Required Contract Provisions Federal-Aid Construction Contracts

FHWA-1273 – Revised October 23, 2023

REQUIRED CONTRACT PROVISIONS

FEDERAL-AID CONSTRUCTION CONTRACTS

I. General

II. Nondiscrimination

III. Non-segregated 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. Certification Regarding Debarment, Suspension,

Ineligibility and Voluntary Exclusion

XI. Certification Regarding Use of Contract Funds for

Lobbying

XII. Use of United States-Flag Vessels:

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, United States

Code, as required in 23 CFR 633.102(b) (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). 23 CFR

633.102(e).

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. 23

CFR 633.102(e).

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) in accordance with 23 CFR 633.102. 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

solicitation-for-bids or request-for-proposals documents,

however, the Form FHWA-1273 must be physically

incorporated (not referenced) in all contracts, subcontracts and

lower-tier subcontracts (excluding purchase orders, rental

agreements and other agreements for supplies or services

related to a construction contract). 23 CFR 633.102(b).

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. 23

CFR 633.102(d).

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. 23 U.S.C. 114(b).

The term Federal-aid highway does not include roadways

functionally classified as local roads or rural minor collectors.

23 U.S.C. 101(a).

II. NONDISCRIMINATION (23 CFR 230.107(a); 23 CFR Part

230, Subpart A, Appendix A; EO 11246)

The provisions of this section related to 23 CFR Part 230,

Subpart A, Appendix A 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

Part 60, 29 CFR Parts 1625-1627, 23 U.S.C. 140, Section 504

of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794),

Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C.

2000d et seq.), 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 Part 60,

and 29 CFR Parts 1625-1627. The contracting agency and

the FHWA have the authority and the responsibility to ensure

compliance with 23 U.S.C. 140, Section 504 of the

Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and

Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C.

2000d et seq.), and related regulations including 49 CFR Parts

21, 26, and 27; and 23 CFR Parts 200, 230, and 633.

The following provision is adopted from 23 CFR Part 230,

Subpart A, 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 (see 28 CFR

Part 35, 29 CFR Part 1630, 29 CFR Parts 1625-1627, 41 CFR

Part 60 and 49 CFR Part 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 Part 35 and 29 CFR Part 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. 23 CFR 230.409 (g)(4) & (5).

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,

sexual orientation, gender identity, 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 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 or other knowledgeable company official.

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, sexual

orientation, gender identity, national origin, age or disability.

The following procedures shall be followed:

a. The contractor will conduct periodic inspections of project

sites to ensure that working conditions and employee facilities

do not indicate discriminatory treatment of project site

personnel.

b. The contractor will periodically evaluate the spread of

wages paid within each classification to determine any

evidence of discriminatory wage practices.

c. The contractor will periodically review selected personnel

actions in depth to determine whether there is evidence of

discrimination. Where evidence is found, the contractor will

promptly take corrective action. If the review indicates that the

discrimination may extend beyond the actions reviewed, such

corrective action shall include all affected persons.

d. The contractor will promptly investigate all complaints of

alleged discrimination made to the contractor in connection

with its obligations under this contract, will attempt to resolve

such complaints, and will take appropriate corrective action

within a reasonable time. If the investigation indicates that the

discrimination may affect persons other than the complainant,

such corrective action shall include such other persons. Upon

completion of each investigation, the contractor will inform

every complainant of all of their avenues of appeal.

6. Training and Promotion:

a. The contractor will assist in locating, qualifying, and

increasing the skills of minorities and women who are

applicants for employment or current employees. Such efforts

should be aimed at developing full journey level status

employees in the type of trade or job classification involved.

b. Consistent with the contractor's work force requirements

and as permissible under Federal and State regulations, the

contractor shall make full use of training programs (i.e.,

apprenticeship and on-the-job training programs for the

geographical area of contract performance). In the event a

special provision for training is provided under this contract,

this subparagraph will be superseded as indicated in the

special provision. The contracting agency may reserve

training positions for persons who receive welfare assistance

in accordance with 23 U.S.C. 140(a).

c. The contractor will advise employees and applicants for

employment of available training programs and entrance

requirements for each.

d. The contractor will periodically review the training and

promotion potential of employees who are minorities and

women and will encourage eligible employees to apply for

such training and promotion.

7. Unions: If the contractor relies in whole or in part upon

unions as a source of employees, the contractor will use good

faith efforts to obtain the cooperation of such unions to

increase opportunities for minorities and women. 23 CFR

230.409. Actions by the contractor, either directly or through a

contractor's association acting as agent, will include the

procedures set forth below:

a. The contractor will use good faith efforts to develop, in

cooperation with the unions, joint training programs aimed

toward qualifying more minorities and women for membership

in the unions and increasing the skills of minorities and women

so that they may qualify for higher paying employment.

b. The contractor will use good faith efforts to incorporate an

EEO clause into each union agreement to the end that such

union will be contractually bound to refer applicants without

regard to their race, color, religion, sex, sexual orientation,

gender identity, 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, sexual

orientation, gender identity, 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

thereunder. 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, sexual

orientation, gender identity, 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,

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. Assurances Required:

a. The requirements of 49 CFR Part 26 and the State

DOT’s FHWA-approved Disadvantaged Business Enterprise

(DBE) program are incorporated by reference.

The contractor, subrecipient or subcontractor shall not

discriminate on the basis of race, color, national origin, or sex

in the performance of this contract. The contractor shall carry

out applicable requirements of 49 CFR part 26 in the award

and administration of DOT-assisted contracts. Failure by the

contractor to carry out these requirements is a material breach

of this contract, which may result in the termination of this

contract or such other remedy as the recipient deems

appropriate, which may include, but is not limited to:

(1) Withholding monthly progress payments;

(2) Assessing sanctions;

(3) Liquidated damages; and/or

(4) Disqualifying the contractor from future bidding as non-

responsible.

c. The Title VI and nondiscrimination provisions of U.S.

