# FEDERAL TRANSIT ADMINISTRATION

BEST PRACTICES PROCUREMENT MANUAL

**TABLE OF CONTENTS (Appendix A - Governing Documents)**

**[A.1 - Federally Required and Other Model Contract
Clauses]{.underline}**

1\. Fly America Requirements\
2. Buy America Requirements\
3. Charter Bus and School Bus Requirements\
4. Cargo Preference Requirements\
5. Seismic Safety Requirements\
6. Energy Conservation Requirements\
7. Clean Water Requirements\
8. Bus Testing\
9. Pre-Award and Post Delivery Audit Requirements\
10. Lobbying\
11. Access to Records and Reports\
12. Federal Changes\
13. Bonding Requirements\
14. Clean Air\
15. Recycled Products\
16. Davis-Bacon and Copeland Anti-Kickback Acts\
17. Contract Work Hours and Safety Standards Act\
18. \[Reserved\]\
19. No Government Obligation to Third Parties\
20. Program Fraud and False or Fraudulent Statements and Related Acts\
21. Termination\
22. Government-wide Debarment and Suspension (Nonprocurement)\
23. Privacy Act

24\. Civil Rights Requirements\
25. Breaches and Dispute Resolution\
26. Patent and Rights in Data\
27. Transit Employee Protective Agreements\
28. Disadvantaged Business Enterprises (DBE)\
29. \[Reserved\]\
30. Incorporation of Federal Transit Administration (FTA) Terms

31\. Drug and Alcohol Testing

::: Definition-Term
:::

1.  **[FLY AMERICA REQUIREMENTS]{.underline}**

# 49 U.S.C. § 40118

**41 CFR Part 301-10**

## [Applicability to Contracts]{.underline}

The Fly America requirements apply to the transportation of persons or
property, by air, between a place in the U.S. and a place outside the
U.S., or between places outside the U.S., when the FTA will participate
in the costs of such air transportation. Transportation on a foreign air
carrier is permissible when provided by a foreign air carrier under a
code share agreement when the ticket identifies the U.S. air carrier's
designator code and flight number. Transportation by a foreign air
carrier is also permissible if there is a bilateral or multilateral air
transportation agreement to which the U.S. Government and a foreign
government are parties and which the Federal DOT has determined meets
the requirements of the Fly America Act.

### Flow Down Requirements

The Fly America requirements flow down from FTA recipients and
subrecipients to first tier contractors, who are responsible for
ensuring that lower tier contractors and subcontractors are in
compliance.

### Model Clause/Language

The relevant statutes and regulations do not mandate any specified
clause or language. FTA proposes the following language.

**[Fly America Requirements]{.underline}**

The Contractor agrees to comply with 49 U.S.C. 40118 (the "Fly America"
Act) in accordance with the General Services Administration's
regulations at 41 CFR Part 301-10, which provide that recipients and
subrecipients of Federal funds and their contractors are required to use
U.S. Flag air carriers for U.S Government-financed international air
travel and transportation of their personal effects or property, to the
extent such service is available, unless travel by foreign air carrier
is a matter of necessity, as defined by the Fly America Act. The
Contractor shall submit, if a foreign air carrier was used, an
appropriate certification or memorandum adequately explaining why
service by a U.S. flag air carrier was not available or why it was
necessary to use a foreign air carrier and shall, in any event, provide
a certificate of compliance with the Fly America requirements. The
Contractor agrees to include the requirements of this section in all
subcontracts that may involve international air transportation.

**2. [BUY AMERICA REQUIREMENTS]{.underline}**

**49 U.S.C. 5323(j)**\
**49 CFR Part 661**

**[Applicability to Contracts]{.underline}**\
The Buy America requirements apply to the following types of contracts:
Construction Contracts and Acquisition of Goods or Rolling Stock (valued
at more than \$100,000).

**[Flow Down]{.underline}**\
The Buy America requirements flow down from FTA recipients and
subrecipients to first tier contractors, who are responsible for
ensuring that lower tier contractors and subcontractors are in
compliance. The \$100,000 threshold applies only to the grantee
contract, subcontracts under that amount are subject to Buy America.

**[Mandatory Clause/Language]{.underline}**\
The Buy America regulation, at 49 CFR 661.13, requires notification of
the Buy America requirements in FTA-funded contracts, but does not
specify the language to be used. The following language has been
developed by FTA.

**Buy America -** The contractor agrees to comply with 49 U.S.C. 5323(j)
and 49 C.F.R. Part 661, which provide that Federal funds may not be
obligated unless steel, iron, and manufactured products used in
FTA-funded projects are produced in the United States, unless a waiver
has been granted by FTA or the product is subject to a general waiver.
General waivers are listed in 49 C.F.R. 661.7, and include final
assembly in the United States for 15 passenger vans and 15 passenger
wagons produced by Chrysler Corporation, and microcomputer equipment and
software. Separate requirements for rolling stock are set out at 49
U.S.C. 5323(j)(2)(C) and 49 C.F.R. 661.11. Rolling stock must be
assembled in the United States and have a 60 percent domestic content.

A bidder or offeror must submit to the FTA recipient the appropriate Buy
America certification (below) with all bids or offers on FTA-funded
contracts, except those subject to a general waiver. Bids or offers that
are not accompanied by a completed Buy America certification must be
rejected as nonresponsive. This requirement does not apply to lower tier
subcontractors.

**Certification requirement for procurement of steel, iron, or
manufactured products.**

*Certificate of Compliance with 49 U.S.C. 5323(j)(1)*

The bidder or offeror hereby certifies that it will meet the
requirements of 49 U.S.C. 5323(j)(1) and the applicable regulations in
49 C.F.R. Part 661.5.

Date

Signature

Company Name

Title

*Certificate of Non-Compliance with 49 U.S.C. 5323(j)(1)*

The bidder or offeror hereby certifies that it cannot comply with the
requirements of 49 U.S.C. 5323(j)(1) and 49 C.F.R. 661.5, but it may
qualify for an exception pursuant to 49 U.S.C. 5323(j)(2)(A),
5323(j)(2)(B), or 5323(j)(2)(D), and 49 C.F.R. 661.7.

Date

Signature

Company Name

Title

**Certification requirement for procurement of buses, other rolling
stock and associated equipment.**

*Certificate of Compliance with 49 U.S.C. 5323(j)(2)(C).*

The bidder or offeror hereby certifies that it will comply with the
requirements of 49 U.S.C. 5323(j)(2)(C) and the regulations at 49 C.F.R.
Part 661.11.

Date

Signature

Company Name

Title

*Certificate of Non-Compliance with 49 U.S.C. 5323(j)(2)(C)*

The bidder or offeror hereby certifies that it cannot comply with the
requirements of 49 U.S.C. 5323(j)(2)(C) and 49 C.F.R. 661.11, but may
qualify for an exception pursuant to 49 U.S.C. 5323(j)(2)(A),
5323(j)(2)(B), or 5323(j)(2)(D), and 49 CFR 661.7.

Date

Signature

Company Name

Title

**[3. CHARTER BUS REQUIREMENTS]{.underline}**

**49 U.S.C. 5323(d)**\
**49 CFR Part 604**

**[Applicability to Contracts]{.underline}**\
The Charter Bus requirements apply to the following type of contract:
Operational Service Contracts.

**[Flow Down Requirements]{.underline}**\
The Charter Bus requirements flow down from FTA recipients and
subrecipients to first tier service contractors.

**[Model Clause/Language]{.underline}**\
The relevant statutes and regulations do not mandate any specific clause
or language. The following clause has been developed by FTA.

**Charter Service Operations -** The contractor agrees to comply with 49
U.S.C. 5323(d) and 49 CFR Part 604, which provides that recipients and
subrecipients of FTA assistance are prohibited from providing charter
service using federally funded equipment or facilities if there is at
least one private charter operator willing and able to provide the
service, except under one of the exceptions at 49 CFR 604.9. Any charter
service provided under one of the exceptions must be \"incidental,\"
i.e., it must not interfere with or detract from the provision of mass
transportation.

**[3. SCHOOL BUS REQUIREMENTS]{.underline}**

**49 U.S.C. 5323(F)**\
**49 CFR Part 605**

**[Applicability to Contracts]{.underline}**\
The School Bus requirements apply to the following type of contract:
Operational Service Contracts.

**[Flow Down Requirements]{.underline}**\
The School Bus requirements flow down from FTA recipients and
subrecipients to first tier service contractors.

**[Model Clause/Language]{.underline}**\
The relevant statutes and regulations do not mandate any specific clause
or language. The following clause has been developed by FTA.

**School Bus Operations -** Pursuant to 69 U.S.C. 5323(f) and 49 CFR
Part 605, recipients and subrecipients of FTA assistance may not engage
in school bus operations exclusively for the transportation of students
and school personnel in competition with private school bus operators
unless qualified under specified exemptions. When operating exclusive
school bus service under an allowable exemption, recipients and
subrecipients may not use federally funded equipment, vehicles, or
facilities.

**[4. CARGO PREFERENCE REQUIREMENTS]{.underline}**

**46 U.S.C. 1241** **\
46 CFR Part 381**

**[Applicability to Contracts]{.underline}**\
The Cargo Preference requirements apply to all contracts involving
equipment, materials, or commodities which may be transported by ocean
vessels.

**[Flow Down]{.underline}**\
The Cargo Preference requirements apply to all subcontracts when the
subcontract may be involved with the transport of equipment, material,
or commodities by ocean vessel.

**[Model Clause/Language]{.underline}**\
The MARAD regulations at 46 CFR 381.7 contain suggested contract
clauses. The following language is proffered by FTA.

**Cargo Preference - Use of United States-Flag Vessels -** The
contractor agrees: a. [to use]{.underline} privately owned United
States-Flag commercial vessels to ship at least 50 percent of the gross
tonnage (computed separately for dry bulk carriers, dry cargo liners,
and tankers) involved, whenever shipping any equipment, material, or
commodities pursuant to the underlying contract to the extent such
vessels are available at fair and reasonable rates for United
States-Flag commercial vessels; b. [to furnish within]{.underline} 20
working days following the date of loading for shipments originating
within the United States or within 30 working days following the date of
leading for shipments originating outside the United States, a legible
copy of a rated, \"on-board\" commercial ocean bill-of -lading in
English for each shipment of cargo [described in the preceding
paragraph]{.underline} to the Division of National Cargo, Office of
Market Development, Maritime Administration, Washington, DC 20590 and to
the FTA recipient ([through the contractor in the case of a
subcontractor\'s bill-of-lading.)]{.underline} c. [to include
these]{.underline} requirements in [all subcontracts issued pursuant to
this contract when the subcontract may involve the transport of
equipment, material, or commodities by ocean vessel.]{.underline}

**[5. SEISMIC SAFETY REQUIREMENTS]{.underline}**

**42 U.S.C. 7701 et seq. 49\
CFR Part 41**

**[Applicability to Contracts]{.underline}**\
The Seismic Safety requirements apply only to contracts for the
construction of new buildings or additions to existing buildings.

**[Flow Down]{.underline}**\
The Seismic Safety requirements flow down from FTA recipients and
subrecipients to first tier contractors to assure compliance, with the
applicable building standards for Seismic Safety, including the work
performed by all subcontractors.

**[Model Clauses/Language]{.underline}**\
The regulations do not provide suggested language for third-party
contract clauses. The following language has been developed by FTA.

**Seismic Safety** - The contractor agrees that any new building or
addition to an existing building will be designed and constructed in
accordance with the standards for Seismic Safety required in Department
of Transportation Seismic Safety Regulations 49 CFR Part 41 and will
certify to compliance to the extent required by the regulation. The
contractor also agrees to ensure that all work performed under this
contract including work performed by a subcontractor is in compliance
with the standards required by the Seismic Safety Regulations and the
certification of compliance issued on the project.

**[6. ENERGY CONSERVATION REQUIREMENTS]{.underline}**

**42 U.S.C. 6321 et seq.\
49 CFR Part 18**

**[Applicability to Contracts]{.underline}**\
The Energy Conservation requirements are applicable to all contracts.

**[Flow Down]{.underline}**\
The Energy Conservation requirements extend to all third party
contractors and their contracts at every tier and subrecipients and
their subagreements at every tier.

**[Model Clause/Language]{.underline}**\
No specific clause is recommended in the regulations because the Energy
Conservation requirements are so dependent on the state energy
conservation plan. The following language has been developed by FTA:

**Energy Conservation** - The contractor agrees to comply with mandatory
standards and policies relating to energy efficiency which are contained
in the state energy conservation plan issued in compliance with the
Energy Policy and Conservation Act.

**[7. CLEAN WATER REQUIREMENTS]{.underline}**

**33 U.S.C. 1251**

**[Applicability to Contracts]{.underline}**\
The Clean Water requirements apply to each contract and subcontract
which exceeds \$100,000.

**[Flow Down]{.underline}**\
The Clean Water requirements flow down to FTA recipients and
subrecipients at every tier.

**[Model Clause/Language]{.underline}**\
While no mandatory clause is contained in the Federal Water Pollution
Control Act, as amended, the following language developed by FTA
contains all the mandatory requirements:

**Clean Water** - (1) The Contractor agrees to comply with all
applicable standards, orders or regulations issued pursuant to the
Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et
[seq]{.underline}. The Contractor agrees to report each violation to the
Purchaser and understands and agrees that the Purchaser will, in turn,
report each violation as required to assure notification to FTA and the
appropriate EPA Regional Office.

\(2\) The Contractor also agrees to include these requirements in each
subcontract exceeding \$100,000 financed in whole or in part with
Federal assistance provided by FTA.

