\$\$108.00A

######### Section 108.---PROSECUTION AND PROGRESS

Revised 6 October 2006

*[INCLUDE THE FOLLOWING AS APPLICABLE]{.mark}*

\$\$108.01A

108.01. Add the following:

\$\$108.01B

Construction operations are limited as follows:

\$\$108.01C

No work will be permitted on Sundays or National legal holidays.

[]{.mark}

*[INCLUDE THE FOLLOWING FOR VIRGIN ISLANDS ONLY, THAT ARE NON-NPS &
EFLHD ADMINISTERED]{.mark}*

\$\$108.02A

108.02. Add the following:

#### 108.02A Disadvantaged Business Enterprise (DBE) Subcontracting Requirements.

# **SELECTED DBE PROGRAM PROVISIONS FOR THE VIRGIN ISLANDS --**

**DISADVANTAGED BUSINESS ENTERPRISE (DBE) PARTICIPATION IN USDOT
ASSISTED CONTRACTS**

**(EFLHD -- ADMINISTERED CONTRACTS)**

**Policy.** It is the policy of the United States that small business
concerns, including small disadvantaged business concerns, shall have
the maximum practicable opportunity to participate in performing
contracts. It is further the policy of the United States that its prime
contractors establish procedures to ensure the timely payment of amounts
due pursuant to the terms of their subcontracts with small business
concerns, including small disadvantaged business concerns.

The Contractor hereby agrees, by signature on this Contract, to carry
out this policy in the awarding of subcontracts to the fullest extent
consistent with efficient contract performance. The Contractor further
agrees to cooperate in any studies or surveys as may be conducted by the
United States Small Business Administration, the Federal Highway
Administration (FHWA), or the Virgin Islands, as may be necessary to
determine the extent of the Contractor's compliance with this policy.

**DBE Participation/Contract Goal And Good Faith Efforts.** For purposes
of this Contract, the DBE subcontracting goal is [(*obtain percentage
from PSERT*)]{.mark} percent of the total contract amount, as determined
by the Virgin Islands Department of Public Works with the concurrence of
the Contracting Officer. When the contract goal DBE participation is 0
percent, the contractor, if not an approved DBE, must still submit a
small business subcontracting plan prior to award identifying all DBE's
which the contractor intends to use on the project.

This Contract will be awarded only to the low responsive and responsible
bidder who meets this goal or who demonstrates good faith efforts to do
so. Failure to make a good faith effort is defined as willful or
intentional failure to perform in accordance with the requirements of
this Contract, or willful or intentional action to frustrate the
achievement of the Subcontracting Plan, if applicable. Guidance on what
constitutes good faith efforts is described in the Virgin Islands
Department of Public Works' (VIDPW) approved DBE Program. Bidders are
required to obtain a current copy of the Disadvantaged Business
Enterprise Program, Directory of Contractors from the VIDPW's Civil
Rights Program Manager.

All Business Concerns. Prior to award, the successful bidder must submit
a Subcontracting Plan, which shows a commitment to meet the goal. All
DBEs must be certified by the VIDPW prior to submission of the
Subcontracting Plan. If the successful bidder is unable to meet the
goal/DBE participation, it must demonstrate the good faith effort
exerted to do so. It is the Contracting Officer's discretion to
determine whether the good faith efforts exerted are acceptable. The
following information must be included in the Subcontracting Plan:

> **(a)** The names and addresses of DBE subcontractors and suppliers
> that will participate in the contract;
>
> **(b)** A description of the work that each DBE will perform;
>
> **(c)** The dollar amount of the participation of each DBE firm
> listed;
>
> **(d)** Written documentation of the bidder's commitment to use a DBE
> subcontractor/supplier whose participation it submits to meet the DBE
> contract goal; and
>
> **(e)** Written confirmation from the DBE that it is participating in
> the contract. The written confirmation shall describe the work to be
> performed and the dollar amount contracted consistent with **(b)** and
> **(c)** above.

The DBE contract goal/DBE participation committed to by the large
business concern will become the established DBE subcontracting goal for
the project as a contract requirement. Compliance with the established
goal will be determined by reviewing the required submissions, including
Standard Form 1413 and FHWA Form 1775. If, at the completion of the
project, the prime contractor fails to meet its commitment, it will be
required to document and justify why it failed to meet this commitment.
The Liquidated Damage Provision as stated below will apply if the
contractor fails to meet the goal or demonstrate good faith efforts.

## **Termination / Substitution / Replacement Of Listed DBE Firms.** The Prime contractor may not terminate for convenience a DBE subcontractor without the Contracting Officer's prior written consent. The prime contractor will be expected to identify an acceptable certified DBE subcontractor replacement in that event, or demonstrate good faith efforts to do so. This restriction does not prohibit termination for default or for failure to perform adequately. If a DBE subcontractor is unwilling or unable to perform the work of the commitment made to the prime contractor, the prime contractor shall immediately notify in writing the Contracting Officer, and request to be relieved of the commitment to use the named DBE.

