilities under

the

Act.

stated

in the 2008 Federal

notice,

the data

elements

and

other

aspects

subaward reporting are

separate

from the

policy guidance. The

General Services

Administration has

recently published

the

information

collections with

opportunity for

public comment

that

provide

the

specific

data

elements required for

Transparency

Act

reporting of

subawards

and

executive compensation

[75 FR 43165]. The

Federal acquisition

councils

have

simultaneously published

for

public comment their proposed

information collection

for

subcontract

reporting pursuant

to the

Transparency

Act.

As it was

proposed

in 2008, the

new

part 33

would

have

required direct

recipients

Federal agency awards

and, with

some

exceptions,

subrecipients

at all

lower

tiers (if

their

55664

Federal Register

Vol. 75, No. 177

/ Tuesday, September

14, 2010

Rules and

Regulations

subawards

were

subject

Transparency

Act

reporting requirements)

have

DUNS

numbers

and

in the CCR.

Since

the

publication

of the June

2008

proposal,

OMB

proposed

a new part

2 CFR on

February

18, 2010 [75

7316]. The

proposed

part 25

superseded

the DUNS

number

and CCR

elements of

the June 2008

notice

and

limited the

DUNS

number requirement to

applicants, recipients,

and

first-tier

subrecipients only.

The

preamble

the

February

2010 Federal

document

also

contained responses to

the

public comments

on the DUNS

and

CCR

requirements proposed

June

2008. Part 25 is being

finalized

another document

in this

section of

today’s

Federal Register.

Therefore,

the

DUNS and CCR

requirements

will

not

be addressed further

in this

document.

The

remainder

of this

document

addresses

the

portions

of the

2008

proposal related

reporting of

subawards,

as well as the

additional

reporting

executive compensation

that is

required

by the

subsequent

amendment

to the

Transparency

Act.

developing

the

interim

final

policy

guidance

subaward reporting, we

considered:

•

All

comments relevant

that

subject

in the 2008

proposal;

•

The

experience gained

under the

guidance

for, and

practical

implementation

of,

recipient reporting

required

section

1512 of

the

American Recovery

and

Reinvestment

Act of 2009 (Pub. L.

111–5, hereafter

referred

to as

‘‘

the

Recovery Act

’’

which

consider

to be the

pilot

program

for

subaward reporting

envisioned

paragraph

(d)(1)

section

2 of the

Transparency

Act;

and

•

New

transparency

and

Open

Government policies

put in effect

since

the

publication

of the 2008

proposal,

including

the

amendment

the

Transparency

Act by

section

6202

Public

Law

110–252

require the

reporting

of the

names

and

total

compensation

of a

recipient’s or

subrecipient’s

five most

highly

compensated executives.

Because

most

aspects

of this

guidance

were

proposed

in 2008,

with

opportunity

for

comment,

and given

the

public benefits

to be

gained by

expediting

the

implementation of

subaward reporting under the

Transparency

Act, we are

publishing

this

guidance

interim final.

The

following

section provides

detailed responses

comments

that

received

on the

portions

of the

guidance

proposed

in 2008 that are

relevant to

subaward reporting.

Each

response

describes

any

revisions

that

included

in the

interim

final

guidance

as a

result

of the

comment.

II. Comments,

Responses,

and

Changes

to the

Guidance

Comments

on the 2008

Federal

Preamble

Comment:

Two

commenters

noted

that

the

preamble

of the 2008

Federal

notice missed

one

data

element—an award

title

descriptive of

the

purpose

of the

funding action—

when

listed

the data

elements

that

the

Transparency

Act

specifies

for

Federal

agencies’

awards.

Response:

The

commenters

are

correct

that the Act

specifies

the

additional data

element.

The

inadvertent omission

did

not affect the

proposed guidance,

however.

The data

elements

were

listed

solely

background explanatory

information

in the

preamble

of the

2008

Federal Register

notice.