**[8. BUS TESTING]{.underline}**

**49 U.S.C. 5323(c)\
49 CFR Part 665**

**[Applicability to Contracts]{.underline}**\
The Bus Testing requirements pertain only to the acquisition of Rolling
Stock/Turnkey.

**[Flow Down]{.underline}**\
The Bus Testing requirements should not flow down, except to the turnkey
contractor as stated in Master Agreement.

**[Model Clause/Language]{.underline}**\
Clause and language therein are merely suggested. 49 CFR Part 665 does
not contain specific language to be included in third party contracts
but does contain requirements applicable to

subrecipients and third party contractors. Bus Testing Certification and
language therein are merely suggested.

**Bus Testing** - The Contractor \[Manufacturer\] agrees to comply with
49 U.S.C. A 5323(c) and FTA\'s implementing regulation at 49 CFR Part
665 and shall perform the following:

1\) A manufacturer of a new bus model or a bus produced with a major
change in components or configuration shall provide a copy of the final
test report to the recipient at a point in the procurement process
specified by the recipient which will be prior to the recipient\'s final
acceptance of the first vehicle.

2\) A manufacturer who releases a report under paragraph 1 above shall
provide notice to the operator of the testing facility that the report
is available to the public.

3\) If the manufacturer represents that the vehicle was previously
tested, the vehicle being sold should have the identical configuration
and major components as the vehicle in the test report, which must be
provided to the recipient prior to recipient\'s final acceptance of the
first vehicle. If the configuration or components are not identical, the
manufacturer shall provide a description of the change and the
manufacturer\'s basis for concluding that it is not a major change
requiring additional testing.

4\) If the manufacturer represents that the vehicle is \"grandfathered\"
(has been used in mass transit service in the United States before
October 1, 1988, and is currently being produced without a major change
in configuration or components), the manufacturer shall provide the name
and address of the recipient of such a vehicle and the details of that
vehicle\'s configuration and major components.

CERTIFICATION OF COMPLIANCE WITH FTA\'S BUS TESTING REQUIREMENTS\
The undersigned \[Contractor/Manufacturer\] certifies that the vehicle
offered in this procurement complies with 49 U.S.C. A 5323(c) and FTA\'s
implementing regulation at 49 CFR Part 665.

The undersigned understands that misrepresenting the testing status of a
vehicle acquired with Federal financial assistance may subject the
undersigned to civil penalties as outlined in the Department of
Transportation\'s regulation on Program Fraud Civil Remedies, 49 CFR
Part 31. In addition, the undersigned understands that FTA may suspend
or debar a manufacturer under the procedures in 49 CFR Part 29.

Date:

Signature:

Company Name:

Title:

**[9. PRE-AWARD AND POST DELIVERY AUDITS REQUIREMENTS]{.underline}**

**49 U.S.C. 5323\
49 CFR Part 663**

**[Applicability to Contracts]{.underline}**\
These requirements apply only to the acquisition of Rolling
Stock/Turnkey.

**[Flow Down]{.underline}**\
These requirements should not flow down, except to the turnkey
contractor as stated in Master Agreement.

**[Model Clause/Language]{.underline}**\
Clause and language therein are merely suggested. 49 C.F.R. Part 663
does not contain specific language to be included in third party
contracts but does contain requirements applicable to subrecipients and
third party contractors.

\- Buy America certification is mandated under FTA regulation,
\"Pre-Award and Post-Delivery Audits of Rolling Stock Purchases,\" 49
C.F.R. 663.13.

\-- Specific language for the Buy America certification is mandated by
FTA regulation,

\"Buy America Requirements\--Surface Transportation Assistance Act of
1982, as amended,\"

49 C.F.R. 661.12, but has been modified to include FTA\'s Buy America
requirements codified at 49 U.S.C. A 5323(j).

**Pre-Award and Post-Delivery Audit Requirements** - The Contractor
agrees to comply with 49 U.S.C. § 5323(l) and FTA\'s implementing
regulation at 49 C.F.R. Part 663 and to submit the following
certifications:

\(1\) Buy America Requirements: The Contractor shall complete and submit
a declaration certifying either compliance or noncompliance with Buy
America. If the Bidder/Offeror certifies compliance with Buy America, it
shall submit documentation which lists 1) component and subcomponent
parts of the rolling stock to be purchased identified by manufacturer of
the parts, their country of origin and costs; and 2) the location of the
final assembly point for the rolling stock, including a description of
the activities that will take place at the final assembly point and the
cost of final assembly.

\(2\) Solicitation Specification Requirements: The Contractor shall
submit evidence that it will be capable of meeting the bid
specifications.

\(3\) Federal Motor Vehicle Safety Standards (FMVSS): The Contractor
shall submit 1) manufacturer\'s FMVSS self-certification sticker
information that the vehicle complies with relevant FMVSS or 2)
manufacturer\'s certified statement that the contracted buses will not
be subject to FMVSS regulations.

BUY AMERICA CERTIFICATE OF COMPLIANCE WITH FTA REQUIREMENTS\
FOR BUSES, OTHER ROLLING STOCK, OR ASSOCIATED EQUIPMENT

*(To be submitted with a bid or offer exceeding the small purchase
threshold for Federal assistance programs, currently set at \$100,000.)*

[Certificate of Compliance]{.underline}

The bidder hereby certifies that it will comply with the requirements of
49 U.S.C. Section 5323(j)(2)(C), Section 165(b)(3) of the Surface
Transportation Assistance Act of 1982, as amended, and the regulations
of 49 C.F.R. 661.11:

Date:

Signature:

Company Name:

Title:

[Certificate of Non-Compliance]{.underline}

The bidder hereby certifies that it cannot comply with the requirements
of 49 U.S.C. Section 5323(j)(2)(C) and Section 165(b)(3) of the Surface
Transportation Assistance Act of 1982, as amended, but may qualify for
an exception to the requirements consistent with 49 U.S.C. Sections
5323(j)(2)(B) or (j)(2)(D), Sections 165(b)(2) or (b)(4) of the Surface
Transportation Assistance Act, as amended, and regulations in 49 C.F.R.
661.7.

Date:

Signature:

Company Name:

Title:

**[10. LOBBYING]{.underline}**

**31 U.S.C. 1352\
49 CFR Part 19\
49 CFR Part 20**

**[Applicability to Contracts]{.underline}**\
The Lobbying requirements apply to Construction/Architectural and
Engineering/Acquisition of Rolling Stock/Professional Service
Contract/Operational Service Contract/Turnkey contracts.

**[Flow Down]{.underline}**\
The Lobbying requirements mandate the maximum flow down, pursuant to
Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352(b)(5) and 49 C.F.R. Part
19, Appendix A, Section 7.

**[Mandatory Clause/Language]{.underline}**\
Clause and specific language therein are mandated by 49 CFR Part 19,
Appendix A.

Modifications have been made to the Clause pursuant to Section 10 of the
Lobbying Disclosure Act of 1995, P.L. 104-65 \[to be codified at 2
U.S.C. § 1601, *et seq.*\]

\- Lobbying Certification and Disclosure of Lobbying Activities for
third party contractors are mandated by 31 U.S.C. 1352(b)(5), as amended
by Section 10 of the Lobbying Disclosure Act of 1995, and DOT
implementing regulation, \"New Restrictions on Lobbying,\" at 49 CFR §
20.110(d)

\- Language in Lobbying Certification is mandated by 49 CFR Part 19,
Appendix A, Section 7, which provides that contractors file the
certification required by 49 CFR Part 20, Appendix A.

Modifications have been made to the Lobbying Certification pursuant to
Section 10 of the Lobbying Disclosure Act of 1995.

\- Use of \"Disclosure of Lobbying Activities,\" Standard Form-LLL set
forth in Appendix B of 49 CFR Part 20, as amended by \"Government wide
Guidance For New Restrictions on Lobbying,\" 61 Fed. Reg. 1413 (1/19/96)
is mandated by 49 CFR Part 20, Appendix A.

**Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the
Lobbying Disclosure Act of 1995, P.L. 104-65 \[to be codified at 2
U.S.C. § 1601, et seq.\]** - Contractors who apply or bid for an award
of \$100,000 or more shall file the certification required by 49 CFR
part 20, \"New Restrictions on Lobbying.\" Each tier certifies to the
tier above that it will not and has not used Federal appropriated funds
to pay any person or organization for influencing or attempting to
influence an officer or employee of any agency, a member of Congress,
officer or employee of Congress, or an employee of a member of Congress
in connection with obtaining any Federal contract, grant or any other
award covered by 31 U.S.C. 1352. Each tier shall also disclose the name
of any registrant under the Lobbying Disclosure Act of 1995 who has made
lobbying contacts on its behalf with non-Federal funds with respect to
that Federal contract, grant or award covered by 31 U.S.C. 1352. Such
disclosures are forwarded from tier to tier up to the recipient.

APPENDIX A, 49 CFR PART 20\--CERTIFICATION REGARDING LOBBYING

::: Definition-Term
Certification for Contracts, Grants, Loans, and Cooperative Agreements
:::

*(To be submitted with each bid or offer exceeding \$100,000)*

The undersigned \[Contractor\] certifies, to the best of his or her
knowledge and belief, that:

\(1\) No Federal appropriated funds have been paid or will be paid, by
or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of an agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.

\(2\) If any funds other than Federal appropriated funds have been paid
or will be paid to any person for making lobbying contacts to an officer
or employee of any agency, a Member of Congress, an officer or employee
of Congress, or an employee of a Member of Congress in connection with
this Federal contract, grant, loan, or cooperative agreement, the
undersigned shall complete and submit Standard Form\--LLL, \"Disclosure
Form to Report Lobbying,\" in accordance with its instructions \[as
amended by \"Government wide Guidance for New Restrictions on
Lobbying,\" 61 Fed. Reg. 1413 (1/19/96). Note: Language in paragraph (2)
herein has been modified in accordance with Section 10 of the Lobbying
Disclosure Act of 1995 (P.L. 104-65, to be codified at 2 U.S.C. 1601,
*et seq.*)\]

\(3\) The undersigned shall require that the language of this
certification be included in the award documents for all subawards at
all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.

This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or
entering into this transaction imposed by 31, U.S.C. § 1352 (as amended
by the Lobbying Disclosure Act of 1995). Any person who fails to file
the required certification shall be subject to a civil penalty of not
less than \$10,000 and not more than \$100,000 for each such failure.

\[Note: Pursuant to 31 U.S.C. § 1352(c)(1)-(2)(A), any person who makes
a prohibited expenditure or fails to file or amend a required
certification or disclosure form shall be subject to

a civil penalty of not less than \$10,000 and not more than \$100,000
for each such expenditure or failure.\]

The Contractor, \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, certifies or
affirms the truthfulness and accuracy of each statement of its
certification and disclosure, if any. In addition, the Contractor
understands and agrees that the provisions of 31 U.S.C. A 3801, *et
seq.,* apply to this certification and disclosure, if any.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Signature of
Contractor\'s Authorized Official

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Name and Title of
Contractor\'s Authorized Official

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Date

**[11. ACCESS TO RECORDS AND REPORTS]{.underline}**

**49 U.S.C. 5325**\
**18 CFR 18.36 (i)** **\
49 CFR 633.17**

**[Applicability to Contracts]{.underline}**\
Reference Chart \"Requirements for Access to Records and Reports by Type
of Contracts\"

**[Flow Down]{.underline}**\
FTA does not require the inclusion of these requirements in
subcontracts.

**[Model Clause/Language]{.underline}**\
The specified language is not mandated by the statutes or regulations
referenced, but the language provided paraphrases the statutory or
regulatory language.

**Access to Records -** The following access to records requirements
apply to this Contract:

1\. Where the Purchaser is not a State but a local government and is the
FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49
C.F.R. 18.36(i), the Contractor agrees to provide the Purchaser, the FTA
Administrator, the Comptroller General of the United States or any of
their authorized representatives access to any books, documents, papers
and records of the Contractor which are directly pertinent to this
contract for the purposes of making audits, examinations, excerpts and
transcriptions. Contractor also agrees, pursuant to 49 C.F.R. 633.17 to
provide the FTA Administrator or his authorized representatives
including any PMO Contractor access to Contractor\'s records and
construction sites pertaining to a major capital project, defined at 49
U.S.C. 5302(a)1, which is receiving federal financial assistance through
the programs described at 49 U.S.C. 5307, 5309 or 5311.

2\. Where the Purchaser is a State and is the FTA Recipient or a
subgrantee of the FTA Recipient in accordance with 49 C.F.R. 633.17,
Contractor agrees to provide the Purchaser, the FTA Administrator or his
authorized representatives, including any PMO Contractor, access to the
Contractor\'s records and construction sites pertaining to a major
capital project, defined at 49 U.S.C. 5302(a)1, which is receiving
federal financial assistance through the programs described at 49 U.S.C.
5307, 5309 or 5311. By definition, a major capital project excludes
contracts of less than the simplified acquisition threshold currently
set at \$100,000.

3\. Where the Purchaser enters into a negotiated contract for other than
a small purchase or under the simplified acquisition threshold and is an
institution of higher education, a hospital or other non-profit
organization and is the FTA Recipient or a subgrantee of the FTA
Recipient in accordance with 49 C.F.R. 19.48, Contractor agrees to
provide the Purchaser, FTA Administrator, the Comptroller General of the
United States or any of their duly authorized representatives with
access to any books, documents, papers and record of the Contractor
which are directly pertinent to this contract for the purposes of making
audits, examinations, excerpts and transcriptions.

