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Federal Highway Administration
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Washington, DC 20590
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Contract Provisions for Federal-aid Construction and Service Contracts Required by FHWA or Other Agencies

Agency / Requirement Form Statute Regulation Highway Construction (1) Non-Highway Construction (2) Service Contracts (3) Remarks:
Buy America Requirements State developed provisions 23 USC 313 23 CFR 635.410 Yes Yes Yes Applicable to all projects financed under Title 23 that use or acquire steel & iron materials.
Non-Collusion Provision State Developed Provisions 23 USC 112 (c) 23 CFR 635.112(f) Yes No No Applicable to highway construction contracts financed under 23 USC
On-the-Job Training Provisions Appendix B to Subpart A of Part 230-Training Special Provisions 23 USC 140(a) & (b) 23 CFR 230 Subpart A
Appendix B to Subpart A of Part 230-Training Special Provisions
Yes See remarks No Projects designated by the State in setting State-wide training goals
Standardized Changed Conditions Contract Clauses State developed contract provisions 23 USC 112(e) 23 CFR 635.109 Yes No No Applicable to all highway construction projects (except for design-build projects where applicability will be determined on a project-by-project basis).
FHWA Required Contract Provisions Form FHWA-1273 - Required Contract Provisions (.pdf) 23 CFR 633.102 Yes Yes (5) No Form FHWA-1273 must be incorporated in all Federal-aid construction solicitations and contracts
USDOL OFCCP EEO Clause Equal Employment Opportunity Clause 41 CFR 60-1.4(b)
2 CFR Part 200 Appendix II (C)
Yes
See Remarks
Yes
See Remarks
See Remarks 41 CFR 60-1.4(b) for Federally assisted construction contracts;
Note: 41 CFR 60-1.4(d) allows for incorporation by reference (referenced in FHWA-1273)

See definitions in 41 CFR 60-1.3

USDOL OFCCP Notice of Requirement for Affirmative Action Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity (Executive Order 11246) 41 CFR 60-4.2(d) Yes Yes No
(only applies to construction)
The notice shall be included in all solicitations on all federally assisted construction contracts or subcontracts in excess of $10,000.
Minority goals are published in DOL's Technical Assistance Guide for Federal Construction; Contractors - Appendix E.
USDOL OFCCP EEO Contract Specifications Standard Federal EEO Construction Contract Specifications (Executive Order 11246) 41 CFR 60-4.3 Yes Yes No
(only applies to construction)
The notice shall be included in all solicitations on all federally assisted construction contracts or subcontracts in excess of $10,000
USDOT Disadvantaged Business Enterprise Program Requirements State contract provisions based on Federal requirements 49 CFR 26 Yes
See Remarks
Yes
See Remarks
Yes
See Remarks
Applicable to solicitations and contracts as defined in the State's approved DBE program.
FHWA Non-Collusion Statement State developed solicitation provision based on the language in
23 CFR 635.112(f)
23 USC 112(c) 23 CFR 635.112(f) Yes No No Applicable to Federal-aid highway construction projects
Sanctions and Penalties for Breach of Contract State developed contract provision 2 CFR Part 200 Appendix II (A) Yes Yes Yes Required for all contract in excess of the simplified acquisition threshold (currently set at $150,000), must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate.
Termination for Cause and Convenience State developed contract provision 2 CFR Part 200 Appendix II (B) Yes Yes Yes Required for all contracts in excess of $10,000
Davis-Bacon Act (Prevailing Wage Rate Requirements) See form FHWA-1273, Section IV (.pdf) &
Federal Prevailing Wage Determination
23 USC 113,
40 USC 3141
2 CFR Part 200 Appendix II (D) and
23 CFR 635.309(f) 29 CFR 1, 3, 5
See remarks See remarks See remarks
  • Required for Title 23 funded highway construction projects located on a Federal-aid highway (excludes local roads or rural minor collectors); or when required by statute (e.g. Transportation Alternatives Program Projects under 23 U.S.C. 213(e))
  • Required for construction projects funded outside of Title 23, when required by Federal program legislation.
  • Contract provision provided in form FHWA-1273, Section IV.
Contract Work Hours and Safety Standards Act See form FHWA-1273, Section V 40 USC 3701-3708 2 CFR Part 200 Appendix II (E) See remarks See remarks See remarks Provision is applicable to Federal-aid construction contracts in excess of $100,000; see language in form FHWA-1273.
Rights to Inventions Made Under a Contract or Agreement 2 CFR Part 200 Appendix II (F);
37 CFR §401
No No See remarks Applicable to inventions under government research grants, contracts and cooperative agreements
Clean Air Act / Federal Water Pollution Control Act Incorporated in Form FHWA-1273, IX 2 CFR Part 200 Appendix II (G) Yes (4)
See remarks
Yes (4)
See remarks
See remarks Construction contracts and subgrants of amounts in excess of $150,000
Energy efficiency As appropriate for each State developed plan 42 U.S.C. 6201 2 CFR Part 200 Appendix II (H) See remarks See remarks See remarks Applicable when there is a mandatory standards / policies relating to energy efficiency in the state energy conservation plan
Debarment and Suspension See form FHWA-1273, Section X 2 CFR Part 200 Appendix II (I) 2 CFR 180 Yes (4) Yes (4) Yes (4) Example certification provided in Form FHWA-1273, Section X
Byrd Anti-Lobbying Amendment See form FHWA-1273, Section XI (.pdf) 2 CFR Part 200 Appendix II (J) Yes (4) Yes (4) Yes (4) Example provision provided in Form FHWA-1273, Section XI
Procurement of Recovered Materials As appropriate for each State developed Affirmative Procurement Plan 2 CFR Part 200 Appendix II (K)
2 CFR 200.322
40 CFR part 247
See Remarks See Remarks See Remarks Compliance with section 6002 of the Solid Waste Disposal Act as appropriate, EPA Guidelines and State Affirmative Procurement Plans

Footnotes:

  • (1) Federal-aid Highway Construction Contracts include Title 23 funded projects on the NHS and non-NHS (within the right-of-way of a public highway (see Mr. Horne's June 26, 2008 memo).
  • (2) Non-highway construction projects are construction projects that are not located within the right-of-way of a public highway or linked to a Federal-aid highway project. If a project is linked to a Federal-aid highway project, then it is subject to FHWA highway construction contracting requirements. Linkage may be established through the environmental review process. Examples of construction projects that are not highway construction include bicycle trails, historic preservation of buildings, and other projects that are not located within the right-of-way of a public highway (see Mr. Horne's June 26, 2008 memo).
  • (3) "Service contracts" include projects to acquire services or equipment that are neither construction contracts nor engineering services contracts related to the construction of a Federal-aid project. Service contracts may include equipment acquisitions, vehicle acquisitions, vehicle retrofit projects, roadside assistance services, planning studies, etc.).
  • (4) Example contract language is provided in Form FHWA-1273 (.pdf).
  • (5) Certain FHWA-1273 requirements may not apply. See each section of Form FHWA-1273 for details. All construction contracts funded under Title 23 should include form FHWA-1273, and when appropriate, a separate provision noting the specific requirements that are not applicable to that contract (e.g. Davis-Bacon prevailing wage rate requirements are not required if the project is not located on a Federal-aid highway).
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Updated: 06/27/2017
Federal Highway Administration | 1200 New Jersey Avenue, SE | Washington, DC 20590 | 202-366-4000