107 Legal
Relations and Responsibility to Public
General
Federal Contracts
The Davis-Bacon
Act, 40 U.S.C. 3142 et seq., as
amended, requires that each contract over $2,000 to which the United States or
the District of Columbia is a party for the construction, alteration, or repair
of public buildings or public works shall contain a clause setting forth the
minimum wages to be paid to various classes of laborers and mechanics employed
under the contract. Under the provisions of the Act, contractors or their
subcontractors are to pay workers employed directly upon the site of the work
no less than the locally prevailing wages and fringe benefits paid on projects
of a similar character. The Davis-Bacon Act directs the Secretary of Labor to
determine such local prevailing wage rates.
In addition
to the Davis-Bacon Act itself, Congress has added prevailing wage provisions to
approximately 60 statutes which assist construction projects through grants,
loans, loan guarantees, and insurance. These "related Acts" involve
construction in such areas as transportation, housing, air and water pollution
reduction, and health. If a construction project is funded or assisted under
more than one Federal statute, the Davis-Bacon prevailing wage provisions may
apply to the project if any of the applicable statutes requires payment of
Davis-Bacon wage rates.
The
geographic scope of the Davis-Bacon Act is limited to the 50 States and the
District of Columbia. The scope of each of the related Acts, however, is
determined by the terms of the particular statute under which the Federal
assistance is provided. For example, Davis-Bacon prevailing wage provisions
would apply to a construction contract located in Guam or the Virgin Islands
funded under the Housing and Community Development Act of 1974, even though the
Davis-Bacon Act itself does not apply to Federal construction contracts to be
performed outside the 50 States and the District of Columbia.
State Contracts
Ohio Revised
Code Chapter 4115 requires prevailing wages be paid on state funded
public improvement projects that reach the threshold level for the
project. Thresholds are adjusted
biennially by the Director of the Ohio Department of Commerce and can be found
on the ODOT’s prevailing wage webpage.
EEO Contract
Compliance/External Civil Rights
Authority
The authority
for the administration of the contract compliance program is governed by the
following Federal and State Codes and Executive Orders. Ohio
Administrative Code, 123:2 “Division of EEO for Construction,” Chapters 1
through 11 (Duties, Affirmative Action program, Compliance Reviews, Hearing,
Monthly Reports and Certificate of Compliance); Ohio
Administrative Code, 123:2-3-05 “Required Utilization Analysis and Goals”; United States Code, Title 23: Highways, Chapter 1: Federal-Aid Highways, Section
140 (a) Equal Employment Opportunity; Code of Federal Regulations, Title 23: Highways, Part 230: External Programs, Subpart
A: Equal Opportunity of Federal and
Federal-Aid Construction Contracts (including supportive services); Code of Federal Regulations, Title 23-Highways, Chapter 1: Sub-chapter C-Civil rights, Part 200-Title VI, Program and Related
Statutes–Implementation and Review Procedure; Code of Federal Regulations, Title 23-Highways, Chapter 1: Part 230-External Programs, Subpart
D–Construction Contract Equal Opportunity Compliance Procedures; Code of Federal Regulations, Title 29, Part 1608--Affirmative Action Appropriate Under Title VII of
The Civil Rights Act Of 1964, As Amended; 49 CFR, Part 26; and FHWA Federal Circular PR 1273 & PR 1316.
Definitions
Any
department, agency and establishment in the executive branch of government,
including and wholly owned Government corporation, which administers a program
involving federally and State assisted construction contracts.
The efforts
exerted toward achieving equal opportunity through positive, aggressive, and
continuous results oriented measures to correct past and present discriminatory
practices and their efforts on the conditions and privileges of
employment. These measures include but
are not limited to recruitment, hiring, promotion, upgrading, demotion,
transfer, termination, compensation, and training.
A good faith
effort to eliminate past and present discrimination in all federally assisted
programs, and to ensure future nondiscriminatory practices.
(i)
A person employed and individually registered in a bona fide apprenticeship
program registered with the U.S.
Department of Labor, Employment and Training Administration, Office of
Apprenticeship Training, Employer and Labor Services, or with a
State Apprenticeship Agency recognized by the Bureau, or (ii) A person 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 Office of
Apprenticeship Training, Employer and Labor Services or a State
Apprenticeship Agency (where appropriate) to be eligible for probationary
employment as an apprentice.
"Apprentice
permit" means a permit issued by the Union to authorize a person desiring
to achieve journey-person status to obtain skilled craft experience under
supervision of a full journey-person.
A bona fide
training program, registered with the Ohio State Apprenticeship Council, aimed at developing the skill level of a person
until the person reaches full journey-person status (generally four
years). The training includes both
school and hands on study of the craft.
An
Affirmative Action plan to increase minority utilization of crafts in a
specified geographical area pursuant to “Executive Order 11246" or taking the form of an “Imposed” Plan.
Employees at
all Federal-Aid, Federal or non-Federal projects in a specific geographical
area as determined under CFR 23; Part 230.409(b)(9).
Contract
provisions, which have been issued by the Ohio Department of Transportation, Office of Contracts.
A
Disadvantaged Business Enterprise (DBE) performs a commercially useful function
(CUF) when it is responsible for execution of the work of the contract and is
carrying out its responsibilities by actually performing, managing, and
supervising the work involved. To
perform a CUF the DBE must also be responsible, with respect to material and
supplies used on the contract, for negotiating price, determining quality and
quantity, ordering the materials and installing (where applicable) and paying
for the material itself.
The condition
existing when a contractor has implemented all of the standards set forth in
the applicable rules and regulations governing equal opportunity and
affirmative action laws of State and Federal government.
The
satisfactory condition existing when a recipient has effectively implemented
all of the Title VII requirements or can demonstrate that every good faith
effort toward achieving this end has been made.
Agreement
arrived by the Reviewing agency and the contractor, which outlines steps the
contractor will take to bring his/her firm into compliance.
The
construction, rehabilitation, alteration, conversion, extension, demolition, or
repair of buildings, highways, or other changes or improvements to real
property, including facilities providing utility services. The term also includes the supervision, inspection,
and other onsite functions incidental to the actual construction.
Any Federal
or State assisted construction contract.
Any person,
corporation, partnership, or unincorporated association that holds a Federal or
State assisted construction contract or subcontract regardless of tier.
All employees
on the payroll of and who are directly supervised by the contractor.
A
contractor’s unequivocal written and signed commitment outlining actions taken
or proposed within the time limits and goals, where appropriate to correct,
compensate for, and remedy each violation of the equal opportunity requirements
as specified in a list of deficiencies.
Disadvantaged Business Enterprise (DBE)
Small
business as defined in “Appendix B” of Subpart D, Part 23, Title 49, Code of Federal
Regulations, which is owned and controlled by persons who are
citizens or lawful permanent residents of the United States, and who are
members of a disadvantaged group including Black Americans, Hispanic Americans,
Native Americans, Asian-Pacific Americans, and other individuals found on a
case by case basis to be socially and economically disadvantaged.
A distinction
in the treatment of a person based on race, color, religion, sex, national
origin, age (40-70 years), or disability.
The act (or
action) whether intentional or unintentional through which a person of the
United States, solely because of race, color, religion, sex, or national
origin, has been otherwise subjected to unequal treatment under any program or
activity receiving financial assistance from the Federal Highway Administration
under Title 23 U.S.C.
District Equal Employment Opportunity Contract
Coordinator (DEEOCC)
A Federal or
State employee regularly employed and experienced in civil rights policies,
practices, procedures, and equal opportunity compliance review and evaluation
functions.
Those records
and reports maintained by the contractor to verify claims relative to
employees, payroll, subcontractors, etc.
The absence
of partiality or distinction in employment treatment, so that the right of all
persons to work and advance on the basis of merit, ability and potential is
maintained.
The contract
provisions set forth in CFR Chapter 60-1.4(a) or (b), as appropriate.
Equal Opportunity Compliance Review
An evaluation
and determination on non-exempt direct Federal, Federal-Aid or State
contractor, or sub-contractor’s compliance with equal opportunity requirements
based on:
Equal Opportunity Requirements
A general
term used throughout this document to mean all contract provisions relative to
equal employment opportunity (EEO), sub-contracting and training.
Federal
Highway Administration
Includes
medical or hospital care, pensions on retirement or death, compensation for
injuries or illness resulting from occupational activity, or insurance to
provide any of the foregoing: unemployment benefits, life insurance, disability
insurance, sickness insurance, accident
insurance, vacation or holiday pay. Also
includes defraying costs of apprenticeship or other similar programs or other
bona fide fringe benefits. Fringe benefits do not include benefits required by
other federal, state, or local law.
A contractor
may be found in noncompliance when compliance review findings indicate that
good faith effort actions taken, or lack thereof, by the contractor have not
resulted in the employment of minorities and females in the workplace.
Affirmative
action measures designed to implement the established objectives of an Affirmative
Action Plan.
Employees at
the physical location of the corporation, company, or other ownership
headquarters or regional managerial offices, including “white collar” personnel
(managers, professional, technicians and clerical) and any maintenance of
service personnel connected thereto.
An
affirmative action requirement for a specified geographical area made mandatory
by OFCCP, and in some areas by the courts.
A person who
is capable of performing all the duties within a given job classification or
craft.
Any other
State agency, local political subdivision, board, commission, or other
governmental entity identified under paragraph C of section 5501.03 of the Ohio Revised Code (ORC) determined to be
qualified to assume the administrative responsibilities for Ohio Department of
Transportation (ODOT) improvements projects.
A person who
is a citizen or lawful permanent resident of the United States, and who is
Black, Hispanic, Pacific Islander, Asian American, Native American or Alaskan
Native.
An individual
who has a break in service (not on an employer’s payroll) for a period of 12
months or longer and the person affected is not a salaried employee, but
belongs to a union craft. Individuals
compensated for training or incidental work which does not cause a break in
unemployment compensation, i.e., paid by voucher check or petty cash, are
considered new hires
if the
individual’s break in service is 12 months or longer. The time frame for a new hire shall be
associated with the first project worked for that contractor regardless of
whether it is public or private. When reporting new hires the contractor shall
identify
that employee
as a new hire on that specific project only. Subsequent work, barring a break
in service of 60 days or more, would not qualify the employee as a new hire for
that contractor.
The condition
existing when a recipient of federal or state funds or a contractor working on
a state or federally funded project has failed to show good faith efforts to
implement the requirements of the equal employment opportunity and affirmative
action laws.
A recipient
who failed to meet prescribed requirements and has shown an apparent lack of
good faith effort in implementing the requirements of Title VII.
A program
that includes the training and upgrading of minorities and females toward
journey-person status.
Any
deficiency which can be corrected and verified by the reviewer within 10 days
of the Exit Conference (i.e., EOE tagline, EEO/Sexual Harassment policy corrections).
A person
signed with the Union who receives full benefits, but is in pre full member
status, earning journeyman’s wages working for a specific time period
(generally 78 weeks) after which the permit person is sold full membership.
Where
designation of persons by race, color, national origin is required, the
following designations ordinarily may be used:
"Black Americans," which includes persons having origins in
any of the Black racial groups of Africa; "Hispanic Americans," which
includes persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South
American, or other Spanish or Portuguese culture or origin, regardless of race;
"Native Americans," which includes persons who are American Indians,
Eskimos, Aleuts, or Native Hawaiians; "Asian-Pacific Americans,"
which includes persons whose origins are from Japan, China, Taiwan, Korea,
Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia,
Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of
the Pacific Islands (Republic of Palau), the Commonwealth of the Northern
Marianas Islands, Macao, Fiji, Tonga, Kiribati, Tuvalu, Nauru, Federated States
of Micronesia, or Hong Kong;
"Subcontinent
Asian Americans," which includes persons whose origins are from India,
Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka.
Preconstruction Meeting (Precon)
This meeting
attended by the Prime Contractor and ODOT personnel is for a discussion of the
details on constructing the project, bid proposal, specifications, plans,
method of payment, and the Prime Contractor’s progress schedule.
Means the
basic hourly rate of pay, any contribution irrevocably made by a contractor or
subcontractor to a trustee or to a third person pursuant to a bona fide fringe
benefit fund, plan, or program, and the rate of costs to the contractor or
subcontractor which may be reasonably anticipated in providing bona fide fringe
benefits to laborers and mechanics pursuant to an enforceable commitment to
carry out a financially responsible plan program, which was communicated in
writing to the laborers and mechanics affected. Prevailing Wage Exemptions: The
following work types are exempt from the payment of prevailing wages: mowing,
herbicidal spraying, trash pick-up in maintenance yards, center line survey,
sign inventory, tree trimming and tree removal (with no construction to
follow).
Employees at
the physical location of the construction activity.
A written
notification to a contractor, based on the determination of the reviewer (or in
appropriate cases by a higher level authority), that the contractor is in
noncompliance with the equal opportunity requirements. The notice informs the contractor of the
specific basis for the determination and provides the opportunity with 30 days
from the receipt to present an explanation as to why sanctions should not be
imposed.
Site of Work
The physical
place or places where the building or work called for in the contract will
remain and any other site where a significant portion of the building or work
is constructed, provided that such site is established specifically for the
performance of the contract or project. Job headquarters, tool yards, batch plants, borrow pits, etc.,
are part of the site of the work, provided they are dedicated exclusively, or
nearly so, to performance of the contract or project and provided they are
adjacent or virtually adjacent to the site of the work.
Not included in the site of the work, are permanent home offices,
branch plant establishments, fabrication plants, tool yards, etc., of a
contractor or subcontractor whose location and continuance in operation are
determined wholly without regard to a particular Federal or federally assisted
contract or project. In addition, fabrication plants, batch plants, borrow
pits, job headquarters, tool yards, etc., of a commercial or material supplier,
which are established by a supplier of materials for the project before opening
of bids are not on the site of the work.
Such permanent, previously established facilities are not part of the
site of the work, even where the operations for a period of time may be
dedicated exclusively, or nearly so, to the performance of a contract.
A person who
receives on-the-job training, whether through an apprenticeship program, or
other programs approved or accepted by the Federal Highway Administration,
and/or the appropriate State agency.
Unified Certification Program (
The
The Federal
regulations do not define what is considered “virtually adjacent”. However, the Ohio Department of
Transportation has determined that all work areas located within a 1-mile
radius of the project site will be considered to be virtually adjacent.
Prevailing Wage
Central Office Duties
The Division
of Construction Management shall ensure uniform administration of applicable
prevailing wage requirements by the various districts, and perform the
following functions:
A. Provide liaison between the Department, and Department of
Commerce Wage and Hour (DOCWH) and USDOL;
B. Advise districts of any changes in prevailing wage
laws, and aid in the resolution of any wage related problems;
C.
Provide training
on prevailing wage enforcement to the District Prevailing Wage Coordinator (DPWC);
D. Conduct Technical Process Reviews (TPRs) of District
compliance with prevailing wage laws, regulations, and policies. These reviews
should be conducted once every two years for each District;
E.
Prepare the
Semi-Annual Labor Compliance Enforcement Report;
F.
Maintain a
current list of DPWCs and provide it to Ohio
Department of Commerce (ODOC) and USDOL;
G. Monitor district field operations. This should include a visit to each District
at a minimum of once a year. Additional
visits may be required as circumstances may dictate. (ex. ongoing wage
investigations);
H. The Division of Construction Management will hold a
statewide DPWC training meeting, twice a year, to review and ensure
understandings of prevailing wage enforcement procedures, policies,
regulations, and laws. In addition, the
Division of Construction Management will provide individual training to
district personnel when requested.
District Duties
Reporting Requirements
Semi-Annual Labor
Enforcement Report
Required
Pursuant to Section 5.7 (b) of Regulation, Part 5 covering the time period of
April 1st through September 30th and October 1st through March 31st. This report is due to Central Office on or
before October 20th and on or before April 20th. The report is due to FHWA on or before
October 31st and on or before April 30th.
Monthly Prevailing Wage
Enforcement Report
Due by the 7th of the following month.
The report contains the following items: district, date, prevailing wage
coordinator, report month, number of projects currently working, number of
on-site visits conducted, number of investigations completed/ongoing and the
date, project number, project location, contractor name, number of employees
involved, wage complaints and action or resolution for each investigation is
listed.
Wage Classifications
Wage rates
for Federal-aid projects are determined by the Secretary of Labor in accordance
with Federal-aid requirements.
Contractors shall use only the classifications set forth in the contract
on payrolls submitted to the District Office.
Wage and fringe payments for each classification shall be in accordance
with the U. S.
Department of Labor Regulations, Title 29, Subtitle A, Part 5, Sections 5.5, 5.31 and 5.32 and Form FHWA-1273 Part IV. If the
contractor must use a classification not listed in the contract, said
classification must be added to the contract.