4\. Where any Purchaser which is the FTA Recipient or a subgrantee of
the FTA Recipient in accordance with 49 U.S.C. 5325(a) enters into a
contract for a capital project or improvement (defined at 49 U.S.C.
5302(a)1) through other than competitive bidding, the Contractor shall
make available records related to the contract to the Purchaser, the
Secretary of Transportation and the Comptroller General or any
authorized officer or employee of any of them for the purposes of
conducting an audit and inspection.

5\. The Contractor agrees to permit any of the foregoing parties to
reproduce by any means whatsoever or to copy excerpts and transcriptions
as reasonably needed.

6\. The Contractor agrees to maintain all books, records, accounts and
reports required under this contract for a period of not less than three
years after the date of termination or expiration of this contract,
except in the event of litigation or settlement of claims arising from
the performance of this contract, in which case Contractor agrees to
maintain same until the Purchaser, the FTA Administrator, the
Comptroller General, or any of their duly authorized representatives,
have disposed of all such litigation, appeals, claims or exceptions
related thereto. Reference 49 CFR 18.39(i)(11).

7\. FTA does not require the inclusion of these requirements in
subcontracts.

**Requirements for Access to Records and Reports by Types of Contract**

 

+----------+---+-------+---------+--------+--------+--------+--------+
| **       |   | O     | Turnkey | Constr | A      | \<s    | Profes |
| Contract |   | perat |         | uction | rchite | hading | sional |
| C        |   | ional |         |        | ctural | =\"    | Se     |
| haracter |   | Se    |         |        | Engin  | 10%\"\ | rvices |
| istics** |   | rvice |         |        | eering | >Acqui |        |
|          |   | Con   |         |        |        | sition |        |
|          |   | tract |         |        |        | of     |        |
|          |   |       |         |        |        | R      |        |
|          |   |       |         |        |        | olling |        |
|          |   |       |         |        |        | Stock  |        |
+----------+---+-------+---------+--------+--------+--------+--------+
| I [State |   |       |         |        |        |        |        |
| Grante   |   |       |         |        |        |        |        |
| es]{.und |   | None  | Those   | None   | None   | None   | None   |
| erline}\ |   |       | imposed |        |        |        |        |
| \        |   |       | on      |        |        |        |        |
| a.       |   |       | state   |        |        |        |        |
| C        |   |       | pass    |        |        |        |        |
| ontracts |   |       | thru to |        |        |        |        |
| below    |   | None  | Con     | Yes,   | None   | None   | None   |
| SAT      |   | unle  | tractor | if     | unless | unless | unless |
| (\$      |   | ss^1^ |         | non    | non    | non    | non    |
| 100,000) |   | non-c |         | -compe | -compe | -compe | -compe |
|          |   | ompet |         | titive | titive | titive | titive |
|          |   | itive |         | award  | award  | award  | award  |
|          |   | award |         | or if  |        |        |        |
| b\.      |   |       |         | funded |        |        |        |
| C        |   |       |         | t      |        |        |        |
| ontracts |   |       |         | hru^2^ |        |        |        |
| above    |   |       |         | 53     |        |        |        |
| \        |   |       |         | 07/530 |        |        |        |
| $100,000 |   |       |         | 9/5311 |        |        |        |
| /Capital |   |       |         |        |        |        |        |
| Projects |   |       |         |        |        |        |        |
+----------+---+-------+---------+--------+--------+--------+--------+
| II [Non  |   |       | Those   |        |        |        |        |
| State    |   |       | imposed |        |        |        |        |
| G        |   | Y     | on      | Yes    | Yes    | Yes    | Yes    |
| rantees\ |   | es^3^ | no      |        |        |        |        |
| \        |   |       | n-state |        |        |        |        |
| ]{.unde  |   |       | Grantee |        |        |        |        |
| rline}a. |   |       | pass    | Yes    | Yes    | Yes    | Yes    |
| C        |   | Y     | thru to |        |        |        |        |
| ontracts |   | es^3^ | Con     |        |        |        |        |
| below    |   |       | tractor |        |        |        |        |
| SAT      |   |       |         |        |        |        |        |
| (\$      |   |       |         |        |        |        |        |
| 100,000) |   |       |         |        |        |        |        |
|          |   |       |         |        |        |        |        |
| b\.      |   |       |         |        |        |        |        |
| C        |   |       |         |        |        |        |        |
| ontracts |   |       |         |        |        |        |        |
| above    |   |       |         |        |        |        |        |
| \        |   |       |         |        |        |        |        |
| $100,000 |   |       |         |        |        |        |        |
| /Capital |   |       |         |        |        |        |        |
| Projects |   |       |         |        |        |        |        |
+----------+---+-------+---------+--------+--------+--------+--------+

Sources of Authority:

^1^ 49 USC 5325 (a)

^2^ 49 CFR 633.17

^3^ 18 CFR 18.36 (i)

**[12. FEDERAL CHANGES]{.underline}**

**49 CFR Part 18**

**[Applicability to Contracts]{.underline}**\
The Federal Changes requirement applies to all contracts.

**[Flow Down]{.underline}**\
The Federal Changes requirement flows down appropriately to each
applicable changed requirement.

**[Model Clause/Language]{.underline}**\
No specific language is mandated. The following language has been
developed by FTA.

**Federal Changes -** Contractor shall at all times comply with all
applicable FTA regulations, policies, procedures and directives,
including without limitation those listed directly or by reference in
the Master Agreement between Purchaser and FTA, as they may be amended
or promulgated from time to time during the term of this contract.
Contractor\'s failure to so comply shall constitute a material breach of
this contract.

**[13. BONDING REQUIREMENTS]{.underline}**

**[Applicability to Contracts]{.underline}**

For those construction or facility improvement contracts or subcontracts
exceeding \$100,000, FTA may accept the bonding policy and requirements
of the recipient, provided that they meet the minimum requirements for
construction contracts as follows:

a\. A bid guarantee from each bidder equivalent to five (5) percent of
the bid price. The \"bid guarantees\" shall consist of a firm commitment
such as a bid bond, certifies check, or other negotiable instrument
accompanying a bid as assurance that the bidder will, upon acceptance of
his bid, execute such contractual documents as may be required within
the time specified.

b\. A performance bond on the part to the Contractor for 100 percent of
the contract price. A \"performance bond\" is one executed in connection
with a contract to secure fulfillment of all the contractor\'s
obligations under such contract.

c\. A payment bond on the part of the contractor for 100 percent of the
contract price. A \"payment bond\" is one executed in connection with a
contract to assure payment, as required by law, of all persons supplying
labor and material in the execution of the work provided for in the
contract. Payment bond amounts required from Contractors are as follows:

\(1\) 50% of the contract price if the contract price is not more than
\$1 million;

\(2\) 40% of the contract price if the contract price is more than \$1
million but not more than \$5 million; or

\(3\) \$2.5 million if the contract price is more than \$5 million.

d\. A cash deposit, certified check or other negotiable instrument may
be accepted by a grantee in lieu of performance and payment bonds,
provided the grantee has established a procedure to assure that the
interest of FTA is adequately protected. An irrevocable letter of credit
would also satisfy the requirement for a bond.

**[Flow Down]{.underline}**\
Bonding requirements flow down to the first tier contractors.

**[Model Clauses/Language]{.underline}**\
FTA does not prescribe specific wording to be included in third party
contracts. FTA has prepared sample clauses as follows:

**Bid Bond Requirements (Construction**)

\(a\) Bid Security

A Bid Bond must be issued by a fully qualified surety company acceptable
to (Recipient) and listed as a company currently authorized under 31
CFR, Part 223 as possessing a Certificate of Authority as described
thereunder.

\(b\) Rights Reserved

In submitting this Bid, it is understood and agreed by bidder that the
right is reserved by (Recipient) to reject any and all bids, or part of
any bid, and it is agreed that the Bid may not be withdrawn for a period
of \[ninety (90)\] days subsequent to the opening of bids, without the
written consent of (Recipient).

It is also understood and agreed that if the undersigned bidder should
withdraw any part or all of his bid within \[ninety (90)\] days after
the bid opening without the written consent of (Recipient), shall refuse
or be unable to enter into this Contract, as provided above, or refuse
or be unable to furnish adequate and acceptable Performance Bonds and
Labor and Material Payments Bonds, as provided above, or refuse or be
unable to furnish adequate and acceptable insurance, as provided above,
he shall forfeit his bid security to the extent of (Recipient\'s)
damages occasioned by such withdrawal, or refusal, or inability to enter
into an agreement, or provide adequate security therefor.

It is further understood and agreed that to the extent the defaulting
bidder\'s Bid Bond, Certified Check, Cashier\'s Check, Treasurer\'s
Check, and/or Official Bank Check (excluding any income generated
thereby which has been retained by (Recipient) as provided in \[Item x
\"Bid Security\" of the Instructions to Bidders\]) shall prove
inadequate to fully recompense (Recipient) for the damages occasioned by
default, then the undersigned bidder agrees to indemnify (Recipient) and
pay over to (Recipient) the difference between the bid security and
(Recipient\'s) total damages, so as to make (Recipient) whole.

The undersigned understands that any material alteration of any of the
above or any of the material contained on this form, other than that
requested, will render the bid unresponsive.

**Performance and Payment Bonding Requirements (Construction)**

The Contractor shall be required to obtain performance and payment bonds
as follows:

\(a\) Performance bonds

1\. The penal amount of performance bonds shall be 100 percent of the
original contract price, unless the (Recipient) determines that a lesser
amount would be adequate for the protection of the (Recipient).

2\. The (Recipient) may require additional performance bond protection
when a contract price is increased. The increase in protection shall
generally equal 100 percent of the increase in contract price. The
(Recipient) may secure additional protection by directing the Contractor
to increase the penal amount of the existing bond or to obtain an
additional bond.

\(b\) Payment bonds

1\. The penal amount of the payment bonds shall equal:

\(i\) Fifty percent of the contract price if the contract price is not
more than \$1 million.

\(ii\) Forty percent of the contract price if the contract price is more
than \$1 million but not more than \$5 million; or

\(iii\) Two and one half million if the contract price is more than \$5
million.

2\. If the original contract price is \$5 million or less, the
(Recipient) may require additional protection as required by
subparagraph 1 if the contract price is increased.

**Performance and Payment Bonding Requirements (Non-Construction)**

The Contractor may be required to obtain performance and payment bonds
when necessary to protect the (Recipient\'s) interest.

\(a\) The following situations may warrant a performance bond:

1\. (Recipient) property or funds are to be provided to the contractor
for use in performing the contract or as partial compensation (as in
retention of salvaged material).

2\. A contractor sells assets to or merges with another concern, and the
(Recipient), after recognizing the latter concern as the successor in
interest, desires assurance that it is financially capable.

3\. Substantial progress payments are made before delivery of end items
starts.

4\. Contracts are for dismantling, demolition, or removal of
improvements.

\(b\) When it is determined that a performance bond is required, the
Contractor shall be required to obtain performance bonds as follows:

1\. The penal amount of performance bonds shall be 100 percent of the
original contract price, unless the (Recipient) determines that a lesser
amount would be adequate for the protection of the (Recipient).

2\. The (Recipient) may require additional performance bond protection
when a contract price is increased. The increase in protection shall
generally equal 100 percent of the increase in contract price. The
(Recipient) may secure additional protection by directing the Contractor
to increase the penal amount of the existing bond or to obtain an
additional bond.

\(c\) A payment bond is required only when a performance bond is
required, and if the use of payment bond is in the (Recipient\'s)
interest.

\(d\) When it is determined that a payment bond is required, the
Contractor shall be required to obtain payment bonds as follows:

1\. The penal amount of payment bonds shall equal:

\(i\) Fifty percent of the contract price if the contract price is not
more than \$1 million;

\(ii\) Forty percent of the contract price if the contract price is more
than \$1 million but not more than \$5 million; or

\(iii\) Two and one half million if the contract price is increased.

**Advance Payment Bonding Requirements**

The Contractor may be required to obtain an advance payment bond if the
contract contains an advance payment provision and a performance bond is
not furnished. The (recipient) shall determine the amount of the advance
payment bond necessary to protect the (Recipient).

**Patent Infringement Bonding Requirements (Patent Indemnity)**

The Contractor may be required to obtain a patent indemnity bond if a
performance bond is not furnished and the financial responsibility of
the Contractor is unknown or doubtful. The (recipient) shall determine
the amount of the patent indemnity to protect the (Recipient).

**Warranty of the Work and Maintenance Bonds**

1\. The Contractor warrants to (Recipient), the Architect and/or
Engineer that all materials and equipment furnished under this Contract
will be of highest quality and new unless otherwise specified by
(Recipient), free from faults and defects and in conformance with the
Contract Documents. All work not so conforming to these standards shall
be considered defective. If

required by the \[Project Manager\], the Contractor shall furnish
satisfactory evidence as to the kind and quality of materials and
equipment.

2\. The Work furnished must be of first quality and the workmanship must
be the best obtainable in the various trades. The Work must be of safe,
substantial and durable construction in all respects. The Contractor
hereby guarantees the Work against defective materials or faulty
workmanship for a minimum period of one (1) year after Final Payment by
(Recipient) and shall replace or repair any defective materials or
equipment or faulty workmanship during the period of the guarantee at no
cost to (Recipient). As additional security for these guarantees, the
Contractor shall, prior to the release of Final Payment \[as provided in
Item X below\], furnish separate Maintenance (or Guarantee) Bonds in
form acceptable to (Recipient) written by the same corporate surety that
provides the Performance Bond and Labor and Material Payment Bond for
this Contract. These bonds shall secure the Contractor\'s obligation to
replace or repair defective materials and faulty workmanship for a
minimum period of one (1) year after Final Payment and shall be written
in an amount equal to ONE HUNDRED PERCENT (100%) of the CONTRACT SUM, as
adjusted (if at all).

