Special Conditions for Grant Funded Purchases
EXHIBIT 6
Special Conditions for Grant Funded Purchases
RFP # 6646
SUPPLY OF FIBER OPTIC CABLE INSTALLATION SERVICES
DAVIS BACON COMPLIANCE REQUIREMENTS
The Davis Bacon and Related Acts (DBRA) requires all contractors and subcontractors performing work on federal or District of Columbia construction contracts or federally assisted contracts in excess of $2,000 to pay their laborers and mechanics not less than the prevailing wage rates and fringe benefits for corresponding classes of laborers and mechanics employed on similar projects in the area. The prevailing wage rates and fringe benefits are determined by the Secretary of Labor for inclusion in covered contracts.
In addition to the Davis Bacon Act itself, Congress added Davis-Bacon prevailing wage provisions to approximately 60 laws—"related Acts"—under which federal agencies assist construction projects through grants, loans, loan guarantees, and insurance. (Examples of the related Acts are the Federal-Aid Highway Acts, the Housing and Community Development Act of 1974, and the Federal Water Pollution Control Act.) Generally, the application of prevailing wage requirements to projects receiving federal assistance under any particular "related" Act depends on the provisions of that law.
The U.S. Department of Labor (DOL) has oversight responsibilities to assure coordination of administration and consistency of enforcement of the labor standards provisions of the Davis Bacon and Related Acts. Under this authority, DOL has issued regulations establishing standards and procedures for the administration and enforcement of the Davis-Bacon labor standards provisions. Federal contracting agencies have day-to-day responsibility for administration and enforcement of the Davis-Bacon labor standards provisions in covered contracts for which they are responsible or to which they provide federal assistance under laws they administer.
COMPLIANCE ASSISTANCE MATERIALS
BASIC INFORMATION
Davis-Bacon and Related Acts (DBRA) Web Page - Provides information on prevailing wages and benefits set by the Department of Labor.
Employment Law Guide - Prevailing Wages in Construction Contracts - Describes the coverage and basic requirements of prevailing wages in construction contracts.
Compliance Assistance - Davis Bacon and Related Acts Web Page - Provides information on the Acts that require prevailing wages and fringe benefits on federal construction contracts.
Wage Survey Form - Some contractors may be asked to submit wage data as part of the Wage Determination Survey. The WD-10 Form is an optional form to ensure consistency in submission of wage data.
Wage Determinations On-Line - This Web site provides a single location for federal contracting officers and the public to use in obtaining appropriate Service Contract Act (SCA) and Davis-Bacon Act (DBA) wage determinations (WDs) for each official contract action.
POSTERS
Davis-Bacon Poster - Covered contractors must post this poster.
(En Español)
RECORDKEEPING
Under the Davis-Bacon and Related Acts (DBRA), covered contractors must maintain payrolls and basic records and submit certified weekly payrolls. Although use of Form WH-347 is optional, the form will satisfy the requirements of Regulations, Parts 3 and 5 (29 CFR, Subtitle A), as to payrolls submitted in connection with contracts subject to the DBRA. Records to be maintained include:
Name, address, and social security number of each employee;
Each employee's work classification(s);
Hourly rate(s) of pay (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof);
Daily and weekly numbers of hours worked;
Deductions made; and
Actual wages paid.
See 29 CFR 5.5(a)(3) for further information.
APPLICABLE LAWS AND REGULATIONS
Davis-Bacon Act (DBA) - Requires payment of prevailing wages to laborers and mechanics employed on federal and federally assisted construction projects.
Reorganization Plan of 1950
29 CFR Part 1 - Regulations describing the procedures for predetermination of wage rates.
29 CFR Part 3 - Regulations regarding contractors and subcontractors on public building or public work financed in whole or in part by loans or grants from the United States.
29 CFR Part 5 - Regulations regarding labor standards provisions applicable to contracts covering federally financed and assisted construction.
29 CFR Part 6 - Regulations describing the Rules of Practice for administrative proceedings enforcing labor standards in federal and federally assisted construction contracts and federal service contracts.
