|The file below has been archived
for historical reference purposes only. The content and links are no longer maintained and may be outdated. See the
OER Public Archive Home Page for more details about archived files.
APPENDIX 2. CONSTRUCTION (PHS GPS 9505)
The following highlights policies and procedures in addition to
45 CFR Parts 74 and 92 and governing programmatic regulations
applicable to PHS construction grants.
DESIGN REQUIREMENTS FOR PHS-ASSISTED
An applicant for a PHS construction grant must assure that it
will not advertise for bids or negotiate a contract for any part
of the grant-supported activity until working drawings and specifications
have been approved. One set of design standards against which
these drawings and specifications will be reviewed is program
specific and is meant to ensure that the facility will suitably
accommodate the service to be provided there. These standards
are set forth in programmatic regulations and in other program
policy issuances. In addition to these standards, there are general
design requirements applicable to all PHS-assisted construction.
The following design requirements (1) are
to be included in the review and evaluation of all working drawings
1. Life Safety Code--National Fire Protection
Association (NFPA) Publication No. 101 and supplements that apply
for the code classification and type of occupancy of the particular
2. Elimination of architectural barriers to the physically
handicapped--The Architectural Barriers Act of 1968, as amended;
Federal Property Management Regulation 101-19.6; and the Uniform
Federal Accessibility Standards, issued August 7, 1984, by GSA.
These requirements are contained in Technical Handbook 4.12, Design
of Barrier-Free Facilities. See also section 4, "Public
3. Protection of the natural environment, including protection
against natural disasters--National Environmental Policy Act of
1969. With respect to earthquakes, structures will be evaluated
in accordance with the lateral forces provisions of the Uniform
4. Uneconomical, hazardous, or unnecessary use of flood
plains for construction--Executive Order 11988.
5. Flood insurance coverage--Section 102 of the Flood Disaster
Protection Act (Public Law 93-234). See also section 4, "Public
6. Provisions for potable water supply--Safety of Public
Water Systems Act (Title XIV of the Public Health Service Act).
7. Preservation of historical and archaeological sites--
Section 106, National Historic Preservation Act of 1966 and the
Historical and Archeological Preservation Act of 1960, as amended.
See also section 4, "Public Policy Requirements." Contact
the State Historic Preservation Liaison Officer or National Trust
for Historic Preservation (2) for additional
8. Conservation of vital energy resources (gas, oil, electricity,
etc.)-- Facility design will be evaluated on the basis of American
Society of Heating, Refrigeration, and Air Conditioning Engineers
(ASHRAE) standards for energy conservation.
9. Conservation of petroleum and natural gas--Executive
10. Where necessary, special structural and other features
to protect life and to minimize damage to facilities from tornados.
11. Clean Air Act, 77 Statute 392, as amended by Executive
12. Seismic safety for federally assisted construction--
Earthquake Hazards Reduction Act of 1977 (Public Law 95-124),
as amended, and Executive Order 12699, Seismic Safety of Federal
and Federally Assisted or Regulated New Building Construction,
dated January 5, 1990.
Where State and local codes or requirements exceed the design
requirements set forth in Technical Handbook 2.1 or standards
incorporated in it, the more stringent requirements will be applied.
Where State or local codes are proposed to be used as a basis
for facility design in lieu of the HHS design requirements, a
prior determination must be made by the appropriate HHS Office
of Engineering Services that the specific State or local code
is equivalent to, or exceeds, HHS requirements.
RELOCATION ASSISTANCE AND
See section 4, "Public Policy Requirements."
REAL PROPERTY ACQUISITION
Applicants for construction grants may include a project contingency
fund in initial cost estimates to provide for unanticipated charges.
Such funds will be limited to 5 percent of construction and equipment
costs before bids are received and will be reduced to 2 percent
after a contract has been awarded.
Under construction grant programs, costs incurred before an award
for architect's fees and consultant's fees necessary to the planning
and design of the project are allowable if the project is approved
When phased 3 construction methods are employed, the grantee will
normally be authorized to proceed with construction and to receive
grant payments before approval of later phase contract awards,
provided a guaranteed maximum price is obtained by the grantee
before the award of the first construction contract for completion
of the total project within the amount of funds available to meet
the cost of the project.
REQUIREMENTS FOR PHS GRANT-SUPPORTED
PHS prior approval requirements for contracting under discretionary
grants are found in section 8, "Changes in Expenditures/Activities."
PHS will find acceptable only those contracting methods that--
- Ensure that all qualified contractors are given an opportunity
to bid and have their bids fairly considered.
Guarantee, insofar as possible, that the contract(s) will result
in the completion of a facility (ready for occupancy) that conforms
to the design and specifications approved by the PHS awarding
office (or any appropriate modification thereof with PHS awarding
office approval, as required) at a cost that is within the owner's
ability to pay (the term "owner" refers to the legal
entity that holds (or will hold) title to the property on which
the grant-supported construction is performed and is generally
the applicant or grantee).
Therefore, PHS-assisted prime construction contracts under grants
must conform to the following requirements.
All construction work must be procured by the methods described
in 45 CFR Part 74, Subpart P, and 45 CFR Part 92.36. Normally,
this means formal advertising resulting in lump sum, fixed-price
contracts, although other procurement methods and other types
of contracts may be authorized when formal advertising is impractical.
The grantee (owner) must obtain PHS awarding office approval of
plans and specifications both before bids or proposals are solicited
and before the award of a prime construction contract. The procurement
methods to be employed must be reviewed by the regional Office
of Engineering Services and must be approved by the PHS awarding
agency or regional office. In those construction programs where
a State agency has final approval authority, the State agency
must concur in the contract award. The grantee (owner) is responsible
for ensuring that the project is constructed to completion in
accordance with the approved plans or specifications and for obtaining
necessary approvals for changes (see section 8, "Changes
The grantee (owner), including the firms acting for it in a professional
capacity, must take adequate steps to ensure that the total cost
of all contracts, i.e., total cost of construction, awarded under
a project will be within the amount of funds available for the
This can be accomplished by accurate price estimating and/or the
use of bid alternates. A precise description of the scope of work,
specifications, materials, and construction techniques in the
invitation to bid will facilitate accurate cost estimating by
both the bidder and the grantee's (owner's) professional representatives.