The procedure
for requesting additional classifications is as follows:
A. The District Prevailing Wage Coordinator will require
the prime/sub-contractor to complete federal Standard Form 1444 detailing the
work classification to be added to the contract. Standard Form 1444 can be found at web
site: www.dol.gov/whd/contracts/dbra.htm
B.
Prime contractor
should have all interested parties sign the request. This includes the subcontractor (if
applicable) and the employee affected or a union representative who can list
the proper classification and wage for the work being performed.
C.
Prime contractor
returns the form along with any supporting documentation to the District
Prevailing Wage Coordinator for final review and signature. The District Prevailing Wage Coordinator
submits the form to:
Administrator,
Employment Standards Administration
Wage
and Hour Division
U.
S. Department of Labor
Washington,
DC 20210.
Requests take
approximately 30 days to process. In the
meantime, the contractor should pay a reasonable rate for the work being
performed. Supporting documentation should include a detailed description of
the work being performed, the equipment being used and the union classification
covering the work, if available.
Site Visits
The District Prevailing Wage Coordinator is responsible for visiting
the projects in his/her area on a regular basis. These project visits are conducted primarily
as a tool to “spot check” the prime and subcontractors for prevailing wage
compliance, as well as responding to a complaint or problems found on submitted
payrolls.
The District’s
minimum monitoring schedule shall be based on the duration of the project as
follows:
|
Actual Project Duration |
Minimum Required Site Visits |
|
Less
than two months |
1 |
|
Two
or more months |
Every
other month beginning with the first month |
It should be noted that this is a minimum requirement for
monitoring. Circumstances may dictate
that more site visits be required on a particular project.
All interviews shall be conducted using the Standard Interview Form
that is located on the ODOT Central Office Prevailing Wage Website. Copies of
the completed interview forms for each interview performed should be included
in the DPWC’s project file.
Wage Complaints
When a valid
wage complaint is discovered or received, documentation is the key element to a successful
resolution. If the matter is not
resolved, this documentation is the beginning of the paper trail for either the
U.S. Department of Labor or the Department of Commerce Wage and Hour. In the event of a wage complaint from an
employee, it is important to have the following items in the file:
A. The employee’s formal statement detailing the
complaint;
B.
Any check stubs
that the employee has provided;
C.
Any on-site
reviews that may have been conducted on the subject project;
D.
Copies of the
Daily Diaries in Site Manager;
E.
Copies of any
communication to the prime contractor regarding the possible violations.
It is also
important to keep the employee’s name confidential as long as possible, so that
the employee is not subjected to retaliation.
Wage Violations
Discrepancies and/or Underpayments on the Payrolls
Some
underpayments and other errors can appear on the face of the payroll (i.e., do
not involve falsification). In these cases, DPWC will contact the employer
and/or the prime contractor and provide instructions as to what steps should be
taken to correct the payroll and to pay any back wages that may be due to the
affected workers.
Indications of Falsification
on Payrolls
Information
reported on payrolls that indicate willful falsification suggests much more
serious violations in terms of the amount of back wages that may be due and the
number of employees affected. Such cases most often warrant investigation which
can include on-site interviews with the workers, mailing questionnaires to
employees, taking written statements or complaints, and other methods to gather
and assess the facts of the case.
In the event
that a wage violation that indicates falsification is found or reported, the
following procedure shall be followed:
A.
Send a letter to
the prime contractor with a copy to the Central Office Prevailing Wage Manager
explaining the violations discovered.
1.
If the violation
involves an incorrect rate, the correct rate(s) must be listed with the total
amount of money due to each employee.
2.
If the violation
involves incorrect fringes that are owed to the union, the correct amount owed
to the union must be listed for each employee.
3.
If the violation
involves a discrepancy in the number of hours paid to an employee, the correct
number of hours must be determined through review of inspector diaries, project
supervisor records, on-site interviews, or any other relevant documentation. The corrected hours must be listed with a
total amount due for each employee.
4.
If the violation
involves a misclassification issue, each employee in dispute must be listed
with the work that he/she performed, the date(s) in question, the proper
classification, and correct rate of pay.
B.
The prime
contractor must be given a date to respond to the allegations (2 weeks is
recommended). The response from the
prime contractor to the District Office may include corrected payrolls or other
documentation.
C.
If the
corrections require additional payments to employees, the payment amounts to
each employee shall be approved in advance by the District Office and the
District Office will coordinate the payments to each employee. The District Office must copy Central Office
on all communications between the Contractor(s) and the District Office. These
additional payments shall be in the form of checks cut by the appropriate
contactor (either prime or sub) to each employee and sent to the District
Office for distribution. Once received,
the District Office will make copies and distribute the checks by one of the
following methods: (a) certified mail w/ return receipt requested (b) employee
pick-up at the District Office with signature of receipt or (c) hand delivery
with a signed receipt by the District.
In the event the investigation involves multiple districts or is being
handled by Central Office directly, the payments will be sent to Central
Office. The Prime Contractor will be
required to provide a copy of the cancelled checks when they become available. Once these copies are received, a letter will
be generated to the Prime Contractor informing them of the successful
completion of ODOT’s investigation. If
the Prime Contractor or its sub-contractor is not cooperative during the
investigation or is a repeat offender of similar violations, Central Office
will evaluate any further sanctions against the contractor.
D.
If the Prime
Contractor does not respond to the letter from the District Office, the money
must be withheld from the next project estimate. Another letter must be sent out to the Prime
Contractor with a copy to the Central Office Prevailing Wage Manager
immediately explaining the reason for the withholding. If there are no remaining funds to withhold,
monies may be withheld from any other federal project that the Prime Contractor
is working. However, this can only be
done with prior approval from Central Office.
E.
If a response is
not received after a withholding of funds, the matter should be turned over to
Central Office to evaluate further sanctions against the contractor (See federal circular 1273).
Wage Modifications
Wage
Modifications are made to state funded projects. Notification of these modifications must be
made within 7 days of receipt from the Department of Commerce. Failure to do so obligates ODOT for the
payment of back wages.
State Funded
projects are subject to changes in the prevailing wage rates throughout the
duration of a project. The following is
the order in which the Wage Modifications are dispersed:
A.
The Wage Change
notifications are sent to all Prevailing Wage Coordinators by e-mail from the
Department of Commerce, Wage and Hour.
B.
After receipt of
the notification, the Wage Coordinator will then go to the Wage and Hour
website:
(http://wagehour.bes.state.oh.us/w3/webwh.nsf?Opendatabase),
Download and print the corresponding rates.
C.
Modifications are
e-mailed out to the affected prime contractors on all state funded projects
with instructions to notify all of their subcontractors. A copy is kept for the office file and a copy
is sent to the Project Engineer/Supervisor.
D.
The modifications must be mailed within 7 working days after the receipt
of notification.
E.
The modified
rates shall be posted on the project bulletin board.
F. The contractors’ certified payrolls shall be checked
against the modified rates when they become effective.
Withholding Project Estimates
When a
contractor fails to provide documentation such as Certified Payrolls, or has
not paid an employee(s) the correct wages, it may become necessary for the
District to withhold money from the project estimate to cover any possible
deficiencies. The ODOT is authorized to
withhold project estimates according to 29 CFR Subtitle A, §5.5(3) and 5.9. Central Office will require the
Districts to take the following actions with regards to withholding money from
project estimates:
A.
Delinquent Wages:
Withhold an amount equal to that owed to an employee(s), plus 100%, until
restitution has been made.
B. Delinquent Payrolls: Withhold the estimated amount of
the payroll, plus 100%. Continue to
withhold this estimated amount, until the delinquent payrolls have been
received.
C. Unapproved Subcontractors: Withhold 100% of the money
for the work type(s) performed by that subcontractor, until a valid C92 is in
place, and the Supplemental Payrolls have been submitted.
Written
notice must be provided to the contractor prior to withholding any funds.
The following
contract provision is required for Federal-aid construction contracts:
Withholding:
The SHA shall upon its own action or upon written
request of an authorized representative of the DOL withhold, or cause to be
withheld, from the contractor or subcontractor under this contract or any other
Federal contract with the same prime contractor, or any other Federal-assisted
contract subject to Davis-Bacon prevailing wage requirements which is held by
the same prime contractor, as much of the accrued payments or advances as may
be considered necessary to pay laborers and mechanics including apprentice,
trainees, and helpers, employed by the contractor or any subcontractor the full
amount of wages required by the contract.
In the event of failure to pay any laborer or mechanic, including any
apprentice, trainee, or helper, employed or working on the site of the work,
all or part of the wages required by the contract, the SHA contracting officer
may, after written notice to the contractor, take such action as may be
necessary to cause the suspension of any further payment, advance, or guarantee
of funds until such violations have ceased.
Certified Payrolls
Certified
payrolls are required to be submitted by all prime contractors for the prime
contractors and their subcontractors, beginning with the first day of work on
the project. The contractors are
required to submit their certified payrolls electronically to the following
e-mail address: certified.payrolls@dot.state.oh.us
Listed below are
step-by-step instructions for processing certified payrolls, once submitted to
the district via the e-mail address:
A.
Establish and
maintain for each project a file of audited certified payrolls submitted by
each Contractor, Subcontractor, and Vendor.
B. Certified Payrolls can be accessed through the
certified payroll SharePoint site located on the ODOT portal site.
C. On a weekly basis, a list will be randomly generated
for each district to identify the payrolls that are required to be audited by
the DPWC. This list identifies the
minimum number of payrolls that are required to be audited; however,
circumstances may dictate that more payrolls require an audit (ex. wage
investigation, etc.).
D.
Check and ensure
that payroll certificate of compliance is signed by the appropriate company
officer or proper designee.
E.
The name of the
contracting company submitting the payroll, must be the same as on the signed
contract or the awarded C-92. For
example, a parent company may not submit payrolls in its name, on behalf of a
subsidiary company.
F.
Check for
completeness and accuracy of the payrolls as to the names, addresses,
identification number of each worker, job classifications, hourly wage rates,
daily and weekly hours worked during the payroll period, gross weekly wages
earned, deductions made from wages, and net weekly wages paid the employee.
G.
If the employee
worked on more than one job, they are only required to show the ODOT project
hours on the payroll. The total gross
wages an employee earned for the week can go above the ODOT wages, but ODOT
wages must be separate.
H.
If the Contract
Work Hours and Safety Standards Act is applicable and an employee worked in
excess of forty hours in any workweek, ensure that the employee was paid one
and ½ times their regular rate. Fringes are
paid for the total hours worked and is not subject to time and a half.
I.
Examine certified
payrolls for noteworthy discrepancies such as a disproportionate number of
laborers, apprentices or helpers on the project.
J.
Check for
contributions to fringe benefit plans.
K.
Check to ensure
that each payroll submitted, is accompanied by a “Statement of Compliance” as
required by the Copeland Act on Federal projects and the Ohio Revised
Code, Chapter 4115 on State Projects.
The Statement of Compliance is passed out at all preconstruction
meetings to the prime contractor with the requirement that the prime forwards
to their subcontractors.
L.
Checking the
payrolls: Check wages for federal projects.
The wages in the proposal are for the duration of the project. State
projects are subject to change. The wage modifications are sent to the Prime
Contractor when State Wage and Hour updates and sends the changes to the
Prevailing Wage Coordinator of each District.
Wage extensions - periodically check the contractors’ extension for each
craft. Classifications are to be broken
down on payrolls, Group 1-5 or type of equipment operating for each
employee. Check for apprentice’s and
laborer trainees. All apprentices have
to be registered with the The Ohio State Apprenticeship Council (“OSAC”) and have an “Apprentice Certification”. The
Apprenticeship Agreement Form from the Union is not acceptable. If the employee is not a “Certified
Apprentice” he or she must be paid full Journeyman’s wages.
M.
Spot check
against the Project DWR located on the Sharepoint Site to determine if the
hours and classifications reported matches the projects records of work
performed during the period.
N.
Statute requires
that all contractors and subcontractors must submit Certified Payrolls “not
less often than once a week”.
O.
Fringes are a
part of the wages. The contractor must
furnish a copy of its fringe break down for each classification. This can go on the contractor’s letter head
stationary and submitted with each payroll. All contractors are required to pay
fringes in cash (via check) to the employee or a “bona fide” fringe benefit
fund, plan or program that the contractor makes no direct or indirect
profit. The wages and fringes have to
equal rates in the proposal.
P.
If a working
foreman spends more than 20 percent of the time performing laborer or mechanic
duties at the job site, the hours spent in these activities must be paid at
least the hourly rate specified in the contract wage determination for the
appropriate laborer or mechanic classification(s).
Q.
The first day of
work on the project is when the trailer and/or office is set up, when signs are
put up or when the electrical poles for signals for project are installed. The first day of the payroll and the daily
diary first day should match.
Delinquent Payrolls
The following
steps should be utilized when trying to obtain delinquent payrolls:
A.
Request the
payrolls by phone followed by written notification, informing the prime
contractor that money will be withheld from the estimate if payrolls are not
received within the next week.
B.
If payrolls are
not received in the stated manner, then it is the District’s responsibility to
withhold money from the estimate, until payrolls are received. (see section on
withholding project estimates)
C.
Each time monies
are withheld, written notification should be sent to the prime contractor
informing it of the situation. If the
problem is with a subcontractor, a copy of each written notification should
also be sent to the subcontractor.
Bulletin Board
ODOT is
required to ensure that the Project Bulletin Boards are placed at the field
office and are in a location easily accessible to both the employee and the
general public. For mobile operations
(i.e. guardrail or asphalt), the bulletin board information may be kept on the
outside foreman’s vehicle, not inside the cab, and/or the staging area provided
that the general public and all employees have safe easy access to the
material. The following is a sample of
the first page of the two checklists that have been developed to assist with
ensuring the proper posters are on the jobsites. The complete checklists can be found on the Office of Contracts Website.
Pre-Construction Meetings
The District Prevailing Wage Coordinator or a designee is expected to
attend all pre-construction meetings regarding the status of the project. The District Prevailing Wage Coordinator or a
designee should obtain a copy of the sign-in sheet from each meeting for
documentation of attendance.
Pre-Construction
Meetings are the first contact ODOT has with the contractor with respect to a
specific project. They are held prior to
the beginning of a construction project, and are attended by a representative of the
prime contractor, representatives of ODOT (usually an engineer), EEO,
Prevailing Wage, Right-of-Way, and Project Personnel, any interested
landowners, utility companies, and subcontractors. During this meeting all expectations of the
contractor are discussed along with any special issues concerning the project.
It is
important during this meeting to direct the contractor to the wage rates link
in the back of the proposal, all the requirements of payroll submittal and the
bulletin board on the project, as well as informing the contractor that wage
interviews will be taking place at the project site. Also, you must
document that this information was given to the contractor in the meeting
minutes.
The following items must be included in the preconstruction packet:
A.
Statement Of Compliance Form
C.
Prevailing Wage Guidelines Letter
D.
Blank Federal/State Payrolls
F. The posters and wages
from the proposal. The contractor is
responsible for inserting the company EEO Policy and name and phone number of
the EEO officer.
G. A summary of the EEO
requirements as outlined in the contract.
H. Contractor’s
guideline for participation in the ODOT OJT Program.
I. A sample
Subcontractor notification letter outlining the contract EEO requirements.
Apprentice and Trainee
Requirements
The District
Prevailing Wage Coordinator must perform the following functions with respect
to Apprentices and/or Trainees:
A. Review certified
payrolls for apprentices on the job;
B. Verify that the wage
paid is in compliance with the contract wage rate for the level of
apprenticeship and the classification worked and that the appropriate ratios
are met accordingly;
C. Request from the
contractor a copy of the apprenticeship certification (not the Union
Apprenticeship Agreement). If the
contractor does not have the apprentice certification, then the employee will
be paid as a full journeyman;
D. If Apprenticeship
Certification is not received within 90 days of the employee beginning work on
the project, full journeyman wage will be paid the employee;
E. The DPWC will
maintain a separate file of the apprentice certification forms in the DPWC
office. A copy of the apprentice form
should be included in each project file for documentation;
Administrative Closures
After a
period of 2 years has elapsed since the end of a project, and the DPWC has made
numerous attempts to collect the necessary payroll documentation that is
required to close-out a project, an administrative closure may be necessary.
The procedure for effectuating an administrative closing for both Federal and
State projects is outlined below.
Federal
On federally
funded projects, Central Office is to send a detailed account of the paperwork that
was missing in order to close-out the project, the steps taken in trying to
obtain the missing paperwork, and a summary of any monies still being held on
the project. The facts and details of
the project will be submitted to Central Office, by the DPWC. A letter is then sent to FHWA requesting
permission to administratively close out the project.
State
On state
funded projects, the District office is to send a detailed account of the
paperwork that was missing in order to close-out the project, the steps taken
in trying to obtain the paperwork, and a summary of any monies still being held
on the project. A letter is then sent to
the state Prevailing Wage Manager in Central Office, requesting permission to
administratively close out the project.
