!! Fy14 Fy15 Rtp Manual

Preview ! fy14_ fy15_rtp_manual Grant Lawn Mower Manuals - Lawn Mower Manuals – The Best Lawn Mower Manuals Collection

User Manual: !! Grant Lawn Mower Manuals - Lawn Mower Manuals – The Best Lawn Mower Manuals Collection

Open the PDF directly: View PDF PDF.
Page Count: 72

1
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
2
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
3
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:
4
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
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
5
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:
6
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
7
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.
8
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.
9
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.
10
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 #
Pair Ranking
1
1 vs. 2, 1 vs.3, 1 vs. 4, 1 vs. 5, 1 vs. 6, 1 vs. 7
2
2 vs. 3, 2 vs. 4, 2 vs. 5, 2 vs. 6, 2 vs. 7
3
3 vs. 4, 3 vs. 5, 3 vs. 6, 3 vs. 7
4
4 vs. 5, 4 vs. 6, 4 vs. 7
5
5 vs. 6, 5 vs. 7
6
6 vs. 7
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
11
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.
12
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
13
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.
14
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:
15
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.
16
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
17
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
18
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.
19
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.
20
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.
21
Log in with your user name and password, then click sign-in. If you do not have a user name and password call
701-328-5364 to request one.
Login
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.
22
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.
23
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.
24
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:
25
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:
ND
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?
26
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
27
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
28
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.
29
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
30
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
31
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.
32
33
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
34
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
35
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.
36
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.
37
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.
38
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.
39
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
40
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.
41
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 (WH1321) shall be posted at all times by the contractor and its subcontractors at
the site of the work in a prominent and accessible place where it can be easily seen by the
workers.
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:
42
(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.
43
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
WH347 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
44
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 WH347 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.
45
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.
46
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.
47
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,
48
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;
49
(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.
50
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
51
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.
52
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
53
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.
54
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
55
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
56
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.
57
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
Register
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
REGISTER issue of each week.
in the Federal Register and that
are
open
for
comment. Simply
type
‘‘
FFATA
subaward reporting
’’
(in
quotes)
in
the
Comment
or
Submission search box,
click
Go, and
follow
the
instructions for
submitting comments. Comments
received
by the date
specified above
will be
included
as part of the
official
record
and
considered
in
preparing the
final
guidance.
education
and an
association
of
research
universities;
six
nonprofit organizations
and an
association
of
nonprofits; two
local
governmental organizations
and
an
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
of
related
to the
content
of the
guidance.
For
example,
we
received comments
OFFICE OF MANAGEMENT AND
BUDGET
2 CFR Part 170
RIN 0348AB61
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
to
agencies
to
establish
requirements
for
Federal financial
assistance applicants, recipients,
and
subrecipients
that are
necessary
for
the
implementation
of the
Federal Funding
Accountability
and
Transparency
Act
of
2006,
hereafter referred
to as
‘‘
the
Transparency
Act
’’
or
‘‘
the
Act
’’
.
This
interim
final
guidance provides
standard wording
for an
award
term
that
each
agency must include
in grant
and
cooperative agreement awards
it
makes
on or after
October
1, 2010, to
require
recipients
to
report information about
first-tier subawards
and
executive
compensation under
only
those awards.
This
implementation
of the
requirement
for
reporting
of
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
is
September 14,
2010.
Comments
on the
interim final
guidance must
be
received
by no
later
than October
14,
2010.
ADDRESSES
:
Comments
may be sent
to
regulations.gov,
a
Federal E-Government
Web site that
allows
the
public
to
find,
review,
and
submit comments on
documents
that
agencies
have
published
Management
and
Budget,
725
17th
Street,
NW.,
Washington,
DC
20503;
telephone 2023957844;
fax
202395
3952;
e-mail mpridgen@omb.eop.gov.
FOR
FURTHER INFORMATION
CONTACT:
Marguerite Pridgen,
Office of
Federal
Financial Management,
Office
of
Management
and
Budget,
telephone
(202)
3957844 (direct)
or (202)
395
3993
(main
office) and
e-mail:
mpridgen@omb.eop.gov.