The description of work becomes especially important when multiple
contracts will be let in support of the same project, since each
contractor must know exactly what is involved in the portions
of the job he is bidding on. Invitations to bid must stipulate
a time for completion of the project, expressed either in calendar
days or as a fixed date, for each prime contract to be awarded
under the project.
Where more than one PHS (HHS) program will support a construction
project or where the PHS-supported project is less than the entire
facility or construction to be bid, the grantee must obtain bids
that provide, to the maximum extent possible, the costs for that
portion of the total job that will be financed by PHS funds. This
may be done by showing the cost for each building or site in the
project if it consists of more than one building or construction
site and may be divided for bidding and construction purposes,
or by identifying to the extent possible or prorating the applicable
costs when the project is a single site or contains common space
and may not be divided for bidding and construction purposes.
Where practicable, the grantee (owner) may request, in the invitation
for bids, alternates to the base bid that are keyed to specified
and explicitly stated changes in the project scope, materials,
or construction techniques. Alternates may be used when the amount
of the low bid exceeds the amount of funds available to the owner
to award a contract, and the grantee (owner) must make adjustments
to the project so as to reduce costs in order to award a contract
within the funds available. Additive alternates may be used when
available funds exceed the amount of the low bid, thus making
it possible to incorporate necessary features that otherwise would
not have been included in the project. Alternates that are selected
will be included in determining the low aggregate bid. If all
bids exceed the funds available even after the steps described
above have been taken, the grantee (owner) may--
1. Decline to award a contract and instead issue a
revised invitation to bid containing changes in specifications
or other factors affecting price that have been approved by the
PHS awarding office.
2. Negotiate with the low bidder (this is an exception
to formal advertising), or if that bidder should refuse, in writing,
to negotiate, negotiate with the next lowest bidder. Any changes
in design and specifications resulting from such negotiations
must be approved by the PHS awarding office. If efforts to negotiate
are unsuccessful, all bids shall be canceled and the project shall
3. If a construction management firm is currently employed
by the grantee (owner), authorize that firm to perform the construction
work after obtaining PHS awarding office prior approval. The price
for the work involved must not exceed the line-item prices stipulated
in the construction management contract (guaranteed maximum price)
as approved by the PHS awarding office (see below for requirements
for a construction management agreement).
4. Enter into a design-construct contract for a functionally
equivalent facility by the methods described below.
Construction management services are management services that
may be produced on a negotiated basis rather than by formal advertising.
These services include technical consultation during the design
state of a project and organization and direction of construction
activities during the construction phase. The services of construction
managers may also be procured by formal advertising in those cases
where State or local governments prohibit the procurement of construction
management services on a negotiated basis. Where bids are taken,
the bidders should be prequalified.
The construction management contract must place total financial
responsibility on the construction manager to complete construction
of the project at or below the guaranteed maximum price. If the
contract exceeds $100,000, the construction manager shall be required
to provide 100-percent performance and payment bonds to ensure
the grantee (owner) that the facility can be completed within
the amount of available funds (see 45 CFR Part 74, Subpart C).
When a construction management firm is retained by the grantee
(owner), a guaranteed maximum price must be obtained from the
construction manager before PHS will authorize the award of the
first construction contract. This requirement shall apply whether
or not phased construction techniques are employed. Each portion
of the work for which a separate contract is expected to be let
shall be separately priced as an individual line item in the guaranteed
maximum price contract.
Contracting for construction work on a project covered by a construction
management agreement as in item 3 above is subject to the requirements
for bidding and award of contracts, except that bids may be obtained
by prequalification and selective solicitation. When prequalification
and selective solicitation are used, the construction manager
must (1) issue, no more than 6 months in advance of the date of
the invitation to bid, a "sources sought" announcement
in newspapers or other publications having general circulation
in the area specifically describing the nature of the construction
work required, the separate contracts that will be let, and the
standards for prequalification; (2) prequalify all firms that
respond to the announcement and which are determined to meet the
prequalification standards; (3) establish bidders lists for each
of the invitations to bid, including at least all firms qualified
in (2), and that may also include other known qualified firms;
(4) by written invitation, solicit bids from all firms on the
bidders list; (5) consider bids from any contractor who requests
permission to bid and who is determined by the grantee (owner)
to meet the prequalification standards; and (6) advertise the
project formally if fewer than three responsive bids are received
in response to the selective solicitation.
In design-construct contracting, construction firms respond to
a request for proposals by submitting building designs that they
claim will meet the grantee's (owner's) performance requirements
within a guaranteed maximum price covering all architectural,
engineering, and construction services required.
The design-construct firm must be selected in a manner that will
allow maximum feasible competition. Because of the nature of design-construct
contracting, the following departures from formal advertising
1. Cost must be treated as a competitive factor although
the grantee (owner) may insert in the request for proposals a
specified maximum permissible figure.
2. A contract may be awarded regardless of the number of
proposals received or the number of firms that are determined
to have met qualification standards.
3. The grantee (owner) may negotiate cost or design with
one or any number of firms.
The selection of a design-construct firm must be accomplished
by a process that includes public announcement of requests for
proposals, provided that at least one form of the announcement
receives nationwide distribution; consideration of all proposals
from firms that are determined to be qualified; and selection
based on the firm's qualifications and responsiveness to the criteria
in the request for proposals.