DOT Order 1050.2A at Appendixes A and E are incorporated

by reference. 49 CFR Part 21.

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 more

than $10,000. 41 CFR 60-1.5.

As prescribed by 41 CFR 60-1.8, 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, sexual orientation, gender identity, or national origin

cannot result. The contractor may neither require such

segregated use by written or oral policies nor tolerate such use

by employee custom. The contractor's obligation extends

further to ensure that its employees are not assigned to

perform their services at any location under the contractor's

control where the facilities are segregated. The term "facilities"

includes waiting rooms, work areas, restaurants and other

eating areas, time clocks, restrooms, washrooms, locker

rooms and other storage or dressing areas, parking lots,

drinking fountains, recreation or entertainment areas,

transportation, and housing provided for employees. The

contractor shall provide separate or single-user restrooms and

necessary dressing or sleeping areas to assure privacy

between sexes.

IV. DAVIS-BACON AND RELATED ACT PROVISIONS

This section is applicable to all Federal-aid construction

projects exceeding $2,000 and to all related subcontracts and

lower-tier subcontracts (regardless of subcontract size), in

accordance with 29 CFR 5.5. The requirements apply to all

projects located within the right-of-way of a roadway that is

functionally classified as Federal-aid highway. 23 U.S.C. 113.

This excludes roadways functionally classified as local roads

or rural minor collectors, which are exempt. 23 U.S.C. 101.

Where applicable law requires that projects be treated as a

project on a Federal-aid highway, the provisions of this subpart

will apply regardless of the location of the project. Examples

include: Surface Transportation Block Grant Program projects

funded under 23 U.S.C. 133 [excluding recreational trails

projects], the Nationally Significant Freight and Highway

Projects funded under 23 U.S.C. 117, and National Highway

Freight Program projects funded under 23 U.S.C. 167.

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 (29 CFR 5.5)

a. Wage rates and fringe benefits. All laborers and

mechanics employed or working upon the site of the work (or

otherwise working in construction or development of the

project under a development statute), will be paid

unconditionally and not less often than once a week, and

without subsequent deduction or rebate on any account

(except such payroll deductions as are permitted by

regulations issued by the Secretary of Labor under the

Copeland Act (29 CFR part 3

)), the full amount of basic hourly

wages and bona fide fringe benefits (or cash equivalents

thereof) due at time of payment computed at rates not less

than those contained in the wage determination of the

Secretary of Labor which is attached hereto and made a part

hereof, regardless of any contractual relationship which may

be alleged to exist between the contractor and such laborers

and mechanics. As provided in paragraphs (d) and (e) of 29

CFR 5.5, the appropriate wage determinations are effective by

operation of law even if they have not been attached to the

contract. Contributions made or costs reasonably anticipated

for bona fide fringe benefits under the Davis-Bacon Act (

U.S.C. 3141(2)(B)) on behalf of laborers or mechanics are

considered wages paid to such laborers or mechanics, subject

to the provisions of paragraph 1.e. of this section; also, regular

contributions made or costs incurred for more than a weekly

period (but not less often than quarterly) under plans, funds, or

programs which cover the particular weekly period, are

deemed to be constructively made or incurred during such

weekly period. Such laborers and mechanics must be paid the

appropriate wage rate and fringe benefits on the wage

determination for the classification(s) of work actually

performed, without regard to skill, except as provided in

paragraph 4. of this section. Laborers or mechanics performing

work in more than one classification may be compensated at

the rate specified for each classification for the time actually

worked therein: Provided, That the employer's payroll records

accurately set forth the time spent in each classification in

which work is performed. The wage determination (including

any additional classifications and wage rates conformed under

paragraph 1.c. of this section) and the Davis-Bacon poster

(WH–1321) must be posted at all times by the contractor and

its subcontractors at the site of the work in a prominent and

accessible place where it can be easily seen by the workers.

b. Frequently recurring classifications. (1) In addition to wage

and fringe benefit rates that have been determined to be

prevailing under the procedures set forth in 29 CFR part 1, a

wage determination may contain, pursuant to § 1.3(f), wage

and fringe benefit rates for classifications of laborers and

mechanics for which conformance requests are regularly

submitted pursuant to paragraph 1.c. of this section, provided

that:

(i) The work performed by the classification is not

performed by a classification in the wage determination for

which a prevailing wage rate has been determined;

(ii) The classification is used in the area by the

construction industry; and

(iii) The wage rate for the classification bears a reasonable

relationship to the prevailing wage rates contained in the

wage determination.

(2) The Administrator will establish wage rates for such

classifications in accordance with paragraph 1.c.(1)(iii) of this

section. Work performed in such a classification must be paid

at no less than the wage and fringe benefit rate listed on the

wage determination for such classification.

c. Conformance. (1) The contracting officer must require that

any class of laborers or mechanics, including helpers, which is

not listed in the wage determination and which is to be

employed under the contract be classified in conformance with

the wage determination. Conformance of an additional

classification and wage rate and fringe benefits is appropriate

only when the following criteria have been met:

(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 used 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) The conformance process may not be used to split,

subdivide, or otherwise avoid application of classifications

listed in the wage determination.

(3) If the contractor and the laborers and mechanics to be

employed in the classification (if known), or their

representatives, and the contracting officer agree on the

classification and wage rate (including the amount designated

for fringe benefits where appropriate), a report of the action

taken will be sent by the contracting officer by email to

[email protected]

. 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.