29 CFR Part 7 - Regulations describing practice before the Administrative Review Board with regard to federal and federally assisted construction contracts.
RELATED TOPICS AND LINKS
DOL's Office of Federal Contract Compliance Programs (OFCCP) - OFCCP administers the laws prohibiting discrimination in hiring or employment decisions on the basis of race, color, gender, religion, or national origin by government contractors and subcontractors and federally assisted construction contracts and subcontracts. See also Compliance Assistance By Topic - Equal Employment Opportunity.
Title I - Contract Work Hours and Safety Standards Act - This Act requires contractors and subcontractors with covered contracts to pay laborers and mechanics employed in the performance of the contracts one and one-half times their basic rate of pay for all hours worked over 40 in a workweek. See also Compliance Assistance By Law - The Contract Work Hours and Safety Standards Act (CWHSSA).
Employment Law Guide - "Kickbacks" in Federally Funded Construction (Copeland Act) - Describes the basic provisions of the Copeland "Anti-Kickback" Act. See also Compliance Assistance By Law - The Copeland "Anti-Kickback" Act.
See also Compliance Assistance By Topic - Wages and Hours Worked - Wages under Federal Contracts.
DOL CONTACTS
Wage and Hour Division
200 Constitution Avenue, NW
Room S-3502
Washington, DC 20210
Contact WHD
Tel: 1-866-4USWAGE (1-866-487-9243)
TTY: 1-877-889-5627
Local Offices
For questions on other DOL laws,
please call DOL's Toll-Free Help Line at 1-866-4-USA-DOL (1-866-487-2365). Live assistance is available in English and Spanish, Monday through Friday from 8:00 a.m. to 8:00 p.m. Eastern Time. Additional service is available in more than 140 languages through a translation service.
Tel: 1-866-4-USA-DOL (1-866-487-2365)
TTY
BUY AMERICAN ACT OF 1933 and TRADE AGREEMENTS ACT
41 United States Code, Chapter 83 (The Buy American Act of 1933). The Contractor acknowledges to and for the benefit of the City of Denton that it understands the goods and services under this Agreement are being funded with monies made available by the Federal Government. The Buy American requirement prohibits the use of federal funds for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States (“Buy American requirement”) including iron, steel, and manufactured goods provided by the Contractor pursuant to this Agreement. The Contractor hereby represents and warrants to and for the benefit of the City of Denton grantee that (a) the Contractor has reviewed and understands the Buy American requirements, (b) all of the iron, steel, and manufactured goods used in the project will be and/or have been produced in the United States in a manner that complies with the Buy American requirement, unless an exception to the requirement is approved, and (c) the Contractor will provide any further verified information, certification or assurance of compliance with this paragraph, or information necessary to support an exception to the Buy American requirement, as may be requested by the City of Denton or the Federal Government. Notwithstanding any other provision of this Agreement, any failure to comply with this paragraph by the Contractor shall permit the Federal Government grantee to recover as damages against the Contractor any loss, expense or cost (including without limitation attorney’s fees) incurred by the Federal Government grantee resulting from any such failure (including without limitation any impairment or loss of funding, whether in whole or in part from Federal Government). Neither this paragraph (nor any provision of this Agreement necessary to give this paragraph force or effect) shall be amended or waived without the prior written consent of the City of Denton.
What are Buy American requirements?
· Requires all iron, steel, and manufactured goods that are incorporated into a public building or public work be produced in the U.S. Even small items such as nuts, bolts, and screws that are made of steel or iron may be subject to Buy America if they comprise “the structural elements” of a building.
(1) Allowable materials.— Only unmanufactured articles, materials, and supplies that have been mined or produced in the United States, and only manufactured articles, materials, and supplies that have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States, shall be acquired for public use unless the Grantee or Federal Government determines their acquisition to be inconsistent with the public interest or their cost to be unreasonable.