SUPPLEMENTARY
INFORMATION:
I.
Background
On June 6, 2008 [73 FR 32417],
the
Office of
Management
and
Budget
(OMB)
published proposed guidance to
Federal agencies with
an
award term
needed
to
implement requirements
related
to
subaward reporting under the
Federal Funding Accountability
and
Transparency
Act of 2006 (Pub. L.
109
282, as
amended
by
section
6202
of
Public
Law
110252, hereafter referred
to as
‘‘
the
Transparency
Act
’’
or
‘‘
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
to
adopt
it in
June
2008. The
reason
is that part 33 now
is
within
a
newly created subchapter
in
2
CFR that is for OMB
guidance related to
pre-award responsibilities
(for
more
information
on the new 2 CFR
subchapters,
see the
notice
in
today’s
Federal Register that
adopts
2 CFR
part
25). The
content
of the
guidance
following
this
preamble
is
better suited
to
another
new
subchapter
for
guidance
on
national policy requirements, a
subchapter
that
includes
part
170.
We
received comments
from
75
entities
in
response
to the 2008
Federal
Register
notice, including:
29
State
agencies
and two
associations
of
State
officials;
16
institutions
of
higher
that
suggested:
Specific
data
elements
that
either
should
be
included
in, or
excluded
from, the
information
that will
be
required
for each
subaward.
A
need
for
better definitions of
some data
elements
or
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
to
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
be
important
to
include
in
those
information technology systems.
When
we
received them
in 2008,
we
referred comments
that do not
directly
relate
to the
policy guidance
to
the
appropriate Federal agency groups,
including
the
groups
that were
working
on the
design
of
systems
to
which
entities
will
submit
data to
fulfill their
reporting responsibilities under
the
Act.
As
stated
in the 2008 Federal
Register
notice,
the data
elements
and
other
aspects
of
subaward reporting are
separate
from the
policy guidance. The
General Services
Administration has
recently published
the
information
collections with
an
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
of
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
to
Transparency
Act
reporting requirements)
to
have
DUNS
numbers
and
register
in the CCR.
Since
the
publication
of the June
2008
proposal,
OMB
proposed
a new part
25
to
2 CFR on
February
18, 2010 [75
FR
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
of
the
February
2010 Federal
Register
document
also
contained responses to
the
public comments
on the DUNS
and
CCR
requirements proposed
in
June
2008. Part 25 is being
finalized
in
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
to
reporting of
subawards,
as well as the
additional
reporting
on
executive compensation
that is
required
by the
subsequent
amendment
to the
Transparency
Act.
In
developing
the
interim
final
policy
guidance
on
subaward reporting, we
considered:
All
comments relevant
to
that
subject
in the 2008
proposal;
The
experience gained
under the
guidance
for, and
practical
implementation
of,
recipient reporting
required
by
section
1512 of
the
American Recovery
and
Reinvestment
Act of 2009 (Pub. L.
1115, hereafter
referred
to as
‘‘
the
Recovery Act
’’
),
which
we
consider
to be the
pilot
program
for
subaward reporting
envisioned
by
paragraph
(d)(1)
of
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
of
the
Transparency
Act by
section
6202
of
Public
Law
110252
to
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
as
interim final.
The
following
section provides
detailed responses
to
comments
that
we
received
on the
portions
of the
guidance
proposed
in 2008 that are
relevant to
subaward reporting.
Each
response
describes
any
revisions
that
we
included
in the
interim
final
guidance
as a
result
of the
comment.
II. Comments,
Responses,
and
Changes
to the
Guidance
A.
Comments
on the 2008
Federal
Register
Preamble
Comment:
Two
commenters
noted
that
the
preamble
of the 2008
Federal
Register
notice missed
one
data
elementan award
title
descriptive of
the
purpose
of the
funding action
when
it
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
as
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
a
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
in
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
in
order
to
comply with the
new
requirements
for
subaward
reporting.
They
cited
the
need
to
change
business processes
and
systems
to
begin
to
collect
data that they are
not
collecting
now and do it
electronically.