(4) In the event the contractor, the laborers or mechanics to

be employed in the classification or their representatives, and

the contracting officer do not agree on the proposed

classification and wage rate (including the amount designated

for fringe benefits, where appropriate), the contracting officer

will, by email to DBAconformanc[email protected]

, refer the

questions, including the views of all interested parties and the

recommendation of the contracting officer, to the Administrator

for determination. The Administrator, or an authorized

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.

(5) The contracting officer must promptly notify the

contractor of the action taken by the Wage and Hour Division

under paragraphs 1.c.(3) and (4) of this section. The contractor

must furnish a written copy of such determination to each

affected worker or it must be posted as a part of the wage

determination. The wage rate (including fringe benefits where

appropriate) determined pursuant to paragraph 1.c.(3) or (4) of

this section must be paid to all workers performing work in the

classification under this contract from the first day on which

work is performed in the classification.

d. Fringe benefits not expressed as an hourly rate.

Whenever the minimum wage rate prescribed in the contract

for a class of laborers or mechanics includes a fringe benefit

which is not expressed as an hourly rate, the contractor may

either pay the benefit as stated in the wage determination or

may pay another bona fide fringe benefit or an hourly cash

equivalent thereof.

e. Unfunded plans. If the contractor does not make

payments to a trustee or other third person, the contractor may

consider as part of the wages of any laborer or mechanic the

amount of any costs reasonably anticipated in providing bona

fide fringe benefits under a plan or program, Provided, That

the Secretary of Labor has found, upon the written request of

the contractor, in accordance with the criteria set forth in

§ 5.28, that the applicable standards of the Davis-Bacon Act

have been met. The Secretary of Labor may require the

contractor to set aside in a separate account assets for the

meeting of obligations under the plan or program.

f. Interest. In the event of a failure to pay all or part of the

wages required by the contract, the contractor will be required

to pay interest on any underpayment of wages.

2. Withholding (29 CFR 5.5)

a. Withholding requirements. The contracting agency may,

upon its own action, or must, upon written request of an

authorized representative of the Department of Labor, withhold

or cause to be withheld from the contractor so much of the

accrued payments or advances as may be considered

necessary to satisfy the liabilities of the prime contractor or any

subcontractor for the full amount of wages and monetary relief,

including interest, required by the clauses set forth in this

section for violations of this contract, or to satisfy any such

liabilities required by any other Federal contract, or federally

assisted contract subject to Davis-Bacon labor standards, that

is held by the same prime contractor (as defined in § 5.2). The

necessary funds may be withheld from the contractor under

this contract, any other Federal contract with the same prime

contractor, or any other federally assisted contract that is

subject to Davis-Bacon labor standards requirements and is

held by the same prime contractor, regardless of whether the

other contract was awarded or assisted by the same agency,

and such funds may be used to satisfy the contractor liability

for which the funds were withheld. In the event of a

contractor's failure to pay any laborer or mechanic, including

any apprentice or helper working on the site of the work all or

part of the wages required by the contract, or upon the

contractor's failure to submit the required records as discussed

in paragraph 3.d. of this section, the contracting agency may

on its own initiative and 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.

b. Priority to withheld funds. The Department has priority to

funds withheld or to be withheld in accordance with paragraph

2.a. of this section or Section V, paragraph 3.a., or both, over

claims to those funds by:

(1) A contractor's surety(ies), including without limitation

performance bond sureties and payment bond sureties;

(2) A contracting agency for its reprocurement costs;

(3) A trustee(s) (either a court-appointed trustee or a U.S.

trustee, or both) in bankruptcy of a contractor, or a contractor's

bankruptcy estate;

(4) A contractor's assignee(s);

(5) A contractor's successor(s); or

(6) A claim asserted under the Prompt Payment Act, 31

U.S.C. 3901–3907.

3. Records and certified payrolls (29 CFR 5.5)

a. Basic record requirements (1) Length of record retention.

All regular payrolls and other basic records must be

maintained by the contractor and any subcontractor during the

course of the work and preserved for all laborers and

mechanics working at the site of the work (or otherwise

working in construction or development of the project under a

development statute) for a period of at least 3 years after all

the work on the prime contract is completed.

(2) Information required. Such records must contain the

name; Social Security number; last known address, telephone

number, and email address of each such worker; each

worker's correct classification(s) of work actually performed;

hourly rates of wages paid (including rates of contributions or

costs anticipated for bona fide fringe benefits or cash

equivalents thereof of the types described in

40 U.S.C.

3141(2)(B) of the Davis-Bacon Act); daily and weekly number

of hours actually worked in total and on each covered contract;

deductions made; and actual wages paid.

(3) Additional records relating to fringe benefits. Whenever

the Secretary of Labor has found under paragraph 1.e. of this

section that the wages of any laborer or mechanic include the

amount of any costs reasonably anticipated in providing

benefits under a plan or program described in

40 U.S.C.

3141(2)(B) of the Davis-Bacon Act, the contractor must

maintain records which show that the commitment to provide

such benefits is enforceable, that the plan or program is

financially responsible, and that the plan or program has been

communicated in writing to the laborers or mechanics affected,

and records which show the costs anticipated or the actual

cost incurred in providing such benefits.

(4) Additional records relating to apprenticeship. Contractors

with apprentices working under approved programs must

maintain written evidence of the registration of apprenticeship

programs, the registration of the apprentices, and the ratios

and wage rates prescribed in the applicable programs.

b. Certified payroll requirements (1) Frequency and method

of submission. The contractor or subcontractor must submit

weekly, for each week in which any DBA- or Related Acts-

covered work is performed, certified payrolls to the contracting

agency. The prime contractor is responsible for the submission

of all certified payrolls by all subcontractors. A contracting

agency or prime contractor may permit or require contractors

to submit certified payrolls through an electronic system, as

long as the electronic system requires a legally valid electronic

signature; the system allows the contractor, the contracting

agency, and the Department of Labor to access the certified

payrolls upon request for at least 3 years after the work on the

prime contract has been completed; and the contracting

agency or prime contractor permits other methods of

submission in situations where the contractor is unable or

limited in its ability to use or access the electronic system.