Comment:

With

respect

to that

same

list of data

elements

in the

preamble,

one commenter asked

whether the

inclusion

of the

country

of the

recipient

and its

parent entity

was

typographical error.

The

commenter

suggested

that the data

element likely

was

meant

to be the

county, rather than

the

country.

Response: Although

the

specifics of

the data

elements

do not affect

the

guidance,

the data

element specified

the

Transparency

Act is the

country,

rather than

the

county.

B. General

Comments Related

to the

Act

and

Guidance

Comment: Thirty nine commenters

expressed concern

that

recipients and

subrecipients must allocate

additional

resources

order

comply with the

new

requirements

for

subaward

reporting.

They

cited

the

need

change

business processes

and

systems

begin

collect

data that they are

not

collecting

now and do it

electronically.

They also

noted

the

continuing need for

resources

compile

and

report data

after

that

initial transition period. Most

of the

commenters noted

the

fiscal

impact

subaward reporting

and

the

provision

in the

Transparency

Act

that

provides

for

recovering

the

additional

costs. Some State

agencies expressed

concern

that the

increased

administration

costs

would deplete

resources available

for

program

purposes

and some

suggested

that

the

new

requirement

is an

unfunded

mandate.

Some

institutions

higher

education noted

that the

limitation

OMB

Circular

A–21 on

recovery of

indirect

costs

could prevent them from

recovering those

costs from

their

Federal awards.

Some State

agencies

suggested

that the costs

should be

allocable

direct program

costs.

number

commenters

were

concerned

that the

added burdens

reporting

could discourage

some

entities,

especially smaller subrecipient entities,

from

applying

for

Federal grants.

Response:

This

guidance requires

only

prime

grant

recipients

report to

the

Federal Government

subawards

and

executive compensation.

Nevertheless,

understand the

administrative changes

and effort

that

are

associated with reporting on

subawards.

section

(d)(2)(A) of

the

Transparency

Act

provides, recipients

and

subrecipients

are

allowed

‘‘

allocate reasonable

costs for

the

collection

and

reporting

subaward

data as

indirect

costs.

’’

We will

assess

the

overall

cost

impact

of the

new

requirements

recipients and

subrecipients,

as well as

their ability to

recover

the

indirect

costs

under current

limitations

statute, policy, program

regulations,

practice.

Comment:

Nine

commenters

suggested

that it was

premature to

propose

the

policy guidance. Among

reasons

given were that we did not

yet

provide details about

all data

elements

that will be

required

in each

report of

obligating action,

the

definitions of

the data

elements,

and the

reporting

format

and

procedures

that will be

used.

A few

commenters noted

that the

award

term in the

proposed guidance referred

a Web site at

which entities would

submit subaward

data but

observed

that

the site was not

ready

receive data

and had no

further details

what or

how to

report.

One

commenter asked if

there

was an

exception process when

there

are

systems issues

to be

resolved.

Response:

revised

the

wording of

the

award

term to

further clarify

that

the

Web site will be the

source

the

detailed information

what

report

(i.e., the

specific

data

elements

and

their

definitions)

and how to

report

(i.e.,

the

formats

and

information technology

system features).

That

information will

posted

at the Web site before

non-

Federal entities

are

required

report

data on

subaward obligations. In

addition,

the

General Services

Administration’s Paperwork Reduction

Act

information collection

also

provides

the

specific

data

elements required for

Transparency

Act

reporting.

There

is an

important distinction to

made between

the

policy guidance

contained

in this Federal

notice

and the

operational details on

what

and how to

report. Under the

current statute, non-Federal

entities will

required

report subaward

data,

basic

requirement

that does not

depend

on the

specific

data

elements

and

55665

Federal Register

Vol. 75, No. 177

/ Tuesday, September

14, 2010

Rules and

Regulations

procedural details.

The

policy guidance

and the

award

term it

contains

are

the

means

for

having agencies formally

communicate

that basic

statutory

requirement

recipients and

subrecipients. Neither

the

guidance nor

the

award

term

needs

contain the

operational details about

the

specific

data

elements

to be

reported

or how

submit

the data. Both

need

to be

place

now so that

agencies

can use

the

award

term to

provide timely

notification

recipients and

subrecipients about their

responsibilities.