Local Public Agency (LPA)
Projects
ODOT will be
monitoring LPA projects in each District.
The ODOT will randomly check between 20-25 percent of jobs equal to or
in excess of $500,000. The District LPA
Coordinator can provide information of newly awarded LPA projects.
The ODOT’s
role is to provide guidance to the LPA with respect to EEO and Prevailing Wage
issues. District Coordinators are not to
perform any of the functions that they typically would on an ODOT project, such
as interviewing employees or collecting or reviewing Certified Payrolls. It is
strongly encouraged that LPA pre-con meetings be attended in order to ensure
that all pertinent information related to EEO and PW is disseminated to the
appropriate contractor personnel.
Listed below are a few points that must be discussed with the LPA:
A.
Is the LPA
receiving certified payrolls from the prime contractor and all subcontractors
on a weekly basis?
B.
Is the LPA
reviewing those payrolls for accuracy, to ensure that the correct wages are
being paid to the employees?
C.
Does the LPA have
apprentice certifications for all employees listed as “apprentices” on the
certified payrolls?
D.
Are all posters
and the company’s EEO policy displayed?
E.
During the
Pre-Construction meetings, are the contractors made aware of all Prevailing
Wage and EEO requirements, and provided all necessary forms and posters?
F.
If there is a DBE
goal on the project, is the DBE performing a “commercially useful function”?
G.
Is the LPA
correctly crediting the DBE participation (60% for materials, trucking at 100%
only when performed by DBE owned trucks)?
H.
Document the
results of your visit in a report and keep these reports in a file for LPA
oversight.
I.
Report any LPA
deficiencies to the District LPA coordinator.
Trucking
Site of Work
Laborers and
mechanics must be paid prevailing wage rates and fringe benefit rates at the
site of work. Site of work is defined in the Federal code of regulations as
follows. Title 29 CFR 5.2 (l)(1) states
"The site of the work is the physical place or places where the building
or work called for in the contract will remain; and any other site where a
significant portion of the building or work is constructed, provided that such
site is established specifically for the performance of the contract or project”.
Title 29 CFR
5.2 (l)(2) states that other work areas not located on the site of permanent
construction (e.g. job headquarters, tool yards, batch plants, borrow pits,
etc.), may be part of the site of the work " . . . provided they are
dedicated exclusively, or nearly so, to performance of the contract or project,
and provided they are adjacent or virtually adjacent to the site of the work.”
The Federal
regulations do not define what is considered to be “virtually adjacent”, however
the Ohio Department of Transportation has determined that all work areas
located within a 1-mile radius of the project limits will be considered to be
virtually adjacent. Any non Owner-Operators who are hauling materials within
the Site of Work as described above, are entitled to the appropriate prevailing
wage rate.
Truck drivers
are covered
by Prevailing Wage requirements and provisions in the following circumstances:
A.
Drivers of a contractor or subcontractor
for the time spent working on “the site of the work.”
B.
Drivers of a contractor or subcontractor
for the time spent loading and/or unloading materials and supplies on the site
of the work.
C.
Truck drivers transporting materials and supplies
from a facility that is a part of the “site of the work” and the actual
construction site.
Exemptions
Truck drivers
who come onto a site of work location to drop off construction materials are
often exempt from the payment of prevailing wages. If however, the total of all time
that a driver spends on-site (as described above), loading and unloading
materials, is equal to or greater
than 20% of their total work week,
he or she would be entitled to the appropriate prevailing wage rate for that
time.
Owner Operators
The legal
test that is utilized to determine if the owner-operator is in fact an
independent contractor stems from the right to control test. An owner-operator has the right to agree or
disagree upon whether he or she chooses to work on a particular project. The owner-operator should evidence this
relationship by a written contract.
Additionally,
an owner-operator makes a significant financial commitment when he or she
purchases or enters into a bona fide lease agreement. The term of that lease must be substantial
(in the proximity of 1 year or longer), and not subject to cancellation at any
time. A lease agreement which simply provides the driver a percentage of
revenue is not a bona fide lease agreement. In short, the financial commitment
must be real.
Furthermore,
the legitimate owner-operator must assume all responsibility for the
maintenance of the equipment, and bears the principal burden of the operating
costs such as fuel, repairs, supplies, vehicle insurance, permit fees, and
personal expenses while on the road.
Driver
documentation such as a driver’s license, vehicle registration, insurance, and
lease agreements will be reviewed by ODOT project personnel. It also must be demonstrated that there is no
close or continued supervision of the operation of the truck by the company
leasing the truck.
In some
cases, an owner-operator has more than one truck employed on a contract and
must be a subcontractor. The other truck
operators are not classified as an
owner-operator and are subject to the appropriate prevailing wage rate.
Certified
payrolls, including the names of such owner-operators do not need to show the
hours worked or the rates paid, only the notation “owner-operator”. This position does not apply to owner-operators
of other equipment such as bulldozers, backhoes, cranes, etc.
Equal
Employment Opportunity Contract Compliance
General
Policy, Purpose and Scope
It is the
policy of the Ohio Department of Transportation to require full utilization of
all opportunities to assure the increased participation of minorities, females
and disadvantaged persons in all phases of the highway construction industry.
Objective
The primary
objective is to standardize the evaluation of the contractors’ affirmative
action efforts to comply with the Code of Federal Regulations (CFR), Title 23, Part 230, and Title 23: Highways, Chapter 1: Sub-chapter C-Civil
Rights, Part 200 Title VI.
Applicability
This
procedure is applicable to all Federal-Aid Highway construction projects,
Appalachian Highway construction projects, and other State supervised
cooperative highway construction projects.
Central Office Duties
The Division
of Construction Management shall ensure uniform administration of applicable
Equal Employment Opportunity (EEO) policies for ODOT’s statewide EEO contract
compliance program and Disadvantaged Business Enterprise (DBE) Program as it
applies to ODOT highway construction projects in accordance with Code of Federal Regulations (CFR) 23, Part 230, Subparts A-D and CFR 49, Part 26, Subparts A-F and perform the following functions:
·
Act as liaison
between Central Office’s Office of Contracts and DEEOCCs and their supervisors
(District Construction Administrators – DCAs).
·
Develop and
implement policies and procedures to adjust and improve ODOT practices statewide
as needed to comply with state and federal laws, rules, regulations and
procedures as they relate to external civil rights.
·
Develop Technical
process Reviews of District EEO records and work practices to provide
Department-wide consistency, validate policy compliance and determine best
practices.
·
Maintain contact
with DEEOCCs and appropriate construction project site employees to verify
contract compliance and ensure DBE firms are performing commercially useful
functions.
·
Review and
process requests for partial waiver of DBE and EDGE goals on both ODOT and
Local Let projects and monitor project goal attainment.
·
Serve as Local
Public Agency (LPA)/DBE liaison for Office of Contracts with Office of Local
Programs, Federal Highway Administration (FHWA) and District EEOCCs to ensure
local entities are in compliance with federal regulations regarding LPA
program-related contracting responsibilities.
·
Coordinate and
provide training to DEEOCCs regarding federal EEO compliance and Departmental
policies and procedures.
Responsibilities of the
District Equal Employment Opportunity Contract Coordinators
The DEEOCC is
responsible for executing the enforcement/compliance activities associated with
EEO on construction contracts. The
DEEOCC participates in on-site inspections to determine contractor compliance
under all relevant rules and regulations.
They initiate and process documents on Contract Compliance/Affirmative
Action, conducting interviews both on-site and in the contractor’s office. They attend and participate in
Preconstruction, Progress and Contract Compliance review meetings. In conjunction with District, Central Office
and FHWA Division personnel, the DEEOCC conducts Compliance Reviews, reviews
EEO reports, monitors Disadvantaged Business Enterprise activities, prepares
ODOT reports to FHWA, and conducts investigations. The DEEOCC attends training on EEO programs
and requirements. The DEEOCC attends
workshops and uses contract documents, FHWA and State regulations, and related
forms to coordinate and execute their responsibilities under the External Civil
Rights Contract Compliance Program.
Specific Equal Employment
Opportunities Responsibilities
The
contractor and all his/her subcontractors holding subcontracts not including
material suppliers, of $10,000 or more, will comply with the following minimum
specific requirement activities of equal employment opportunity:
The equal employment opportunity
requirements of 23 CFR, Part 230, Subpart A.
Special Provisions of FHWA PR 1273.
The
contractor will include these requirements in every subcontract of $10,000 or
more with such modification of language as is necessary to make them binding on
the subcontractor.
On-Site Monitoring
Purpose
The purpose
of on-site monitoring is to determine the contractor’s compliance with the
contract’s affirmative action obligations.
The DEEOCC has the primary responsibility of conducting on-site
monitoring of active projects within the districts.
Safety Rules
The DEEOCC
should follow the ODOT safety policy.
Request and review this information prior to going on-site.
How to Conduct On-Site
Monitoring
In the case
of routine on-site monitoring, it is suggested that your name be added to the
construction daily diary. If there is no
trailer on the project site, note the date and time of the on-site review. In the event that the on-site visit is of a
more covert nature, it is at your discretion whether you identify yourself to
project personnel prior to conducting employee interviews. Verify the following at each on-site:
A. All bulletin board requirements are in place on the
project and posted in an area readily accessible to present employees and
applicants for employment. Please note
findings on EEO Project On-Site Visit Report;
B. The EEO policy of the Prime Contractor is posted along
with the EEO poster. The text of the EEO policy will be as required in the
Special Provisions, or one that includes equivalent wording in addition to
describing other general or specific procedures to implement equal opportunity.
The DEEOCC must ensure that the company EEO Policy is spread out so all of the
pages are visible. The EEO Policy must
be signed by the company’s chief policy-making official and must identify the
company’s EEO Officer and his/her phone number;
C. All employee facilities are desegregated;
D. Minorities/females are employed and integrated into
the various crafts of the project/area workforce;
E. The contractor's and/or subcontractor's supervisors
have been advised of the contractor's EEO commitments (complete Superintendent
Interview Form). Also, determine whether
employees have been advised in meetings or by personal notice that EEO
requirements will be honored (complete employee interview form);
F. The contractor has personnel on the project in an
apprenticeship or on-the-job training program. If so, those minority/female
employees are in the training program;
G. The contractor, or an authorized representative,
periodically conducts inspections and/or reviews to ensure that discriminatory
working conditions and/or employment practices do not exist on the project
site; and
H. The contractor's EEO Officer visits the project site
and is known to State project personnel.
Explanation of Interview
Forms
Record all
On-Site Observations (bulletin board information; equitable toilet facilities;
indication of harassment or intimidation).
Obtain from the prime and subcontractor’s superintendent/foreman the
headcount of employees working on the day of the on-site visit. Document any additional observations/comments.
Superintendent/Supervisor’s
Interview Form:
Complete
questions 1-10 when interviewing a superintendent regardless of whether the
superintendent works for the Prime or a subcontractor on the project.
Complete
questions 11-16 when interviewing the Prime’s superintendent.
Complete
questions 17-20 when interviewing the DBE subcontractor’s superintendent.
Interview
each superintendent at least once during the construction season.
DBE
Commercially Useful Function Project Site Review Form (CR-6): This form is to
be completed when there is a DBE working onsite or when the DBE delivers
materials to the project. A new form
shall be completed for each DBE subcontractor working on or supplying for the
project. Additional forms shall be
completed each time a new/different DBE foreman or superintendent joins the
project.
Incident Report
and Complaint Intake Form (Cr-4 and Cr-5)
If during the
on-site, potential EEO violations are observed, i.e., inappropriate graffiti,
offensive language, racial slurs, inappropriate jokes, harassment, etc., the
DEEOCC will document the observations using form CR-4. Where necessary, the DEEOCC shall obtain
additional information from the contractor or field personnel. The DEEOCC is responsible for bringing these
issues to the attention of the contractor for resolution. The contractor must
provide to the DEEOCC copies of all resolutions/outcomes. The DEEOCC will keep this documentation in a
file separate from the project file.
When an
allegation of discrimination and/or harassment, i.e., a formal complaint, is
brought to the attention of the DEEOCC, the DEEOCC shall complete the Discrimination Intake Form (CR-5) and forward it to Central Office, Office of
Contracts. The DEEOCC shall keep all
aforementioned documentation in a file separate from the project file. Central Office shall be notified of repeated
discriminatory issues involving the same contractor.
ODOT’s On-The-Job Training
Program
Objective
Training and
upgrading of minorities, females and disadvantaged persons toward
journey-person status is the primary objective of the On-the-Job Training
Program.
Highlights
The program
is not project specific. Tracking is
done on an annual basis. All contractors
(prime and sub) are eligible to participate. Training is permitted on any
contract held by the contractor, whether or not it is Federal funded, provided
the contractor holds one (1) Federal funded project during the year. ODOT does not provide any monetary
reimbursement.
Training Requirements
The minimum
length and type of training for each classification will be as established in
the training/apprenticeship program selected by the contractor. Each trainee must have a training program
approved by ODOT. Contractors
registering their apprentices/trainees in ODOT’s OJT program must be involved
in at least one Federal project per calendar year in order to get FHWA training
credit. All ODOT OJT trainees not
registered in a union apprenticeship program must be approved by the DEEOCC.
The
contractor shall submit to the DEEOCC in the company’s home office district and
outline of the type of training to be conducted. The intent of these provisions is to provide
real and meaningful training in the construction crafts. Off-site training is permissible only when it
is an integral part of an approved training program and does not comprise a
significant part of the overall training.
Apprentice and On-the-Job Training are permissible in the following
crafts: equipment operator, carpenter,
cement masons, iron worker, truck driver, electrician, and laborer. Training in the laborer classification may be
permitted provided that significant and meaningful training is provided and
approved by the state agency. Training
is also permissible in lower level management positions such as office
engineers, estimators, timekeepers, etc. where the training is oriented toward
construction applications. Training is
not permitted in the following classifications:
bookkeeper, clerk/typist, secretary, etc.
A contractor
not registered as a training agent with the Ohio State Apprenticeship Council
may choose to adopt an existing ODOT training program. Adoption of an ODOT approved training program
will ensure the trainee has successfully completed a sufficient number of hours
of training. The contractor shall
estimate, outline and submit to the ODOT DEEOCC the total number of hours that
it will take for the trainee to complete the program and ensure that trainee’s
skill is comparable to journeyperson level.
The contractor must ensure that the company maintains equipment and
fully trained journey level workers at all times to train apprentices or
On-the-Job Trainees in the work processes.
A training program approval letter shall be sent to the contractor by
the DEEOCC. The ODOT approval letter
shall be valid certification that the contractor is an approved training agent
and shall be prima facie proof of compliance with this requirement. The ratio of apprentices to journey level
workers shall be in accordance with the accepted standard for the particular
craft or occupation.
Reporting Requirements
A CR-1 report is to be completed by the Contractor on each trainee
registered in ODOT’s OJT Program and submitted to the DEEOCC in which the
contractor’s home office is located.
The DEEOCC
shall report each apprentice/trainee in the COREP program as soon as the CR-1 report is received by the district. Work hours should be reported when the
trainee ends work for the year, terminates employment, or reaches
journey-person status. Keeping the
report current is vital to the Office of Contract’s ability to respond to
questions by special interest groups.
CR-1 reports should be submitted by the contractor at the following
times:
·
When the trainee
begins work with the contractor;
·
When the
trainee’s employment is terminate;
·
At the end of the
calendar year, with a year to date summary of the work hours performed by the
trainee; and
·
When the trainee
reaches journey-person status.
The
contractor is required to submit to the district a year-end CR-1 report no later than January 5th. This report shall cover the trainee’s work
for the preceding year. The contractor
should submit the reports to the district in which the contractor’s home office
is located. The DEEOCC shall send
year-end reminder letters to the contractor in mid-December requesting final
hours.
Apprentice Certification
All
Contractors shall submit to the district in which the company’s home office is
located their own Training Program for approval or the Apprenticeship
Certificate from the Ohio State Apprenticeship Council.
All ODOT OJT
Trainees must have the appropriate certification. It is the responsibility of the Contractor to
obtain Apprenticeship Certificates from the Ohio State Apprenticeship Council. The union
apprenticeship agreement is not acceptable verification of an apprentice’s
enrollment in a union sponsored training program. Copies of all Apprenticeship Certificates,
regardless of whether they have registered in ODOT’s OJT program, must be
submitted to the DEOCC in the company’s home district each time an apprentice
is hired by the Contractor. The DEOCC shall advise the Contractor whose
apprentices are not registered with ODOT’s OJT Program that they must register
those apprentices in the ODOT OJT Program.
The DEOCC shall then compare the information found on the CR-1 report
with those OSAC certificates received to ensure that all trainees/apprentices
are registered in ODOT’s OJT program.
Subcontractor Notification
Prime
contractors are required to notify their subcontractors in writing of their EEO
obligations on the project. A copy of
the notification shall be sent to the DEEOCC.