On all design-construct projects, the owner must--
1. Ensure a firm total cost by including in the design-construct
contract a provision that extra costs resulting from errors or
omissions in the drawings or estimates will be the design-construct
2. Justify cost on the basis of comparability with similar
OTHER CONSTRUCTION CONTRACT
REQUIREMENTS AND OPTIONS
At the option of the grantee (owner), a liquidated damage provision
may be included in the construction contract for assessment of
damages when the contractor has not completed construction by
the date specified in the contract. Where there is an assessment
of damages, any amounts paid belong to the owner.
Labor standards and equal employment opportunity requirements
for federally assisted construction must be included in the information
provided to bidders on construction contracts under PHS grants
and be included in the contract documents for all such projects
(see 45 CFR Part 74, Subpart P and Appendix F, and 45 CFR Part
Unanticipated changes or modifications to previously approved
construction contracts shall be handled in accordance with 45
CFR Part 74, Subpart L; 45 CFR Part 92.30; and section 8, "Changes
in Expenditures/ Activities."
Invitations for bids must stipulate a time for completion of the
project, expressed either in calendar days or as a fixed date,
for each prime contract to be awarded under the project.
Disposition of Unclaimed Wages
If it is discovered, either during or after the period of performance
of a PHS-assisted construction contract, that an employee is entitled
to wages but cannot be located for the purposes of payment (or
for some reason refuses to accept payment), the grantee or loan
recipient may eventually have to make a repayment to the Federal
Government. Therefore, PHS suggests that the contractor be required
to turn over unclaimed wages to the grantee institution.
The grantee institution should notify the Grants Management Officer
(GMO) of the PHS awarding office that an escrow account has been
established in the affected employee's name and should maintain
the account for a period of either 2 years following the completion
of the contract or such longer period as may be required by State
or local law. Upon the expiration of this period, any amounts
still unclaimed will be disbursed by refunding to PHS either the
entire amount if the construction project received 100-percent
PHS participation or the same percentage of the amount remaining
in the account as the percentage of PHS participation in the project.
In the event the project was participated in by more than one
PHS program at differing rates, the percentage on which the refund
is based should be an average percentage arrived at by weighting
each program's rate of participation by the dollar amount of that
If the contractor has made a reasonable effort to locate the employee
by having mail forwarded and by contacting his union, the institution
need not repeat such attempts. If there is reason to believe that
the contractor's efforts to locate employees due wages were not
thorough, it will be to the institution's advantage to attempt
to locate such employees. Doing so will reduce the likelihood
of future claiming actions.
If any wages held in escrow are paid to an employee or his legal
representative during the period in which the account is maintained,
a complete report must be made to the GMO of the PHS awarding
office when the account is closed.
Reporting to Department of Labor
Department of Labor (DOL) regulations at 41 CFR Part 60-4 require
that all grantees awarding federally assisted construction contracts
over $10,000 notify the applicable regional, area, or field office
of the DOL Office of Federal Contract Compliance Program.
REQUIREMENTS FOR FEDERALLY ASSISTED
CONSTRUCTION CONTRACTS REGARDING
LABOR STANDARDS AND EQUAL
Except as provided below, the following clauses must be included
in the information furnished to bidders on PHS construction projects
under grants and must be included in the contract documents for
all such projects. However, Paragraph E, Minimum Wages, shall
be included only when required by the Federal program legislation.
A. Equal Employment Opportunity
1. During the performance of this contract, the contractor
agrees as follows:
a. The contractor will not discriminate against any employee or
applicant for employment because of race, color, religion, sex,
or national origin. The contractor will take affirmative action
to ensure that applicants are employed and that employees are
treated during employment without regard to their race, color,
religion, sex, or national origin. Such action shall include,
but not be limited to the following: employment, upgrading, demotion
or transfer, recruitment or recruitment advertising, layoff or
termination, rates of pay or other forms of compensation, and
selection for training, including apprenticeship. The contractor
agrees to post in conspicuous places, available to employees and
applicants for employment, notices to be provided setting forth
the provisions of this nondiscrimination clause.
b. The contractor will, in all solicitations or advertisements
for employees placed by or on behalf of the contractor, state
that all qualified applicants will receive consideration for employment
without regard to race, color, religion, sex, or national origin.
c. The contractor will send to each labor unit representative
of workers with which he has a collective bargaining agreement
or other contract or understanding, a notice to be provided advising
the said labor union or workers' representatives of the contractor's
commitments under this section and shall post copies of the notice
in conspicuous places available to employees and applicants for
d. The contractor will comply with all provisions of Executive
Order 11246 of September 24, 1965 and of the rules, regulations,
and relevant orders of the Secretary of Labor.
e. The contractor will furnish all information and reports
required by Executive Order 11246 of September 24, 1965 and by
rules, regulations, and orders of the Secretary of Labor, or pursuant
thereto, and will permit access to his books, records, and accounts
by the administering agency and the Secretary of Labor for purposes
of investigation to ascertain compliance with such rules, regulations,
f. In the event of the contractor's noncompliance with
the nondiscrimination clauses of this contract or with any of
the said rules, regulations, or orders, this contract may be canceled,
terminated, or suspended in whole or in part and the contractor
may be declared ineligible for further Government contracts or
federally assisted procedures authorized in Executive Order 11246
of September 24, 1965 and such other sanctions may be imposed
and remedies invoked as provided in Executive Order 11246 of September
24, 1965 or by rule, regulation, or order of the Secretary of
Labor or as otherwise provided by law.
g. The contractor will include the portion of the sentence
immediately preceding paragraph a and the provisions of paragraphs
a through g in every subcontract or purchase order unless exempted
by rules, regulations, or orders of the Secretary of Labor issued
pursuant to section 204 of Executive Order 11246 of September
24, 1965 so that such provisions will be binding upon each subcontractor
or vendor. The contractor will take such action with respect to
any subcontract or purchase order as the administering agency
may direct as a means of enforcing such provisions, including
sanctions for noncompliance: Provided, however, that in the event
a contractor becomes involved in, or is threatened with litigation
with a subcontractor or vendor as a result of such direction by
the administering agency, the contractor may request the United
States to enter into such litigation to protect the interests
of the United States.