### **Counting DBE Participation.** When a DBE participates in a contract, only the value of the work actually performed by the DBE will be counted toward performance of the goal. The entire amount of that portion of a construction contract or other contract that is performed by the DBE's own forces will be credited. Included are the costs of supplies and materials obtained by the DBE for the work of the contract (DBE manufacturer 100 percent of the cost of the materials or supplies may be counted & DBE regular dealer 60 percent of the cost of the materials or supplies), 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). Credit will be allowed for 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 USDOT-assisted contract. Credit will be allowed for fees considered reasonable and not excessive as compared with fees customarily allowed for similar services.

Credit to a DBE contractor will be allowed only if the DBE is performing
a commercially useful function on the contract. A DBE performs a
commercially useful function 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.

When a DBE subcontracts part of the work of its contract to another
firm, the value of the subcontracted work may be counted only if the
DBE's subcontractor is itself a certified DBE. Work that a DBE
subcontracts to a non-DBE firm does not count**.**

When a DBE performs as a participant in a joint venture, credit for a
portion of the total dollar value of the contract equal to the distinct,
clearly defined portion of the work of the contract that the DBE
performs with its own forces will be allowed.

The Prime Contractor may not count the participation of a DBE
subcontractor toward its DBE achievements or the overall goal until the
amount being counted toward the goal has been paid to the DBE.

**Prompt Payment.** This Contract includes Prompt Payment for
Construction Contracts, which requires payment to the subcontractor for
satisfactory performance under its subcontract not later than 7 days
from receipt of payment from the United States for work performed by the
subcontractor. If retainage is withheld the prime contractor shall be
required to release such retainage to subcontractors within 30 calendar
days of satisfactory completion, i.e. according to the specifications,
of the entire subcontractor's work.

### **Liquidated Damages.** If at the completion of the project, the prime contractor has failed to meet the established goal/commitment, or has not demonstrated good faith efforts to do so, the prime contractor shall be assessed liquidated damages for the difference between the established goal/commitment and the actual DBE participation achieved.

### **Record Keeping Requirements.** The Prime Contractor shall keep such records as necessary to ensure compliance with its DBE utilization obligations. The Prime contractor must retain all such records for at least 3 years after project acceptance by the Contracting Officer following the completion of the contract. These records shall be available for inspection by the Virgin Islands Department of Public Works, the FHWA, the USDOT, or other appropriately sanctioned Virgin Islands State Agencies or Federal Agencies or Departments, to determine the Prime Contractor's good faith effort to meet the established DBE subcontracting goal. The prime contractor's DBE liaison officer or designee shall complete the top half of Form A-644, Monthly Contractor DBE Participation, and submit the form or its facsimile to the Contracting Officer monthly.

### **Compliance Procedures.** Whenever it appears that the Prime Contractor or any subcontractor or supplier may not be operating in compliance with the terms, conditions or requirements of this Contract, including but not limited to, encouraging fronting, brokering or the circumstance of a DBE not performing a commercially useful function as defined, an investigation will be conducted. If it is found that the contractor or any subcontractor or supplier is not in compliance with these Special Provisions, the party in non-compliance will be notified in writing.

If the deficiencies are not corrected, the Contracting Officer reserves
the right to initiate administrative action against the party or parties
in non-compliance, which may include but not be limited to:

> **(a)** Termination of the contract for Default, which is a part of
> this Contract.
>
> **(b)** Withholding an appropriate percentage of partial payments
> pursuant to Section 109 of the Standard Specifications for Highway and
> Bridge Construction. This appropriate percentage may be the amount of
> any proposed monetary sanction.
>
> **(c)** Initiation of appropriate debarment proceedings.
>
> **(d)** Referral of any unlawful actions to the appropriate
> enforcement agencies.
>
> **(e)** Other actions as appropriate, at the discretion of the
> Contracting Officer.

[]{.mark}

*[INCLUDE THE FOLLOWING FOR INCENTIVE / DISINCENTIVE CLAUSES]{.mark}*

\$\$108.04A

108.04. Delete the second and third paragraphs and substitute the
following:

It is anticipated that multiple work shifts, weekend, and holiday work,
will be required to complete the work within the contract time.
There­fore, because time is of the essence in completing the contract
work, a monetary incentive is offered for early completion of the work
as well as a disincentive assessment and/or liquidated damages for work
being completed late.

> **(a)** For each calendar day prior to [*[(insert
> date)]{.mark}*]{.underline} by which Contract work is substantially
> complete, payment to the Contractor will be increased by an incentive
> of \$ [*[(insert I/D amount)]{.mark}*]{.underline} per day up to a
> maximum of \$ *[[(insert amount)]{.underline}]{.mark}*
>
> **(b)** For each calendar day beyond [*[(insert same
> date)]{.mark}*]{.underline} which is required to achieve substantial
> completion, payment to the Contractor will be decreased by a
> disincentive of \$ [*[(insert I/D amount)]{.mark}*]{.underline} per
> day beginning the day after that date and ending with the day of
> substantial completion.
>
> **(c)** For each calendar day beyond [*[(insert same
> date)]{.mark}*]{.underline} which is required to achieve final
> completion and acceptance by the Government, payment to the Contractor
> will be decreased by liquidated damages of 20 percent of the amount
> specified in Table 108-1, beginning on the day after that date or the
> day after substantial completion, whichever occurs later, and ending
> with the day of final completion and acceptance by the Government.