Nonetheless,

we fully

recognize

that

the

operational details

also are

very

important.

ensure adequate

opportunity

for

public comment, we

have

published

the data

elements

and

other details

that affect the

public.

Further,

we have

made

every effort

minimize

the

burden associated

with

Transparency

Act

reporting, through

both

pre-population

of data and use

electronic system

that

facilitates

streamlined reporting

[75 FR

43165–

43166]. With

respect

to the

question

concerning

the

exception process,

the

Transparency

Act does not

provide for

exceptions

due to

unresolved systems

issues.

Comment: Twenty

two

commenters

recommended delaying

the

January 1,

2009, date on

which

the

Transparency

Act

provided

that

subaward reporting

would

begin. They

stated

that

the

implementation timeframe

was

not

reasonable, especially since

the

procedures

for

compiling

and

submitting

the data

would

not be

set

until

after

completion

of a

pilot

that

had

not yet

begun. Seven

of the

commenters

also

recommended

that OMB grant

the

18-month extension

to the

deadline that

the Act

allowed

for

subrecipients

under

awards

to State, local, and

tribal

governments,

if the

Director

OMB

determined

that

compliance would

impose

undue burden

for

those

subrecipients.

Response:

subaward reporting pilot

was

conducted

in the Fall of 2008

assess

the

burden

subaward reporting

recipients

and

subrecipients. The

results

of the

pilot

were

mixed and

showed

that

there

were

various

unresolved policy

and

procedural issues

surrounding subaward reporting. In

2009, the

Recovery

Act was

enacted and

required reporting

funds awarded to

prime recipients, subrecipients

and

vendors.

The

Recovery

Act

reporting

effort,

which commenced

October

2009,

served

as a

demonstration of

subaward reporting

governmentwide

scale

which

is why

consider

it to be the

pilot program for

subaward reporting envisioned by

paragraph

(d)(1) of

section

2 of

the

Transparency

Act.

Various

audits and

reviews

have been

conducted on

Recovery

Act

implementation.

Some

the

reports

from

those reviews are

available

on the

Recovery.gov

Web

site

under

the

‘‘

Accountability

’’

section and

include information

recipient

challenges with implementing reporting

requirements under

the

Recovery Act.

In a

memorandum dated April

2010

with

the

subject

line

‘‘

Open

Government

Directive—Federal

Spending

Transparency,

’’

OMB

established an

October

1, 2010

deadline

for

Federal

agencies

initiate subaward reporting

pursuant

to the

Transparency

Act

and

provide

timeline

for

additional

guidance

assist

meeting

the

goals

established

in the

memorandum.

Comment: Three commenters

pointed

out that the

proposed guidance

did

not

include

detailed implementation

Transparency

Act

provision that

provides

exemption

from

the

subaward reporting requirement

for

entity

that

demonstrates

to the

Director

OMB that its gross

income,

from

all

sources,

did not

exceed $300,000

the

tax year. The Act

provides for

the

exemption until

the

Director

determines

that the

imposition

the

reporting requirement

will not

place an

undue burden

such entities. The

commenters noted

that the

guidance

did

not

disclose

how to

request

reporting

exemption, what proofs would be

required,

and

what evaluation factors

OMB

would

use in

granting exemptions.

Response:

The

award

term

Appendix

A to part 170 of the

guidance

properly includes

that

exception

the

subaward reporting requirement.

Section

2(e) of the

Transparency Act

allows

the

Director,

OMB, to

exempt any

entity

that

demonstrates

its

gross

income,

from all

sources,

did not

exceed

$300,000

in the

entity’s previous tax

year,

from

reporting

the

first-tier

subaward information, until

the

Director

determines

that the

imposition

the

reporting requirement

will not

cause

undue burden

on the

entity. The

Director

has

exempted entities

that

fall

under

this

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