(2) Information required. The certified payrolls submitted

must set out accurately and completely all of the information

required to be maintained under paragraph 3.a.(2) of this

section, except that full Social Security numbers and last

known addresses, telephone numbers, and email addresses

must not be included on weekly transmittals. Instead, the

certified payrolls need only include an individually identifying

number for each worker ( e.g., the last four digits of the

worker's Social Security number). The required weekly

certified payroll information may be submitted using Optional

Form WH–347 or in any other format desired. Optional Form

WH–347 is available for this purpose from the Wage and Hour

Division website at

https://www.dol.gov/sites/dolgov/files/WHD/

legacy/files/wh347/.pdf or its successor website. It is not a

violation of this section for a prime contractor to require a

subcontractor to provide full Social Security numbers and last

known addresses, telephone numbers, and email addresses to

the prime contractor for its own records, without weekly

submission by the subcontractor to the contracting agency.

(3) Statement of Compliance. Each certified payroll

submitted must be accompanied by a “Statement of

Compliance,” signed by the contractor or subcontractor, or the

contractor's or subcontractor's agent who pays or supervises

the payment of the persons working on the contract, and must

certify the following:

(i) That the certified payroll for the payroll period contains

the information required to be provided under paragraph 3.b.

of this section, the appropriate information and basic records

are being maintained under paragraph 3.a. of this section,

and such information and records are correct and complete;

(ii) That each laborer or mechanic (including each helper

and apprentice) working on the contract during the payroll

period has been paid the full weekly wages earned, without

rebate, either directly or indirectly, and that no deductions

have been made either directly or indirectly from the full

wages earned, other than permissible deductions as set

forth in 29 CFR part 3

; and

(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(s) of work actually

performed, as specified in the applicable wage determination

incorporated into the contract.

(4) Use of Optional Form WH–347. The weekly submission

of a properly executed certification set forth on the reverse

side of Optional Form WH–347 will satisfy the requirement for

submission of the “Statement of Compliance” required by

paragraph 3.b.(3) of this section.

(5) Signature. The signature by the contractor,

subcontractor, or the contractor's or subcontractor's agent

must be an original handwritten signature or a legally valid

electronic signature.

(6) Falsification. The falsification of any of the above

certifications may subject the contractor or subcontractor to

civil or criminal prosecution under 18 U.S.C. 1001 and

U.S.C. 3729.

(7) Length of certified payroll retention. The contractor or

subcontractor must preserve all certified payrolls during the

course of the work and for a period of 3 years after all the work

on the prime contract is completed.

c. Contracts, subcontracts, and related documents. The

contractor or subcontractor must maintain this contract or

subcontract and related documents including, without

limitation, bids, proposals, amendments, modifications, and

extensions. The contractor or subcontractor must preserve

these contracts, subcontracts, and related documents during

the course of the work and for a period of 3 years after all the

work on the prime contract is completed.

d. Required disclosures and access (1) Required record

disclosures and access to workers. The contractor or

subcontractor must make the records required under

paragraphs 3.a. through 3.c. of this section, and any other

documents that the contracting agency, the State DOT, the

FHWA, or the Department of Labor deems necessary to

determine compliance with the labor standards provisions of

any of the applicable statutes referenced by § 5.1, available for

inspection, copying, or transcription by authorized

representatives of the contracting agency, the State DOT, the

FHWA, or the Department of Labor, and must permit such

representatives to interview workers during working hours on

the job.

(2) Sanctions for non-compliance with records and worker

access requirements. If the contractor or subcontractor fails to

submit the required records or to make them available, or

refuses to permit worker interviews during working hours on

the job, the Federal agency may, after written notice to the

contractor, sponsor, applicant, owner, or other entity, as the

case may be, that maintains such records or that employs

such workers, take such action as may be necessary to cause

the suspension of any further payment, advance, or guarantee

of funds. Furthermore, failure to submit the required records

upon request or to make such records available, or to permit

worker interviews during working hours on the job, may be

grounds for debarment action pursuant to § 5.12. In addition,

any contractor or other person that fails to submit the required

records or make those records available to WHD within the

time WHD requests that the records be produced will be

precluded from introducing as evidence in an administrative

proceeding under 29 CFR part 6

any of the required records

that were not provided or made available to WHD. WHD will

take into consideration a reasonable request from the

contractor or person for an extension of the time for

submission of records. WHD will determine the

reasonableness of the request and may consider, among other

things, the location of the records and the volume of

production.

(3) Required information disclosures. Contractors and

subcontractors must maintain the full Social Security number

and last known address, telephone number, and email address

of each covered worker, and must provide them upon request

to the contracting agency, the State DOT, the FHWA, the

contractor, or the Wage and Hour Division of the Department

of Labor for purposes of an investigation or other compliance

action.

4. Apprentices and equal employment opportunity (29 CFR

5.5)

a. Apprentices (1) Rate of pay. Apprentices will be permitted

to work at less than the predetermined rate for the work they

perform when they are employed pursuant to and individually

registered in a bona fide apprenticeship program registered

with the U.S. Department of Labor, Employment and Training

Administration, Office of Apprenticeship (OA), or with a State

Apprenticeship Agency recognized by the OA. A person who is

not individually registered in the program, but who has been

certified by the OA or a State Apprenticeship Agency (where

appropriate) to be eligible for probationary employment as an

apprentice, will be permitted to work at less than the

predetermined rate for the work they perform in the first 90

days of probationary employment as an apprentice in such a

program. In the event the OA or a State Apprenticeship

Agency recognized by the OA withdraws approval of an

apprenticeship program, the contractor will no longer be

permitted to use apprentices at less than the applicable

predetermined rate for the work performed until an acceptable

program is approved.