Forms PR-1391 and PR-1392
Requirements
Form PR 1391 is to be completed annually by each contractor and
each subcontractor holding contracts or subcontracts exceeding $10,000 except
as otherwise provided for under 23 U.S.C. 117. The employment data entered should reflect the work
force on board during all or any part of the last payroll period preceding the
end of the month of July.
The DEEOCC
should send a reminder letter to all contractors with home offices in their
district no later than July 15. The
reminder should say that the report is due to the district no later than August
10. Reports should be gathered by each
district for only the contractors with home offices in their district.
The DEEOCC
should check each report for accuracy and completeness. Contact the contractor for corrections and
incomplete reports.
When
completing the 1392 report, count only the number of contracts and the dollar amounts
of the prime contractor. Counting the
subcontractor’s project numbers and dollar amounts would result in inflated
figures, as these totals are already covered on the prime report.
Contract Compliance Review
Procedures
The reviewing
officer will also make a physical tour of the project site and meet with
employees in each trade.
Criteria for prioritizing
the Contractors to be reviewed
When
selecting contractors for review, priority in scheduling reviews shall be based
on the following:
·
Contractors whose
workforce holds the greatest potential for employment and promotion of females
and minorities, particularly in the higher skilled crafts and occupations;
·
Contractors
working in areas that have a significant minority and female labor force within
the recruitment area;
·
Contractors who
have not been reviewed in the last 36 month (36) months;
·
Contractor
participation or nonparticipation in ODOT’s On-the-Job Training program;
·
Where compliance
with the equal opportunity requirements is questionable;
·
Reviews
specifically requested by the FHWA;
·
Contractors who
are continually delinquent in sending necessary EEO reports to the DEEOCC or
who routinely fail to achieve DBE goals; and
·
Contractors who
during the on-site visit the DEEOCC determines has failed to inform their
personnel of the company’s affirmative action practices.
When
performing the Contract Compliance Review, the DEEOCC shall also consider the
geographic area from which the contractor recruits employees, i.e. reasonable
recruitment area, an hour’s drive from the project and the county in which the
Federal project is located. When
reasonable, reviews shall be conducted prior to or during peak employment
periods.
Contractor Notification
The
contractor will be notified of the
The suggested notification time line is to send by certified mail to
contractor six weeks prior to the review.
The six week breakdown is as follows:
·
5 to 7 days for
the contractor to receive the certified notification letter.
·
Two weeks for the
completion of the Contractor’s Affirmative Action Evaluation (Contractor’s
Self-Analysis Packet) and supporting documentation.
·
5 to 7 days for
return mail from contractor.
·
Two weeks for the
DEEOCC to analyze the data and prepare for the review. to the on-site meeting
**Notification sent by e-mail may, at the reviewer’s
discretion, be sent four weeks prior to the on-site meeting. This notification shall include the scheduled
review date and a list of authorities.
The
contractor notification will also include and detail the purpose of the review,
required attendees and a list of required documents.
Superintendent’s Interview
Form
Considering
the confidential nature of the question on the Superintendent’s Interview Form
ODOT requests that the interview form be mailed directly back to the reviewer
one week prior to the compliance review on-site. If mailing the notice, include a
self-addressed stamped envelope for the Superintendent’s Interview Form.
NOTE: A
Contractor’s Self-Analysis Packet shall be sent with the notification letter.
The
contractor will be requested to provide a meeting place on the day of the
visit. Reviews should be held at the
jobsite only if the contractor office is located out of the state of Ohio. Generally, the contractor does not keep the
required documents necessary to complete an EEO contract compliance review at
the project site.
The DEEOCC
will notify all joint venture participants that the analysis set is to be
completed as one (1) contractor, not separately.
The
contractor will be requested to supply all of the following information to the
DEEOCC prior to the review. The
Contractor’s Self-Analysis Packet, all back up documentation and the signed and
notarized affidavit shall be kept intact.
These originals become a legal document and may not be altered in any
manner. It is mandatory that this
information be copied and the copies placed in a review notebook prior to the
on-site visit. It is suggested that the
original Contractor’s Self-Analysis Packet be stored in a separate area from
the review notebook. Please see section
“Instructions for Creating Contract Compliance Review Notebook”.
The Contractor’s
Self-Analysis Packet.
The
contractor’s self-analysis packet shall include the following:
·
Contractor’s EEO
policy and Contractor’s Sexual Harassment Policy;
·
A BLANK copy of
the company’s purchase order and subcontract agreement. For subcontractors this should be the
documents used by the Contractor and not by the prime;
·
Documentation of
the solicitations to all DBE contractors contacted as potential subcontractors,
vendors, or suppliers for the project(s) being reviewed;
·
Contractor’s
employment application, if one is utilized;
·
A statement of
the status of any action pertaining to employment practices taken by the Equal
Employment Opportunity Commission (EEOC), Ohio Civil Right Commission (OCRC),
or other Federal, State, or local agency, against the contractor or any of
their employees;
·
A list of
promotions made during the past six months, which includes name, race, national
origin, sex, previous job held, job promoted into, and corresponding wage rate;
and
·
A list of
construction employees (master payroll) who worked for the company during the
review period (including project supervisory personnel). Include the name, date of hire, job
classification, wage, race, national origin, and sex.
Current Form PR 1391
Names and titles of personnel that will be
representing the contractor's firm at the on-site review
Transfer this
information to Page 1 of the final determination packet, hereafter known as the
Affirmative Action Evaluation (AAEVAL).
Documentation showing current EEO Officer’s job duties
and responsibilities
This should
include all duties not just those pertaining to EEO/AA. What experience does the EEO Officer have
which would qualify as EEO related? If
no previous experience is identified, what training has been provided? What has the EEO Officer done to increase
his/her knowledge of the program? What
authority does the EEO Officer have to accomplish program objectives? Ascertain if the EEO Officer has been given
the authority to implement program objectives formally or informally.
Obtain the
following information:
·
List of all
members of the contractor’s staff who are authorized to hire, supervise,
promote, and discharge employees or make recommendation for such actions;
and
·
Documentation of
indoctrination of this staff regarding company EEO obligations;
·
A list of company
personnel responsible for recruitment; and
·
Documentation
showing training of recruitment personnel on company EEO hiring procedures.
If required,
review union agreement for exclusive referral clause and EEO provisions. In the event the contractor has a valid
bargaining agreement providing for exclusive hiring hall referrals, he is
expected to observe the provisions of that agreement to the extent that the
system permits the contractor’s compliance with equal employment opportunity
contract provisions.
If for any reason the contractor is being
uncooperative and will not respond to deadlines, letters, phone calls, etc.
from the district, the contractor will be found in noncompliance and the
Central Office Deputy Director of the Division of Construction Management will
be notified. The Deputy Director of the
Division of Construction Management will issue a show cause notice scheduling
the contractor’s show cause meeting. The
meeting will be scheduled within 30 days of the date of the show cause letter.
Criteria for Determining
Type of Review
The following
criteria shall be used to determine whether a contract compliance review is
conducted on-site in person by the DEEOCC or via a desk audit:
|
On-Site Criteria |
Desk Audit Criteria |
|
Contractor has never been reviewed. |
Follow-up review. |
|
Contractor was in “non-compliance”
during last review. |
Contractors repeatedly found “in-compliance.” |
|
If preliminary review of the
Contractor’s Self-Analysis Packet and supporting documentation indicate the
contractor should be found in “non-compliance” the review defaults to an
automatic on-site. |
Contractors with only paper
deficiencies (deficiencies that can be corrected within 10 days of the review
or less). |
|
If Contractor fails to submit the
Self-Analysis Packet and/or supporting documentation for the desk audit, the
review defaults to an automatic on-site. |
A contractor submitting a complete
packet with all supporting documentation which indicates good faith effort
has been made in all categories. |
|
If the Self-Analysis Packet
received from the Contractor or the desk audit demonstrates minimal good
faith effort, the review defaults to an automatic on-site, e.g., no
recruitment documentation, no utilization of minorities and females when
there were known hiring opportunities and insufficient documentation was
provided to justify the non-hiring of minorities and females. |
|
|
If the Contractor’s Self-Analysis
Packet and/or the supporting documentation are grossly incomplete, the review
defaults to an automatic on-site. |
|
|
Contractors found in
“non-compliance” by other agencies. |
|
|
Contractors with formal charges of
discrimination pending. |
|
|
When the DEEOCC has been notified
of possible discrimination (harassment, intimidation, possible coercion on
the job site). |
|
Preliminary Analysis (Phase I)
The reviewing
officer shall consider the following information:
·
Does the
contractor have an EEO policy and how it is disseminated?
·
Who is
responsible for the company’s EEO functions and are they effective in his/her
role?
·
How does the
contractor recruit minority and female employees?
·
How does the
contractor ensure that the company does not discriminate?
·
On what basis
does the contractor train and promote employees?
·
How does the
contractor monitor subcontractors to ensure the EEO and affirmative action
programs are implemented?
·
To what extent
does the contractor use Disadvantaged Business Enterprises? Are DBE subcontractors utilized on non-goal
projects?
·
What types of
records and reports are maintained by the contractor to monitor affirmative
action progress?
·
What type of
documentation is maintained by the contractor to show Good Faith Efforts were
made to secure minority and female employees?
Before the
onsite verification and interview, the reviewer shall analyze the employment
patterns, policies, practices, and programs of the contractor to determine
whether or not problems exist by reviewing information relative to:
·
The contractor’s
current workforce;
·
The contractor’s
relationship with referral sources, e.g., unions, employment agencies,
community action agencies, minority and female organizations, etc.;
·
Verify that
recruiting phone calls, faxes or letters to unions, job service, vocational
schools and other sources were actually made by calling the source named in
good faith effort documentation. If sources have no knowledge of contractor's
efforts, note this to be discussed at the on-site conference;
·
The minority and
female representation of recruitment sources;
·
The availability
of minorities and females with requisite skills in a reasonable recruitment
area;
·
The status of
complaints or action pertaining to employment practices taken by the Equal
Employment Opportunity commission (EEOCC), Ohio Civil Rights Commission (OCRC)
or other Federal, State or Local agency, against the company or any of its
employees;
·
The company’s
I-29 reports covering the review period.
View on the web at http://eodreporting.oit.ohio.gov/searchEODReporting.aspx ;
·
Participation of
the contractor in OJT programs;
·
Previous
compliance reviews. A review of previous
review reports can assist the reviewing officer in identifying problem areas
uncovered in the past and following up on these areas;
·
On-site
interviews; and
·
Verification of
Commercially Useful Function (CUF).
By examining
this information, it can be determined whether potential problem areas exist in
the contractor’s employment patterns, policies, practices, and programs.
Preliminary Analysis (Phase
II)
The following
sections are to be used as a reference tool when reviewing the Contractor’s
Self-Analysis Packet. Ask yourself the
questions listed in each category. If
you do not have a clear understanding of each section of the contractor’s
Self-Analysis Packet, discuss those sections during the review with the
contractor keeping those questions in mind.
These questions should not be specifically asked during the review. Instead, discuss in detail the pertinent
section of the Contractor’s Self-Analysis Packet until you can answer the
questions listed below.
Contractor/Project
Information
Principal
Policy and EEO Officer: The people
listed should be in attendance during the On-Site visit portion of the
compliance review. The Principal Policy
Officer may attend just the beginning and ending portions of the review if the
EEO Officer has the authority to administer the contractor’s EEO/Affirmative
Action Program with the authority to hire, discipline, layoff and terminate
employees.
Review the
dollar amount for size and whether the contractor/subcontractor may have
opportunity to hire for their portion of the contract.
Check whether
the review is being conducted prior to or after the contractor/subcontractor’s
peak employment period. Where possible,
it is advisable to conduct the review prior to peak employment period, in case
corrective action in hiring is noted during the review.
Check the
percentage of project complete. When
reviewing a subcontractor, this figure should represent the portion of the
subcontractor’s work only.
Note who is
listed as the Superintendent for the project.
Is this the person you have seen and interviewed on the project?
Contractor Project List
Review the
list of projects to determine how much work the contractor/subcontractor has in
the Economic Area/County under review.
If the majority of the contractor’s work is in a different Economic
Area/County than the one under review, note this in the summary narrative of
the review.
Union and Recruitment Data
Review the
list of unions with which the contractor has a collective bargaining agreement.
The reviewer should become familiar with the collective bargaining agreements
of each union. Do any of the unions
listed have exclusive referral?
Contractor’s Outside
Recruitment Sources
Review the
list of outside recruitment sources to determine if the contractor utilizes
recruitment sources other than the unions.
Recruitment
Review the
recruitment sources supplied by the contractor.
Does the contractor recruit solely from the union? Note in the review summary if the contractor
has not recruited outside the union.
Does the contractor list outside recruitment sources, but has not
contacted any? Did the contractor supply
documentation of recruitment and support efforts, including two way
communications? How has the contractor
conducted systematic and direct recruitment or support to either the Union or
other entities (indirect recruitment)?
Please note: Support of local and national community action and
community service programs designed to improve the employment opportunities of
minorities and females can also serve to assist the Union(s) that have
signatory agreements with the Contractor.
Does the
contractor have a plan of action to recruit minorities and females, if his/her
regular recruitment source(s) fails to provide minorities and females for his/her
workforce? Obtain documentation from the
contractor of all recruitment efforts made, both to and from those
sources.
Support of
community groups is an example of indirect recruitment. Community-funded groups which are concerned
with equal employment opportunity and affirmative action are also important
sources for recruitment for contractors.
These sources must be contacted and documentation must reflect such
contact. Examples of community funded
groups are the Urban League; National Association for the Advancement
of Colored People (NAACP); League of
United Latin American Citizens (LULAC); and the National
Organizations of Women (NOW).
Does the
contractor have an adequate applicant pool of minorities and females to select
from?
If a
contractor is signatory to a Union it does not eliminate the contractor’s
obligation to make good faith efforts to hire minorities and females or support
those local community resources which can assist the Contractor in resolving
employment problems.
Did the
contractor state that they recruit solely from the union? Did the contractor state that the union could
not fill requests for minorities and females?
Please note
the following:
23CFR, Part 230, Subpart A, Appendix A, (8)(d).
“In the event
the Union is unable to provide the contractor with a reasonable flow of
minority and females 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, or national origin; making full efforts to obtain
qualified and/or qualifiable minority group persons and females. The U.S.
Although the
Contractor may not hire “off the street”, it must provide evidence of its
efforts to assist the Unions’ own Affirmative Action obligations.
Note whether
the contractor has notified outside recruitment sources, vocational schools and
community organizations of apprenticeship or other training opportunities for
minorities and females. The contractor must offer this notification not later
than one month before the date of acceptance of applicants for these
programs.
Additionally,
the Contractor should provide evidence of its support of local and national
community action and community service programs designed to improve the
employment opportunities of minorities and females. Documentation of the Contractor’s support of
community action and service programs may include copies of checks,
advertisements in brochures, or letters confirming the donation of equipment,
the participation of company employees, etc.
Where the
Contractor can provide little or no evidence of support of such programs, the
DEOCCC should identify suitable programs and appropriate means of support as
corrective actions. Evaluation of compliance with this requirement, and a decision
to cite the contractor, requires professional judgment by the DEOCCC. Assessing
the contractor's compliance in this area is similar to assessing compliance
with the requirement to develop and execute action-oriented programs.
Consideration
of females and minorities not currently in the workforce; 41 CFR 60-2.13(j): The Contractor must give consideration to minorities
and females not currently in the workforce having requisite skills who can be
recruited through affirmative action measures. This means that, among other
things, the Contractor should utilize, as recruitment sources, agencies such as
those which offer pre-apprenticeship training or direct employment placement to
veterans, displaced homemakers, individuals in rehabilitation programs, and
other individuals who, for one reason or another, have been out of the
workforce. The DEOCC should ask for documentation that the contractor supports,
participates in or requests employment referrals from such agencies. In
addition, the Contractor may also have taken action, such as establishing
part-time, job-sharing, or flex-time programs, establishing onsite day care
programs, etc., to attract and retain in employment skilled individuals who
would otherwise be excluded from gainful employment. Note
whether the contractor encourages internal recruitment of minorities and
females.
Hiring
Efforts to
hire and promote females and minorities into “non-skilled” positions such as superintendents, foremen
and other core employees (administrative personnel, engineers, inspectors,
quality assurance personnel) are to be evidenced by all contractors. The Contractor’s Good Faith Efforts for
Internal Placements may include the contractor's efforts to:
·
Disseminate
information about internal opportunities (Are job openings posted? If so where,
when, how long, and for which jobs or classes of jobs?);
·
Provide training opportunities
(including apprenticeship programs, on-the-job training, and tuition
reimbursement);
·
Provide
counseling and encouragement to minority/female employees to apply for internal
openings;
·
Recruit
externally into feeder job groups; and/or
·
Review selection
criteria and selection procedures with responsible officials and managers to
ensure that they are familiar with the Contractor's EEO policies, that the
selection criteria are applied in a nondiscriminatory manner, and that the
selection criteria do not have a discriminatory impact.
