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Explanation of the Revisions to Form FHWA-1273 dated March 10, 1994
The following is a section-by-section overview of the revisions made to Form FHWA-1273.
This section is revised to clarify several issues.
- Form FHWA-1273 must be physically incorporated in all contracts and subcontracts funded with Title 23 funds. This includes prime contracts, subcontracts, and lower-tier subcontracts. A new statement indicates that the Form does not need to be physically incorporated in purchase orders, rental agreements and other agreements for supplies or services.
- The former requirement in Form FHWA-1273, Section I.2, to include the Form in any “purchase order” is deleted. This is consistent with the regulatory language in 23 CFR 633.102(e). (Note that a separate “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Participants” will be required in all purchase orders, rental agreements and other agreements for supplies and services exceeding the $25,000 threshold. See Section X).
- A statement was added to indicate that the applicable requirements of Form FHWA-1273 are incorporated by reference for work done under any purchase order, rental agreement or agreement for other services. Therefore, certain requirements, such as the False Statement provisions in Section VIII will apply to any work done under the contract at any level. Other requirements such as prevailing wage rate requirements in Section IV would only apply based on the specific applicability criteria in that Section.
- For design-build contracts, Form FHWA-1273 must be included in the prime contract, subcontracts and lower tier subcontracts; however, depending on the character and scope of the subcontract, certain requirements may or may not apply as noted above.
- Contracting agencies may reference Form FHWA-1273 in bid proposal or request for proposal documents, however, Form FHWA-1273 must be physically incorporated (not referenced) in all contracts, subcontracts and lower tier subcontracts.
- Section I.3, I.4 and I.5 of the March 1994 Form FHWA-1273 referenced provisions in 29 CFR concerning breach of contract and disputes. These provisions are replaced by inclusion of the US Department of Labor’s “Contract provisions and related matters” provisions from 29 CFR 5.5. In addition, a general paragraph noting that non-compliance with any of the FHWA-1273 requirements may be sufficient grounds for withholding of progress payments, withholding of final payment, termination of the contract, suspension / debarment or any other action determined to be appropriate by the contracting agency and FHWA.
- Section I.6.a of the March 1994 Form is deleted. The FHWA’s provisions that prohibit discrimination against the employment of labor from any other State (23 CFR 635.117(b)) apply to State imposed procedures and do not apply to the selection of labor by a construction contractor. Therefore, the existing provision in section I.6.a is removed.
- Section I.6 b of the March 1994 Form is revised to clarify the applicability of FHWA’s prohibition on the use of convict labor. Title 23 USC 114(b) provides a statutory prohibition for the use of convict labor on highways “. . . located on a Federal-aid system” unless the convicts are on parole, supervised release, or probation. FHWA’s May 9, 1996 memorandum provides a policy statement that the convict labor prohibition applies to projects on a Federal-aid highway. The term “Federal-aid highway” as defined in 23 U.S.C. 101(a) means any highway other than highways functionally classified as local roads or rural minor collectors.
- The applicability provisions of this section have been revised to reflect appropriate FHWA and US Department of Labor provisions. Title 23 CFR 230.107(a) specifically excludes material supply contracts. Additional text was added to clarify that the requirements of Part 230 apply to construction contracts and not material supply, engineering, or architectural service contracts.
- Verbiage has been added to clarify the US Department of Labor’s exclusive compliance authority for Executive Order 11246 (reference FHWA Order 4710.8 dated February 1, 1999; http://www.fhwa.dot.gov/legsregs/directives/orders/47108.htm); and the FHWA / contracting agency’s responsibilities to enforce Title 23 USC Section 140 and Title VI of the Civil Rights Act of 1964, as amended, and related regulations, including 49 CFR Parts 21, 26 and 27 and 23 CFR Parts 200, 230, and 633.
- Additional regulatory references are provided for 29 CFR 1625 - Age Discrimination in Employment Act and 49 CFR 27- Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance.
- The appropriate references are provided for the Equal Opportunity Clause in 41 CFR 60-1.4(b) and, for all construction contracts exceeding $10,000, the Standard Federal Equal Employment Opportunity Construction Contract Specifications in 41 CFR 60-4.3.
- The term “State Highway Agency” has been changed to “contracting agency” here and throughout the document.
- The term “minorities and women” is used in lieu-of “minority groups” in the discussion regarding nondiscrimination provisions for recruitment, personnel actions and training and promotion.
- Grammatical corrections referring to masculine pronouns have been modified to be gender neutral. The term “female” has also been replaced by “women”.
- The reference to the “DOL” in Section II.4.b is deleted; however, the provision concerning discrimination related to the implementation of bargaining agreements is maintained.