The applicant further agrees that it will be bound by the above
equal opportunity clause with respect to its own employment practices
when it participates in federally assisted construction work:
Provided, that if the applicant so participating is a State or
local government, the above equal opportunity clause is not applicable
to any agency, instrumentality, or subdivision of such government
which does not participate in work on or under the contract.
The applicant agrees that it will assist and cooperate actively
with the administering agency and the Secretary of Labor in obtaining
the compliance of contractors and subcontractors with the equal
opportunity clause and the rules, regulations, and relevant orders
of the Secretary of Labor, that it will furnish the administering
agency and the Secretary of Labor such information as they may
require for the supervision of such compliance, and that it will
otherwise assist the administering agency in the discharge of
the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering
into any contract or contract modification subject to Executive
Order 11246 of September 24, 1965, with a contractor debarred
from, or who has not demonstrated eligibility for, Government
contracts and federally assisted construction contracts pursuant
to the Executive Order and will carry out such sanctions and penalties
for violation of the equal opportunity clause as may be imposed
upon contractors and subcontractors by the administering agency
or the Secretary of Labor pursuant to Part II Subpart D of the
Executive Order. In addition, the applicant agrees that if it
fails or refuses to comply with these undertakings, the administering
agency may take any or all of the following actions: cancel, terminate,
or suspend in whole or in part this grant (contract, loan, insurance,
guarantee); refrain from extending any further assistance to the
applicant under the program with respect to which the failure
or refund occurred until satisfactory assurance of future compliance
has been received from such applicant; and refer the case to the
Department of Justice for appropriate legal proceedings.
B. Certification of Nonsegregated Facilities
(Applicable to contracts and subcontracts exceeding $10,000
which are not exempt from the provisions of paragraph A, "Equal
Opportunity," of this form.)
1. By entering into an agreement related to the work
described in the contract documents, the contractor or subcontractor
certifies that it does not maintain or provide for its employees
any segregated facilities at any of its establishments and that
it does not permit employees to perform their services at any
location under its control where segregated facilities are maintained.
The contractor or subcontractor further certifies that it will
not maintain or provide for employees any segregated facilities
at any establishments under its control and that it will not permit
employees to perform their services at any location under its
control where segregated facilities are maintained. The contractor
or subcontractor agrees that a breach of this certification is
a violation of paragraph A, "Equal Opportunity." As
used herein, the term "segregated facilities" means
waiting rooms, work areas, and washrooms, restaurants and other
eating areas, time clocks, restrooms, locker rooms and other storage
or dressing areas, parking lots, drinking fountains, recreation
or entertainment areas, transportation, and housing facilities
provided for employees on the basis of race, color, religion,
or national origin, because of habit, local custom, or otherwise.
The contractor further agrees that (except where identical certifications
are obtained from proposed subcontractors for specific time periods)
it will obtain identical certifications from proposed subcontractors
prior to the award of subcontracts exceeding $10,000 which are
not exempt from the provisions of paragraph A, "Equal Opportunity,"
that it will retain such certifications in its files, and that
it will forward the following notice to such proposed subcontractors
(except where the proposed subcontractors have submitted identical
certifications for specific time periods):
"NOTICE TO PROSPECTIVE
SUBCONTRACTORS OF REQUIREMENTS
FOR CERTIFICATION OF
A certification of nonsegregated facilities, as required by
the May 9, 1967 order (32 FR 7439, May 19, 1967) on elimination
of segregated facilities by the Secretary of Labor, must be submitted
prior to the award of a subcontract exceeding $10,000 which is
not exempt from the provisions of "Equal Opportunity."
The certification may be submitted either for each subcontract
or for all subcontracts during a period, i.e., quarterly, semiannually,
2. The penalty for making false statements in certifications
required by paragraph B.1 is prescribed in 18 U.S.C. 1001.
The following notice shall be included in and shall be part
of all solicitations for offers and bids on all federally assisted
construction contracts or subcontracts in excess of $10,000 to
be performed in designated geographical areas:
"NOTICE OF REQUIREMENT FOR AFFIRMATIVE
ACTION TO ENSURE EQUAL EMPLOYMENT
OPPORTUNITY (Executive Order No. 11246)
1.The Offeror's or Bidder's attention is called to the
"Equal Opportunity Clause" and the "Standard Federal
Equal Employment Opportunity Construction Contract Specifications"
set forth herein.
2. The goals and timetables for minority and female participation
expressed in percentage terms for the Contractor's aggregate workforce
in each trade on all construction work in the covered area are
||Goals for Minority
|(Insert Goals for Each Year)|
These goals are applicable to all the Contractor's construction
work (whether or not it is Federal or federally assisted) performed
in the covered area.
The Contractor's compliance with the Executive Order and the regulations
in 41 CFR Part 60-4 shall be based on its implementation of the
Equal Opportunity Clause, specific affirmative action obligations
required by the specifications set forth herein under paragraph
D, and its efforts to meet the goals established for the geographical
area where the contract resulting from this solicitation is to
be performed. The hours of minority and female employment and
training must be substantially uniform throughout the length of
the contract and in each trade, and the contractor shall make
a good faith effort to employ minorities and women evenly on each
of its projects. The transfer of minority or female employees
or trainees from Contractor to Contractor or from project to project
for the sole purpose of meeting the Contractor's goals shall be
a violation of the contract, the Executive Order, and the regulations
in 41 CFR Part 60-4. Compliance with the goals will be measured
against the total work hours performed.
3. The Contractor
shall provide written notification to the Director of the Office
of Federal Contract Compliance Programs within 10 working days
of award of any construction subcontract in excess of $10,000
at any tier of construction work under the contract resulting
from this solicitation. The notification shall list the name,
address, and telephone number of the contractor; employer identification
number; estimated dollar amount of the subcontract; estimated
starting and completion dates of the subcontract; and the geographical
area in which the contract is to be performed.