(2) Fringe benefits. Apprentices must be paid fringe benefits

in accordance with the provisions of the apprenticeship

program. If the apprenticeship program does not specify fringe

benefits, apprentices must be paid the full amount of fringe

benefits listed on the wage determination for the applicable

classification. If the Administrator determines that a different

practice prevails for the applicable apprentice classification,

fringe benefits must be paid in accordance with that

determination.

(3) Apprenticeship ratio. The allowable ratio of apprentices to

journeyworkers on the job site in any craft classification must

not be greater than the ratio permitted to the contractor as to

the entire work force under the registered program or the ratio

applicable to the locality of the project pursuant to paragraph

4.a.(4) of this section. Any worker listed on a payroll at an

apprentice wage rate, who is not registered or otherwise

employed as stated in paragraph 4.a.(1) of this section, must

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 this section must be paid

not less than the applicable wage rate on the wage

determination for the work actually performed.

(4) Reciprocity of ratios and wage rates. Where a contractor

is performing construction on a project in a locality other than

the locality in which its program is registered, the ratios and

wage rates (expressed in percentages of the journeyworker's

hourly rate) applicable within the locality in which the

construction is being performed must be observed. If there is

no applicable ratio or wage rate for the locality of the project,

the ratio and wage rate specified in the contractor's registered

program must be observed.

b. Equal employment opportunity. The use of apprentices

and journeyworkers under this part must be in conformity with

the equal employment opportunity requirements of Executive

Order 11246, as amended, and 29 CFR part 30.

c. 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.

23 CFR 230.111(e)(2). 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 journeyworkers 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 as

provided in 29 CFR 5.5.

6. Subcontracts. The contractor or subcontractor must insert

FHWA-1273 in any subcontracts, along with the applicable

wage determination(s) and such other clauses or contract

modifications as the contracting agency may by appropriate

instructions require, and a clause requiring the subcontractors

to include these clauses and wage determination(s) in any

lower tier subcontracts. The prime contractor is responsible for

the compliance by any subcontractor or lower tier

subcontractor with all the contract clauses in this section. In

the event of any violations of these clauses, the prime

contractor and any subcontractor(s) responsible will be liable

for any unpaid wages and monetary relief, including interest

from the date of the underpayment or loss, due to any workers

of lower-tier subcontractors, and may be subject to debarment,

as appropriate. 29 CFR 5.5.

7. Contract termination: debarment. A breach of the

contract clauses in 29 CFR 5.5 may be grounds for termination

of the contract, and for debarment as a contractor and a

subcontractor as provided in 29 CFR 5.12.

8. Compliance with Davis-Bacon and Related Act

requirements. All rulings and interpretations of the Davis-

Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5

are herein incorporated by reference in this contract as

provided in 29 CFR 5.5.

9. Disputes concerning labor standards. As provided in 29

CFR 5.5, 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 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

U.S.C. 3144(b) or § 5.12(a).

b. No part of this contract shall be subcontracted to any

person or firm ineligible for award of a Government contract by

virtue of 40 U.S.C. 3144(b)

or § 5.12(a).

c. The penalty for making false statements is prescribed in

the U.S. Code, Title 18 Crimes and Criminal Procedure, 18

U.S.C. 1001.

11. Anti-retaliation. It is unlawful for any person to discharge,

demote, intimidate, threaten, restrain, coerce, blacklist, harass,

or in any other manner discriminate against, or to cause any

person to discharge, demote, intimidate, threaten, restrain,

coerce, blacklist, harass, or in any other manner discriminate

against, any worker or job applicant for:

a. Notifying any contractor of any conduct which the worker

reasonably believes constitutes a violation of the DBA, Related

Acts, this part, or 29 CFR part 1 or 3

;

b. Filing any complaint, initiating or causing to be initiated

any proceeding, or otherwise asserting or seeking to assert on

behalf of themselves or others any right or protection under the

DBA, Related Acts, this part, or 29 CFR part 1 or 3;

c. Cooperating in any investigation or other compliance

action, or testifying in any proceeding under the DBA, Related

Acts, this part, or 29 CFR part 1 or 3; or

d. Informing any other person about their rights under the

DBA, Related Acts, this part, or 29 CFR part 1 or 3.

V. CONTRACT WORK HOURS AND SAFETY STANDARDS

ACT

Pursuant to 29 CFR 5.5(b), 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 watchpersons 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. 29 CFR

5.5.

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 and interest from the date of the underpayment.

In addition, such contractor and subcontractor shall be liable to

the United States (in the case of work done under contract for

the District of Columbia or a territory, to such District or to such

territory), for liquidated damages. Such liquidated damages

shall be computed with respect to each individual laborer or

mechanic, including watchpersons and guards, employed in

violation of the clause set forth in paragraph 1. of this section,

in the sum currently provided in 29 CFR 5.5(b)(2)* for each

calendar day on which such individual was required or

permitted to work in excess of the standard workweek of forty

hours without payment of the overtime wages required by the

clause set forth in paragraph 1. of this section.

* $31 as of January 15, 2023 (See 88 FR 88 FR 2210) as may

be adjusted annually by the Department of Labor, pursuant to

the Federal Civil Penalties Inflation Adjustment Act of 1990.