- The provision requiring 25 percent of apprentices or trainees to be in their first year in Section II.6.b in Section II.6.b is deleted. This provision was eliminated from the US Department of Labor regulations. A sentence is added to allow contracting agencies to reserve training positions for welfare recipients as provided by Title 23 USC 140(a).
- The reference to the “DOL” in Section II.7.d is deleted; however, the provision requiring the contractor to comply with non-discrimination provisions even when a collective bargaining agreement fails to provide sufficient referrals from the union was retained.
- A new paragraph is added in Section II.8 for increasing the awareness of reasonable accommodation for disabled persons.
- Section II.10 incorporates by reference the non-discrimination provisions of 49 CFR 26 and the state’s U.S. DOT approved Disadvantaged Business Enterprise programs. It also includes verbatim, the non-discrimination assurance required by 49 CFR 26.13(b).
III. NONSEGREGATED FACILITIES:
- Paragraphs a, b, and c have been combined into a single paragraph. In accordance with the US Department of Labor, Office of Federal Contract Compliance, August 19, 1997 final rule, the "certification" for nonsegregated facilities has been eliminated. The provisions in this section are based on the requirements in 41 CFR 60-1.8.
IV. Davis-Bacon and Related Act Provisions.
- The title of this section is changed to “Davis-Bacon and Related Act Contract Provisions” to more accurately reflect the origin and content of the required clauses. The US Department of Labor’s required contract clauses in 29 CFR 5.5(a)(1) through (10) are provided with minor revisions to provide consistency with the format for Form FHWA-1273. It is noted that the US Department of Labor issued final rule makings on November 5, 1993; August 5, 1996; November 20, 2000 and December 19, 2008 that modified the required clauses.
- The reference to Form FHWA-1495, “Wage Rate Information, Federal-aid Highway Project” (Form FHWA-1273, Section IV.1.a) is deleted as this form is no longer necessary. The US Department of Labor’s form WH-1321 – “The Davis-Bacon Poster” provides similar information and is required to be posted on every project where Davis-Bacon requirements apply.
V. Contract Work Hours and Safety Standards Act
- The title of this section is revised to “Contract Work Hours and Safety Standards Act Provisions.” The US Department of Labor’s required contract clauses in 29 CFR 5.5(b)(1) through (4) are provided with minor revisions to provide consistency with the format for Form FHWA-1273.
VI. SUBLETTING OR ASSIGNING THE CONTRACT:
- Section VI of the March 1994 Form, previously titled: “VI. RECORD OF MATERIALS, SUPPLIES, AND LABOR.” was deleted in its entirety due to the elimination of Form FHWA-47 (see Mr. Horne’s May 22, 2007 memorandum). This section was replaced by the requirements for subletting or assigning the contract.
- General: A sentence is added to clarify the applicability of this requirement to National Highway System projects. These requirements are not applicable to non-National Highway System projects.
- Section VII-1.a - A paragraph is added to section to clarify that employee lease arrangements may contribute to the prime contractor’s self-performance requirement. See Mr. Horne’s July 5, 2000 memorandum titled, “Employee Lease Agreements” for details.
- Section VII – 5 - A sentence is added indicating that the FHWA’s 30% self-performance requirement of paragraph 1 is not applicable to design-build contracts; however, contracting agencies may utilize their own self-performance requirements per 23 CFR 635.116(d)(1).
VII. SAFETY: ACCIDENT PREVENTION:
- A statement has been added to clarify that this provision is applicable to all Federal-aid construction contracts.
VIII. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS:
- A statement has been added to clarify that this provision is applicable to all Federal-aid construction contracts. The statutory language in Title 18 U.S.C., Section 1020 was modified on September 13, 1994. The text “under this title” is substituted for “not more than $10,000.”
IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT:
- General references have been provided to the Federal Clean Water Act and the Clean Air Act as recommended by the EPA.
X. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION:
- The instructions for certification and the certification regarding debarment, suspension, ineligibility, and voluntary exclusion” have been revised to comply with the definitions and requirements of 2 CFR Parts 180 and 1200.
- A separate “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Participants” will be required for all purchase orders, rental agreements and other agreements for supplies and services exceeding the $25,000 threshold.
XI. CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING:
ATTACHMENT A - EMPLOYMENT PREFERENCE FOR APPALACHIAN CONTRACTS:
- Attachment A is re-titled as “Employment and Materials Preference for Appalachian Development Highway System or Appalachian Local Access Road Contracts.” References are provided for the Appalachian Regional Development Act of 1965 in the applicability paragraph and a reference is provided for the Appalachian material preference provision in 23 CFR 633.207(e).
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