**[14. CLEAN AIR]{.underline}**

**42 U.S.C. 7401 et seq\
40 CFR 15.61\
49 CFR Part 18**

**[Applicability to Contracts]{.underline}**\
The Clean Air requirements apply to all contracts exceeding \$100,000,
including indefinite quantities where the amount is expected to exceed
\$100,000 in any year.

**[Flow Down]{.underline}**\
The Clean Air requirements flow down to all subcontracts which exceed
\$100,000.

**[Model Clauses/Language]{.underline}**\
No specific language is required. FTA has proposed the following
language.

**Clean Air** - (1) The Contractor agrees to comply with all applicable
standards, orders or regulations issued pursuant to the Clean Air Act,
as amended, 42 U.S.C. §§ 7401 [et]{.underline} [seq]{.underline}. The
Contractor agrees to report each violation to the Purchaser and
understands and agrees that the

Purchaser will, in turn, report each violation as required to assure
notification to FTA and the appropriate EPA Regional Office.

\(2\) The Contractor also agrees to include these requirements in each
subcontract exceeding \$100,000 financed in whole or in part with
Federal assistance provided by FTA.

**[15. RECYCLED PRODUCTS]{.underline}**

**42 U.S.C. 6962\
40 CFR Part 247\
Executive Order 12873**

**[Applicability to Contracts]{.underline}**\
The Recycled Products requirements apply to all contracts for items
designated by the EPA, when the purchaser or contractor procures
\$10,000 or more of one of these items during the fiscal year, or has
procured \$10,000 or more of such items in the previous fiscal year,
using Federal funds. New requirements for \"recovered materials\" will
become effective May 1, 1996. These new regulations apply to all
procurement actions involving items designated by the EPA, where the
procuring agency purchases \$10,000 or more of one of these items in a
fiscal year, or when the cost of such items purchased during the
previous fiscal year was \$10,000.

**[Flow Down]{.underline}**\
These requirements flow down to all to all contractor and subcontractor
tiers.

**[Model Clause/Language]{.underline}**\
No specific clause is mandated, but FTA has developed the following
language.

**\
Recovered Materials -** The contractor agrees to comply with all the
requirements of Section 6002 of the Resource Conservation and Recovery
Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to
the regulatory provisions of 40 CFR Part 247, and Executive Order 12873,
as they apply to the procurement of the items designated in Subpart B of
40 CFR Part 247.

**[16. DAVIS-BACON AND COPELAND ANTI-KICKBACK ACTS]{.underline}**

**[Background and Application]{.underline}**

The Davis-Bacon and Copeland Acts are codified at 40 USC 3141, *et seq.*
and 18 USC 874. The Acts apply to grantee construction contracts and
subcontracts that "at least partly are financed by a loan or grant from
the Federal Government." 40 USC 3145(a), 29 CFR 5.2(h), 49 CFR
18.36(i)(5). The Acts apply to any construction contract over \$2,000.
40 USC 3142(a), 29 CFR 5.5(a). 'Construction,' for purposes of the Acts,
includes "actual construction, alteration and/or repair, including
painting and decorating." 29 CFR 5.5(a). The requirements of both Acts
are incorporated into a single clause (*see* 29 CFR 3.11) enumerated at
29 CFR 5.5(a) and reproduced below.

The clause language is drawn directly from 29 CFR 5.5(a) and any
deviation from the model clause below should be coordinated with counsel
to ensure the Acts' requirements are satisfied.

**[Clause Language]{.underline}**

##### Davis-Bacon and Copeland Anti-Kickback Acts

\(1\) **Minimum wages** - (i) All laborers and mechanics employed or
working upon the site of the work (or under the United States Housing
Act of 1937 or under the Housing Act of 1949 in the construction or
development of the project), will be paid unconditionally and not less
often than once a week, and without subsequent deduction or rebate on
any account (except such payroll deductions as are permitted by
regulations issued by the Secretary of Labor under the Copeland Act (29
CFR part 3)), the full amount of wages and bona fide fringe benefits (or
cash equivalents thereof) due at time of payment computed at rates not
less than those contained in the wage determination of the Secretary of
Labor which is attached hereto and made a part hereof, regardless of any
contractual relationship which may be alleged to exist between the
contractor and such laborers and mechanics.\
\
Contributions made or costs reasonably anticipated for bona fide fringe
benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of
laborers or mechanics are considered wages paid to such laborers or
mechanics, subject to the provisions of paragraph (1)(iv) of this
section; also, regular contributions made or costs incurred for more
than a weekly period (but not less often than quarterly) under plans,
funds, or programs which cover the particular weekly period, are deemed
to be constructively made or incurred during such weekly period. Such
laborers and mechanics shall be paid the appropriate wage rate and
fringe benefits on the wage determination for the classification of work
actually performed, without regard to skill, except as provided in 29
CFR Part 5.5(a)(4). Laborers or mechanics performing work in more than
one classification may be compensated at the rate specified for each
classification for the time actually worked therein: Provided, That the
employer\'s payroll records accurately set forth the time spent in each
classification in which work is performed. The wage determination
(including any additional classifications and wage rates conformed under
paragraph (1)(ii) of this section) and the Davis-Bacon poster (WH-1321)
shall be posted at all times by the contractor and its subcontractors at
the site of the work in a prominent and accessible place where it can be
easily seen by the workers.\
\
(ii)(A) The contracting officer shall require that any class of laborers
or mechanics, including helpers, which is not listed in the wage
determination and which is to be employed under the contract shall be
classified in conformance with the wage determination. The contracting
officer shall approve an additional classification and wage rate and
fringe benefits therefore only when the following criteria have been
met:\
\
(1) Except with respect to helpers as defined as 29 CFR 5.2(n)(4), the
work to be performed by the classification requested is not performed by
a classification in the wage determination; and\
\
(2) The classification is utilized in the area by the construction
industry; and

\(3\) The proposed wage rate, including any bona fide fringe benefits,
bears a reasonable relationship to the wage rates contained in the wage
determination; and\
\
(4) With respect to helpers as defined in 29 CFR 5.2(n)(4), such a
classification prevails in the area in which the work is performed.\
\
(B) If the contractor and the laborers and mechanics to be employed in
the classification (if known), or their representatives, and the
contracting officer agree on the classification and wage rate (including
the amount designated for fringe benefits where appropriate), a report
of the action taken shall be sent by the contracting officer to the
Administrator of the Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Washington, DC 20210. The
Administrator, or an authorized representative, will approve, modify, or
disapprove every additional classification action within 30 days of
receipt and so advise the contracting officer or will notify the
contracting officer within the 30-day period that additional time is
necessary.\
\
(C) In the event the contractor, the laborers or mechanics to be
employed in the classification or their representatives, and the
contracting officer do not agree on the proposed classification and wage
rate (including the amount designated for fringe benefits, where
appropriate), the contracting officer shall refer the questions,
including the views of all interested parties and the recommendation of
the contracting officer, to the Administrator for determination. The
Administrator, or an authorized representative, will issue a
determination within 30 days of receipt and so advise the contracting
officer or will notify the contracting officer within the 30-day period
that additional time is necessary.\
\
(D) The wage rate (including fringe benefits where appropriate)
determined pursuant to paragraphs (a)(1)(ii) (B) or (C) of this section,
shall be paid to all workers performing work in the classification under
this contract from the first day on which work is performed in the
classification.\
\
(iii) Whenever the minimum wage rate prescribed in the contract for a
class of laborers or mechanics includes a fringe benefit which is not
expressed as an hourly rate, the contractor shall either pay the benefit
as stated in the wage determination or shall pay another bona fide
fringe benefit or an hourly cash equivalent thereof.\
\
(iv) If the contractor does not make payments to a trustee or other
third person, the contractor may consider as part of the wages of any
laborer or mechanic the amount of any costs reasonably anticipated in
providing bona fide fringe benefits under a plan or program, Provided,
That the Secretary of Labor has found, upon the written request of the
contractor, that the applicable standards of the Davis-Bacon Act have
been met. The Secretary of Labor may require the contractor to set aside
in a separate account assets for the meeting of obligations under the
plan or program.

(v)(A) The contracting officer shall require that any class of laborers
or mechanics which is not listed in the wage determination and which is
to be employed under the contract shall be classified in conformance
with the wage determination. The contracting officer shall approve an
additional classification and wage rate and fringe benefits therefor
only when the following criteria have been met:\
\
(1) The work to be performed by the classification requested is not
performed by a classification in the wage determination; and\
\
(2) The classification is utilized in the area by the construction
industry; and\
\
(3) The proposed wage rate, including any bona fide fringe benefits,
bears a reasonable relationship to the wage rates contained in the wage
determination.\
\
(B) If the contractor and the laborers and mechanics to be employed in
the classification (if known), or their representatives, and the
contracting officer agree on the classification and wage rate (including
the amount designated for fringe benefits where appropriate), a report
of the action taken shall be sent by the contracting officer to the
Administrator of the Wage and Hour Division, Employment Standards
Administration, Washington, DC 20210. The Administrator, or an
authorized representative, will approve, modify, or disapprove every
additional classification action within 30 days of receipt and so advise
the contracting officer or will notify the contracting officer within
the 30-day period that additional time is necessary.\
\
(C) In the event the contractor, the laborers or mechanics to be
employed in the classification or their representatives, and the
contracting officer do not agree on the proposed classification and wage
rate (including the amount designated for fringe benefits, where
appropriate), the contracting officer shall refer the questions,
including the views of all interested parties and the recommendation of
the contracting officer, to the Administrator for determination. The
Administrator, or an authorized representative, will issue a
determination with 30 days of receipt and so advise the contracting
officer or will notify the contracting officer within the 30-day period
that additional time is necessary.\
\
(D) The wage rate (including fringe benefits where appropriate)
determined pursuant to paragraphs (a)(1)(v) (B) or (C) of this section,
shall be paid to all workers performing work in the

classification under this contract from the first day on which work is
performed in the classification.\
\
(2) **Withholding** - The \[ ***insert name of grantee*** \] shall upon
its own action or upon written request of an authorized representative
of the Department of Labor withhold or cause to be withheld from the
contractor under this contract or any other Federal contract with the
same prime contractor, or any other federally-assisted contract subject
to Davis-Bacon prevailing wage requirements, which is held by the same
prime contractor, so much of the accrued payments or advances as may be
considered necessary to pay laborers and mechanics, including
apprentices, 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 (or under the United States Housing Act of 1937 or under the
Housing Act of 1949 in the construction or development of the project),
all or part of the wages required by the contract, the \[ ***insert name
of grantee*** \] may, after written notice to the contractor, sponsor,
applicant, or owner, 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.\
\
(3) **Payrolls and basic records** - (i) Payrolls and basic records
relating thereto shall be maintained by the contractor during the course
of the work and preserved for a period of three years thereafter for all
laborers and mechanics working at the site of the work (or under the
United States Housing Act of 1937, or under the Housing Act of 1949, in
the construction or development of the project). Such records shall
contain the name, address, and social security number of each such
worker, his or her correct classification, hourly rates of wages paid
(including rates of contributions or costs anticipated for bona fide
fringe benefits or cash equivalents thereof of the types described in
section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of
hours worked, deductions made and actual wages paid. Whenever the
Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages
of any laborer or mechanic include the amount of any costs reasonably
anticipated in providing benefits under a plan or program described in
section 1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain
records which show that the commitment to provide such benefits is
enforceable, that the plan or program is financially responsible, and
that the plan or program has been communicated in writing to the
laborers or mechanics affected, and records which show the costs
anticipated or the actual cost incurred in providing such benefits.
Contractors employing apprentices or trainees under approved programs
shall maintain written evidence of the registration of apprenticeship
programs and certification of trainee programs, the registration of the
apprentices and trainees, and the ratios and wage rates prescribed in
the applicable programs.\
\
(ii)(A) The contractor shall submit weekly for each week in which any
contract work is performed a copy of all payrolls to the \[ ***insert
name of grantee*** \] for transmission to the Federal Transit
Administration. The payrolls submitted shall set out accurately and
completely all of the information required to be maintained under
section 5.5(a)(3)(i) of Regulations, 29 CFR part 5. This information may
be submitted in any form desired. Optional Form WH-347 is available for
this purpose and may be purchased from the Superintendent of Documents
(Federal Stock Number 029-005-00014-1), U.S. Government Printing Office,
Washington, DC 20402. The prime contractor is responsible for the
submission of copies of payrolls by all subcontractors.\
\
(B) Each payroll submitted shall be accompanied by a \"Statement of
Compliance,\" signed by the contractor or subcontractor or his or her
agent who pays or supervises the payment of the persons employed under
the contract and shall certify the following:

\(1\) That the payroll for the payroll period contains the information
required to be maintained under section 5.5(a)(3)(i) of Regulations, 29
CFR part 5 and that such information is correct and complete;\
\
(2) That each laborer or mechanic (including each helper, apprentice,
and trainee) employed on the contract during the payroll period has been
paid the full weekly wages earned, without rebate, either directly or
indirectly, and that no deductions have been made either directly or
indirectly from the full wages earned, other than permissible deductions
as set forth in Regulations, 29 CFR part 3;\
\
(3) That each laborer or mechanic has been paid not less than the
applicable wage rates and fringe benefits or cash equivalents for the
classification of work performed, as specified in the applicable wage
determination incorporated into the contract.\
\
(C) The weekly submission of a properly executed certification set forth
on the reverse side of Optional Form WH-347 shall satisfy the
requirement for submission of the \"Statement of Compliance\" required
by paragraph (a)(3)(ii)(B) of this section.\
\
(D) The falsification of any of the above certifications may subject the
contractor or subcontractor to civil or criminal prosecution under
section 1001 of title 18 and section 231 of title 31 of the United
States Code.\
\
(iii) The contractor or subcontractor shall make the records required
under paragraph (a)(3)(i) of this section available for inspection,
copying, or transcription by authorized representatives of the Federal
Transit Administration or the Department of Labor, and shall permit such
representatives to interview employees during working hours on the job.
If the contractor or subcontractor fails to submit the required records
or to make them available, the Federal agency may, after written notice
to the contractor, sponsor, applicant, or owner, take such action as may
be necessary to cause the suspension of any further payment, advance, or
guarantee of funds. Furthermore, failure to submit the required records
upon request or to make such records available may be grounds for
debarment action pursuant to 29 CFR 5.12.\
\
(4) **Apprentices and trainees** - (i) [Apprentices]{.underline} -
Apprentices will be permitted to work at less than the predetermined
rate for the work they performed when they are employed pursuant to and
individually registered in a bona fide apprenticeship program registered
with the U.S. Department of Labor, Employment and Training
Administration, Bureau of Apprenticeship and Training, or with a State
Apprenticeship Agency recognized by the Bureau, or if a person is
employed in his or her 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 Bureau of
Apprenticeship and Training or a State Apprenticeship Agency (where
appropriate) to be eligible for probationary employment as an
apprentice. The allowable ratio of apprentices to journeymen on the job
site in any craft classification shall not be greater than the ratio
permitted to the contractor as to the entire work force under the
registered program. Any worker listed on a payroll at an apprentice wage
rate, who is not registered or otherwise employed as stated above, shall
be paid not less than the applicable wage rate on the wage determination
for the classification of work actually performed. In addition, any
apprentice performing work on the job site in excess of the ratio
permitted under the registered program shall be paid not less than the
applicable wage rate on the wage determination for the work actually
performed. Where a contractor is performing construction on a project in
a locality other than that in which its program is registered, the
ratios and wage rates (expressed in percentages of the journeyman\'s
hourly rate) specified in the contractor\'s or subcontractor\'s
registered program shall be observed. Every apprentice must be paid at
not less than the rate specified in the registered program for the
apprentice\'s level of progress, expressed as a percentage of the
journeymen hourly rate specified in the applicable wage determination.
Apprentices shall be paid fringe benefits in accordance with the
provisions of the apprenticeship program. If the apprenticeship program
does not specify fringe benefits, apprentices must be paid the full
amount of fringe benefits listed on the wage determination for the
applicable classification. If the Administrator of the Wage and Hour
Division of the U.S. Department of Labor determines that a different
practice prevails for the applicable apprentice classification, fringes
shall be paid in accordance with that determination. In the event the
Bureau of Apprenticeship and Training, or a State Apprenticeship Agency
recognized by the Bureau, withdraws approval of an apprenticeship
program, the contractor will no longer be permitted to utilize
apprentices at less than the applicable predetermined rate for the work
performed until an acceptable program is approved.\
\
(ii) [Trainees]{.underline} - Except as provided in 29 CFR 5.16,
trainees will not be permitted to work at less than the predetermined
rate for the work performed unless they are employed pursuant to and
individually registered in a program which has received prior approval,
evidenced by formal certification by the U.S. Department of Labor,
Employment and Training Administration. The ratio of trainees to
journeymen on the job site shall not be greater than permitted under the
plan approved by the Employment and Training Administration. Every
trainee must be paid at not less than the rate specified in the approved
program for the trainee\'s level of progress, expressed as a percentage
of the journeyman hourly rate specified in the applicable wage
determination. Trainees shall be paid fringe benefits in accordance with
the provisions of the trainee program. If the trainee program does not
mention fringe benefits, trainees shall be paid the full amount of
fringe benefits listed on the wage determination unless the
Administrator of the Wage and Hour Division determines that there is an
apprenticeship program associated with the corresponding journeyman wage
rate on the wage determination which provides for less than full fringe
benefits for apprentices. Any employee listed on the payroll at a
trainee rate who is not registered and participating in a training plan
approved by the Employment and Training Administration shall be paid not
less than the applicable wage rate on the wage determination for the
classification of work actually performed. In addition, any trainee
performing work on the job site in excess of the ratio permitted under
the registered program shall be paid not less than the applicable wage
rate on the wage determination for the work actually performed. In the
event the Employment and Training Administration withdraws approval of a
training program, the contractor will no longer be permitted to utilize
trainees at less than the applicable predetermined rate for the work
performed until an acceptable program is approved.\
\
(iii) [Equal employment opportunity]{.underline} - The utilization of
apprentices, trainees and journeymen under this part shall be in
conformity with the equal employment opportunity requirements of
Executive Order 11246, as amended, and 29 CFR part 30.\
\
(5) **Compliance with Copeland Act requirements** - The contractor shall
comply with the requirements of 29 CFR part 3, which are incorporated by
reference in this contract.\
\
(6) **Subcontracts** - The contractor or subcontractor shall insert in
any subcontracts the clauses contained in 29 CFR 5.5(a)(1) through (10)
and such other clauses as the Federal Transit Administration may by
appropriate instructions require, and also a clause requiring the
subcontractors to include these clauses in any lower tier subcontracts.
The prime contractor shall be responsible for the compliance by any
subcontractor or lower tier subcontractor with all the contract clauses
in 29 CFR 5.5.\
\
(7) **Contract termination: debarment** - A breach of the contract
clauses in 29 CFR 5.5 may be grounds for termination of the contract,
and for debarment as a contractor and a subcontractor as provided in 29
CFR 5.12.\
\
(8) **Compliance with Davis-Bacon and Related Act requirements** - All
rulings and interpretations of the Davis-Bacon and Related Acts
contained in 29 CFR parts 1, 3, and 5 are herein incorporated by
reference in this contract.\
\
(9) **Disputes concerning labor standards** - Disputes arising out of
the labor standards provisions of this contract shall not be subject to
the general disputes clause of this contract. Such disputes shall be
resolved in accordance with the procedures of the Department of Labor
set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of
this clause include disputes between the contractor (or any of its
subcontractors) and the contracting agency, the U.S. Department of
Labor, or the employees or their representatives.\
\
(10) **Certification of eligibility** - (i) By entering into this
contract, the contractor certifies that neither it (nor he or she) nor
any person or firm who has an interest in the contractor\'s firm is a
person or firm ineligible to be awarded Government contracts by virtue
of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).\
\
(ii) No part of this contract shall be subcontracted to any person or
firm ineligible for award of a Government contract by virtue of section
3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).

\(iii\) The penalty for making false statements is prescribed in the
U.S. Criminal Code, 18 U.S.C. 1001.

**[17. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT]{.underline}**

**[Background and Application]{.underline}**

The Contract Work Hours and Safety Standards Act is codified at 40 USC
3701, *et seq.* The Act applies to grantee contracts and subcontracts
"financed at least in part by loans or grants from ... the \[Federal\]
Government." 40 USC 3701(b)(1)(B)(iii) and (b)(2), 29 CFR 5.2(h), 49 CFR
18.36(i)(6). Although the original Act required its application in any
construction contract over \$2,000 or non-construction contract to which
the Act applied over \$2,500 (and language to that effect is still found
in 49 CFR 18.36(i)(6)), the Act no longer applies to any "contract in an
amount that is not greater than \$100,000." 40 USC 3701(b)(3) (A)(iii).

The Act applies to construction contracts and, in very limited
circumstances, non-construction projects that employ "laborers or
mechanics on a public work." These non-construction applications do not
generally apply to transit procurements because transit procurements (to
include rail cars and buses) are deemed "commercial items." 40 USC 3707,
41 USC 403 (12). A grantee that contemplates entering into a contract to
procure a developmental or unique item should consult counsel to
determine if the Act applies to that procurement and that additional
language required by 29 CFR 5.5(c) must be added to the basic clause
below.

The clause language is drawn directly from 29 CFR 5.5(b) and any
deviation from the model clause below should be coordinated with counsel
to ensure the Act's requirements are satisfied.

**[Clause Language]{.underline}**

##### Contract Work Hours and Safety Standards

\(1\) **Overtime requirements** - No contractor or subcontractor
contracting for any part of the contract work which may require or
involve the employment of laborers or mechanics shall require or permit
any such laborer or mechanic in any workweek in which he or she is
employed on such work to work in excess of forty hours in such workweek
unless such laborer or mechanic receives compensation at a rate not less
than one and one-half times the basic rate of pay for all hours worked
in excess of forty hours in such workweek.\
\
(2) **Violation; liability for unpaid wages; liquidated damages** - In
the event of any violation of the clause set forth in paragraph (1) of
this section the contractor and any subcontractor responsible therefor
shall be liable for the unpaid wages. In addition, such contractor and
subcontractor shall be liable to the United States for liquidated
damages. Such liquidated damages shall be computed with respect to each
individual laborer or mechanic, including watchmen and guards, employed
in violation of the clause set forth in paragraph (1) of this section,
in the sum of \$10 for each calendar day on which such individual was
required or permitted to work in excess of the standard workweek of
forty hours without payment of the overtime wages required by the clause
set forth in paragraph (1) of this section.

\(3\) **Withholding for unpaid wages and liquidated damages** - The
(***write in the name of the grantee***) shall upon its own action or
upon written request of an authorized representative of the Department
of Labor withhold or cause to be withheld, from any moneys payable on
account of work performed by the contractor or subcontractor under any
such contract or any other Federal contract with the same prime
contractor, or any other federally-assisted contract subject to the
Contract Work Hours and Safety Standards Act, which is held by the same
prime contractor, such sums as may be determined to be necessary to
satisfy any liabilities of such contractor or subcontractor for unpaid
wages and liquidated damages as provided in the clause set forth in
paragraph (2) of this section.\
\
(4) **Subcontracts** - The contractor or subcontractor shall insert in
any subcontracts the clauses set forth in paragraphs (1) through (4) of
this section and also a clause requiring the subcontractors to include
these clauses in any lower tier subcontracts. The prime contractor shall
be responsible for compliance by any subcontractor or lower tier
subcontractor with the clauses set forth in paragraphs (1) through (4)
of this section.

**[18. \[ RESERVED \]]{.underline}**

**[19. NO GOVERNMENT OBLIGATION TO THIRD PARTIES]{.underline}**

**[Applicability to Contracts]{.underline}**\
Applicable to all contracts.

**[Flow Down]{.underline}**\
Not required by statute or regulation for either primary contractors or
subcontractors, this concept should flow down to all levels to clarify,
to all parties to the contract, that the Federal Government does not
have contractual liability to third parties, absent specific written
consent.

**[Model Clause/Language]{.underline}**\
While no specific language is required, FTA has developed the following
language.

**No Obligation by the Federal Government.**

\(1\) The Purchaser and Contractor acknowledge and agree that,
notwithstanding any concurrence by the Federal Government in or approval
of the solicitation or award of the underlying contract, absent the
express written consent by the Federal Government, the Federal
Government is not a party to this contract and shall not be subject to
any obligations or liabilities to the Purchaser, Contractor, or any
other party (whether or not a party to that contract) pertaining to any
matter resulting from the underlying contract.

\(2\) The Contractor agrees to include the above clause in each
subcontract financed in whole or in part with Federal assistance
provided by FTA. It is further agreed that the clause shall not be
modified, except to identify the subcontractor who will be subject to
its provisions.

**[20. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS]{.underline}**

**[AND RELATED ACTS]{.underline}**

**31 U.S.C. 3801 et seq.**\
**49 CFR Part 31 18 U.S.C. 1001\
49 U.S.C. 5307**

**[Applicability to Contracts]{.underline}**\
These requirements are applicable to all contracts.

**[Flow Down]{.underline}**\
These requirements flow down to contractors and subcontractors who make,
present, or submit covered claims and statements.

**[Model Clause/Language]{.underline}**\
These requirements have no specified language, so FTA proffers the
following language.

**Program Fraud and False or Fraudulent Statements or Related Acts.**

\(1\) The Contractor acknowledges that the provisions of the Program
Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801
[et]{.underline} [seq]{.underline}. and U.S. DOT regulations, \"Program
Fraud Civil Remedies,\" 49 C.F.R. Part 31, apply to its actions
pertaining to this Project. Upon execution of the underlying contract,
the Contractor certifies or affirms the truthfulness and accuracy of any
statement it has made, it makes, it may make, or causes to be made,
pertaining to the underlying contract or the FTA assisted project for
which this contract work is being performed. In addition to other
penalties that may be applicable, the Contractor further acknowledges
that if it makes, or causes to be made, a false, fictitious, or
fraudulent claim, statement, submission, or certification, the Federal
Government reserves the right to impose the penalties of the Program
Fraud Civil

Remedies Act of 1986 on the Contractor to the extent the Federal
Government deems appropriate.

\(2\) The Contractor also acknowledges that if it makes, or causes to be
made, a false, fictitious, or fraudulent claim, statement, submission,
or certification to the Federal Government under a contract connected
with a project that is financed in whole or in part with Federal
assistance originally awarded by FTA under the authority of 49 U.S.C. §
5307, the Government reserves the right to impose the penalties of 18
U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Contractor, to the
extent the Federal Government deems appropriate.

\(3\) The Contractor agrees to include the above two clauses in each
subcontract financed in whole or in part with Federal assistance
provided by FTA. It is further agreed that the clauses shall not be
modified, except to identify the subcontractor who will be subject to
the provisions.