Training
Training
programs and requirements may be overlooked by reviewing officers as tools to
address areas of minority/female underutilization. List all OJT and/or apprenticeship programs
the contractor is participating in and how effective the programs have been in
training minorities and females. Obtain
list of trainees enrolled by the contractor on the project being reviewed. How has the contractor advised employees and
applicants for employment of available training programs and entrance
requirements for each? Who is responsible for this? How has the contractor utilized training
programs to increase minority/female representation in trades where they are
being underutilized? Go back to those trades identified earlier in the review
where underutilization exists. Are
trainees being trained in trades for which there is a shortage of qualified
personnel? The intent here is to ensure
the most effective use of training programs. How has the contractor
periodically reviewed the training and promotion potential of minority/female
employees? Are employees interviewed? By whom? How often? Is particular attention paid to
minorities/females in the lower skilled classifications? List specific examples of instances where
contractor has encouraged employees to apply for training and promotion. What procedures are in effect to ensure that
each trainee is provided with a copy of the training program that the trainee
is to follow (applicable to nonunion contractors)?
On-the-Job Trainees (OJT)
Are the OJTs
listed registered with the Ohio State Apprenticeship Council? If the contractor is nonunion, has the
training program been submitted and approved by the contractor’s home ODOT
District? Does the training plan mirror
the field work outline of a similar craft union’s apprenticeship program? Has the home ODOT district EEO Coordinator
received CR-1's on all trainees listed?
Where applicable, have OSAC certificates been received by the ODOT
district overseeing the project under review?
Does the list of On-the-Job Trainees include minorities and
females? This information will indicate
whether the contractor is taking a proactive approach to exposing youth to the
construction trades. This type of
exposure can include working in the construction yard, shop or office.
|
Reminder - utilization is based on
hours worked, not the number of employees hired. |
Project and Statewide New
Hires and Hours
Review the
list of new hires to see when the minority and female employees were hired. Were they part of the contractor’s workforce
prior to work commencing on the project under review or were the minorities and
females hired specifically for that project?
Compare the new hire dates of the minorities and females with the
non-minority males. Were the females and
minorities hired after most positions were filled? When conducting your on-site project visits,
did you interview any of the minorities or females shown on the new hire
list? If not, ask the contractor where
the minorities and females were working.
Check the master payroll for layoff dates. Were the minorities and females laid off
first? Look for discriminatory patterns.
When
reviewing all of the contractor’s hours worked (both public & private),
make note whether the hours of work for minority and female employees was
reasonable. If percentages are low, ask
the contractor why they are low and what good faith efforts were made to
increase the hours.
If
deficiencies are within the skilled crafts when comparing to the census data
check the New Hire list for opportunities for hire. If the New Hire listing indicates “new hires”
placed in the deficient craft, review the breakdown of new hires.
Were
minorities and/or females included in the new hires? If opportunities for new hires existed and no
minorities and/or females were hired, the contractor should be found deficient
in this craft and this deficiency should be identified in the AAEVAL
(Affirmative Action Evaluation) under recommendations.
If no
opportunity for new hires existed, the contractor should not be found deficient
in this craft.
Although both
female and minority utilization is to be discussed with the contractor during
the review, cite the contractor’s deficiencies for final determination as
follows:
·
Cite deficiencies
noted in the census area only.
·
Cite female
deficiencies noted in the statewide utilization figures only.
Census Data Website Links
The census
data for the county in which the project is located (identified in the
proposal), shall be used as a guide in determining optimal minority and female
utilization.
Minority and
female utilization obligations by craft per county (applicable to
project):
Statewide
utilization obligations by craft (applicable to the Contractor’s statewide
workforce):
Using the
census data, locate the contract requirements for minority and female
utilization per craft for the county in which the project is located. Compare the project specific female &
minority utilization percentages with the county census data.
Compare the
contractor’s statewide female & minority utilization percentages with the
statewide utilization as shown on the website:
If the
contractor’s minority and female utilization percentages are less than
indicated in the census data, compare those utilization percentages with the
contractor’s opportunities to hire. Use
this information to assist in determining if the contractor has made a good
faith effort to hire minorities and females.
NOTE: Compliance with the goals will be measured
against the total work hours performed per craft not the number of employees
hired.
Cite the
contractor’s deficiencies for final determination as follows:
- Minorities on the project, per craft;
- Females on the project, per craft;
- Minorities utilized statewide, per craft; and
- Females utilized statewide, per craft.
EEO Analysis Questionnaire
FHWA Federal Circular PR 1273 states that EEO orientation sessions should be held
not less than every 6 months. Project
site EEO meetings should be conducted on a regular basis. Documentation of the meetings should include
the date of meeting, the subject discussed and signature of those in
attendance.
Company Personnel
Operations
The contractor
should have supplied to the reviewer copies of documentation supporting the
Company’s personnel actions detailed the Self-Analysis Packet.
If any of the
supporting documentation provided to you by the contractor has not changed
since the last review, resubmission will not be required.
Promotions
If the
contractor answers “no” to any of the questions, ask the following:
·
How do minority
and female employees get promoted?
·
How do company
employees become foremen/superintendents?
As outlined
in PR 1273 the company shall hold EEO meetings with all
employees having responsibility for hiring, assignment, layoff, termination or
other employment decisions not less than once every six months.
All meetings
shall be documented with time, place, attendees, subject matter and disposition
of subject matter.
As required
by Contract Provisions, Federal-aid construction contracts, Federal Circular PR 1273, Part 3B. “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.”
Ensure that
the company’s EEO Policy is not a policy only on paper, but is actively adopted
and implemented by all supervisory personnel. Supervisory personnel can be held
liable for violations of this policy and the excuse of “not knowing” will not
excuse them from this liability.
The Reviewer
shall request a copy of the new hire packet to ensure that it contains all
required documents.
The selection
of employees to receive advanced skill level training shall be based on the
following factors:
·
The relevancy of
the training to current and projected assignments in terms of organizational
requirements;
·
The relevancy of
the training to identified individual developmental needs;
·
Evidence of the
candidate's ability and desire to undertake and complete successfully a
comprehensive advanced skill level training program;
·
Evidence of the
candidate’s ability to undertake and complete successfully advanced skill
training on his or her own time;
·
Training shall be
made available to all eligible employees
The process
used when considering workforce promotions shall be free of discrimination and
shall be based on merit and job related criteria.
The process
used when evaluating the workforce for layoffs shall be free of discrimination
and shall be based on job related criteria.
Termination
policies shall be disseminated to all employees at time of hire. The contractor’s reasons for terminating an
employee shall be documented.
EEO Policy/Sexual
Harassment Statements and Dissemination
The
compliance officer should review the contractor’s EEO policy to ascertain
whether it is equal to or greater than the policy required by contract
provisions, PR 1273. Each policy must include the name and contact
information for the company’s EEO Officer.
Additionally, each policy must be signed by the company’s chief
executive officer.
How does the
contractor disseminate his EEO policy to all of his employees, i.e., meetings,
employee handbooks, paychecks, bulletin boards etc.? Determine how effective these procedures
are. Employee interviews may be used to
follow-up on the effectiveness of procedures.
Are the policies discussed with field personnel? Does the person responsible for discussing
these policies with field employees have a thorough knowledge of the policies?
Determine how
and when new supervisory or personnel office employees are indoctrinated on all
major aspects of the contractor's EEO obligations (must be done within thirty
days following their reporting for duty).
Are EEO/AA
meetings held not less than once every six months?
Deficiencies
shall be noted in the AAEVAL and discussed with the contractor at the EEO
Contract Compliance Review.
Construction Employment
Data
Did the
contractor’s project workforce include minorities and females in each
craft? If not, were there new hires for
this project in the underutilized craft?
Were the new hires minorities or females? Did the contractor demonstrate good faith
efforts to hire minorities and females in the underutilized crafts?
Did the
contractor’s OHIO workforce include minorities and females in each craft? If not, were there new hires in the
underutilized craft? Were the new hires
minorities or females? Did the
contractor demonstrate good faith efforts to hire minorities and females in the
underutilized crafts?
Subcontracts, Purchase
Orders, Lease Agreements
What efforts
has the contractor exerted to solicit bids from and to utilize minority and
female subcontractors? What were the
results? What efforts has the contractor
made to solicit bids from or to negotiate with such firms? NOTE:
Failure of the contractor to solicit quotes from DBE owned firms when
there is no DBE goal on the project may be construed as discrimination. If this situation is noted, please request
an explanation from the contractor.
The
contractor must have a procedure in place for ensuring subcontractor compliance
with the EEO provisions of the contract.
The contractor should also have a plan of action to be taken when a
subcontractor consistently fails to comply with the EEO contract provisions.
Sample
acceptable procedures for ensuring subcontractor compliance, may include, but
are not limited to:
·
Daily project
site monitoring by the contractor under review of sub/sub-subs project
personnel for representation of minorities and females.
·
Monthly review by
the contractor under review of the sub/sub-sub’s project specific monthly
utilization report (Input 29 report).
·
Review of
certified payrolls submitted by sub/sub-sub.
Sample
acceptable actions taken when it is noted that a subcontractor consistently
fails to comply with the EEO obligations of the contract. These may include, but are not limited to:
·
Reviewed
contractor shall address the situation with the subcontractor’s
superintendent. Document action
taken. Reviewed contractor shall report
all actions taken to their company EEO Officer.
·
If deficiencies
are noted during the review of the Input 29 reports or the certified payrolls,
the reviewed contractor shall notify the non-compliant contractor’s EEO
Officer.
·
Additionally, the
reviewed contractor should notify the ODOT DEEOCC regarding the non-compliant
subcontractor when corrective action is not taken.
DBE Subcontractor/Supplier
Verification
Review the
information regarding the DBE requirement of the contract. Has the contractor fulfilled the contract
provisions? If not, has there been a
problem with obtaining DBE’s? Is DBE
work pending on the contract or was it completed by a non DBE contractor? When will the DBE portion of the contract be
completed? Who are the DBE’s scheduled
to complete the contract requirements?
If the requirement has not been fulfilled, verify the information given
by the contractor with the ODOT Project Engineer in charge of the project under
review. Note findings in the narrative
summary of the review packet.
Nonsegregated Facilities
Applies to
contractors, subcontractors, and material suppliers on all Federal-aid
contracts and related subcontracts of $10,000 or more. The intent of this provision, also derived
from Title VI, is to ensure that past discriminatory practices of providing
separate facilities or prohibiting minority’s access to facilities are
eliminated. By entering into the
contract, the organizations and firms certify that they maintain nonsegregated
facilities that conform to requirements of 41 CFR 60.1.8. The prime contractor is required to obtain a similar
certification from each subcontractor and supplier, as applicable. One exception to the nonsegregated facilities
provision is for the disabled when the demands for accessibility override
(e.g., disabled parking). In addition, single-user or separate bathrooms or
dressing facilities are also allowable for privacy purposes.
Safety
It is a
condition of this contract, and shall be made a condition of each subcontract,
which the contractor enters into pursuant to this contract, that the contractor
and any subcontractor shall not permit any employee, in performance of the
contract, to work in surroundings or under conditions which are unsanitary,
hazardous or dangerous to his/her health or safety, as determined under
construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor, in accordance
with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333).
When
reviewing the contractors Safety program pay particular attention to the
following:
Does the
contractor have an active safety and health program in place that deals with
general safety and health program elements, as well as management of hazards
specific to a construction work site? Is
one person clearly responsible for the overall activities of the safety and
health program? Is there a safety
committee or group made up of management and labor representatives that meet
regularly and report in writing on activities?
Is there a working procedure for handling in-house employee complaints
regarding safety and health? Are
employees advised of the successful efforts and accomplishments that the
company is making to ensure a safe, healthy workplace? Are employee incentives considered for
employees or work groups who have excelled in reducing workplace injuries and
illnesses?
If the
contractor's safety policy does not clearly identify the above listed items,
the reviewer shall recommend that consideration be given to improving and
developing that particular area and updating the safety manual.
Contractor’s Affidavit
The
Contractor’s Affidavit MUST be completely filled out, signed and notarized.
Explanation of the Contractor’s Supporting Information
In addition
to the Contractor’s Self-Analysis Packet, the contractor’s EEO Contract
Compliance Review Notification Letter requests the following items be sent to
the reviewer (supporting documentation that has not changed since the last
compliance review will not need to be re-submitted).
EEO
Policy/Sexual Harassment Statements and Dissemination
The DEEOCC
must ensure that the EEO policy meets the minimum requirements outlined in FHWA 1273. The EEO
policy should include the company EEO Officer’s name and contact information.
The Sexual
Harassment policy shall include the definition of sexual harassment, and the repercussions
of violating the policy. The policy must
state that violations will result in penalties up to and including
termination.
Both polices
must be signed by the company’s Chief Executive Officer. Policies shall be disseminated to and
reviewed with all new hires and current employees not less than once every six
months. Additionally, the policies shall
be posted on company home office and on-site bulletin boards.
Subcontract,
Purchase Order & Lease Agreement
Any recipient
of Federal or State funds must inform all lower tier (subs, sub
-subcontractors, material suppliers, lessors of equipment) of the EEO requirements of the contract by written
notification (see subcontractor notification letter requirement in
Preconstruction Conference section) and inclusion of the Federal Circular PR 1273 in all transaction documents, i.e., purchase orders, subcontracts and lease
agreements.
Equal Opportunity Employer Tagline
“Equal
Opportunity Employer” is the tagline that appears on all official company
documents (letterhead, purchase orders, etc.).
“EOE” may be substituted for “Equal Opportunity Employer” in company
advertising. The DEEOCC must verify that
this tagline appears.
Disadvantaged
Business Enterprise (DBE) Subcontractors & Material Suppliers
The
contractor shall provide to the reviewer documentation of Disadvantaged
Business Enterprises contacted as potential subcontractors, vendors or
suppliers for the project being reviewed. Were DBE’s used above and beyond the
goal of the project? Did the contractor
use DBEs when there was no contract requirement? If the contractor utilized DBE’s above and
beyond the requirement or when there was no DBE contractual requirement, note
the contractor’s good faith efforts in the appropriate area of the Final
Determination Packet and in the summary under Observations.
Subcontract
agreements between the contractor and the applicable DBE on project(s) being
reviewed.
The purpose
is to verify the participation as required by the Contract Bid Proposal and
C-92's.
A list of
promotions made during the review period, including race, national origin, and
sex, of the employee, previous job held, job promoted into and corresponding
wage rate. Were all those promoted white
males? If so, ask the contractor why
minorities and females were not considered for promotion. Determine from the
contractor’s answer whether there appears to be any discrimination.
A list of
construction employees who worked for the company during the review period
(include project supervisory personnel).
When were minorities and females hired and laid off? Are these dates consistent with hire and
layoff dates of white males in the same classifications? Determine whether there appears to be any
discriminatory pattern.
Submitting
the I-29 reports is no longer a requirement of the Contract Compliance Review
process as the Form I-29 may be viewed on line at http://eodreporting.oit.ohio.gov/searchEODReporting.aspx However,
information in the reports is important and shall be reviewed prior to the
onsite visit. Do the reports indicate
that minorities and females were utilized throughout the year as equally as
white males? The appearance of a
discriminatory pattern may not indicate discrimination. Does the contractor’s workforce include
apprentices? Have the apprentices been
registered in ODOT’s On-the-Job Training Program? Is the ratio of apprentice to journeyperson
within the prevailing wage ratio for each craft? All issues shall be discussed with the
contractor during the on-site visit and the results of the discussion
documented in the appropriate area of the Final Determination Packet and in the
summary under Observations.
Names and Titles
of Personnel Who Will Be Representing the Contractor’s Firm at the On-Site
Review
EEO Officer’s
Duties and Responsibilities:
·
The contractor
will designate and make known to the SHA contracting officers an EEO Officer
who will have the responsibility for and must be capable of effectively
administering and promoting an active contractor program of EEO and who must be
assigned adequate authority and responsibility to do so.
·
Indoctrination of
staff that are authorized to hire, supervise, promote, and discharge employees
or make recommendations for such actions.
·
The contractor
shall provide documentation of the indoctrination of staff regarding the
company’s EEO obligations.
List of Company
Personnel Responsible for Recruitment
The
contractor shall provide documentation showing training of recruitment
personnel on the Company’s EEO hiring procedures.
Documentation
showing training of recruitment personnel on company EEO hiring procedures;.
Contract bid
proposal(s) for the projects being reviewed.
Information
pertinent to the review is obtained from reviewing the contract proposal, i.e.,
DBE goal, wage rates, utilization information, safety.