They also
noted
the
continuing need for
resources
to
compile
and
report data
after
that
initial transition period. Most
of the
commenters noted
the
fiscal
impact
of
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
of
higher
education noted
that the
limitation
in
OMB
Circular
A21 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
as
direct program
costs.
A
number
of
commenters
were
concerned
that the
added burdens
of
reporting
could discourage
some
entities,
especially smaller subrecipient entities,
from
applying
for
Federal grants.
Response:
This
guidance requires
only
prime
grant
recipients
to
report to
the
Federal Government
on
subawards
and
executive compensation.
Nevertheless,
we
understand the
administrative changes
and effort
that
are
associated with reporting on
subawards.
As
section
(d)(2)(A) of
the
Transparency
Act
provides, recipients
and
subrecipients
are
allowed
‘‘
to
allocate reasonable
costs for
the
collection
and
reporting
of
subaward
data as
indirect
costs.
’’
We will
assess
the
overall
cost
impact
of the
new
requirements
on
recipients and
subrecipients,
as well as
their ability to
recover
the
indirect
costs
under current
limitations
in
statute, policy, program
regulations,
or
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
an
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
to
a Web site at
which entities would
submit subaward
data but
observed
that
the site was not
ready
to
receive data
and had no
further details
on
what or
how to
report.
One
commenter asked if
there
was an
exception process when
there
are
systems issues
to be
resolved.
Response:
We
revised
the
wording of
the
award
term to
further clarify
that
the
Web site will be the
source
of
the
detailed information
on
what
to
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
be
posted
at the Web site before
non-
Federal entities
are
required
to
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
be
made between
the
policy guidance
contained
in this Federal
Register
notice
and the
operational details on
what
and how to
report. Under the
current statute, non-Federal
entities will
be
required
to
report subaward
data,
a
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
to
recipients and
subrecipients. Neither
the
guidance nor
the
award
term
needs
to
contain the
operational details about
the
specific
data
elements
to be
reported
or how
to
submit
the data. Both
need
to be
in
place
now so that
agencies
can use
the
award
term to
provide timely
notification
to
recipients and
subrecipients about their
responsibilities.
Nonetheless,
we fully
recognize
that
the
operational details
also are
very
important.
To
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
to
minimize
the
burden associated
with
Transparency
Act
reporting, through
both
pre-population
of data and use
of
an
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
of
OMB
determined
that
compliance would
impose
an
undue burden
for
those
subrecipients.
Response:
A
subaward reporting pilot
was
conducted
in the Fall of 2008
to
assess
the
burden
of
subaward reporting
on
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
of
funds awarded to
prime recipients, subrecipients
and
vendors.
The
Recovery
Act
reporting
effort,
which commenced
in
October
2009,
served
as a
demonstration of
subaward reporting
on
a
governmentwide
scale
which
is why
we
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
of
the
reports
from
those reviews are
available
on the
Recovery.gov
Web
site
under
the
‘‘
Accountability
’’
section and
include information
on
recipient
challenges with implementing reporting
requirements under
the
Recovery Act.
In a
memorandum dated April
6,
2010
with
the
subject
line
‘‘
Open
Government
DirectiveFederal
Spending
Transparency,
’’
OMB
established an
October
1, 2010
deadline
for
Federal
agencies
to
initiate subaward reporting
pursuant
to the
Transparency
Act
and
provide
a
timeline
for
additional
guidance
to
assist
in
meeting
the
goals
established
in the
memorandum.
Comment: Three commenters
pointed
out that the
proposed guidance
did
not
include
a
detailed implementation
of
a
Transparency
Act
provision that
provides
an
exemption
from
the
subaward reporting requirement
for
an
entity
that
demonstrates
to the
Director
of
OMB that its gross
income,
from
all
sources,
did not
exceed $300,000
in
the
previous
tax year. The Act
provides for
the
exemption until
the
Director
determines
that the
imposition
of
the
reporting requirement
will not
place an
undue burden
on
such entities. The
commenters noted
that the
guidance
did
not
disclose
how to
request
a
reporting
exemption, what proofs would be
required,
and
what evaluation factors
OMB
would
use in
granting exemptions.