**[21. TERMINATION]{.underline}**

**49 U.S.C. Part 18**\
**FTA Circular 4220.1E**

**[Applicability to Contracts]{.underline}**\
All contracts (with the exception of contracts with nonprofit
organizations and institutions of higher education,) in excess of
\$10,000 shall contain suitable provisions for termination by the
grantee including the manner by which it will be effected and the basis
for settlement. (For contracts with nonprofit organizations and
institutions of higher education the threshold is \$100,000.) In
addition, such contracts shall describe conditions under which the
contract may be terminated for default as well as conditions where the
contract may be terminated because of circumstances beyond the control
of the contractor.

**[Flow Down]{.underline}**\
The termination requirements flow down to all contracts in excess of
\$10,000, with the exception of contracts with nonprofit organizations
and institutions of higher learning.

**[Model Clause/Language]{.underline}**\
FTA does not prescribe the form or content of such clauses. The
following are suggestions of clauses to be used in different types of
contracts:

**a. Termination for Convenience (General Provision)** The (Recipient)
may terminate this contract, in whole or in part, at any time by written
notice to the Contractor when it is in the Government\'s best interest.
The Contractor shall be paid its costs, including contract close-out
costs, and profit on work performed up to the time of termination. The
Contractor shall promptly submit its termination claim to (Recipient) to
be paid the Contractor. If the Contractor has any property in its
possession belonging to the (Recipient), the Contractor will account for
the same, and dispose of it in the manner the (Recipient) directs.

**b. Termination for Default \[Breach or Cause\] (General Provision)**
If the Contractor does not deliver supplies in accordance with the
contract delivery schedule, or, if the contract is for services, the
Contractor fails to perform in the manner called for in the contract, or
if the Contractor fails to comply with any other provisions of the
contract, the (Recipient) may terminate this contract for default.
Termination shall be effected by serving a notice of termination on the
contractor setting forth the manner in which the Contractor is in
default. The contractor will only be paid the contract price for
supplies delivered and accepted, or services performed in accordance
with the manner of performance set forth in the contract.

If it is later determined by the (Recipient) that the Contractor had an
excusable reason for not performing, such as a strike, fire, or flood,
events which are not the fault of or are beyond the control of the
Contractor, the (Recipient), after setting up a new delivery of
performance schedule, may allow the Contractor to continue work, or
treat the termination as a termination for convenience.

**c. Opportunity to Cure (General Provision)** The (Recipient) in its
sole discretion may, in the case of a termination for breach or default,
allow the Contractor \[an appropriately short period of time\] in which
to cure the defect. In such case, the notice of termination will state
the time period in which cure is permitted and other appropriate
conditions

If Contractor fails to remedy to (Recipient)\'s satisfaction the breach
or default of any of the terms, covenants, or conditions of this
Contract within \[ten (10) days\] after receipt by Contractor of written
notice from (Recipient) setting forth the nature of said breach or
default, (Recipient) shall have the right to terminate the Contract
without any further obligation to Contractor. Any such termination for
default shall not in any way operate to preclude (Recipient) from also
pursuing all available remedies against Contractor and its sureties for
said breach or default.

**d. Waiver of Remedies for any Breach** In the event that (Recipient)
elects to waive its remedies for any breach by Contractor of any
covenant, term or condition of this Contract, such waiver by (Recipient)
shall not limit (Recipient)\'s remedies for any succeeding breach of
that or of any other term, covenant, or condition of this Contract.

**e. Termination for Convenience (Professional or Transit Service
Contracts)** The (Recipient), by written notice, may terminate this
contract, in whole or in part, when it is in the Government\'s interest.
If this contract is terminated, the Recipient shall be liable only for
payment under the payment provisions of this contract for services
rendered before the effective date of termination.

**f. Termination for Default (Supplies and Service)** If the Contractor
fails to deliver supplies or to perform the services within the time
specified in this contract or any extension or if the Contractor fails
to comply with any other provisions of this contract, the (Recipient)
may terminate this contract for default. The (Recipient) shall terminate
by delivering to the Contractor a Notice of Termination specifying the
nature of the default. The Contractor will only be paid the contract
price for supplies delivered and accepted, or services performed in
accordance with the manner or performance set forth in this contract.

If, after termination for failure to fulfill contract obligations, it is
determined that the Contractor was not in default, the rights and
obligations of the parties shall be the same as if the termination had
been issued for the convenience of the Recipient.

**g. Termination for Default (Transportation Services)** If the
Contractor fails to pick up the commodities or to perform the services,
including delivery services, within the time specified in this contract
or any extension or if the Contractor fails to comply with any other
provisions of this contract, the (Recipient) may terminate this contract
for default. The (Recipient) shall terminate by delivering to the
Contractor a Notice of Termination specifying the nature of default. The
Contractor will only be paid the contract price for services performed
in accordance with the manner of performance set forth in this contract.

If this contract is terminated while the Contractor has possession of
Recipient goods, the Contractor shall, upon direction of the
(Recipient), protect and preserve the goods until surrendered to the
Recipient or its agent. The Contractor and (Recipient) shall agree on
payment for the preservation and protection of goods. Failure to agree
on an amount will be resolved under the Dispute clause.

If, after termination for failure to fulfill contract obligations, it is
determined that the Contractor was not in default, the rights and
obligations of the parties shall be the same as if the termination had
been issued for the convenience of the (Recipient).

**h. Termination for Default (Construction)** If the Contractor refuses
or fails to prosecute the work or any separable part, with the diligence
that will insure its completion within the time specified in this
contract or any extension or fails to complete the work within this
time, or if the Contractor fails to comply with any other provisions of
this contract, the (Recipient) may terminate this contract for default.
The (Recipient) shall terminate by delivering to the Contractor a Notice
of Termination specifying the nature of the default. In this event, the
Recipient may take over the work and compete it by contract or
otherwise, and may take possession of and use any materials, appliances,
and plant on the work site necessary for completing the work. The
Contractor and its sureties shall be liable for any damage to the
Recipient resulting from the Contractor\'s refusal or failure to
complete the work within specified time, whether or not the
Contractor\'s right to proceed with the work is terminated. This
liability includes any increased costs incurred by the Recipient in
completing the work.

The Contractor\'s right to proceed shall not be terminated nor the
Contractor charged with damages under this clause if-

1\. the delay in completing the work arises from unforeseeable causes
beyond the control and without the fault or negligence of the
Contractor. Examples of such causes include: acts of God, acts of the
Recipient, acts of another Contractor in the performance of a contract
with the Recipient, epidemics, quarantine restrictions, strikes, freight
embargoes; and

2\. the contractor, within \[10\] days from the beginning of any delay,
notifies the (Recipient) in writing of the causes of delay. If in the
judgment of the (Recipient), the delay is excusable, the time for
completing the work shall be extended. The judgment of the (Recipient)
shall be final and conclusive on the parties, but subject to appeal
under the Disputes clauses.

If, after termination of the Contractor\'s right to proceed, it is
determined that the Contractor was not in default, or that the delay was
excusable, the rights and obligations of the parties will be the same as
if the termination had been issued for the convenience of the Recipient.

**i. Termination for Convenience or Default (Architect and
Engineering)** The (Recipient) may terminate this contract in whole or
in part, for the Recipient\'s convenience or because of the failure of
the Contractor to fulfill the contract obligations. The (Recipient)
shall terminate by delivering to the Contractor a Notice of Termination
specifying the nature, extent, and effective date of the termination.
Upon receipt of the notice, the Contractor shall (1) immediately
discontinue all services affected (unless the notice directs otherwise),
and (2) deliver to the Contracting Officer all data, drawings,
specifications, reports, estimates, summaries, and other information and
materials accumulated in performing this contract, whether completed or
in process.

If the termination is for the convenience of the Recipient, the
Contracting Officer shall make an equitable adjustment in the contract
price but shall allow no anticipated profit on unperformed services.

If the termination is for failure of the Contractor to fulfill the
contract obligations, the Recipient may complete the work by contact or
otherwise and the Contractor shall be liable for any additional cost
incurred by the Recipient.

If, after termination for failure to fulfill contract obligations, it is
determined that the Contractor was not in default, the rights and
obligations of the parties shall be the same as if the termination had
been issued for the convenience of the Recipient.

**j. Termination for Convenience of Default (Cost-Type Contracts)** The
(Recipient) may terminate this contract, or any portion of it, by
serving a notice or termination on the Contractor. The notice shall
state whether the termination is for convenience of the (Recipient) or
for the default of the Contractor. If the termination is for default,
the notice shall state the manner in which the contractor has failed to
perform the requirements of the contract. The Contractor shall account
for any property in its possession paid for from funds received from the
(Recipient), or property supplied to the Contractor by the (Recipient).
If the termination is for default, the (Recipient) may fix the fee, if
the contract provides for a fee, to be paid the contractor in proportion
to the value, if any, of work performed up to the time of termination.
The Contractor shall promptly submit its termination claim to the
(Recipient) and the parties shall negotiate the termination settlement
to be paid the Contractor.

If the termination is for the convenience of the (Recipient), the
Contractor shall be paid its contract close-out costs, and a fee, if the
contract provided for payment of a fee, in proportion to the work
performed up to the time of termination.

If, after serving a notice of termination for default, the (Recipient)
determines that the Contractor has an excusable reason for not
performing, such as strike, fire, flood, events which are not the fault
of and are beyond the control of the contractor, the (Recipient), after
setting up a new work schedule, may allow the Contractor to continue
work, or treat the termination as a termination for convenience.

**22. GOVERNMENT-WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)**

**[Background and Applicability]{.underline}**

In conjunction with the Office of Management and Budget and other
affected Federal agencies, DOT published an update to 49 CFR Part 29 on
November 26, 2003. This government-wide regulation implements Executive
Order 12549, *Debarment and Suspension*, Executive Order 12689,
*Debarment and Suspension*, and 31 U.S.C. 6101 note (Section 2455,
Public Law 103-355, 108 Stat. 3327).

The provisions of Part 29 apply to all grantee contracts and
subcontracts at any level expected to equal or exceed \$25,000 as well
as any contract or subcontract (at any level) for Federally required
auditing services. 49 CFR 29.220(b). This represents a change from prior
practice in that the dollar threshold for application of these rules has
been lowered from \$100,000 to \$25,000. These are contracts and
subcontracts referred to in the regulation as "covered transactions."

Grantees, contractors, and subcontractors (at any level) that enter into
covered transactions are required to verify that the entity (as well as
its principals and affiliates) they propose to contract or subcontract
with is not excluded or disqualified. They do this by (a) Checking the
Excluded Parties List System, (b) Collecting a certification from that
person, or (c) Adding a clause or condition to the contract or
subcontract. This represents a change from prior practice in that
certification is still acceptable but is no longer required. 49 CFR
29.300.

Grantees, contractors, and subcontractors who enter into covered
transactions also must require the entities they contract with to comply
with 49 CFR 29, subpart C and include this requirement in their own
subsequent covered transactions (i.e., the requirement flows down to
subcontracts at all levels).

**[Clause Language]{.underline}**

The following clause language is suggested, not mandatory. It
incorporates the optional method of verifying that contractors are not
excluded or disqualified by certification.

**[Suspension and Debarment]{.underline}**

> This contract is a covered transaction for purposes of 49 CFR Part 29.
> As such, the contractor is required to verify that none of the
> contractor, its principals, as defined at 49 CFR 29.995, or
> affiliates, as defined at 49 CFR 29.905, are excluded or disqualified
> as defined at 49 CFR 29.940 and 29.945.
>
> The contractor is required to comply with 49 CFR 29, Subpart C and
> must include the requirement to comply with 49 CFR 29, Subpart C in
> any lower tier covered transaction it enters into.
>
> By signing and submitting its bid or proposal, the bidder or proposer
> certifies as follows:
>
> The certification in this clause is a material representation of fact
> relied upon by **{insert agency name}**. If it is later determined
> that the bidder or proposer knowingly rendered an erroneous
> certification, in addition to remedies available to **{insert agency
> name}**, the Federal Government may pursue available remedies,
> including but not limited to suspension and/or debarment. The bidder
> or proposer agrees to comply with the requirements of 49 CFR 29,
> Subpart C while this offer is valid and throughout the period of any
> contract that may arise from this offer. The bidder or proposer
> further agrees to include a provision requiring such compliance in its
> lower tier covered transactions.

**[23. PRIVACY ACT]{.underline}**

**5 U.S.C. 552**

**[Applicability to Contracts]{.underline}**\
When a grantee maintains files on drug and alcohol enforcement
activities for FTA, and those files are organized so that information
could be retrieved by personal identifier, the Privacy Act requirements
apply to all contracts.

**[Flow Down]{.underline}**\
The Federal Privacy Act requirements flow down to each third party
contractor and their contracts at every tier.

**[Model Clause/Language]{.underline}**\
The text of the following clause has not been mandated by statute or
specific regulation, but has been developed by FTA.

**Contracts Involving Federal Privacy Act Requirements** - The following
requirements apply to the Contractor and its employees that administer
any system of records on behalf of the Federal Government under any
contract:

\(1\) The Contractor agrees to comply with, and assures the compliance
of its employees with, the information restrictions and other applicable
requirements of the Privacy Act of 1974,

5 U.S.C. § 552a. Among other things, the Contractor agrees to obtain the
express consent of the Federal Government before the Contractor or its
employees operate a system of records on behalf of the Federal
Government. The Contractor understands that the requirements of the
Privacy Act, including the civil and criminal penalties for violation of
that Act, apply to those individuals involved, and that failure to
comply with the terms of the Privacy Act may result in termination of
the underlying contract.

\(2\) The Contractor also agrees to include these requirements in each
subcontract to administer any system of records on behalf of the Federal
Government financed in whole or in part with Federal assistance provided
by FTA.