Every contract for the construction, alteration, or repair of any public building or public work in the United States shall contain a provision that in the performance of the work the contractor, subcontractors, material men, or suppliers shall use only—
(1) Unmanufactured articles, materials, and supplies that have been mined or produced in the United States (Unmanufactured construction material is raw material brought to the construction site for incorporation into the project); and
(2) Manufactured articles, materials, and supplies that have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States. A manufactured construction material is one that is modified from its mined or raw material state into something different, such as concrete mix, steel pipe, road base, asphalt, structural steel, cable, or any other product that has been processed, formed, or shaped into something other than its natural state.
· Does not require individual components and raw materials that comprise a manufactured good originate in the U.S. Only the final manufactured product, which will be incorporated into the public building or public work, must be assembled or manufactured into its final form in the United States.
A. Construction Materials
A “construction material” is defined as follows under the BAA regulations:
[A]n article, material, or supply brought to the construction site by a contractor or subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies, not construction material.
Contractors must ensure that – before any material is actually shipped to a project site – the materials comply with the BAA requirements.
B. Domestic Construction Materials
A “domestic construction material” is defined as follows under the BAA regulations:
(i) An unmanufactured construction material mined or produced in the United States;
(ii) A construction material manufactured in the United States, if:
(A) The cost of the components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind for which non-availability determinations have been made are treated as domestic. For example, steel pipe comprised of foreign and domestic iron ore will satisfy the Components Test as long as the cost of domestically-produced iron ore exceeds 50% of the cost of all components; or
(B) The construction material is a COTS [commercial off-the-shelf] item. A COTS item does not need to meet the Components Test. For example, the COTS provision allows numerous foreign components to be incorporated into a COTS item as long as the item is actually manufactured in the United States.
· Does not require machinery and tools used by project laborers be produced in the U.S.
· Requires the sub-grantee (contractor) retain adequate records documenting their compliance with Buy American.
How does Buy American apply to my project?
· Any project directly funded or assisted in whole or in part by Federal funding is subject to Buy American.
· Any project that involves construction, alteration, maintenance, or repair of a public building or a public work is subject to Buy American Act.
Are there any Exceptions to the Buy American Requirement?
It is the policy of the Buy American Act that only domestic construction materials be used in construction in the United States, except when these four exemptions created within US Code 43 CFR 12.730 are:
(1) The cost would be unreasonable, i.e., the cost of domestic construction material exceeds the cost of foreign construction material by more than 6 percent, unless the Federal Government determines a higher percentage to be appropriate (see Executive Order 10582);
(2) The Grantee or the Federal Agency determines the construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality (see 25.108);
(3) The Grantee or the Federal Agency determines that application of the restrictions of the Buy American Act to a particular construction material would be impracticable; or
(4) The Grantee or the Federal Agency determines that application of the restrictions of the Buy American Act to a particular construction material would be inconsistent with the public interest. Under this authority, agencies may have agreements with foreign governments that provide blanket exceptions to the Buy American Act (e.g., Trade Agreements Act and North American Free Trade Agreement (NAFTA)).
How do I obtain a waiver if my project does not apply?
Contractors may submit a request for determination to the City regarding the inapplicability of the Buy American requirements. Requests for exemptions from the Buy American requirements should be submitted before items are purchased. The request for determination must be submitted in a timely manner to allow the City ample time to grant or deny the waiver. Contractors should include data supporting the inapplicability of the Buy American requirements with the submittal. Award funds may not be distributed if the Contractor is not in compliance with Buy American requirements.
Trade Agreements Act
The Trade Agreements Act (“TAA”) implements several international trade treaties regarding world-wide government procurements. Put simply, the TAA creates a statutory framework for ensuring reciprocity between the United States and cooperating “designated countries” in their respective governmental procurements. The goal of the TAA is to ensure that the United States provides preferences for products made in designated countries, in exchange for similar treatment of U.S. products in those countries. The effect of the TAA on federal procurements is that products made in designated countries are treated as if they are domestic products for purposes of the BAA. To qualify as a “designated country end product” under the TAA, the product must be manufactured or “substantially transformed” in a designated country.