Response:
The
award
term
in
Appendix
A to part 170 of the
guidance
properly includes
that
exception
to
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
of
the
reporting requirement
will not
cause
undue burden
on the
entity. The
Director
has
exempted entities
that
fall
under
this
category
at this
time.
Comment:
Two
commenters raised
questions concerning
the
applicability
of
the
Paperwork Reduction
Act
(PRA).
One
stated
that the
Transparency Act
and
guidance
did not
comply with the
PRA.
The
other suggested
that
OMB
could
not
yet
provide
the PRA
clearance
for the
information collection associated with
subaward reporting, because
the
data
elements
and
format
were
not
specified
in the
guidance proposed on
2008.
Response:
As
stated
in the
response to
a
previous comment,
the
nature
of
the
guidance
is
distinct
from that of
the
operational details.
What
requires PRA
clearance,
as
correctly noted
by
the
second commenter,
are the
data
elements
and
similar details
for
which
reporting burdens
can be
estimated. The
General Services
Administration has
recently published
the
information
collections
for
public comment
that
provide
the
specific
data
elements
required
for
Transparency
Act
reporting
of
subawards
and
executive
compensation
[75 FR 43165]. It is
not
pertinent
to the
issuance
of the
guidance
in this Federal Register
notice
on
the
basic
statutory requirement
to
report.
Comment:
With
respect
to
the
requirement
to
report
each
action under
a
subaward
that
obligates $25,000 or
more in
Federal funding, ten
commenters recommended raising
the
$25,000 threshold
due to the
potential
magnitude
of the
burdens, especially on
small entities.
The
commenters
suggested setting
the
threshold at
$100,000
or more, to be
parallel with
their
State’s
reporting requirement,
the
simplified acquisition threshold for
Federal procurement contracts,
or
the
threshold
in OMB
Circular
A133
at
which
an
entity must
have a
single
audit.
One State
agency asked
if it
could
request
a
waiver
to
increase that
threshold.
Response:
We
made
no
change
to
the
threshold
in the
guidance.
The
$25,000
threshold
is set by the
Transparency Act
and
there
is no
provision
in the
statute
that
authorizes
a
waiver
to
increase the
threshold.
Comment:
Four
commenters stated
that the new
subaward reporting
requirement overlapped with
at
least
some
Federal agencies’ existing
requirements
for
reporting on
subawards.
As an
example, one
commenter cited information about
subawards
that
applications
to
agencies
either contain
or
could
be
amended to
contain.
Two
non-Federal
entities and
one
Federal agency
were
concerned that
the
existing
and new
requirements
could
be
redundant, thereby
unnecessarily increasing
the
burdens of
subaward reporting.
One
Federal agency
stated
that it
currently obtained
information about
all
subawards,
and
not just
those
above the
$25,000
threshold,
and did not
want
to
lose
insight
into the
subawards below
$25,000
due to the
Transparency Act
threshold.
Response: Relatively
few
Federal
agency awarding
offices
currently obtain
the
details about
each
subaward
obligation
that they
would need
to
do
the
reporting under
the
Transparency
Act. Many
agencies receive
individual
applications
that
identify
the
applicant’s
55666
Federal Register
/
Vol. 75, No. 177
/ Tuesday, September
14, 2010
/
Rules and
Regulations
intent
to make a
subaward
of a
specified
amount
if its
application
is
successful.
However,
the
actual subaward recipient
may not be
known
at that time or,
if
known,
the
amount
that a
successful
applicant obligates
may not be the
same
as it
originally planned
and
proposed,
for various reasons
(e.g., the
Federal
award
it
receives
may be for a
lesser
amount than
it
proposed
or it
may
rebudget
after
receiving
the
award, as
pertinent Federal rules allow
it to
do
without
the
Federal agency’s
prior
approval).
Given that
what the
application describes
is only a
plan, it
cannot
serve as a
definitive source of
information
for
Transparency Act
purposes.
At this
time,
we are
not
asking
for
reporting
of
subaward
information below
the
first-tier.
With
respect
to the
relatively few
Federal awarding
offices that do
obtain
post-award
data on
actual subaward
obligations,
we are
directing those
agencies
to take the
necessary steps to
ensure
that
their recipients
are
not
required,
due to the
combination of
agency-specific
and
Transparency Act
reporting requirements,
to
submit the
same or
similar
data
multiple times
during
a given
reporting period.