Review
lease/rental agreements the contractor has for equipment leased/rented. The
purpose is to verify: that equipment and/or operator on site is not regularly
used by or do not regularly work for the prime contractor or another
subcontractor on the project; verify that equipment leased by a DBE
subcontractor is not owned by the prime on the project. Ensure that the EOE tag line appears on all
lease/rental agreements.
Conducting a Formal EEO
Contract Compliance Review
Review of the
entire Contractor’s Self-Analysis Packet occurs at this meeting.
Discuss any
items which need further clarification.
Obtain all
back up documentation not previously provided.
During the
Exit Conference discuss all contractor deficiencies.
Onsite Verification and
Interviews
Phase
Objectives of the Visit
The material
submitted by the contractor, including the actual implementation of other
employee referral source system and any discrepancies found in the material.
Physical Inspection
The DEEOCC
will make a physical tour of the office, shop, and project site to determine
that:
·
EEO posters, EEO
policy, and the name and phone number of the company EEO Officer are displayed
in conspicuous places (bulletin board information) in the office shop or other
in-house locations.
·
Facilities are
provided on a non-segregated basis (e.g. work areas, washrooms, time clocks,
locker rooms, storage areas, parking lots and drinking fountains).
·
Reported
employment data is accurate.
·
Meetings have
been held with employees to discuss EEO Policy, particularly to new employees.
·
Employees are aware
of their right to file complaints of discrimination.
·
Project on-site
visits may be conducted prior to review.
Exit Conference
During the
exit conference with the contractor, all preliminary findings shall be
discussed.
Minor
deficiencies shall be corrected and submitted to the reviewer within 10 days of
the Exit Conference.
Compliance Determinations
The evidence
obtained at the compliance review shall constitute a sufficient basis for an
objective determination by the DEEOCC conducting the review of the contractor’s
compliance or noncompliance with contractual provisions pursuant to 23 USC; 23 CFR Pts. 200, 230, 633; 29 CFR; Civil Rights Act of 1964, as amended; Special Provisions of FHWA 1273; Title VI; and FHWA EEO Special Provisions implementing the
Federal-Aid Highway Act of 1968, where applicable.
A contractor
shall be considered to be in-compliance when the equal opportunity requirements
have been effectively implemented or there is evidence that every good faith
effort has been made toward achieving this end.
Efforts to achieve this goal shall be result-oriented, initiated and
maintained in good faith, and emphasized as any other vital management
function.
Examples of
effective implementation of EEO requirements are:
·
The contractor’s
equal employment opportunity (EEO) policy meets the minimum guidelines as
outlined in FHWA PR 1273.
·
Dissemination of
the policy and education of supervisory employees concerning their
responsibilities in implementing the EEO policy.
·
The EEO officer
has the authority and responsibility to effectively administer the EEO
requirements.
·
Evidence of the
contractor’s recruitment activities, especially those activities which
establish minority and female recruitment and referral procedures.
·
Participation in
ODOT’s on-the-job training program, especially when minorities and females are
utilized.
·
The contractor’s
review of all personnel actions to ensure equal opportunities.
·
The contractor’s
efforts to recruit minorities and females from the unions with which the
contractor holds collective bargaining agreements.
·
Contractor’s
efforts and implementation to provide non-segregated facilities, as required by
contract provisions.
·
The contractor’s
procedures for monitoring subcontractors and their utilization of minority and
female subcontractors and/or subcontractors with substantial minority and
female employment.
·
The adequacy of
the contractor’s records and reports.
A contractor
shall be considered to be in-compliance when the equal opportunity requirements
have been effectively implemented or there is evidence that every good faith
effort has been made toward achieving this end.
Efforts to achieve this goal shall be result-oriented, initiated and
maintained in good faith, and emphasized as any other vital management function.
If a
contractor is determined to be in-compliance, the DEEOCC shall, within 15 days,
prepare and submit to Central Office Deputy Director of the Division of
Construction Management, the AAEVAL(Affirmative Action Evaluation). Preparation of the review packet includes:
·
Completion of the
AAEVAL
·
Submitting the
AAEVAL to the District Construction Administrator (DCA) for concurrence and
signature
·
Sending signed
copy of AAEVAL to Central Office Deputy Director of the Division of
Construction Management for final concurrence
A contractor
shall be considered to be in noncompliance when:
·
The contractor
has discriminated against applicants or employees with respect to the
conditions or privileges of employment
·
The contractor
fails to provide evidence of every good faith effort to provide equal opportunity
·
The contractor
fails to meet Voluntary Corrective Action Plan (VCAP) requirements
Once the
onsite verification and exit conference have been completed and a compliance
determination made, the contractor shall be notified of the compliance
determination in writing by the ODOT Office of Contracts. This written notification shall be sent to
the contractor within 30 days following the receipt of the completed review
packet from the DEEOCC.
Show Cause
Notification
If a
contractor is found to be in noncompliance, action efforts to bring the
contractor into compliance shall be initiated through the issuance of a show
cause notice sent by the Deputy Director of the Division of Construction
Management. The notice shall advise the
contractor to show cause within 30 days why sanctions should not be imposed.
A Show Cause
Notice shall be issued when a determination of noncompliance is made based
upon:
·
The findings of a
compliance review, or
·
The results of an
investigation which verifies the existence of discrimination, or
·
If the contractor
failed to meet conditions of CAP.
The scheduled
location, date and time of the Show Cause Meeting shall be furnished to Central
Office Deputy Director of the Division of Construction Management by the
DEEOCC. Central Office may attend the
Show Cause Meeting. Likewise, the
District may request Central Office presence.
Show Cause Procedures
During this
30-day period stated in the Show Cause Notice, the DEEOCC will be required to
attempt conciliation with the contractor. These conciliation and negotiation
efforts shall be directed toward correcting the contractor’s deficiencies and
initiating a Corrective Action Plan (
A
Show Cause Meeting
The
contractor’s final
Once the
If the
contractor fails to develop, sign and implement a
·
Letter of
reprimand.
·
Withholding of
payments to the contractor under the contract until the contractor complies.
·
Cross-withholding
from future projects.
·
Contract
termination, cancellation (in whole or in part) and/or other remedies available
by law including suspension, revocation, and/or debarment.
Factors to be
considered in issuing sanctions include, but are not limited to:
·
The magnitude and
the type of offense.
·
The degree of the
contractor’s culpability.
·
Any steps taken
to rectify the situation.
·
The contractor’s
record of performance on other projects.
·
Whether the
contractor falsified, misrepresented, or withheld information.
If the
contractor implements a
·
The date of the
Show Cause Meeting,
·
Those in
attendance,
·
The major
deficiencies discussed,
·
A summary of the
corrective action to be taken to resolve the deficiencies, and
·
Tentative
timeframe for the Follow-up Review to be held.
Rescission of Show Cause Notice
When the
Follow-Up Reviews
A follow-up
review is an extension of the initial review process to verify the contractor’s
performance of corrective action and to validate progress report
information. Follow-up reviews shall
only be conducted on those contractors where the initial review resulted in a
finding of noncompliance and a show cause notice was issued.
A follow-up
review should be conducted on the contractor’s workforce at the earliest
possible opportunity, and if the contractor is in a declining workforce, at the
earliest possible date of the construction season, whichever allows the
contractor the best opportunity to implement its
Follow-up
reviews shall be conducted in the same manner as the initial review report,
addressing only the deficiencies found during the initial review. If the time-frame for the follow-up review
and the contractor’s formal compliance review fall in the same calendar year
the reviews may be combined. Mark the
review as both a follow-up and a formal compliance review.
Notice of
pending follow-up review should be sent in the same manner as the original
review notice with the following exceptions. The notice should address only the
deficiencies found during the review.
Only send the contractor the sections of the Self-Analysis packet that
are necessary for determining the corrective measures taken by the contractor
to date.
Request from
the contractor only those items necessary for determining the corrective
measures taken to date.
It is not
necessary to reassess aspects of the company which were in-compliance during
the initial review. Send the completed
follow-up review, including a narrative summary to Central Office.
Follow-up
review reports shall cover the following:
·
deficiencies
identified during the review,
·
contractor’s
corrective action plan,
·
contractor’s
corrective measures to date, and
·
reviewer’s
findings and recommendations.
The Office of
Contract’s procedure for processing follow-up reviews is the same as the
processing of the initial reviews, except that if the contractor is already in
show cause and is found to still be deficient, Central Office will, within
thirty (30) days, recommend that the contractor be brought to formal
meeting. The Deputy Director for the
Division of Construction Management will immediately request a formal meeting
with the Contractor and include the DBE Program Manager for the Office of
Contracts.
Hearing Process
When such
procedures as show cause issuance, conciliation conferences and formal meetings
have been unsuccessful in bringing contractors into compliance within the
prescribed 30 days, the Deputy Director for the Division of Construction
Management (or other appropriate level) shall immediately recommend, through
channels, that the Department of Transportation obtain approval from the FHWA
for a formal hearing. The contractor
should be notified of the action. At
this hearing, the contractor will be given the opportunity to offer a rebuttal
to the findings.
Recommendations
to the FHWA for hearing approval shall be accompanied by full reports of
findings and case files containing any related correspondence. The following items shall be included with
the recommendations:
·
Copies of all
Federal and Federal-Aid contracts and/or subcontracts to which the contractor
is party,
·
Copies of any
contractor or subcontractor certifications,
·
Copy of show
cause notice,
·
Copies of any
corrective action plans, and
·
Copies of all
pertinent Manpower Utilization Reports, if applicable.
SHAs through FHWA regional and division offices will
be advised of decisions and directions affecting contractors by the FHWA
Washington Headquarters, Office of Civil Rights, for the Department of
Transportation.
Responsibility Determinations
In instances where requests for formal hearings are
pending FHWA approval, the contractor may be declared a non-responsible
contractor for inability to comply with the equal opportunity requirements.
SHAs shall refrain from entering into any contract or
contract modification subject to E.O. 11246, as amended, with a contractor who has not
demonstrated eligibility for government contracts and federally assisted
construction contracts pursuant to E.O. 11246, as amended.
Comprehensive Compliance Reviews
General
Comprehensive
compliance reviews shall be implemented to determine employment opportunities
on a county-wide and area wide rather than an individual project basis.
Methodology
Section of a Target Area
In
identifying the target area of a comprehensive compliance review (e.g. county
area, or an entire State), consideration shall at least be given to the
following facts:
·
Minority and
female workforce concentrations.
·
Suspected or
alleged discrimination in union membership or referral practices by local
unions involved in highway construction.
·
Present or
potential problem areas.
·
The number of
highway projects in the target area.
Determine the
review period. After the target area has
been selected, the dates for the actual onsite reviews shall be
established. It is suggested that the
review period cover the previous calendar year.
Additional year-to-date information may be required, if necessary.
Contractor Notification
Those
contractors selected for onsite review shall be sent a notification letter as
described previously in this manual.
Onsite Reviews
Compliance
reviews shall then be conducted in accordance with the requirements set forth
in Section 230.409.
Compliance Determinations
Upon
completion of the comprehensive review, a compliance determination shall be
made. A show cause notice or compliance
notification shall be sent (as appropriate) to the reviewed contractor. The compliance determination shall be based
on the contractor’s target area workforce (Federal and Federal-Aid).
AAEVAL Final Determination Report
DEEOCC has 15
days to submit the completed AAEVAL Final Determination Report to Central
Office.
Sample Corrective Action Plan
Deficiency 1: Sources likely to yield minority employees have not
been contacted for recruitment purposes.
Commitment: We have developed a system of written job
applications at our home office which readily identifies minority applicants. In addition to this, as a minimum, we will
contact the National Association for the Advancement of Colored
People (NAACP), the League of
United Latin American Citizens (LILAC), Urban League, and the Employment Security
Office within 20 days to establish a referral system for minority group
applicants and expand our recruitment base.
We are in the process of identifying other community organizations and
associations that may be able to provide minority applicants and will submit an
updated listing of recruitment sources and evidence of contact by (Date).
Deficiency 2: There have been
inadequate efforts to locate, qualify and increase skills of minority and
female employees and applicants for employment.
Commitment: We will set up an individual file for each apprentice
or trainee by (Date) in order to carefully screen the progress, ensure that
they are receiving the necessary training, and being promoted promptly upon completion
of training requirements. We have
established a goal that at least 50 percent of our apprentices and trainees
will be minorities and 15 percent will be female. In addition to the commitment made to
deficiency number 1, we will conduct a similar identification of organizations
able to supply female applicants. Based
on our projected personnel needs, we expect to have reached our 50 percent goal
for apprentices and trainees by (Date).
Deficiency 3: Very little
effort to assure subcontractors have meaningful minority group representation
among their employees.
Commitment: In cooperation with the Regional Office of Minority
Business Enterprise, Department of Commerce, and the local NAACP, we have
identified seven minority owned contractors that may be able to work on future
contracts we may receive. These
contractors (identified in the attached list) will be contacted prior to our
bidding on all future contracts. In addition,
we have scheduled a meeting with all subcontractors currently working on our
contracts. This meeting will be held to
inform the subcontractors of our intention to monitor their reports and require
meaningful minority representation. This
meeting will be held on (Date) and we will summarize the discussion and current
posture of each subcontractor for your review by (Date). Additionally, as requested, we will submit a
PR-1391 on (Date), (Date), (Date).
Finally, we have committed ourselves to maintaining at least 20 percent
minority and female representation in each trade during the time we are
carrying out the above commitments. We
plan to have completely implemented all the provisions of these commitments by
(Date).
EEO/DBE/PW Compliance Enforcement on Local Public
Agencies (LPA) Projects
DBE
Subcontract Agreements/Purchase orders must be submitted to the DEEOCC for
review and approval prior to the execution of the contract between the LPA and
the Prime contractor.
The
Contractor is required to use DBE firms certified by ODOT to perform the type
of work subcontracted. A listing of certified DBE firms is available on the
Office of Contracts’ website. The Contractor shall identify how they will meet
the DBE / EDGE goal and in the event the Contractor is unable to meet the goal,
the ODOT waiver process must be followed. The Contractor makes the waiver
request first to the LPA. The LPA
forwards the request with recommended action to the DEEOCC. The DEEOCC then makes recommendation and
forwards the request to ODOT’s Office of Contracts. Only ODOT has the authority
to grant a waiver. The Prime Contractor
must contract with DBE Subcontractors prior to the signing of the contract with
the LPA. Each DBE subcontract or material supply agreement must be submitted to
and approved by the ODOT DEEOCC prior to the DBE beginning work on the project.
Upon receipt
of a C-92 (Request to Sublet) and the signed subcontract agreement or purchase
order for a DBE firm that is to be used for goal, the DEEOCC is to verify that
the firm is certified as a DBE through the UCP website (www.OhioUCP.org). The DEEOCC
is to verify that the DBE firm has been assigned the proper NAICS code(s) for
the work that is detailed in the Subcontract Agreement or Purchase Order. If it is for material supply, the DEEOCC must
review the type of material that is to be supplied and compare it with the
NAICS code assigned to the firm. The
DEEOCC must obtain information from the DBE firm via the LPA regarding whether
any items listed are intended to be drop shipped. NO DROP SHIPMENT CAN OCCUR WITHOUT PRIOR
APPROVAL FROM ODOT.
If the DBE is
a regular dealer only 60% of expenditures may be counted toward the DBE goal,
provided that the supplier performs a commercially useful function in the
supply process. The entire expenditure may be counted toward the DBE goal only
if the DBE supplier is a manufacturer that produces the goods from raw
materials or substantially alters them before resale.
Examine the
amount that is to be supplied by the DBE Material Supplier - use "standard
industry practice" guidelines to determine whether any amount may be
dropped shipped. If a portion is allowed
to be dropped shipped, the remaining material must come from the DBE material
supplier's yard or the DBE material supplier must use their own equipment to
transport it from the manufacturer.
Any questions
that you have should be directed to the LPA.
The LPA will then contact the DBE firm and relay the information to the
DEEOCC
The LPA
should contact the DBE BY E-MAIL DIRECTLY to get this information
Information
obtained by the LPA will be forwarded to the DEEOCC. The DEEOCC will then make a determination
regarding approving or not approving the DBE firm. The DEEOCC will advise in writing (via e-mail
to LPA) of the approval or non-approval of the DBE firm.
The Quarterly
Report of Payments Made to DBE firms must be submitted to the DEEOCC by the LPA
on a quarterly basis.
DPWCs and
DEEOCCs are required to perform a joint review of all active LPA projects. Review of project documentation are to be
conducted at a minimum of once per construction season per project.
DPWCs and
DEEOCCs are required to maintain a project folder for each LPA project working
in their district. This project folder
will include the following:
1.
A copy of the
project proposal/contract document
2.
Copies of all
PW/EEO Questionnaires submitted monthly by the LPAs.
3.
Copies of all LPA
project documentation reviews completed by the DPWC / EEOCC
4.
Copy of final
Wage or DBE Affidavits of Subcontractor Payment for completed projects.