4. As used in this Notice and in the contract resulting
from this solicitation, the "covered area" is (State,
County, and City)."
Equal Opportunity Clauses
Standard Federal Equal Employment Opportunity Construction
Contract Specifications (Executive Order 11246) (Applicable to
all federally assisted contracts in excess of $10,000 to be performed
in designated geographical areas.)
As used in these specifications:
"Covered area" means the geographical
area described in the solicitation from which this contract resulted.
b. "Director" means Director, Office of Federal
Contract Compliance Programs, United States Department of Labor,
or any person to whom the Director delegates authority.
c. "Employer identification number" means the
Federal Social Security number used on the Employer's Quarterly
Federal Tax Return, U.S. Treasury Department Form 941.
d. "Minority" includes:
(1) Black (all persons having origins in any of the Black African
racial groups not of Hispanic origin).
(2) Hispanic (all persons of Mexican, Puerto Rican, Cuban,
Central or South American or other Spanish culture or origin,
regardless of race).
(3) Asian and Pacific Islander (all persons having origins
in any of the original peoples of Far East, Southeast Asia, the
Indian Subcontinent, or the Pacific Islands).
(4) American Indian or Alaskan Native (all persons having
origins in any of the original peoples of North America and maintaining
identifiable tribal affiliations through membership and participation
or community identification).
2. Whenever the Contractor, or any Subcontractor at any
tier, subcontracts a portion of the work involving any construction
trade, it shall physically include in each subcontract in excess
of $10,000 the provisions of these specifications and the Notice
which contains the applicable goals for minority and female participation
and which is set forth in the solicitations from which this contract
3. If the Contractor is participating (pursuant to 41 CFR
Part 60-4.5) in a Hometown Plan approved by the U.S. Department
of Labor in the covered area either individually or through an
association, its affirmative action obligations on all work in
the Plan area (including goals and timetables) shall be in accordance
with that Plan for those trades which have unions participating
in the Plan. Contractors must be able to demonstrate their participation
in and compliance with the provisions of any such Hometown Plan.
Each Contractor or Subcontractor participating in an approved
Plan is individually required to comply with its obligation under
the Equal Employment Opportunity Clause and to make a good faith
effort to achieve each goal under the Plan in each trade in which
it has employees. The overall good faith performance by other
Contractors or Subcontractors toward a goal in an approved Plan
does not excuse any covered Contractor's or Subcontractor's failure
to take good faith efforts to achieve the Plan goals and timetables.
4. The Contractor shall implement the specific affirmative
action standards provided in paragraphs 7.a through p of these
specifications. The goal set forth in the solicitation from which
this contract resulted are expressed as percentages of the total
hours of employment and training of minority and female utilization
the Contractor should reasonably be able to achieve in each construction
trade in which it has employees in the covered area. The Contractor
is expected to make substantially uniform progress toward its
goals in each craft during the period specified.
5. Neither the provisions of any collective bargaining
agreement nor the failure by a union with whom the Contractor
has a collective bargaining agreement to refer either minorities
or women shall excuse the Contractor's obligations under these
specifications, Executive Order 11246, or the regulations promulgated
6. In order for the nonworking training hours of apprentices
and trainees to be counted in meeting the goals, such apprentices
and trainees must be employed by the Contractor during the training
period and the Contractor must have made a commitment to employ
the apprentices and trainees at the completion of their training,
subject to the availability of employment opportunities. Trainees
must be trained pursuant to training programs approved by the
U.S. Department of Labor.
7. The Contractor shall take specific affirmative actions
to ensure equal employment opportunity. The evaluation of the
Contractor's compliance with these specifications shall be based
upon its effort to achieve maximum results from its actions. The
Contractor shall document these efforts fully and shall implement
affirmative action steps at least as extensive as the following:
a. Ensure and maintain a working environment free of
harassment, intimidation, and coercion at all sites and in all
facilities at which the Contractor's employees are assigned to
work. The Contractor, where possible, will assign two or more
women to each construction project. The Contractor shall specifically
ensure that all foremen, superintendents, and other onsite supervisory
personnel are aware of and carry out the Contractor's obligation
to maintain such a working environment with specific attention
to minority or female individuals working at such sites or in
b. Establish and maintain a current list of minority and
female recruitment sources, provide written notification to minority
and female recruitment sources and to community organizations
when the Contractor or its union have employment opportunities
available, and maintain a record of the organizations' responses.
c. Maintain a current file of the names, addresses, and
telephone numbers of each minority and female off-the-street applicant
and minority or female referral from a union, a recruitment source,
or community organization and of what action was taken with respect
to each such individual. If such individual was sent to the union
hiring hall for referral and was not referred back to the Contractor
by the union or, if referred, not employed by the Contractor,
this shall be documented in the file with the reason therefore,
along with whatever additional actions the Contractor may have
d. Provide immediate written notification to the Director
when the union or unions with which the Contractor has a collective
bargaining agreement has not referred to the Contractor a minority
person or woman sent by the Contractor or when the Contractor
has other information that the union referral process has impeded
the Contractor's efforts to meet its obligations.
e. Develop on-the-job training opportunities and/or participate
in training programs for the area which expressly include minorities
and women, including upgrading programs and apprenticeship and
trainee programs relevant to the Contractor's employment needs,
especially those programs funded or approved by the Department
of Labor. The Contractor shall provide notice of these programs
to the sources compiled under 7.b above.
f. Disseminate the Contractor's Equal Employment Opportunity
policy by providing notice of the policy to unions and training
programs and requesting their cooperation in assisting the Contractor
in meeting its Equal Employment Opportunity obligations; by including
it in any policy manual and collective bargaining agreement; by
publicizing it in the company newspaper, annual report, etc.;
by specific review of the policy with all management personnel
and with all minority and female employees at least once a year;
and by posting the company Equal Employment Opportunity policy
on bulletin boards accessible to all employees at each location
which construction work is performed.