Comment:
Five
commenters asked
about
the
consequences
of
a
subrecipient’s noncompliance
with
requirements related
to
the
Transparency
Act. Two
commenters
expressed concern
that
delivery of
essential services could
be
interrupted if
awards could
not be
made
or
payments
had to be
suspended.
Response:
After a
subaward
is
made,
the range of
consequences
that
may
result
from the
subrecipient’s material
failure
to
comply with
a
requirement
related
to the
Transparency
Act
should
be no
different than
it is for a
material
failure
to
comply with other Federal
requirements.
The same
remedies are
available
to the
recipient andshould
the
matter
of a
subrecipient entity’s
noncompliance become
an
issue
for
the
Federal Governmentto
a
Federal
agency.
C.
Comments Related
to
the
Applicability
of the
Guidance
Comment:
One
commenter stated
that
the
guidance should
not
apply
to
loan
guarantees because
the
definition of
‘‘
federal
award
’’
in the
Transparency Act
does not
explicitly mention them. The
commenter expressed concern
that
the
requirement
in the
guidance
for
lenders,
small businesses,
and
rural businesses
to
obtain
DUNS
numbers could
be
an
added barrier
to
their participation
in
U.S.
Department
of
Agriculture (USDA)
rural development
and
Small Business
Administration
(SBA)
programs
that
stimulate financing
for
small
and
rural
businesses.
The
commenter
recommended
not
applying the
guidance
to loan
guarantees under those
programs until
a Federal Register
notice
was
published, with
an
opportunity to
comment,
that
proposed applying
Transparency
Act
requirements
to
those
programs specifically.
Response: Although
the 2008
Federal
Register
notice proposed applicability
of the
guidance broadly
to all of
the
types
of
financial assistance subject to
the
Transparency
Act, we
revised the
interim
final
guidance
to
implement at
this time only the
reporting
requirements specifically
for
first-tier
subawards under grants
and
cooperative
agreements
in light of
these public
comments
and
concerns.
We
are
deferring
to a later date
the
implementation
of
subaward reporting
under other financial assistance subject
to the Act,
which includes loans and
loan guarantees,
as well as
lower-tier
subawards.
We
understand
the
legitimate concern
that
additional administrative
requirements
can have an
impact on
financial assistance applicants
and
recipients under
any
Federal program.
However,
to
publish
a
notice
that
lists
the
hundreds
of
programs
individually
would
be
unnecessary
and
impractical.
Comment:
One
Federal agency
suggested
we make it
clearer that
financial assistance provided through
assessed
and
voluntary contributions is
subject
to the
guidance,
by
explicitly
listing
that type of
assistance
in
the
proposed definition
of
‘‘
Federal
financial assistance subject
to
the
Transparency
Act.
’’
The
definition
in
section 33.325
of the
proposed guidance
included them
only
implicitly, through
the
inclusion
of a
category
of
‘‘
other
financial assistance transactions that
authorize
the
non-Federal entities
expenditure
of
Federal funds.
’’
Response:
We agree and
made the
change
to the
guidance
(in
what
now
is
section 170.320).
Comment:
A
Federal agency
recommended
that the
guidance not
apply
to
loans,
loan
guarantees, interest
subsidies,
and
insurance
that
recipients
provide
as
subawards
to
subrecipients.
The
agency stated
that the
Transparency
Act did not
explicitly identify them as
subawards
and
their inclusion would be
inconsistent with coverage
of
the
administrative requirements
for
grants
to and
agreements with educational
and
other nonprofit organizations
that are
in
2 CFR part 215 (OMB
Circular A110).
Response:
We did not
revise the
guidance.
The Act
requires
OMB
to
‘‘
ensure
that data
regarding subawards
are
disclosed
in the same
manner as
data
regarding other Federal awards.
