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.
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.
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.
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.
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.
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.
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:
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.
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.
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.
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.
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;
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;
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.
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.
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 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.
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
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.
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;
It is also important to keep the employee’s name confidential as long as possible, so that the employee is not subjected to retaliation.
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.
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.
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 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:
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.
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:
Written notice must be provided to the contractor prior to withholding any funds.
The following contract provision is required for Federal-aid construction contracts:
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 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: email@example.com
Listed below are step-by-step instructions for processing certified payrolls, once submitted to the district via the e-mail address:
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
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
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.
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.
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.
The following steps should be utilized when trying to obtain delinquent payrolls:
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.
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.
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:
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.
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;
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.
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.
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.
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:
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.
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.
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.
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.
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.
This procedure is applicable to all Federal-Aid Highway construction projects, Appalachian Highway construction projects, and other State supervised cooperative highway construction projects.
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.
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.
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.
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.
The DEEOCC should follow the ODOT safety policy. Request and review this information prior to going on-site.
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.
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.
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.
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.
Training and upgrading of minorities, females and disadvantaged persons toward journey-person status is the primary objective of the On-the-Job Training Program.
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.
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.
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.
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.
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.
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.
The reviewing officer will also make a physical tour of the project site and meet with employees in each trade.
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 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.
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 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.
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.
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:
Desk Audit Criteria
Contractor has never been reviewed.
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).
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.
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.
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?
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.
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?
Review the list of outside recruitment sources to determine if the contractor utilizes recruitment sources other than the unions.
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:
“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.
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 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)?
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.
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.
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:
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.
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.
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.
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.
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?
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.
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.
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.
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.
The Contractor’s Affidavit MUST be completely filled out, signed and notarized.
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).
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.
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” 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.
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.
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.
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.
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.
The material submitted by the contractor, including the actual implementation of other employee referral source system and any discrepancies found in the material.
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.
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.
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.
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.
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 (
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.
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.
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.
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.
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.
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 shall be implemented to determine employment opportunities on a county-wide and area wide rather than an individual project basis.
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.
Those contractors selected for onsite review shall be sent a notification letter as described previously in this manual.
Compliance reviews shall then be conducted in accordance with the requirements set forth in Section 230.409.
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.
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).
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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) 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.
EDGE goals are considered on state funded projects in excess of $250,000.
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.
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.
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
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.
2. Ecological resources.
c. Wooded areas with trees to be removed in excess of 8 inches diameter at breast height.
3. Public lands.
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.
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.
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.
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.
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 “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.
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.
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.
15. Owner’s permission statement.
a. Material not the Departments.
b. ODOT not a part of the agreement.
c. ODOT held harmless.
a. Temporary BMP removal.
b. Site clean-up.
c. Final acceptance.