3. Withholding for unpaid wages and liquidated damages

a. Withholding process. The FHWA or the contracting

agency may, upon its own action, or must, upon written

request of an authorized representative of the Department of

Labor, withhold or cause to be withheld from the contractor so

much of the accrued payments or advances as may be

considered necessary to satisfy the liabilities of the prime

contractor or any subcontractor for any unpaid wages;

monetary relief, including interest; and liquidated damages

required by the clauses set forth in this section on this

contract, 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 that is held

by the same prime contractor (as defined in § 5.2). The

necessary funds may be withheld from the contractor under

this contract, any other Federal contract with the same prime

contractor, or any other federally assisted contract that is

subject to the Contract Work Hours and Safety Standards Act

and is held by the same prime contractor, regardless of

whether the other contract was awarded or assisted by the

same agency, and such funds may be used to satisfy the

contractor liability for which the funds were withheld.

b. Priority to withheld funds. The Department has priority to

funds withheld or to be withheld in accordance with Section IV

paragraph 2.a. or paragraph 3.a. of this section, or both, over

claims to those funds by:

(1) A contractor's surety(ies), including without limitation

performance bond sureties and payment bond sureties;

(2) A contracting agency for its reprocurement costs;

(3) A trustee(s) (either a court-appointed trustee or a U.S.

trustee, or both) in bankruptcy of a contractor, or a contractor's

bankruptcy estate;

(4) A contractor's assignee(s);

(5) A contractor's successor(s); or

(6) A claim asserted under the Prompt Payment Act,

U.S.C. 3901–3907.

4. Subcontracts. The contractor or subcontractor must insert

in any subcontracts the clauses set forth in paragraphs 1.

through 5. of this section and a clause requiring the

subcontractors to include these clauses in any lower tier

subcontracts. The prime contractor is responsible for

compliance by any subcontractor or lower tier subcontractor

with the clauses set forth in paragraphs 1. through 5. In the

event of any violations of these clauses, the prime contractor

and any subcontractor(s) responsible will be liable for any

unpaid wages and monetary relief, including interest from the

date of the underpayment or loss, due to any workers of lower-

tier subcontractors, and associated liquidated damages and

may be subject to debarment, as appropriate.

5. Anti-retaliation. It is unlawful for any person to discharge,

demote, intimidate, threaten, restrain, coerce, blacklist, harass,

or in any other manner discriminate against, or to cause any

person to discharge, demote, intimidate, threaten, restrain,

coerce, blacklist, harass, or in any other manner discriminate

against, any worker or job applicant for:

a. Notifying any contractor of any conduct which the worker

reasonably believes constitutes a violation of the Contract

Work Hours and Safety Standards Act (CWHSSA) or its

implementing regulations in this part;

b. Filing any complaint, initiating or causing to be initiated

any proceeding, or otherwise asserting or seeking to assert on

behalf of themselves or others any right or protection under

CWHSSA or this part;

c. Cooperating in any investigation or other compliance

action, or testifying in any proceeding under CWHSSA or this

part; or

d. Informing any other person about their rights under

CWHSSA or this part.

VI. SUBLETTING OR ASSIGNING THE CONTRACT

This provision is applicable to all Federal-aid construction

contracts on the National Highway System pursuant to 23 CFR

635.116.

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” in

paragraph 1 of Section VI 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: (based on longstanding interpretation)

(1) the prime contractor maintains control over the

supervision of the day-to-day activities of the leased

employees;

(2) the prime contractor remains responsible for the quality

of the work of the leased employees;

(3) the prime contractor retains all power to accept or

exclude individual employees from work on the project; and

(4) the prime contractor remains ultimately responsible for

the payment of predetermined minimum wages, the

submission of payrolls, statements of compliance and all

other Federal regulatory requirements.

b. "Specialty Items" shall be construed to be limited to work

that requires highly specialized knowledge, abilities, or

equipment not ordinarily available in the type of contracting

organizations qualified and expected to bid or propose on the

contract as a whole and in general are to be limited to minor

components of the overall contract. 23 CFR 635.102.

2. Pursuant to 23 CFR 635.116(a), 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. Pursuant to 23 CFR 635.116(c), 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. (based on long-

standing interpretation of 23 CFR 635.116).

5. The 30-percent self-performance requirement of paragraph

(1) is not applicable to design-build contracts; however,

contracting agencies may establish their own self-performance

requirements. 23 CFR 635.116(d).

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 Part 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. 23 CFR 635.108.

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 Part 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). 29 CFR 1926.10.

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 Part 635) in one or more

places where it is readily available to all persons concerned

with the project:

18 U.S.C. 1020 reads as follows:

"Whoever, being an officer, agent, or employee of the United

States, or of any State or Territory, or whoever, whether a

person, association, firm, or corporation, knowingly makes any

false statement, false representation, or false report as to the

character, quality, quantity, or cost of the material used or to

be used, or the quantity or quality of the work performed or to

be performed, or the cost thereof in connection with the

submission of plans, maps, specifications, contracts, or costs

of construction on any highway or related project submitted for

approval to the Secretary of Transportation; or

Whoever knowingly makes any false statement, false

representation, false report or false claim with respect to the

character, quality, quantity, or cost of any work performed or to

be performed, or materials furnished or to be furnished, in

connection with the construction of any highway or related

project approved by the Secretary of Transportation; or

Whoever knowingly makes any false statement or false

representation as to material fact in any statement, certificate,

or report submitted pursuant to provisions of the Federal-aid

Roads Act approved July 11, 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 (42 U.S.C. 7606; 2

CFR 200.88; EO 11738)

This provision is applicable to all Federal-aid construction

contracts in excess of $150,000 and to all related

subcontracts. 48 CFR 2.101; 2 CFR 200.327.

By submission of this bid/proposal or the execution of this

contract or subcontract, as appropriate, the bidder, proposer,

Federal-aid construction contractor, subcontractor, supplier, or

vendor agrees to comply with all applicable standards, orders

or regulations issued pursuant to the Clean Air Act (42 U.S.C.