’’
The
Transparency
Act’s
definition of
‘‘
federal
award
’’
includes types of
financial assistance awards
that are
not
subject
to the
administrative
requirements
in 2 CFR part 215,
and
therefore includes them
both at
the
prime
tier
between Federal agencies
and
recipients
and at
lower
tiers
between
recipients
and
subrecipients. While only
subawards under grants
and
cooperative
agreements need
to be
reported
at
this
time, subawards under
all
types of
Federal financial assistance subject to
the
Transparency
Act will
need
to
be
reported
at a later
date.
Comment:
One
Federal agency
expressed concern
that it
would be
difficult
to
provide
an
actual dollar
amount associated with
a
transfer of
title to
Federally owned property.
Response:
We
revised
the
definition
of
‘‘
Federal
financial assistance subject
to
the
Transparency
Act
’’
in that
section
(which
now is
section 170.320)
to
clarify
that the
guidance
does not
apply
to
transfers
of title to
Federally owned
property.
Comment:
One
Federal agency
suggested amending
the
proposed
guidance
to
explicitly exclude
Cooperative Research
and
Development
Agreements
(CRDAs)
under
15
U.S.C.
3710a from
coverage
under the
Transparency
Act. CRDAs
are
instruments authorized
for use
between
Federal laboratories
and
non-Federal
entities
for
technology transfer
purposes.
The
commenter noted
that
the
statute permits
a
Federal laboratory to
receive funds
from a
non-Federal
entity
under
a CRDA and
expressed concern
that a
funds transfer might
be
perceived
as a
subaward
to the
Federal laboratory.
Response:
We agree and
made a
change
to the
definition
of
‘‘
Federal
financial assistance subject
to
the
Transparency
Act
’’
in that
section
(which
now is
section 170.320)
of
the
guidance.
The
definition
of
‘‘
cooperative
research
and
development
agreement
’’
in 15 U.S.C. 3710a
excludes transactions
under which Federal funds
are
provided
to
non-Federal entities.
It
also
distinguishes
CRDAs,
which
are
not
Federal financial assistance awards,
from
cooperative agreements
under the
Federal
Grant and
Cooperative
Agreement
Act in 31 U.S.C.,
chapter 63.
Comment:
One
commenter
noted that
the
proposed guidance
did not
apply to
a Federal agency
that
receives
an
award
from
another agency
and
asked whether
it
would apply
to an
award
that
a
Federal agency receives
from a
non-
Federal entity.
Response:
Yes, the
guidance applies.
The
non-Federal entity would
have
to
report
the
subaward.
At this
time, the
55667
Federal Register
/
Vol. 75, No. 177
/ Tuesday, September
14, 2010
/
Rules and
Regulations
non-Federal entity would
not have
to
report lower-tier subawards.
To
clarify
this, we
revised
the
definition
of
‘‘
entity
’’
in the
award
term that now is
in
Appendix
A to part
170.
Comment:
One
commenter stated
that
it acts as a
fund manager overseeing
accounts
for
Federal agencies
into
which
voluntary payments, court-
ordered settlements,
fines, and
other
sources
of
funds
are
deposited.
It
noted
that the
Federal agency specifies
the
entities
to
whom funds
from
those
accounts
are
obligated.
The
commenter
asked
if it is the
recipient
in that
case
and the
other entities
are
the
subrecipients,
or if the
entities
to
whom
it
awards
the
funds
are the
prime
recipients because
the
Federal agency
makes
the
funding decisions.
Response:
If the
funds cited
in
the
comment
are
available
for
obligation or
reobligation
for
Federal program
purposes,
this
situation
is
somewhat
similar
to that of a grant
under which
the
recipient
is
authorized
to: (1)
Make
loans
for
program purposes to
subrecipients;
(2) merge the
funds
received
from
those subrecipients’ loan
payments
back into the
corpus
of
grant
funding;
and (3) use
those repaid funds
to make new
loans.
In both that case
and
the case
raised
by the
commenter,
the
non-Federal entity
that
manages Federal
agency funds
that are
available for
program purposes
is the
recipient. The
entities
that
receive
the
funds
that
the
recipient obligates
or
reobligates are
subrecipients.
Comment:
One
commenter suggested
not
applying
the
reporting requirement
below
the
first-tier
of
subawards
under
mandatory programs such
as block
and
formula grants
and
other types of
assistance
to State, local, and
tribal
governments.