**[24. CIVIL RIGHTS REQUIREMENTS]{.underline}**

**29 U.S.C. § 623, 42 U.S.C. § 2000\
42 U.S.C. § 6102, 42 U.S.C. § 12112\
42 U.S.C. § 12132, 49 U.S.C. § 5332\
29 CFR Part 1630, 41 CFR Parts 60 et seq.**

**[Applicability to Contracts]{.underline}**\
The Civil Rights Requirements apply to all contracts.

**[Flow Down]{.underline}**\
The Civil Rights requirements flow down to all third party contractors
and their contracts at every tier.

**[Model Clause/Language]{.underline}**\
The following clause was predicated on language contained at 49 CFR Part
19, Appendix A, but FTA has shortened the lengthy text.

**Civil Rights -** The following requirements apply to the underlying
contract:

\(1\) [Nondiscrimination]{.underline} - In accordance with Title VI of
the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the
Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section
202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132,
and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that
it will not discriminate against any employee or applicant for
employment because of race, color, creed, national origin, sex, age, or
disability. In addition, the Contractor agrees to comply with applicable
Federal implementing regulations and other implementing requirements FTA
may issue.

\(2\) [Equal Employment Opportunity]{.underline} - The following equal
employment opportunity requirements apply to the underlying contract:

\(a\) [Race, Color, Creed, National Origin, Sex]{.underline} - In
accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C.
§ 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor
agrees to comply with all applicable equal employment opportunity
requirements of U.S. Department of Labor (U.S. DOL) regulations,
\"Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor,\" 41 C.F.R. Parts 60 [et]{.underline}
[seq]{.underline}., (which implement Executive Order No. 11246, \"Equal
Employment Opportunity,\" as amended by Executive Order No. 11375,
\"Amending Executive Order 11246 Relating to Equal Employment
Opportunity,\" 42 U.S.C. § 2000e note), and with any applicable Federal
statutes, executive orders, regulations, and Federal policies that may
in the future affect construction activities undertaken in the course of
the Project. The Contractor agrees to take affirmative action to ensure
that applicants are employed, and that employees are treated during
employment, without regard to their race, color, creed, national origin,
sex, or age. Such action shall include, but not be limited to, the
following: employment, upgrading, demotion or transfer, recruitment or
recruitment advertising, layoff or termination; rates of pay or other
forms of compensation; and selection for training, including
apprenticeship. In addition, the Contractor agrees to comply with any
implementing requirements FTA may issue.

\(b\) [Age]{.underline} - In accordance with section 4 of the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § § 623
and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to
refrain from discrimination against present and prospective employees
for reason of age. In addition, the Contractor agrees to comply with any
implementing requirements FTA may issue.

\(c\) [Disabilities]{.underline} - In accordance with section 102 of the
Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the
Contractor agrees that it will comply with the requirements of U.S.
Equal Employment Opportunity Commission, \"Regulations to Implement the
Equal Employment Provisions of the Americans with Disabilities Act,\" 29
C.F.R. Part 1630, pertaining to employment of persons with disabilities.
In addition, the Contractor agrees to comply with any implementing
requirements FTA may issue.

\(3\) The Contractor also agrees to include these requirements in each
subcontract financed in whole or in part with Federal assistance
provided by FTA, modified only if necessary to identify the affected
parties.

**[25. BREACHES AND DISPUTE RESOLUTION]{.underline}**

**49 CFR Part 18\
FTA Circular 4220.1E**

**[Applicability to Contracts]{.underline}**\
All contracts in excess of \$100,000 shall contain provisions or
conditions which will allow for administrative, contractual, or legal
remedies in instances where contractors violate or breach contract
terms, and provide for such sanctions and penalties as may be
appropriate. This may

include provisions for bonding, penalties for late or inadequate
performance, retained earnings, liquidated damages or other appropriate
measures.

**[Flow Down]{.underline}**\
The Breaches and Dispute Resolutions requirements flow down to all
tiers.

**[Model Clauses/Language]{.underline}**\
FTA does not prescribe the form or content of such provisions. What
provisions are developed will depend on the circumstances and the type
of contract. Recipients should consult legal counsel in developing
appropriate clauses. The following clauses are examples of provisions
from various FTA third party contracts.

**Disputes** - Disputes arising in the performance of this Contract
which are not resolved by agreement of the parties shall be decided in
writing by the authorized representative of (Recipient)\'s \[title of
employee\]. This decision shall be final and conclusive unless within
\[ten (10)\] days from the date of receipt of its copy, the Contractor
mails or otherwise furnishes a written appeal to the \[title of
employee\]. In connection with any such appeal, the Contractor shall be
afforded an opportunity to be heard and to offer evidence in support of
its position. The decision of the \[title of employee\] shall be binding
upon the Contractor and the Contractor shall abide be the decision.

**Performance During Dispute** - Unless otherwise directed by
(Recipient), Contractor shall continue performance under this Contract
while matters in dispute are being resolved.

**Claims for Damages** - Should either party to the Contract suffer
injury or damage to person or property because of any act or omission of
the party or of any of his employees, agents or others for whose acts he
is legally liable, a claim for damages therefor shall be made in writing
to such other party within a reasonable time after the first observance
of such injury of damage.

**Remedies** - Unless this contract provides otherwise, all claims,
counterclaims, disputes and other matters in question between the
(Recipient) and the Contractor arising out of or relating to this
agreement or its breach will be decided by arbitration if the parties
mutually agree, or in a court of competent jurisdiction within the State
in which the (Recipient) is located.

**Rights and Remedies** - The duties and obligations imposed by the
Contract Documents and the rights and remedies available thereunder
shall be in addition to and not a limitation of any duties, obligations,
rights and remedies otherwise imposed or available by law. No action or
failure to act by the (Recipient), (Architect) or Contractor shall
constitute a waiver of any right or duty afforded any of them under the
Contract, nor shall any such action or failure to act constitute an
approval of or acquiescence in any breach thereunder, except as may be
specifically agreed in writing.

**[26. PATENT AND RIGHTS IN DATA]{.underline}**

**37 CFR Part 401**\
**49 CFR Parts 18 and 19**

**[Applicability to Contracts]{.underline}**\
Patent and rights in data requirements for federally assisted projects
ONLY apply to research projects in which FTA finances the purpose of the
grant is to finance the development of a product or information. These
patent and data rights requirements do not apply to capital projects or
operating projects, even though a small portion of the sales price may
cover the cost of product development or writing the user\'s manual.

**[Flow Down]{.underline}**\
The Patent and Rights in Data requirements apply to all contractors and
their contracts at every tier.

**[Model Clause/Language]{.underline}**\
The FTA patent clause is substantially similar to the text of 49 C.F.R.
Part 19, Appendix A, Section 5, but the rights in data clause reflects
FTA objectives. For patent rights, FTA is governed by Federal law and
regulation. For data rights, the text on copyrights is insufficient to
meet FTA\'s purposes for awarding research grants. This model clause,
with larger rights as a standard, is proposed with the understanding
that this standard could be modified to FTA\'s needs.

CONTRACTS INVOLVING EXPERIMENTAL, DEVELOPMENTAL, OR RESEARCH WORK.

A. **Rights in Data** - This following requirements apply to each
contract involving experimental, developmental or research work:

\(1\) The term \"subject data\" used in this clause means recorded
information, whether or not copyrighted, that is delivered or specified
to be delivered under the contract. The term includes graphic or
pictorial delineation in media such as drawings or photographs; text in
specifications or related performance or design-type documents; machine
forms such as punched cards, magnetic tape, or computer memory
printouts; and information retained in computer memory. Examples
include, but are not limited to: computer software, engineering drawings
and associated lists, specifications, standards, process sheets,
manuals, technical reports, catalog item identifications, and related
information. The term \"subject data\" does not include financial
reports, cost analyses, and similar information incidental to contract
administration.

\(2\) The following restrictions apply to all subject data first
produced in the performance of the contract to which this Attachment has
been added:

\(a\) Except for its own internal use, the Purchaser or Contractor may
not publish or reproduce subject data in whole or in part, or in any
manner or form, nor may the Purchaser or Contractor authorize others to
do so, without the written consent of the Federal Government, until such
time as the Federal Government may have either released or approved the
release of such data to the public; this restriction on publication,
however, does not apply to any contract with an academic institution.

\(b\) In accordance with 49 C.F.R. § 18.34 and 49 C.F.R. § 19.36, the
Federal Government reserves a royalty-free, non-exclusive and
irrevocable license to reproduce, publish, or otherwise use, and to
authorize others to use, for \"Federal Government purposes,\" any
subject data or copyright described in subsections (2)(b)[1]{.underline}
and (2)(b)[2]{.underline} of this clause below. As used in the previous
sentence, \"for Federal Government purposes,\" means use only for the
direct purposes of the Federal Government. Without the copyright
owner\'s consent, the Federal Government may not extend its Federal
license to any other party.

1\. Any subject data developed under that contract, whether or not a
copyright has been obtained; and

2\. Any rights of copyright purchased by the Purchaser or Contractor
using Federal assistance in whole or in part provided by FTA.

\(c\) When FTA awards Federal assistance for experimental,
developmental, or research work, it is FTA\'s general intention to
increase transportation knowledge available to the public, rather than
to restrict the benefits resulting from the work to participants in that
work. Therefore, unless FTA determines otherwise, the Purchaser and the
Contractor performing experimental, developmental, or research work
required by the underlying contract to which this Attachment is added
agrees to permit FTA to make available to the public, either FTA\'s
license in the copyright to any subject data developed in the course of
that contract, or a copy of the subject data first produced under the
contract for which a copyright has not been obtained. If the
experimental, developmental, or research work, which is the subject of
the underlying contract, is not completed for any reason whatsoever, all
data developed under that contract shall become subject data as defined
in subsection (a) of this clause and shall be delivered as the Federal
Government may direct. This subsection (c) , however, does not apply to
adaptations of automatic data processing equipment or programs for the
Purchaser or Contractor\'s use whose costs are financed in whole or in
part with Federal assistance provided by FTA for transportation capital
projects.

\(d\) Unless prohibited by state law, upon request by the Federal
Government, the Purchaser and the Contractor agree to indemnify, save,
and hold harmless the Federal Government, its officers, agents, and
employees acting within the scope of their official duties against any
liability, including costs and expenses, resulting from any willful or
intentional violation by the Purchaser or Contractor of proprietary
rights, copyrights, or right of privacy, arising out of the publication,
translation, reproduction, delivery, use, or disposition of any data
furnished under that contract. Neither the Purchaser nor the Contractor
shall be required to indemnify the Federal Government for any such
liability arising out of the wrongful act of any employee, official, or
agents of the Federal Government.

\(e\) Nothing contained in this clause on rights in data shall imply a
license to the Federal Government under any patent or be construed as
affecting the scope of any license or other right otherwise granted to
the Federal Government under any patent.

\(f\) Data developed by the Purchaser or Contractor and financed
entirely without using Federal assistance provided by the Federal
Government that has been incorporated into work required by the
underlying contract to which this Attachment has been added is exempt
from the requirements of subsections (b), (c), and (d) of this clause,
provided that the Purchaser or Contractor identifies that data in
writing at the time of delivery of the contract work.

\(g\) Unless FTA determines otherwise, the Contractor agrees to include
these requirements in each subcontract for experimental, developmental,
or research work financed in whole or in part with Federal assistance
provided by FTA.

\(3\) Unless the Federal Government later makes a contrary determination
in writing, irrespective of the Contractor\'s status
([i.e.]{.underline}, a large business, small business, state government
or state instrumentality, local government, nonprofit organization,
institution of higher education, individual, etc.), the Purchaser and
the Contractor agree to take the necessary actions to provide, through
FTA, those rights in that invention due the Federal Government as
described in

U.S. Department of Commerce regulations, \"Rights to Inventions Made by
Nonprofit Organizations and Small Business Firms Under Government
Grants, Contracts and Cooperative Agreements,\" 37 C.F.R. Part 401.

\(4\) The Contractor also agrees to include these requirements in each
subcontract for experimental, developmental, or research work financed
in whole or in part with Federal assistance provided by FTA.

B. **Patent Rights** - The following requirements apply to each contract
involving experimental, developmental, or research work:

\(1\) [General]{.underline} - If any invention, improvement, or
discovery is conceived or first actually reduced to practice in the
course of or under the contract to which this Attachment has been added,
and that invention, improvement, or discovery is patentable under the
laws of the United States of America or any foreign country, the
Purchaser and Contractor agree to take actions necessary to provide
immediate notice and a detailed report to the party at a higher tier
until FTA is ultimately notified.

\(2\) Unless the Federal Government later makes a contrary determination
in writing, irrespective of the Contractor\'s status (a large business,
small business, state government or state instrumentality, local
government, nonprofit organization, institution of higher education,
individual), the Purchaser and the Contractor agree to take the
necessary actions to provide, through FTA, those rights in that
invention due the Federal Government as described in U.S. Department of
Commerce regulations, \"Rights to Inventions Made by Nonprofit
Organizations and Small Business Firms Under Government Grants,
Contracts and Cooperative Agreements,\" 37 C.F.R. Part 401.

\(3\) The Contractor also agrees to include the requirements of this
clause in each subcontract for experimental, developmental, or research
work financed in whole or in part with Federal assistance provided by
FTA.

**[27. TRANSIT EMPLOYEE PROTECTIVE AGREEMENTS]{.underline}**

**49 U.S.C. § 5310, § 5311, and § 5333\
29 CFR Part 215**

**[Applicability to Contracts\
]{.underline}**The Transit Employee Protective Provisions apply to each
contract for transit operations performed by employees of a Contractor
recognized by FTA to be a transit operator. (Because transit operations
involve many activities apart from directly driving or operating transit
vehicles, FTA determines which activities constitute transit
\"operations\" for purposes of this clause.)