g. Review, at least annually, the company's Equal Employment
Opportunity policy and affirmative action obligations under these
specifications with all employees having responsibility for hiring,
assignment, layoff, termination, or other employment decisions,
including specific review of these items with onsite supervisory
personnel such as superintendents, general foreman, etc., prior
to the initiation of construction work at any job site. A written
record shall be made and maintained identifying the time and place
of these meetings, persons attending, subject matter discussed,
and disposition of the subject matter.
h. Disseminate the Contractor's Equal Employment Opportunity
policy externally by including it in any advertising in the news
media, specifically including minority and female news media,
and providing written notification to and discussing the Contractor's
Equal Employment Opportunity policy with other Contractors and
Subcontractors with whom the Contractor does or anticipates doing
i. Direct its recruitment efforts, both oral and written,
to minority, female, and community organizations; to schools with
minority and female students; and to minority and female recruitment
and training organizations serving the Contractor's recruitment
area and employment needs. Not later than 1 month prior to the
date for the acceptance of applications for apprenticeship or
other training by any recruitment source, the Contractor shall
send written notification to organizations such as the above describing
the openings, screening procedures, and tests to be used in the
j. Encourage present minority and female employees to recruit
other minority persons and women and, where reasonable, provide
after school, summer, and vacation employment to minority and
female youth both on the site and in other areas of a Contractor's
k. Validate all tests and other selection requirements
where there is an obligation to do so under 41 CFR Part 60-3.
l. Conduct, at least annually, an inventory and evaluation
at least of all minority and female personnel for promotional
opportunities and encourage these employees to seek or to prepare
for, through appropriate training, etc., such opportunities.
m. Ensure that seniority practices, job classifications,
work assignments, and other personnel practices do not have a
discriminatory effect by continually monitoring all personnel
and employment related activities to ensure that the Equal Employment
Opportunity policy and the contractor's obligations under these
specifications are being carried out.
n. Ensure that all facilities and company activities are
nonsegregated except that separate or single-user toilet and necessary
changing facilities shall be provided to assure privacy between
o. Document and maintain a record of all solicitations
of offers for subcontracts from minority and female construction
contractors and suppliers, including circulation of solicitations
to minority and female contractor associations and other business
p. Conduct a review, at least annually, of all supervisors'
adherence to and performance under the Contractor's Equal Employment
Opportunity policies and affirmative action obligations.
8. Contractors are encouraged to participate in voluntary
associations which assist in fulfilling one or more of their affirmative
action obligations (7.a through p). The efforts of a contractor
association, joint contractor-union, contractor-community, or
other similar group of which the Contractor is a member and participant
may be asserted as fulfilling any one or more of its obligations
under 7.a through p of these specifications provided that the
Contractor actively participates in the group, makes every effort
to assure that the group has a positive impact on the employment
of minorities and women in the industry, ensures that the concrete
benefits of the program are reflected in the Contractor's minority
and female work force participation, makes a good faith effort
to meet its individual goals and timetables, and can provide access
to documentation which demonstrates the effectiveness of actions
taken on behalf of the Contractor. The obligation to comply, however,
is the Contractor's and failure of such a group to fulfill an
obligation shall not be a defense for the Contractor's non-compliance.
9. A single goal for minorities and a separate single goal
for women have been established. The Contractor, however, is required
to provide equal employment opportunity to take affirmative action
for all minority groups, both male and female, and all women,
both minority and nonminority. Consequently, the Contractor may
be in violation of the Executive Order if a particular group is
employed in a substantially disparate manner (for example, even
though the Contractor has achieved its goals for women generally,
the Contractor may be in violation of the Executive Order if a
specific minority group of women is underutilized).
10. The Contractor shall not use the goals and timetables
or affirmative action standards to discriminate against any person
because of race, color, religion, sex, or national origin.
11. The Contractor shall not enter into any subcontract
with any person or firm debarred from Government contracts pursuant
to Executive Order 11246.
12. The Contractor shall carry out such sanctions and penalties
for violation of these specifications and of the Equal Employment
Opportunity clause, including the suspension, termination, and
cancellation of existing subcontracts as may be imposed or ordered
pursuant to Executive Order 11246, as amended, and its implementing
regulations, by the Office of Federal Contracts Compliance Programs.
Any Contractor who fails to carry out such sanctions and penalties
shall be in violation of these specifications and Executive Order
11246, as amended.
13. The Contractor, in fulfilling its obligations under
these specifications, shall implement specific affirmative action
steps, at least as extensive as those standards prescribed in
paragraph 7 of these specifications, so as to achieve maximum
results from its efforts to ensure equal employment opportunity.
If the Contractor fails to comply with the requirements of the
Executive Order, the implementing regulations, or these specifications,
the Director shall proceed in accordance with 41 CFR Part 60-4.8.
14. The Contractor shall designate a responsible official
to monitor all employment related activity to ensure that the
company Equal Employment Opportunity policy is being carried out,
to submit reports relating to the provisions hereof as may be
required by the Government, and to keep records. Records shall
at least include for each employee the name, address, telephone
numbers, construction trade, union affiliation, if any, employee
identification number when assigned, social security number, race,
sex, status (e.g., mechanic, apprentice trainee, helper, or laborer)
dates of changes in status, hours worked per week in the indicated
trade, rate of pay, and locations at which the work was performed.
Records shall be maintained in an easily understandable and retrievable
form; however, to the degree that existing records satisfy this
requirement, Contractors shall not be required to maintain separate
15. Nothing herein provided shall be construed as a limitation
upon the application of other laws which establish different standards
of compliance or upon the application of requirements for the
hiring of local or other area residents (e.g., those under the
Public Works Employment Act of 1977 and the Community Development
Block Grant Program).