5.
Copies of all DBE
sub-contract agreements and any other project related DBE goal attainment
information.
The DPWCs
/EEOCCs are to provide each LPA with any necessary forms, posters, payroll
information, employee Prevailing Wage Notification forms, apprentice and
trucking guidelines and CUF/DBE information.
These are to be distributed to the prime contractor by the LPA during
the pre-con meeting.
Disadvantaged
Business Enterprise (DBE)
General
The Disadvantaged
Business Enterprise Program (DBE) is
a legislatively mandated USDOT program codified in 49 CFR §26, et seq.
The DBE Program applies to recipients of Federal-aid highway dollars expended
on federally-assisted contracts. The U.S. Congress established the
DBE program in 1982 to ensure nondiscrimination in the award and administration
of DOT-assisted contracts, help remove barriers to the participation of DBEs in
DOT-assisted contracts, and assist the development of firms that can compete
successfully in the marketplace outside of the DBE program.
Certification
The ODOT uses
the certification standards of Subpart D of part 26 of the Code of Federal
Regulations and the certification procedures of Subpart E of part 26 of the Code of Federal
Regulations to determine the eligibility of firms to participate
as DBEs in DOT-assisted contracts. To be certified as a DBE, a firm must meet
all certification eligibility standards.
For
information about the certification process or to apply for certification,
firms should contact:
Ohio
Department of Transportation
DBE Services
Section
Division of
Construction Management, Mail Stop 4110
1980 W. Broad
Street
Columbus,
Ohio 43223
Tel. 1-800-459-3778
Goals, Good Faith Efforts and
Counting Contract Goals
The ODOT will
establish contract goals on those DOT-assisted contracts that have
subcontracting possibilities. DBE goals are set on federally funded projects in excess of
$500,000.00.
Good Faith Efforts
A
determination of “good faith efforts” becomes necessary when at the time of
contract award, the low bidder does not propose to meet the DBE project goal
and if, during the execution of the contract, the planned subcontracts to DBE
firms do not materialize. The bidders
must have exerted efforts that were of an intense, aggressive and sincere
nature of the specific project far beyond any simple paper work exercise to
demonstrate a good faith effort in achieving the project goal. It is the
contractor’s responsibility to submit the information necessary for ODOT to
ascertain compliance with the good faith efforts requirement. The Department is responsible for submitting
to the FHWA its conclusions and recommendations based on an analysis of the
information.
Good faith
efforts should include, but not be limited to:
A. Attending any pre-bid meetings at which DBE’s could be
informed of contracting and subcontracting opportunities;
B. Advertising in general circulation, trade association,
and minority focus media concerning the subcontractor opportunities;
C. Providing written notice to all certified DBE’s who
have capabilities pertinent to the work of the contract that their interest in
the contract is solicited. This notice
shall be in sufficient time to allow the DBE’s to respond to the written
solicitation;
D. Following up initial solicitations of interest by
contacting DBE’s to determine with certainty if the DBE’s are interested;
E. Selecting portions of the work to be performed by
DBE’s in order to increase the likelihood of the DBE goals being achieved. This may include, where appropriate, breaking
down contracts into economically feasible units to facilitate DBE
participation;
F. Providing interested DBE’s with adequate information
about the plans, specifications, and requirements of the contract;
G. Negotiating in good faith with interested DBE’s. The evidence of such negotiations should
include the names, addresses, and telephone numbers of DBE’s that were
considered, a description of the information provided regarding the plans and
specifications for the work selected for subcontracting, and a statement as to
why additional agreement could not be reached for DBE’s to perform the work;
H. Not rejecting DBE’s as unqualified without sound
reasons based on a thorough investigation of their capabilities;
I. Making efforts to assist interested DBE’s in obtaining
bonding, lines of credit, or insurance as required by the recipient or
contractor;
J. Making efforts to assist interested DBE’s in obtaining
necessary equipment, supplies, materials, or other related assistance or
services; and
K. Effectively using the services of available minority
community organizations; minority contractors’ groups; local, State, and
Federal minority business assistance offices; and other organizations as
allowed on a case-by-case basis to provide assistance in the recruitment and
placement of DBE’s.
L. Utilization of Bid Express Small Business Network to
post sub-quote requests, located and advertise directly to certified and
prequalified DBE’s, and produce a good faith form from the system.
Counting
When a DBE
firm participates in a contract, only the value of the work actually performed
by the DBE is counted toward DBE goals. DBE participation is counted toward
goals via the following method:
A. Count the entire amount of that portion of a
construction contract that is performed by the DBE’s own forces. Include the
cost of supplies and materials obtained by the DBE for the work of the
contract, including supplies purchased or equipment leased by the DBE (except
supplies and equipment the DBE subcontractor purchases or leases from the prime
contractor or its affiliate).
B. Count the entire amount of fees or commissions charged
by a DBE firm for providing a bona fide service, such as professional,
technical, consultant, or managerial services, or for providing bonds or
insurance specifically required for the performance of a DOT assisted contract,
toward DBE goals, provided the fee is determined to be reasonable and not
excessive as compared with fees customarily allowed for similar services.
C. When a DBE subcontracts part of the work of its
contract to another firm, the value of the subcontracted work may be counted
toward DBE goals only if the DBE’s subcontractor is itself a DBE. Work that a DBE subcontracts to a non-DBE
firm does not count toward DBE goals.
D. Count expenditures to a DBE contractor toward DBE
goals only if the DBE is performing a commercially useful function on that
contract.
Good Faith Efforts When a
DBE is Replaced/Substituted
A prime
contractor may not terminate a DBE subcontractor (or an approved substitute DBE
firm) without Prior written consent from ODOT Central Office. This includes,
but is not limited to, instances in which a prime contractor seeks to perform
work originally designated for a DBE subcontractor with its own forces or those
of an affiliate, a non-DBE firm, or with another DBE firm.
The Prime
contractor must demonstrate that it had good cause to terminate the DBE
firm. Good cause includes the following
circumstances:
A. The listed DBE subcontractor fails or refuses to
execute a written contract;
B. The listed DBE subcontractor fails or refuses to
perform the work of its subcontract in a way consistent with normal industry
standards. Provided, however, that good cause does not exist if the failure or
refusal of the DBE subcontractor to perform its work on the subcontract results
from the bad faith or discriminatory action of the prime contractor;
C. The listed DBE subcontractor fails or refuses to meet
the prime contractor's reasonable, nondiscriminatory bond requirements.
D. The listed DBE subcontractor becomes bankrupt,
insolvent, or exhibits credit unworthiness;
E. The listed DBE subcontractor is ineligible to work on
public works projects because of suspension and debarment proceedings pursuant 2 CFR Parts 180, 215 and 1,200 or applicable state law;
F. ODOT has determined that the listed DBE subcontractor is
not a responsible contractor;
G. The listed DBE subcontractor voluntarily withdraws
from the project and provides to ODOT written notice of its withdrawal;
H. The listed DBE is ineligible to receive DBE credit for
the type of work required;
I. A DBE owner dies or becomes disabled with the result
that the listed DBE contractor is unable to complete its work on the contract;
J. Other documented good cause that ODOT determines to be
just cause for termination of the DBE subcontractor. Provided, that good cause
does not exist if the prime contractor seeks to terminate a DBE it relied upon
to obtain the contract so that the prime contractor can self-perform the work
for which the DBE contractor was engaged or so that the prime contractor can
substitute another DBE or non-DBE contractor after contract award.
Before
transmitting to ODOT its request to terminate and/or substitute a DBE
subcontractor, the prime contractor must give notice in writing to the DBE
subcontractor, with a copy to ODOT, of its intent to request to terminate
and/or substitute, and the reason for the request.
The prime
contractor must give the DBE five days to respond to the prime contractor's
notice and advise ODOT and the contractor of the reasons, if any, why it
objects to the proposed termination of its subcontract and why ODOT should not
approve the prime contractor's action. If required in a particular case as a
matter of public necessity ( e.g., safety), ODOT may provide a response period
shorter than five days.
In addition
to post-award terminations, the provisions of this section apply to pre-award
deletions of or substitutions for DBE firms put forward by offerors in
negotiated procurements.
When a DBE
subcontractor is terminated, or fails to complete its work on the contract for
any reason, ODOT requires that the prime contractor make good faith efforts to
find another DBE subcontractor to substitute for the original DBE. These good
faith efforts shall be directed at finding another DBE to perform at least the
same amount of work under the contract as the DBE that was terminated, to the
extent needed to meet the contract goal you established for the procurement.
ODOT will
identify within the Contract a provision for appropriate administrative
remedies that it will invoke if the prime contractor fails to comply with the
requirements of this section.
The
requirements of this section also apply to DBE bidders/offerors for prime
contracts. In determining whether a DBE bidder/offeror for a prime contract has
met a contract goal, ODOT will count the work the DBE has committed to
performing with its own forces as well as the work that it has committed to be
performed by DBE subcontractors and DBE suppliers.
Waiver Process for DBE Goal
It is the
policy of the Ohio Department of Transportation that Disadvantaged Business
Enterprises (DBEs) shall have equal opportunity to compete for and perform
subcontracts which the Contractor enters into pursuant to this contract. The
Contractor must use its best efforts to solicit bids from and to utilize DBE
subcontractors with meaningful minority groups and female representation among
their employees. Consequently, the requirements of Title 49 CFR Part 26 and Ohio Revised
Code §5525.011 apply to this contract. The Contractor must ensure
that the DBE subcontractor(s) is performing a “commercially useful function” as
defined in CFR 26.55.
The
percentage indicated on the front cover of the bid is the percent of the
awarded Contractor's bid which must be subcontract to certified ODOT DBE firms.
The percentage goal may be met if the awarded Contractor is DBE certified.
In order to
be assured that the Contractor complies with this contract requirement the
Contractor shall provide certified payrolls from its DBE subcontractors where
appropriate. When the Contractor utilizes a service, for example trucking, to
satisfy a part or its entire contractual goal, the Contractor, when requested,
must provide a copy of each canceled check issued to the DBE service provider
until the gal amount is reached. The Department shall total the amounts of the
canceled checks and compare that total to the subcontract agreement by the
parties and the C-92 issued to the Contractor for the work to be performed by
the DBE subcontractor.
The
Contractor must document the progress and efforts being made in securing the
services of DBE subcontractors. In the event the Contractor is unable to meet
the DBE Goal placed on this project, a request for a waiver of all or part of
the goal may be made to the Office of Contracts. The written request must
indicate a good faith effort was made to meet the goal and be sent to the
Administrator, Office of Contracts, 1980 West Broad Street, Columbus, Ohio,
43223. There will be no extension of time for the project granted if the
Contractor wishes to avail himself of this process. If an item of work
subcontracted to a DBE firm is non-performed by the Department or the subject
of an approved VECP, the Contractor may request a waiver for the portion of work
excluded.
The
Contractor must provide the following information and documentation when
requesting DBE goal waiver:
1. Dollar value and % of
DBE goal. Dollar value and % of waiver request.
2. Signed copy of each
subcontract or purchase order agreement between the prime and DBE subcontractor
utilized in meeting the contract goal.
3. Copy of dated written
communication, fax confirmation, personal contact, follow up and negotiation
with the DBE’s.
4. Copy of dated written
communication and/or fax confirmation that bidder solicited and provided DBE’s
with adequate information about the plans, specifications and requirements of
the contract in a timely manner to assist them in responding to a solicitation.
5. Copy of dated written
communication and/ or fax confirmation of each noncompetitive DBE quote that
includes the dollar value of each reference item and work type.
6. Copy of dated written
communication and/ or dated fax confirmation of DBE’s that were not interested
in providing a quote for the project.
7. Documentation of all
negotiating efforts and reason for rejecting bids.
8. Documentation of good
faith efforts (GFE) to meet the DBE subcontract goal, by looking beyond the
items typically subcontract or consideration of subcontracting items normally
performed by the prime as a way to meet the DBE goal.
The
Administrator will review the submitted documentation and issue a written
decision within ten (10) business days. The Contractor may request
administrative reconsideration within 14 days of being informed that it did not
perform a GFE. The Contractor must make this request in writing to the
following official:
Ohio
Department of Transportation
Attention: Administrator, Office of Contracts
1980 West Broad Street, Mail Stop 4110
Columbus, Ohio 43223
The reconsideration
official will not have played any role in the original determination that the
contractor did not document sufficient good faith effort. As part of this reconsideration, the
contractor will have the opportunity to provide written documentation or an
argument concerning the issue of whether it met the goal or made adequate good
faith efforts to do so. ODOT will send the contractor a written decision on
reconsideration explaining the basis for finding that the contractor did or did
not meet the goal or make adequate good faith efforts. The result of the
reconsideration process is not administratively appealable to the US Department
of Transportation. However, it is appealable to the Franklin County Court of
Common Pleas.
Sanctions
The Ohio Department
of Transportation will issue sanctions if the Contractor chooses not to request
a waiver, the Contractor fails to comply with the contract requirements and/or
fails to demonstrate the necessary good faith effort. The Ohio Department of Transportation may
impose any of the following sanctions:
1)
letter of reprimand;
2)
liquidated damages computed up to the amount of goal dollars not met;
3)
cross-withhold from future projects;
4)
contract termination and/or;
5)
other remedies available by law including suspension, revocation,
and/or debarment.
Factors to be
considered in issuing sanctions include, but are not limited to:
1)
the magnitude and the type of offense;
2)
the degree of the Contractor’s culpability;
3)
any steps taken to rectify the situation;
4)
the Contractor’s record of performance on other projects including,
but not limited to:
a)
annual DBE participation over DBE goals;
b)
annual DBE participation on projects without goals;
c)
number of complaints the Ohio Department of Transportation has
received from DBEs regarding the Contractor; and
d)
the number of times the Contractor has been previously sanctioned by
the Department of Transportation; and
5)
whether the Contractor falsified, misrepresented, or withheld
information.
Commercially Useful Function
General
The prime
contractor is responsible for ensuring that those DBE’s committed to perform
work under the contractor’s contract perform a commercially useful function
(CUF). Failure to fulfill this
obligation will be considered a breach of the contract.
The prime
contractor will be given credit toward the DBE contract goal only when the DBE
performs a commercially useful function.
The ODOT will consider that a commercially useful function has been
performed when (1) a DBE is responsible for the execution of a distinct element
of the work by actually performing, managing and supervising the work involved
in accordance with normal industry practice (except where such practices are
inconsistent with the DBE regulations and these guidelines) and (2) the firm
receives due compensation as agreed upon for the work performed. Regardless of whether an arrangement between
the contractor and the DBE represent standard industry practice, if the
arrangement erodes the ownership, control and independence of the DBE or does
not meet the commercially useful function requirement, the contractor shall
receive no credit toward goal.
Management
The DBE must
manage the work it has contracted. The
management shall include scheduling work operations, ordering equipment and materials
(if materials are part of the contract), preparing and submitting payrolls and
all other required reports and forms, and hiring and firing employees,
including supervisory employees. The DBE
must perform the work of the contract with its own work force. Unless precluded by State or Local policy, a
limited portion of the work may be subcontracted (first or second tier
subcontracting) consistent with normal industry practices.
The DBE must
supervise the daily operations of the work contracted. There are only two acceptable ways for the
DBE to supervise the daily operations.
The DBE owner may act as superintendent and directly supervise the work,
or a skilled and knowledgeable superintendent employed by and paid wages by the
DBE must directly supervise the work. If
the latter is used, the DBE owner must be actively involved in making the
operational and managerial decisions of the firm. Basically, this means that all administrative
functions must be performed by personnel responsible to or employed by the DBE
at facilities or locations under the control of the DBE.
Workforce
The DBE shall
supervise and perform the work of the contract with workers on its payroll and
under the direct supervision of the DBE.
The DBE or his/her superintendent must, on a full time basis, supervise
and control work on the contract. The
supervision of the contract work by personnel normally employed by another
contractor or by personnel not under the control of the DBE constitutes failure
to perform a commercially useful function.
Except in the
instances defined below, the DBE shall perform its work with employees normally
employed by and under the DBE’s control.
In all instances the DBE shall be responsible for its payroll and labor
compliance requirements concerning all workers under its control. Under the following conditions a DBE may use
other means to perform the work:
A. On a limited basis when a contract requires
specialized knowledge (such as asphalt paving, soil cement, etc.), a DBE may be
allowed to augment his or her work force with personnel which normally works
for another firm. In each case, the DBE
shall request in writing and secure ODOT’s approval of the arrangement prior to
commencing the work of the contract.
B. If allowed by State or local policy, the DBE may enter
into a subcontract under normally accepted industry practices.
C. Prior to allowing any arrangement, the State shall
ensure that:
1. The arrangement is not designed to provide the DBE
with the basic labor requirements of the contract.