7401-7671q) and the Federal Water Pollution Control Act, as

amended (33 U.S.C. 1251-1387). Violations must be reported

to the Federal Highway Administration and the Regional Office

of the Environmental Protection Agency. 2 CFR Part 200,

Appendix II.

The contractor agrees to include or cause to be included the

requirements of this Section in every subcontract, and further

agrees to take such action as the contracting agency may

direct as a means of enforcing such requirements. 2 CFR

200.327.

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. 2 CFR 180.220 and

1200.220.

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. 2 CFR 180.320.

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. 2 CFR

180.325.

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. 2 CFR 180.345 and 180.350.

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, Subpart I, 180.900-180.1020, and 1200.

“First Tier Covered Transactions” refers to any covered

transaction between a recipient or subrecipient 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 recipient or

subrecipient 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. 2

CFR 180.330.

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. 2 CFR

180.220 and 180.300.

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. 2 CFR 180.300;

180.320, and 180.325. A participant is responsible for

ensuring that its principals are not suspended, debarred, or

otherwise ineligible to participate in covered transactions. 2

CFR 180.335. 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 System for

Award Management website (

https://www.sam.gov/). 2 CFR

180.300, 180.320, and 180.325.

i. Nothing contained in the foregoing shall be construed to

require the establishment of a system of records in order to

render in good faith the certification required by this clause.

The knowledge and information of the prospective participant

is not required to exceed that which is normally possessed by

a prudent person in the ordinary course of business dealings.

j. Except for transactions authorized under paragraph (f) of

these instructions, if a participant in a covered transaction

knowingly enters into a lower tier covered transaction with a

person who is suspended, debarred, ineligible, or voluntarily

excluded from participation in this transaction, in addition to

other remedies available to the Federal Government, the

department or agency may terminate this transaction for cause

or default. 2 CFR 180.325.

* * * * *

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 CFR 180.335;.

(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, 2 CFR 180.800;

(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, 2 CFR 180.700 and

180.800; 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

CFR 180.335(d).

(5) Are not a corporation that has been convicted of a felony

violation under any Federal law

within the two-year period

preceding this proposal (USDOT Order 4200.6 implementing

appropriations act requirements); and

(6) Are not a corporation with any unpaid Federal tax liability

that has been assessed, for which all judicial and

administrative remedies have been exhausted, or have lapsed,

and that is not being paid in a timely manner pursuant to an

agreement with the authority responsible for collecting the tax

liability (USDOT Order 4200.6 implementing appropriations act

requirements).

b. Where the prospective participant is unable to certify to

any of the statements in this certification, such prospective

participant should attach an explanation to this proposal. 2

CFR 180.335 and 180.340.

* * * * *

3. 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). 2 CFR 180.220 and 1200.220.

a. By signing and submitting this proposal, the prospective

lower tier participant is providing the certification set out below.

b. The certification in this clause is a material representation

of fact upon which reliance was placed when this transaction

was entered into. If it is later determined that the prospective

lower tier participant knowingly rendered an erroneous

certification, in addition to other remedies available to the

Federal Government, the department, or agency with which

this transaction originated may pursue available remedies,

including suspension and/or debarment.

c. The prospective lower tier participant shall provide

immediate written notice to the person to which this proposal is

submitted if at any time the prospective lower tier participant

learns that its certification was erroneous by reason of

changed circumstances. 2 CFR 180.365.

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, Subpart I, 180.900 – 180.1020, 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 recipient or subrecipient 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

recipient or subrecipient 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. 2 CFR 1200.220 and 1200.332.

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. 2 CFR 180.220 and 1200.220.

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 System for

Award Management website (https://www.sam.gov/

), which is

compiled by the General Services Administration. 2 CFR

180.300, 180.320, 180.330, and 180.335.

h. Nothing contained in the foregoing shall be construed to

require establishment of a system of records in order to render

in good faith the certification required by this clause. The

knowledge and information of participant is not required to

exceed that which is normally possessed by a prudent person

in the ordinary course of business dealings.

i. Except for transactions authorized under paragraph e of

these instructions, if a participant in a covered transaction

knowingly enters into a lower tier covered transaction with a

person who is suspended, debarred, ineligible, or voluntarily

excluded from participation in this transaction, in addition to

other remedies available to the Federal Government, the

department or agency with which this transaction originated

may pursue available remedies, including suspension and/or

debarment. 2 CFR 180.325.

* * * * *

4. Certification Regarding Debarment, Suspension,

Ineligibility and Voluntary Exclusion--Lower Tier

Participants:

a. The prospective lower tier participant certifies, by

submission of this proposal, that neither it nor its principals:

(1) is presently debarred, suspended, proposed for

debarment, declared ineligible, or voluntarily excluded from

participating in covered transactions by any Federal

department or agency, 2 CFR 180.355;

(2) is a corporation that has been convicted of a felony

violation under any Federal law within the two-year period

preceding this proposal (USDOT Order 4200.6 implementing

appropriations act requirements); and

(3) is a corporation with any unpaid Federal tax liability that

has been assessed, for which all judicial and administrative

remedies have been exhausted, or have lapsed, and that is

not being paid in a timely manner pursuant to an agreement

with the authority responsible for collecting the tax liability.

(USDOT Order 4200.6 implementing appropriations act

requirements)

b. Where the prospective lower tier participant is unable to

certify to any of the statements in this certification, such

prospective participant should 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 Part 20, App. A.