E. Minimum Wages
1. All mechanics and laborers, employed or working
directly upon the site of the work, shall 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 the Copeland Regulations (29 CFR Part 3)), the full
amounts due at time of payment computed at wage rates not less
than the aggregate of the basic hourly rates and the rates of
payments, contributions, or costs for any fringe benefits contained
in the wage determination decision of the Secretary of Labor,
which is attached hereto and made a part hereof, regardless of
any contractual relationships which may be alleged to exist between
the Contractor or Subcontractor and such laborers and mechanics
and the wage decision shall be posted by the Contractor at the
site of the work in a prominent place where it can easily be seen
by the workers.
2. The Owner shall require that any class of laborers or
mechanics, including apprentices and trainees, which is not listed
in the wage determination and which is to be employed under the
contract shall be classified or reclassified conformably to the
wage determination and a report of the action taken shall be sent
to the Department of Health and Human Services. If the interested
parties cannot agree on the proper classification or reclassification
of a particular class of laborers or mechanics, including apprentices
and trainees to be used, the Owner shall submit the question together
with his recommendation through the Department of Health and Human
Services to the Secretary of Labor for final determination.
3. The Owner shall require, 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
wage rate and the Contractor is obliged to pay a cash equivalent
of such a fringe benefit, an hourly cash equivalent thereof to
be established. In the event interested parties cannot agree upon
a cash equivalent of the fringe benefit, the question, accompanied
by the recommendation of the Owner, shall be referred to the Secretary
of Labor for determination.
4. If the Contractor does not make payments to a trustee
or other third person, he may consider as part of the wages of
any laborer or mechanic the amount of any cost reasonably anticipated
in providing benefits under a plan or program of a type expressly
listed in the wage determination decision of the Secretary of
Labor which is part of this contract: Provided, however, the Secretary
of Labor has found, upon the written request of the Contractor,
that the applicable standards of the Davis-Bacon Act have been
met. The Secretary of Labor may require the Contractor to set
aside in a separate account assets for the meeting of obligations
under the plan or program.
F. Payrolls and Basic Records
1. The Contractor shall maintain payrolls and basic
records relating thereto during the course of the work and shall
preserve them for a period of three years thereafter for all laborers
and mechanics, including apprentices and trainees, working at
the site of the work. Such records shall contain the name and
address of each employee, his correct classification, rate of
pay (including rates of contribution for, or costs assumed to
provide, fringe benefits), daily and weekly number of hours worked,
deductions made and actual wages paid. Whenever the Contractor
has obtained approval from the Secretary of Labor as provided
in paragraph E.4, the Contractor shall maintain records which
show that the commitment to provide such benefits is enforceable,
that the plan or program is financially responsible, and that
the plan or program has been communicated in writing to the laborers
or mechanics affected and records which show the costs anticipated
or the actual cost incurred in providing such benefits.
2. The Contractor shall submit weekly a copy of all payrolls
to the Owner. The prime contractor shall be responsible for the
submission of copies of payrolls of all Subcontractors. Each such
copy shall be accompanied by a statement signed by the Contractor
indicating that the payrolls are correct and complete, that the
wage rates contained therein are not less than those determined
by the Secretary of Labor, and that the classification set forth
for each laborer or mechanic, including apprentices and trainees,
conform to the work he performed. Submission of the "Weekly
Statement of Compliance" required under this contract and
the Copeland Regulations of the Secretary of Labor (29 CFR Part
3) shall satisfy the requirement for submission of the above statement.
The Contractor shall submit also a copy of any approval by the
Secretary of Labor with respect to fringe benefits which is required
by paragraph E.4.
3. Contractors employing apprentices or trainees under
approved programs shall include a notation on the first weekly
certified payrolls submitted to the Owner that their employment
is pursuant to an approved program and shall identify the program.
4. The Contractor will make the records required under
the Labor Standards clauses of the contract available for inspection
by authorized representatives of the Owner, U.S. Department of
Health and Human Services, and the U.S. Department of Labor, and
shall permit such representatives to interview employees during
working hours on the job.
G. Apprentices and Trainees
1. Apprentices will be permitted to work at less than
the predetermined rate for the work they perform when they are
employed and individually registered in a bona fide apprenticeship
program registered with the U.S. Department of Labor, Manpower
Administration, Bureau of Apprenticeship and Training, or with
a State Apprenticeship Agency recognized by the Bureau, or if
a person is employed, in the first 90 days of probationary employment
as an apprentice in such an apprenticeship program, who is not
individually registered in the program but who has been certified
by the Bureau of Apprenticeship and Training or a State Apprenticeship
Agency (where appropriate) to be eligible for probationary employment
as an apprentice. The allowable ratio of apprentices to journeymen
in any craft classification shall not be greater than the ratio
permitted to the Contractor as to his entire work force under
the registered program. Any employee listed on a payroll at an
apprentice wage rate, who is not a trainee as defined in subparagraph
2 of this paragraph or is not registered or otherwise employed
as stated above, shall be paid the wage rate determined by the
Secretary of Labor for the classification of work actually performed.
The Contractor will be required to furnish to the Owner or a representative
of the U.S. Department of Labor written evidence of the registration
of its program and apprentices as well as the appropriate ratios
and wage rates (expressed in percentages of the journeyman hourly
rates), for the area of construction prior to using any apprentices
on the contract work. The wage rate paid apprentices shall be
not less than the appropriate percentage of the journeyman's rate
contained in the applicable wage determination.
Trainees will not be permitted to work at less than the predetermined
rate for the work performed unless they are employed pursuant
to and individually registered in a program which has received
prior approval evidenced by formal certification, by the U.S.