2. The arrangement is on a limited basis and not long
term, repetitive or continuing. Long
term, continual, or repetitive use by a DBE firm of personnel primarily
employed by a non-disadvantaged firm will be construed as an attempt to
artificially inflate DBE participation and will not be allowed.
3. Exclusive of the arrangement, the majority of the
DBE’s work force and his or her superintendent/foreman are regular employees of
the DBE.
4. The arrangement should be indicative of normal
industry practices and should not represent a significantly greater portion of
the contract work than would be expected on the basis of normal industry
practices.
Equipment
A DBE may
lease equipment consistent with standard industry practice. A DBE may lease equipment from the prime
contractor, provided a rental agreement separate from the subcontract
specifying the terms of the lease arrangement is approved by the ODOT prior to
the DBE starting the work. If the
equipment is of a specialized nature, the lease may include the operator. If this practice is generally acceptable
within the industry, then the operator can remain on the lessor’s payroll. The operation of the equipment should be
subject to the full control of the DBE.
Such an arrangement should be for a short term and involve a specialized
piece of heavy equipment readily available at the job site.
For equipment
that is not specialized, the DBE is expected to provide the operator and to be
responsible for all payroll and labor compliance requirements.
No credit
will be given for the cost of equipment leased or rented and used in the DBE
firm’s work when payment for those costs is made by a deduction from the prime
contractor’s payment(s) to the DBE firm.
Materials
The DBE shall
negotiate the cost, arrange delivery of, and pay for the materials and supplies
required for the work of the contract.
Invoices for materials should be invoiced to the DBE firm and not to the
prime contractor. The ODOT will periodically review invoices for materials to
ensure compliance.
A prime
contractor may occasionally find it necessary to pay suppliers directly for
materials used by his/her subcontractors.
When such a payment arrangement is available to all subcontractor
relationships and not restricted to just DBE’s, then counting the cost of
materials actually incorporated into the project by the DBE subcontractor
toward DBE participation will be allowable, provided the DBE participates in
scheduling the delivery of the materials and is fully responsible for ensuring
that the materials meet specifications. When such payments are made by the prime
contractor, it is recommended that the payments be made by jointly endorsable
check signed by the prime and DBE.
No credit
should be allowed toward the DBE goal for the cost of materials placed by a DBE
subcontractor when payment for the costs is effected by making a deduction from
the prime contractor’s payment to the DBE unless such transaction is clearly
documented as part of a formal written agreement between the two parties and is
approved by ODOT.
Trucking Operations
A. To be certified as a DBE trucking firm, the firm must
own at least one fully operational truck that is used on a day-to-day
basis. Where a hauling permit or license
is required, a firm may qualify for certification if the firm owns the
permit. However, ODOT will ensure that
if such firms do not own at least one truck, credit towards project goals is
granted only for the fee the DBE firm retains for providing the hauling
service.
B. In order for the DBE project goals to be credited, DBE
trucking firms must be covered by a subcontractor or a written agreement
approved by ODOT prior to performing their portion of the work.
C. In order to perform a commercially useful function,
the DBE trucking firm is restricted to the same subcontracting limitation in effect
for other contractors. That is, the DBE
trucking firm shall be required to perform the applicable required percentage
of the work with his own trucks and personnel.
For example, if ODOT restricts all contractors from subletting or
reassigning no more than 50% of the work to their contract, the same
restriction would apply to DBE trucking operations.
D. DBE trucking firms may rent or lease trucks from other
sources, except from prime contractors to whom they are subcontractors, with
the condition that only the vehicle is rented or leased and the DBE submits
valid lease agreements on all trucks to be leased prior to the beginning of
work. All lease agreements, in order to
be valid, must include the lessor’s name, the trucks to be leased, and the
agreed upon amount or method of payment (hour, ton or load hauled). Operators, fuel, maintenance and insurance
for all leased trucks must be the sole responsibility of the DBE trucking firm.
E. DBE trucking firms may utilize owner/operator trucks;
however, the number of owner/operator trucks used may not exceed any
limitations on subletting or reassigning the work specified in the State’s
contract provisions. All owner-operators
must appear on the contractor’s or subcontractor’s payroll designated as
owner/operators. However, since contract
wage rates are not applicable, the hours worked or wages paid may be reflected
either on the payroll or on the record of payments to each owner/operator.
Encouraging Diversity, Growth & Equity (EDGE)
General
Encouraging Diversity, Growth & Equity (EDGE)
is a contract assistance program designed to assist socially and economically
disadvantaged businesses in Ohio. It was originally created by Executive Order 2002-17T in December 2002, and was codified in July 2003. EDGE
establishes goals for state agencies, boards and commissions in awarding
contracts. The program applies to procurements of supplies and services,
professional services, information technology services, and construction,
architecture and engineering. An EDGE participant must be a small socially and
economically disadvantaged business enterprise owned and controlled by U.S.
citizens who are Ohio residents. A business enterprise may qualify if the owner
meets the criteria for both social and economic disadvantage.
Goals
EDGE goals
are considered on state funded projects in excess of $250,000.
Waiver Process for Edge
Goal
If not EDGE
certified, the Contractor must document the progress and efforts made in
securing the services of EDGE subcontractors/suppliers. In the event the
Contractor is unable to meet the EDGE Goal placed on this project, a request
for a waiver of all or part of the goal may be made to the Office of Contracts.
The written request must indicate a good faith effort was made to meet the goal
and be sent to the Administrator, Office of Contracts, 1980 West Broad Street,
Columbus, Ohio, 43223.
There will be
no extension of time for the project granted if the Contractor wishes to avail
itself of this process. If an item of work subcontracted to an EDGE firm is
non-performed by the Department or the subject of an approved VECP, the
Contractor may request a waiver for the portion of work excluded.
The
Contractor must provide the following information and documentation when
requesting EDGE goal waiver:
A. Dollar value and % of
EDGE goal. Dollar value and % of waiver request.
B. Signed copy of each
subcontract or purchase order agreement between the prime and EDGE
subcontractor/supplier utilized in meeting the contract goal.
C. Copy of dated written
communication, fax confirmation, personal contact, follow up and negotiation
with the EDGE firm.
D. Copy of dated written
communication and/or fax confirmation that bidder solicited and provided EDGE
with adequate information about the plans, specifications and requirements of
the contract in a timely manner to assist them in responding to a solicitation.
E. Copy of dated written
communication and/ or fax confirmation of each noncompetitive EDGE quote that
includes the dollar value of each reference item and work type.
F. Copy of dated written
communication and/ or dated fax confirmation of EDGE firms that were not
interested in providing a quote for the project.
G. Documentation of all
negotiating efforts and reason for rejecting quotes from EDGE firms.
H. Documentation of good
faith efforts (GFE) to meet the EDGE subcontract goal, by looking beyond the
items typically subcontract or consideration of subcontracting items normally
performed by the prime as a way to meet the EDGE goal.
The
Administrator will review the submitted documentation and issue a written
decision within ten (10) business days. The Contractor may request
administrative reconsideration within 14 days of being informed that it did not
perform a GFE. The Contractor must make this request in writing to the
following official:
Ohio
Department of Transportation
Attention: Office of Contract Administration
1980 West
Broad Street Mail Stop 4110
Columbus,
Ohio 43223
The reconsideration
official will not have played any role in the original determination that the
Contractor did not document sufficient good faith effort. As part of this
reconsideration, the Contractor will have the opportunity to provide written
documentation or an argument concerning the issue of whether it met the goal or
made adequate good faith efforts to do so. ODOT will send the Contractor a
written decision on reconsideration explaining the basis for finding that the
Contractor did or did not meet the goal or make adequate good faith efforts.
The result of the reconsideration process may be appealed to the Franklin
County Court of Common Pleas.
Affidavit of Subcontractor
Payment
The Ohio Revised
Code 123.152, requires the Ohio Department of Transportation
(ODOT) to monitor and verify that work subcontracted to Encouraging Diversity,
Growth and Equity (EDGE) firms is actually performed by the EDGE firms. The
affidavit seeks to verify actual payments made to EDGE firms on the project.
Each EDGE firm must verify the actual payment amount.
The blank
spaces in the affidavit must be filled in correctly, where indicated. The
affidavit must be signed by the Contractor and subcontractor, or by the
subcontractor and EDGE subcontractor, if applicable. By signing the affidavit,
the noted firm agrees that the payment amount recorded is true and accurate as
of the payment time period.
Completed and
signed affidavit shall be mailed to the Ohio Department of Transportation,
Office of Contracts, DBE Services section, 1980 West Broad Street, Columbus,
Ohio 43223.
Sanctions
The Ohio
Department of Transportation will issue sanctions if the Contractor chooses not
to request a waiver, the Contractor fails to comply with the contract
requirements and/or fails to demonstrate the necessary good faith effort.
The Ohio
Department of Transportation may impose any of the following sanctions:
1)
letter of reprimand;
2)
liquidated damages computed up to the amount of goal dollars not met;
3)
cross-withhold from future projects;
4)
contract termination; and/or
5)
other remedies available by law including suspension, revocation,
and/or debarment.
Factors to be
considered in issuing sanctions include, but are not limited to:
1)
the magnitude and the type of offense;
2)
the degree of the Contractor’s culpability;
3)
any steps taken to rectify the situation;
4)
the Contractor’s record of performance on other projects including,
but not limited to:
a)
annual EDGE participation over EDGE goals;
b)
annual EDGE participation on projects without goals;
c)
number of complaints the Ohio Department of Transportation has
received from EDGE firms regarding the Contractor; and
d)
the number of times the Contractor has been previously sanctioned by
the Department of Transportation; and
5)
whether the Contractor falsified, misrepresented, or withheld
information
107.10
Protection and Restoration of Property
All properties to be utilized by the Contractor
outside the project right-of-way must be cleared for all environmental resource
impacts prior to the start of work. The project right-of-way consists of the
right-of-way the project is being constructed upon. Environmental resource
features pertinent to the construction activity should be shown in the contract
documents. The Contractor is responsible for evaluating all impacts on
environmental resources outside the project right-of-way.
Environmental resources include, but may not be
limited to:
1.
Cultural
resources.
a.
Buildings,
structures, objects, and sites eligible for or listed on the National Register
of Historic Places.
b.
Historic or
prehistoric human remains, cemeteries, and/or burial sites (pursuant with ORC 2909.05 and 2927.11).
2.
Ecological
resources.
a.
Wetlands.
b.
Streams.
c.
Wooded areas with
trees to be removed in excess of 8 inches diameter at breast height.
3.
Public lands.
a.
Lands meeting the
criteria of 49 U.S.C. 303, 23 CFR 771.I35: 4(f).
b.
Lands meeting the
criteria of 16 U.S.C. 4601-4, 36 CFR59.1: 6(f).
4.
FEMA mapped 100
year floodplains.
5.
Hazardous waste
areas.
All areas proposed to be utilized by the Contractor
outside the project construction limits shall be reviewed by environmental
contractor(s) that are prequalified by the Department for each environmental
resource. Have the consultant(s) certify
that the proposed site to be utilized for the Contractor will not impact:
·
Cultural
resources.
·
Ecological resources.
·
Public lands.
·
FEMA mapped 100
year floodplains.
·
Hazardous waste
areas.
Provide all documentation and the consultant
certification to the Department’s Office of Environmental Services.
107.11 Contractor’s Use of the Project Right-of-Way or
Other Department Property
General
This section compiles the
requirements for sections 104.03
Rights in and Use of Materials Found on the Work, 105.16
Waste and Borrow Areas, and 105.17
Construction and Demolition Debris.
All of the environmental
requirements in 105.16
Waste and Borrow Areas and 105.17
Construction and Demolition Debris apply to on-site locations. The exceptions to these requirements are
detailed in 105.16
Waste and Borrow Areas of this manual.
Borrowing
and/or Wasting on the Right-of-Way (107.11.A)
Under 104.03,
Rights in and Use of Materials Found on the Work, the Contractor has the right
to all materials found in the contract work.
However, the Contractor does not have the right to materials outside the
plan work. For example, the Contractor
does not have the right to rock found outside the cross-section work. On the other hand, if the Contactor finds
rock within the cross-section, they can use the rock for other items of work.
In order for the Contractor
to have the “fee free” right to the material, the Designer needs to detail
borrow and/or waste areas in the plans prior to bid. If the locations are not shown and the
Contractor receives approval to borrow and/or waste on ODOT property, then a
charge of $ 0.50 per cubic yard will be assessed. When borrow and/or waste areas are shown on
the plans, there is not a charge for the material.
This requirement was put into
the specifications to even the bidding for all contractors.
Approval for Borrowing and/or Wasting on the
Right of Way
All borrow and waste location
requests on the right-of-way need the District Office of Production
approval. The guidance document for the
approval can be found at the following link:
http://www.dot.state.oh.us/roadwayengineering/L&D
Vol I/Waste_Borrow_4-30-02.pdf
The District Office of
Production will look at the following during the approval process:
·
Safety grading
and clear zone.
·
Sight distances.
·
Future expansion.
·
Environmental
regulations (404, 401, NPDES, etc.), (See Environmental Approval in 105.16,
Waste and Borrow Areas, of this manual).
·
Public
commitment.
·
Effects on utilities.
·
Stability (See
Stability and Settlement in 105.16,
Waste and Borrow Areas, of this manual).
As this process evolves,
there may be changes to this criterion.
Portable Plants within the Project Limits (107.11.B
&107.11.C)
The use of ODOT property for portable
plants is restricted under this section of the specifications. Production may detail potential locations on
the plans. If the locations are detailed
on the plans, then the location is fee free.
If the location was not shown in the plans and the site is approved by
the District for use, then the Department will consider this change a Value
Engineering Change Proposal.
There are four requirements
detailed in C&MS 107.11.C
that must be met by the Contractor.
- The Contractor’s efforts to comply with the noise ordinances (107.11.C.1)
need approved by the District Environmental Coordinator.
- The EPA permits (107.11.C.2)
need approved by the District Environmental Coordinator.
- The written certification that the plant will supply material only
for the project (107.11.C.3)
must be submitted to the Engineer.
- The traffic plan (107.11.C.4)
needs approved by District Planning and Engineering.
Equipment
Storage and Staging (107.11.D)
The “fee free” use of project
right-of-way for staging, equipment storage, and/or office site is granted in
this section.
The only restrictions are
that these locations do not interfere with the work and are not otherwise
restricted in the contract documents.
Documentation
Requirements - Waste and Borrow Sites (105.16, 105.17 and 107.11)
It is the intent of this
section to recommend minimum documentation and critical inspection requirements
for the above sections. All of the
following documentation requirements need recorded in the project daily
reports. References to the appropriate
laws, specifications, and proposals and plan notes or details for all the
inspector reports are required.
Specifications or other requirements waived by the Engineer shall be
noted on the daily diaries.
Regulated waste work may be
inspected and documented by the District Environmental Coordinator (DEC),
District Hazardous Waste Coordinator (DHWC), or Regulated Waste Project
Engineer (RWPE). Inspection required by
these individuals is denoted below.
In addition, clearances or
reviews that need to be performed by other offices or individuals in the
Department will be denoted. This
includes the District Office of Production (DOP) and the Office of Geotechnical
Engineering (OGE).
1. Contractors operational plan approval.
2. Stability and settlement (OGE).
3. NPDES permit and erosion control (DOP).
4. 404 and 401 permit or evaluation (DEC).
5. Floodplain clearance (DEC).
6. Cultural resource clearance (DEC).
7. Open burning permit (DEC).
8. Any disposal requiring manifesting (DEC, DHWC, or
RWPE).
9. Construction and demolition debris.
a. Determination if clean, hard fill or construction
debris.
b. Quantities and locations of material leaving and
filling on the site.
c. Seven day notice to the local board of health or OEPA.
d. Record quantities going to the C & D landfills.
i.
Manifest properly
(DEC, DHWC, or RWPE)
10. Landscape Wastes.
a. Record quantities and locations of materials leaving
and buried on-site.
b. Record what happened to the rest of the material.
c. Recycled.
d. Reused.
i.
Manifest Properly
(DEC, DHWC, or RWPE).
11. Open Burning.
a. Obtain a copy of the permit.
b. Is the smoke causing a hazard?
c. Is the burning at the correct time?
d. Is an air curtain used?
e. Are there any fire hazards?
12. Proper disposal of concrete waste.
a. Three-foot cover on-top.
b. Eight-foot cover on the sides.
c. Core mixed with 30 percent soil.
d. Is the fill stable?
13. Contractor use of the right-of-way.
a. Approval (DOP).
b. All clearances. See No. 3 through 7 above.
c. Fifty cents a cubic yard or free.
d. Portable plant approval (DOP).
14. Cross-section the site if required for payment.
a. Wasting.
b. Borrowing.
15. Owner’s permission statement.
a. Material not the Departments.
b. ODOT not a part of the agreement.
c. ODOT held harmless.
16. Restoration.
a. Temporary BMP removal.
b. Site clean-up.
c. Final acceptance.