Response:
The
Transparency
Act
does
not
authorize
a
limitation
on
the
reporting requirement
to the
first-tier of
subawards.
At this
time, however, we
are
deferring
to a later date
the
implementation
of the
reporting
requirement below
the
first-tier.
Comment:
Six
commenters asked
whether
the
requirements
in
the
guidance applied
to
prior program
announcements, awards,
and
subawards.
One of the
commenters
pointed
out that an
applicant who
already
had
applied
in
response
to
a
previously issued announcement might
have
decided
not to
apply
if it had
been
informed about
the
Transparency Act
requirements prior
to
doing
so.
Others
noted
they
would need
to
amend
previously issued awards
if
the
requirements applied
to
them.
Response:
New
Federal, non-Recovery
Act
funded
grant
awards and
cooperative agreements with
an
award
date on or after
October
1, 2010,
and
resulting first-tier subawards,
are
subject
to the
reporting requirements
in
this
guidance.
New
Federal grants
and
cooperative agreements
are
grants
and
cooperative agreements with
a
new
Federal Award Identification Number
(FAIN) as of
October
1, 2010. They
do
not
include obligating actions
on or
after
October
1, 2010, that
provide additional
funding under continuing grants
and
cooperative agreements awarded
in
prior
fiscal
years.
D. Other
Comments
Comment:
Two
commenters raised
questions about
the
dates
in
the
proposed paragraph 33.200(a)(2). One
commenter asked what
was
meant by
the effective
date of the part
cited in
paragraph
(a)(2)(i). The
other
commenter recommended changing
the
date in
paragraph
(a)(2)(ii).
That
paragraph required
a
Federal agency to
incorporate Transparency Act
requirements
into a
program
announcement
or
other application
instructions
if
awards would
be
made
after
October
1, 2008, in
response to
applications using those instructions.
The
commenter recommended changing
the date to
December
31,
2008.
Response:
The
guidance
in 2 CFR
part
170 is
effective today,
with its
publication
in the Federal Register.
We
revised
the date in
paragraph
170.200(a)(2)(ii)
to
October
1,
2010.
Comment: Three commenters
noted
that some
entities
may
want
to
take
advantage
of the
flexibility
that
the
award
term in the
proposed guidance
gave a
recipient
to
either:
(1) Pass
the
responsibility
for
reporting
on
lower-tier
subawards
to the
subrecipients who
made those subawards;
or (2) do
that
reporting
itself,
which would require
the
recipient
to
collect
the
information
from
lower-tier subrecipients.
One,
a
State
agency, stated
that it
maintains a
complete
data base that
should be
sufficient
to meet the
Transparency Act
requirements.
Response:
We
recognize
the
burdens
associated with subaward reporting
and
understand
that
programs
and
organizations
differ.
However,
prime
recipients
will not have the
option to
delegate reporting
of
subgrant
information
to
their subrecipients. We
believe
that this may
help reduce
reporting burden
on
subaward
recipients.
Comment:
Six
commenters asked for
clarification
on the
meaning
of
the
phrases
‘‘
date
of
obligation
’’
and
‘‘
obligating
action
’’
used
in the
award
term in the
proposed section 33.220
with respect
to
subawards. Two
commenters asked
how the date
of
obligation would
be
defined
for
a
subaward
that
allowed reimbursement
of
pre-award
costs a
subrecipient
incurred
on or after a
‘‘
start
date
’’
that
was
prior
to the date on
which the
subaward
was
signed.
Response:
With
respect
to a
subaward,
an
obligating action
is a
transaction that
makes available
to the
subrecipient a
known amount
of
funding
for
program
purposes. Examples include
a
new
subaward,
an
incremental funding
amendment
that
increases
the
total
amount
of a
subaward,
or a
quarterly
allotment under
a
formula grant
program.
We
made
no
change
to the
guidance,
since
‘‘
obligations
’’
is a well
established
term in OMB’s
guidance on
administrative requirements
for
grants
and
agreements
(2 CFR part 215 and
the
common
rule that
Federal agencies
adopted
to
implement
OMB
Circular A
102).