1. The prospective participant certifies, by signing and

submitting this bid or proposal, to the best of his or her

knowledge and belief, that:

a. No Federal appropriated funds have been paid or will be

paid, by or on behalf of the undersigned, to any person for

influencing or attempting to influence an officer or employee of

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

employee of Congress, or an employee of a Member of

Congress in connection with the awarding of any Federal

contract, the making of any Federal grant, the making of any

Federal loan, the entering into of any cooperative agreement,

and the extension, continuation, renewal, amendment, or

modification of any Federal contract, grant, loan, or

cooperative agreement.

b. If any funds other than Federal appropriated funds have

been paid or will be paid to any person for influencing or

attempting to influence an officer or employee of any Federal

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

Congress, or an employee of a Member of Congress in

connection with this Federal contract, grant, loan, or

cooperative agreement, the undersigned shall complete and

submit Standard Form-LLL, "Disclosure Form to Report

Lobbying," in accordance with its instructions.

2. This certification is a material representation of fact upon

which reliance was placed when this transaction was made or

entered into. Submission of this certification is a prerequisite

for making or entering into this transaction imposed by 31

U.S.C. 1352. Any person who fails to file the required

certification shall be subject to a civil penalty of not less than

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

3. The prospective participant also agrees by submitting its

bid or proposal that the participant shall require that the

language of this certification be included in all lower tier

subcontracts, which exceed $100,000 and that all such

recipients shall certify and disclose accordingly.

XII. USE OF UNITED STATES-FLAG VESSELS:

This provision is applicable to all Federal-aid construction

contracts, design-build contracts, subcontracts, lower-tier

subcontracts, purchase orders, lease agreements, or any other

covered transaction. 46 CFR Part 381.

This requirement applies to material or equipment that is

acquired for a specific Federal-aid highway project. 46 CFR

381.7. It is not applicable to goods or materials that come into

inventories independent of an FHWA funded-contract.

When oceanic shipments (or shipments across the Great

Lakes) are necessary for materials or equipment acquired for a

specific Federal-aid construction project, the bidder, proposer,

contractor, subcontractor, or vendor agrees:

1. To utilize privately owned United States-flag commercial

vessels to ship at least 50 percent of the gross tonnage

(computed separately for dry bulk carriers, dry cargo liners,

and tankers) involved, whenever shipping any equipment,

material, or commodities pursuant to this contract, to the

extent such vessels are available at fair and reasonable rates

for United States-flag commercial vessels. 46 CFR 381.7.

2. To furnish within 20 days following the date of loading for

shipments originating within the United States or within 30

working days following the date of loading for shipments

originating outside the United States, a legible copy of a rated,

‘on-board’ commercial ocean bill-of-lading in English for each

shipment of cargo described in paragraph (b)(1) of this section

to both the Contracting Officer (through the prime contractor in

the case of subcontractor bills-of-lading) and to the Office of

Cargo and Commercial Sealift (MAR-620), Maritime

Administration, Washington, DC 20590. (MARAD requires

copies of the ocean carrier's (master) bills of lading, certified

onboard, dated, with rates and charges. These bills of lading

may contain business sensitive information and therefore may

be submitted directly to MARAD by the Ocean Transportation

Intermediary on behalf of the contractor). 46 CFR 381.7.

ATTACHMENT A - EMPLOYMENT AND MATERIALS

PREFERENCE FOR APPALACHIAN DEVELOPMENT

HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS

ROAD CONTRACTS (23 CFR 633, Subpart B, Appendix B)

This provision is applicable to all Federal-aid projects funded

under the Appalachian Regional Development Act of 1965.

1. During the performance of this contract, the contractor

undertaking to do work which is, or reasonably may be, done

as on-site work, shall give preference to qualified persons who

regularly reside in the labor area as designated by the DOL

wherein the contract work is situated, or the subregion, or the

Appalachian counties of the State wherein the contract work is

situated, except:

a. To the extent that qualified persons regularly residing in

the area are not available.

b. For the reasonable needs of the contractor to employ

supervisory or specially experienced personnel necessary to

assure an efficient execution of the contract work.

c. For the obligation of the contractor to offer employment to

present or former employees as the result of a lawful collective

bargaining contract, provided that the number of nonresident

persons employed under this subparagraph (1c) shall not

exceed 20 percent of the total number of employees employed

by the contractor on the contract work, except as provided in

subparagraph (4) below.

2. The contractor shall place a job order with the State

Employment Service indicating (a) the classifications of the

laborers, mechanics and other employees required to perform

the contract work, (b) the number of employees required in

each classification, (c) the date on which the participant

estimates such employees will be required, and (d) any other

pertinent information required by the State Employment

Service to complete the job order form. The job order may be

placed with the State Employment Service in writing or by

telephone. If during the course of the contract work, the

information submitted by the contractor in the original job order

is substantially modified, the participant shall promptly notify

the State Employment Service.

3. The contractor shall give full consideration to all qualified

job applicants referred to him by the State Employment

Service. The contractor is not required to grant employment to

any job applicants who, in his opinion, are not qualified to

perform the classification of work required.

4. If, within one week following the placing of a job order by

the contractor with the State Employment Service, the State

Employment Service is unable to refer any qualified job

applicants to the contractor, or less than the number

requested, the State Employment Service will forward a

certificate to the contractor indicating the unavailability of

applicants. Such certificate shall be made a part of the

contractor's permanent project records. Upon receipt of this

certificate, the contractor may employ persons who do not

normally reside in the labor area to fill positions covered by the

certificate, notwithstanding the provisions of subparagraph (1c)

above.

5. The provisions of 23 CFR 633.207(e) allow the

contracting agency to provide a contractual preference for the

use of mineral resource materials native to the Appalachian

region.

6. The contractor shall include the provisions of Sections 1

through 4 of this Attachment A in every subcontract for work

which is, or reasonably may be, done as on-site work.