Department of Labor, Manpower Administration, Bureau of Apprenticeship
and Training. The ratio of trainees to journeymen shall not be
greater than permitted under the plan approved by the Bureau of
Apprenticeship and Training. Every trainee must be paid not less
than the rate specified in the approved program for his level
of progress. Any employee listed in the payroll at a trainee rate
who is not registered and participating in a training plan approved
by the Bureau of Apprenticeship and Training shall be paid not
less than the wage rate determined by the Secretary of Labor for
the classification of work he actually performed. The Contractor
will be required to furnish the Owner or a representative of the
U.S. Department of Labor written evidence of the certification
of his program, the registration of the trainees, and the ratios
and wage rates prescribed in that program. In the event the Bureau
of Apprenticeship and Training withdraws approval of a training
program, the Contractor will no longer be permitted to utilize
trainees at less than the applicable predetermined rate for the
work performed until an acceptable program is approved.
3. Equal Employment Opportunity
The utilization of apprentices, trainees, and journeymen under
this part shall be in conformity with the equal employment opportunity
requirements of Executive Order 11246, as amended, and 29 CFR
H. Compliance with Copeland Regulations
1.The Contractor shall comply with the Copeland Regulations
of the Secretary of Labor (29 CFR Part 3) which are incorporated
herein by reference. In addition, the Weekly Statement of Compliance
required by these regulations shall also contain a statement that
the fringe benefits paid are equal to or greater than those set
forth in the minimum wage decision.
I. Contract Work Hours and Safety Standards Act-- Overtime
Compensation and Safety Standards (40 U.S.C. 327-330)
1. The Contractor shall not require or permit any laborer
or mechanic, including apprentices and trainees, in any workweek
in which he is employed on any work under this contract to work
in excess of 8 hours in any calendar day or in excess of 40 hours
in such workweek on work subject to the provisions of the Contract
Work Hours and Safety Standards Act unless such laborer or mechanic,
including apprentices and trainees, receives compensation at a
rate not less than one and one-half times his basic rate of pay
for all such hours worked in excess of 8 hours in any calendar
day or in excess of 40 hours in such workweek, whichever is the
greater number of overtime hours. The "basic rate of pay"
as used in this provision shall be the amount paid per hour, exclusive
of the Contractor's contribution or cost for fringe benefits,
and any cash payment made in lieu of providing fringe benefits
or the basic hourly rate contained in the wage determination,
whichever is greater.(4)
2. In the event of any violation of the provisions of paragraph
I.1, the Contractor shall be liable to any affected employee for
any amounts due and to the United States for liquidated damages.
Such liquidated damages shall be computed with respect to each
individual laborer or mechanic, including apprentices and trainees,
employed in violation of the provisions of paragraph I.1, in the
sum of $10 for each calendar day on which such employee was required
or permitted to be employed on such work in excess of 8 hours
or in excess of the standard workweek of 40 hours without payment
of the overtime wages required by paragraph I.1. (4)
3. The Contractor shall not require or permit any laborer
or mechanic, including apprentices and trainees, employed in the
performance of this contract to work in surroundings or under
conditions which are unsanitary, hazardous, or dangerous to health
as determined under construction safety and health standards promulgated
by the Secretary of Labor by regulations (29 CFR Part 1926, 36
FR 7340, April 17, 1971) pursuant to Section 107 of the Contract
Work Hours and Safety Standards Act.
J. Withholding of Funds
1. The Owner may withhold or cause to be withheld from
the Contractor as much of the accrued payments or advances as
may be considered necessary (a) to pay the laborers and mechanics,
including apprentices and trainees, employed by the Contractor
or any Subcontractor on the work, the full amount of wages required
by the contract and (b) to satisfy any liability of any Contractor
for liquidated damages under paragraph I hereof entitled "Contract
Work Hours and Safety Standards Act-- Overtime Compensation and
Safety Standards (40 U.S.C. 327-330)."
2. If the Contractor or any Subcontractor fails to pay
any laborer or mechanic, including apprentices and trainees, employed
or working on the site of the work, all or part of the wages required
by the contract, the Owner may, after written notice to the prime
contractor, take such action as may be necessary to cause suspension
of any further payments or advances until such violations have
1. The Contractor will insert in all subcontracts,
paragraphs E through L inclusive entitled "Minimum Wages,"
"Payrolls and Basic Records," "Apprentices and
Trainees," "Compliance with Copeland Regulations,"
"Contract Work Hours and Safety Standards Act--Overtime Compensation
and Safety Standards (40 U.S.C. 327-330," "Withholding
of Funds," "Subcontracts," and "Contract Termination--Debarment,"
and shall further require all Subcontractors to incorporate physically
these same paragraphs in all subcontracts.
2. The term "Contractor" as used in such paragraphs
in any subcontract shall be deemed to refer to the Subcontractor
except when the phrase "Prime Contractor" is used.
L. Contract Termination - Debarment
A breach of paragraphs E through K inclusive, respectively
entitled "Minimum Wages," "Payrolls and Basic Records,"
"Apprentices and Trainees," "Compliance with Copeland
Regulations," "Contract Work Hours and Safety Standards
Act--Overtime Compensation and Safety Standards (40 U.S.C. 327-330),"
"Withholding of Funds," and "Subcontracts"
may be grounds for termination of the contract and for debarment
as provided in 29 CFR Part 5.6.
(1) The design of facilities to be constructed
or altered with PHS grant funds will be evaluated for compliance
with design requirements contained in the most recent edition
of Technical Handbook 2.1, Information for Project Applicants
and State Agencies of Design and Construction-Related Activities.
This handbook is part of HHS' Facilities Engineering and Construction
Manual, which is available from the applicable HHS regional
Office of Engineering Services.
(2) Board President, National Trust Historic Preservation,
1785 Massachusetts Avenue NW, Washington, DC 20036, 202-673-4000.
(3) "Phased (fast track) construction"
refers to the practice of developing portions of the construction
work into packages ready for bidding before total completion of
design documents. Design documents are considered complete when
they are adequate for construction of a usable facility or designated
portion thereof for a realistic bid price.
(4) Exclude from construction projects insured
under FHA/HUD Section 242 of the National Housing Act.