Under
most
Federal grants
and
cooperative agreements,
recipients
regularly report amounts
of
‘‘
unobligated
balances
’’
to
Federal agencies
on
the
standard financial reporting forms.
The date of
obligation
for a
subaward
is the date on
which
the
recipient
authorizes
the
subrecipient
to
incur
costs against
the
known amount it
obligates,
and does so in a way
that
legally obliges
the
recipient
to
provide
funds
to cover costs that are
incurred in
accordance with
the
subaward’s terms
and
conditions.
That date
usually is
associated with
the
signature
of a
formal
document, either
the
initial subaward or
an
amendment
to it. That is
distinct
from the
‘‘
start
date
’’
cited
in
the
example
of
pre-award
costs,
since we
assume
that the
subrecipient incurs
those
costs at its own risk,
in
anticipation
of the
subaward,
and
that
the
recipient
has no legal
obligation
until
it signs the
subawardto
provide
award funds
to cover
those costs.
Comment:
Eight
commenters
questioned whether
the
guidance
required reporting
of
obligations or
disbursements
as the
award amounts.
One
commenter recommended
that
recipients
and
subrecipients report
‘‘
expenditures,
’’
the term
used
in
the
Transparency
Act. Four State
agencies
asked
how
‘‘
obligations
’’
would be
determined
in some
programs
that
adjust
the
amount
a
subrecipient
receives
at some time after the
initial
obligation.
One of the
agencies
cited the
example
of the
school lunch program,
under which
the
amount obligated is
not
known until
after the
subrecipient
expends
the
funds.
Response:
The
guidance requires
reporting
of each
obligation, rather
than
each
disbursement against
the
amount
55668
Federal Register
/
Vol. 75, No. 177
/ Tuesday, September
14, 2010
/
Rules and
Regulations
obligated.
If a
recipient obligates a
specific known amount
for a
subaward,
even if it may be
adjusted later,
it
must
report
the
obligation when
it is
made.
For a
program
like the
school
lunch
program, however, where
the
initial
subaward provides
the
subrecipient
with
an
open-ended authorization of
unspecified amount,
the
obligation date
corresponds
to the date on
which the
amount
of the
obligation
is
specified.
Reporting
is
required
by the end of
the
month following
the
month
in
which
the
subaward obligation
was
made.
Comment:
One
commenter
recommended revising
the
requirement
to
report
each
obligating action
within
30 days of the date of
obligation. The
commenter suggested allowing reporting
quarterly, semiannually,
or
annually.
Response:
We
changed
the
guidance
and
award
term to
require obligations to
be
reported
no later
than
the end of
the
month following
the
month
of
the
obligation.
For
example,
if a
subaward
is
made
on
October
2, 2010,
the
subaward information must
be
reported
by no later
than November
30,
2010.
Comment:
Ten
commenters requested
additional clarification about
the
difference between
a
subaward, which
must
be
reported under the
Transparency
Act, and
procurement
under
an
award, which
is not
subject to
the
reporting requirement.
Response:
It is
worth noting that
recipients
for
many
years have had
to
judge
whether
a
transaction under their
Federal award
was a
subaward
or
a
procurement action.
That is
because a
recipient must include different
requirements
in a
subaward than
it
does
in a
procurement under
an
award,
in
accordance with
the
administrative
requirements
in 2 CFR part 215
(OMB
Circular
A 110) or the
common rule
implementing
OMB
Circular
A
102.
Also, when
the
transaction provides
funds
to a
for-profit entity,
the
recipient
must properly
take into
account
whether
the
transaction would
be
more
characteristic
of a
vendor relationship
than
a
subrecipient under
.210
of
OMB
Circular
A133. The
judgments a
recipient must
make to
decide whether
a
lower
tier
agreement
is a
subaward or
the
lower-tier transaction
is the same
as
the
purpose
of the
substantive program
supported
by the
Federal award
at
the
prime
tier, so that the
recipient through
that
lower
tier
transaction
is in
effect
handing
a
portion
of the
substantive
program
over to the
lower-tier entity for
performance,
the
lower-tier transaction
is a
subaward.
The two
examples
follow:
Example
1:
Provision
of