**[Flow Down]{.underline}**\
These provisions are applicable to all contracts and subcontracts at
every tier.

**[Model Clause/Language]{.underline}**\
Since no mandatory language is specified, FTA had developed the
following language:

**Transit Employee Protective Provisions.** (1) The Contractor agrees to
the comply with applicable transit employee protective requirements as
follows:

\(a\) [General Transit Employee Protective Requirements]{.underline} -
To the extent that FTA determines that transit operations are involved,
the Contractor agrees to carry out the transit operations work on the
underlying contract in compliance with terms and conditions determined
by the U.S. Secretary of Labor to be fair and equitable to protect the
interests of employees employed under this contract and to meet the
employee protective requirements of 49 U.S.C. A 5333(b), and U.S. DOL
guidelines at 29 C.F.R. Part 215, and any amendments thereto. These
terms and conditions are identified in the letter of certification from
the U.S. DOL to FTA applicable to the FTA Recipient\'s project from
which Federal assistance is provided to support work on the underlying
contract. The Contractor agrees to carry out that work in compliance
with the conditions stated in that U.S. DOL letter. The requirements of
this subsection (1), however, do not apply to any contract financed with
Federal assistance provided by FTA either for projects for elderly
individuals and individuals with disabilities authorized by 49 U.S.C. §
5310(a)(2), or for projects for nonurbanized areas authorized by 49
U.S.C. § 5311. Alternate provisions for those projects are set forth in
subsections (b) and (c) of this clause.

\(b\) [Transit Employee Protective Requirements for Projects Authorized
by 49 U.S.C. § 5310(a)(2) for Elderly Individuals and Individuals with
Disabilities]{.underline} - If the contract involves transit operations
financed in whole or in part with Federal assistance authorized by 49
U.S.C. § 5310(a)(2), and if the U.S. Secretary of Transportation has
determined or determines in the future that the employee protective
requirements of 49 U.S.C. § 5333(b) are necessary or appropriate for the
state and the public body subrecipient for which work is performed on
the underlying contract, the Contractor agrees to carry out the Project
in compliance with the terms and conditions determined by the U.S.
Secretary of Labor to meet the requirements of 49 U.S.C. § 5333(b), U.S.
DOL guidelines at 29 C.F.R. Part 215, and any amendments thereto. These
terms and conditions are identified in the U.S. DOL\'s letter of
certification to FTA, the date of which is set forth Grant Agreement or
Cooperative Agreement with the state. The Contractor agrees to perform
transit operations in connection with the underlying contract in
compliance with the conditions stated in that U.S. DOL letter.

\(c\) [Transit Employee Protective Requirements for
Projects]{.underline} Authorized by 49 U.S.C. § 5311 [in Nonurbanized
Areas]{.underline} - If the contract involves transit operations
financed in whole or in part with Federal assistance authorized by 49
U.S.C. § 5311, the Contractor agrees to comply with the terms and
conditions of the Special Warranty for the Nonurbanized Area Program
agreed to by the U.S. Secretaries of Transportation and Labor, dated May
31, 1979, and the procedures implemented by U.S. DOL or any revision
thereto.

\(2\) The Contractor also agrees to include the any applicable
requirements in each subcontract involving transit operations financed
in whole or in part with Federal assistance provided by FTA.

**[28. DISADVANTAGED BUSINESS ENTERPRISE (DBE)]{.underline}**

**49 CFR Part 26**

**[Background and Applicability]{.underline}**

The newest version on the Department of Transportation's Disadvantaged
Business Enterprise (DBE) program became effective July 16, 2003. The
rule provides guidance to grantees on the use of overall and contract
goals, requirement to include DBE provisions in subcontracts, evaluating
DBE participation where specific contract goals have been set, reporting
requirements, and replacement of DBE subcontractors. Additionally, the
DBE program dictates payment terms and conditions (including limitations
on retainage) applicable to all subcontractors regardless of whether
they are DBE firms or not.

The DBE program applies to all DOT-assisted contracting activities. A
formal clause such as that below must be included in all contracts above
the micro-purchase level. The requirements of clause subsection b flow
down to subcontracts.

A substantial change to the payment provisions in this newest version of
Part 26 concerns retainage (*see* section 26.29). Grantee choices
concerning retainage should be reflected in the language choices in
clause subsection d.

**[Clause Language]{.underline}**

The following clause language is suggested, not mandatory. It
incorporates the payment terms and conditions applicable to all
subcontractors based in Part 26 as well as those related only to DBE
subcontractors. The suggested language allows for the options available
to grantees concerning retainage, specific contract goals, and
evaluation of DBE subcontracting participation when specific contract
goals have been established.

**Disadvantaged Business Enterprises**

a\. This contract is subject to the requirements of Title 49, Code of
Federal Regulations, Part 26, *Participation by Disadvantaged Business
Enterprises in Department of Transportation Financial Assistance
Programs. * The national goal for participation of Disadvantaged
Business Enterprises (DBE) is 10%.  The agency's overall goal for DBE
participation is **\_\_ %.**  A separate contract goal **\[of \_\_ % DBE
participation has\] \[has not\]** been established for this procurement.

b\. The contractor shall not discriminate on the basis of race, color,
national origin, or sex in the performance of this contract.  The
contractor shall carry out applicable requirements of 49 CFR Part 26 in
the award and administration of this DOT-assisted contract.  Failure by
the contractor to carry out these requirements is a material breach of
this contract, which may result in the termination of this contract or
such other remedy as **{insert agency name}** deems appropriate.  Each
subcontract the contractor signs with a subcontractor must include the
assurance in this paragraph (*see* 49 CFR 26.13(b)).

c\. **{*If a separate contract goal has been established, use the
following}*** Bidders/offerors are required to document sufficient DBE
participation to meet these goals or, alternatively, document adequate
good faith efforts to do so, as provided for in 49 CFR 26.53.  Award of
this contract is conditioned on submission of the following
**\[concurrent with and accompanying sealed bid\] \[concurrent with and
accompanying an initial proposal\] \[prior to award\]**:

1.      The names and addresses of DBE firms that will participate in
this contract;

2.      A description of the work each DBE will perform;

::: Definition-Term
3.      The dollar amount of the participation of each DBE firm
participating;
:::

4.      Written documentation of the bidder/offeror's commitment to use
a DBE subcontractor whose participation it submits to meet the contract
goal;

5.      Written confirmation from the DBE that it is participating in
the contract as provided in the prime contractor's commitment; and

6.      If the contract goal is not met, evidence of good faith efforts
to do so.  

**\
\[Bidders\]\[Offerors\]** must present the information required above
**\[as a matter of responsiveness\] \[with initial proposals\] \[prior
to contract award\]** (*see* 49 CFR 26.53(3)).

**{*If no separate contract goal has been established, use the
following}***  The successful bidder/offeror will be required to report
its DBE participation obtained through race-neutral means throughout the
period of performance.

d\. The contractor is required to pay its subcontractors performing work
related to this contract for satisfactory performance of that work no
later than 30 days after the contractor's receipt of payment for that
work from the **{insert agency name}**. In addition, **\[the contractor
may not hold retainage from its subcontractors.\] \[is required to
return any retainage payments to those subcontractors within 30 days
after the subcontractor\'s work related to this contract is
satisfactorily completed.\] \[is required to return any retainage
payments to those subcontractors within 30 days after incremental
acceptance of the subcontractor's work by the {insert agency name} and
contractor's receipt of the partial retainage payment related to the
subcontractor's work.\]**

e\. The contractor must promptly notify **{insert agency name}**,
whenever a DBE subcontractor performing work related to this contract is
terminated or fails to complete its work, and must make good faith
efforts to engage another DBE subcontractor to perform at least the same
amount of work. The contractor may not terminate any DBE subcontractor
and perform that work through its own forces or those of an affiliate
without prior written consent of **{insert agency name}**.

 

**[29. \[ RESERVED \]]{.underline}**

::: Definition-Term
:::

**[30. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA)
TERMS]{.underline}**

**FTA Circular 4220.1E**

**[Applicability to Contracts]{.underline}**\
The incorporation of FTA terms applies to all contracts.

**[Flow Down]{.underline}**

The incorporation of FTA terms has unlimited flow down.

**[Model Clause/Language]{.underline}**\
FTA has developed the following incorporation of terms language**:**

**Incorporation of Federal Transit Administration (FTA) Terms** - The
preceding provisions include, in part, certain Standard Terms and
Conditions required by DOT, whether or not expressly set forth in the
preceding contract provisions. All contractual provisions required by
DOT, as set forth in FTA Circular 4220.1E, are hereby incorporated by
reference. Anything to the contrary herein notwithstanding, all FTA
mandated terms shall be deemed to control in the event of a conflict
with other provisions contained in this Agreement. The Contractor shall
not perform any act, fail to perform any act, or refuse to comply with
any (name of grantee) requests which would cause (name of grantee) to be
in violation of the FTA terms and conditions.

**[31. DRUG AND ALCOHOL TESTING]{.underline}**

**49 U.S.C. §5331**\
**49 CFR Parts 653 and 654**

**[Applicability to Contracts]{.underline}**\
The Drug and Alcohol testing provisions apply to Operational Service
Contracts.

**[Flow Down Requirements]{.underline}**\
Anyone who performs a safety-sensitive function for the recipient or
subrecipient is required to comply with 49 CFR 653 and 654, with certain
exceptions for contracts involving maintenance services. Maintenance
contractors for non-urbanized area formula program grantees are not
subject to the rules. Also, the rules do not apply to maintenance
subcontractors.

**[Model Clause/Language]{.underline}**

**[Introduction\
]{.underline}**FTA\'s drug and alcohol rules, 49 CFR 653 and 654,
respectively, are unique among the regulations issued by FTA. First,
they require recipients to ensure that any entity performing a
safety-sensitive function on the recipient\'s behalf (usually
subrecipients and/or contractors) implement a complex drug and alcohol
testing program that complies with Parts 653 and 654. Second, the rules
condition the receipt of certain kinds of FTA funding on the
recipient\'s compliance with the rules; thus, the recipient is not in
compliance with the rules unless every entity that performs a
safety-sensitive function on the recipient\'s behalf is in compliance
with the rules. Third, the rules do not specify how a recipient ensures
that its subrecipients and/or contractors comply with them.

How a recipient does so depends on several factors, including whether
the contractor is covered independently by the drug and alcohol rules of
another Department of Transportation operating administration, the
nature of the relationship that the recipient has with the contractor,
and the financial resources available to the recipient to oversee the
contractor\'s drug and alcohol testing program. In short, there are a
variety of ways a recipient can ensure that its subrecipients and
contractors comply with the rules.

Therefore, FTA has developed three model contract provisions for
recipients to use \"as is\" or to modify to fit their particular
situations.

**[Explanation of Model Contract Clauses]{.underline}**\
Under Option 1, the recipient ensures the contractor\'s compliance with
the rules by requiring the contractor to participate in a drug and
alcohol program administered by the recipient. The advantages of doing
this are obvious: the recipient maintains total control over its
compliance with 49 CFR 653 and 654. The disadvantage is that the
recipient, which may not directly employ any safety-sensitive employees,
has to implement a complex testing program. Therefore, this may be a
practical option only for those recipients which have a testing program
for their employees, and can add the contractor\'s safety-sensitive
employees to that program.

Under Option 2, the recipient relies on the contractor to implement a
drug and alcohol testing program that complies with 49 CFR 653 and 654,
but retains the ability to monitor the contractor\'s testing program;
thus, the recipient has less control over its compliance with the drug
and alcohol testing rules than it does under option 1. The advantage of
this approach is that it places the responsibility for complying with
the rules on the entity that is actually performing the safety-sensitive
function. Moreover, it reserves to the recipient the power to ensure
that the contractor complies with the program. The disadvantage of
Option 2 is that without adequate monitoring of the contractor\'s
program, the recipient may find itself out of compliance with the rules.

Under option 3, the recipient specifies some or all of the specific
features of a contractor\'s drug and alcohol compliance program. Thus,
it requires the recipient to decide what it wants to do and how it wants
to do it. The advantage of this option is that the recipient has more
control over the contractor\'s drug and alcohol testing program, yet it
is not actually administering the testing program. The disadvantage is
that the recipient has to specify and understand clearly what it wants
to do and why.

**Drug and Alcohol Testing**

**Option 1**

The contractor agrees to:

*(a) participate in (grantee\'s or recipient\'s) drug and alcohol
program established in compliance with 49 CFR 653 and 654.*

**Drug and Alcohol Testing**\
**Option 2**

The contractor agrees to establish and implement a drug and alcohol
testing program that complies with 49 CFR Parts 653 and 654, produce any
documentation necessary to establish its compliance with Parts 653 and
654, and permit any authorized representative of the United States
Department of Transportation or its operating administrations, the State
Oversight Agency of (name of State), or the (insert name of grantee), to
inspect the facilities and records associated with the implementation of
the drug and alcohol testing program as required under 49 CFR Parts 653
and 654 and review the testing process. The contractor agrees further to
certify annually its compliance with Parts 653 and 654 before (insert
date) and to submit the Management Information System (MIS) reports
before (insert date before March 15) to (insert title and address of
person responsible for receiving information). To certify compliance the
contractor shall use the \"Substance Abuse Certifications\" in the
\"Annual List of Certifications and Assurances for Federal Transit
Administration Grants and Cooperative Agreements,\" which is published
annually in the Federal Register.

**Drug and Alcohol Testing**\
**Option 3**

The contractor agrees to establish and implement a drug and alcohol
testing program that complies with 49 CFR Parts 653 and 654, produce any
documentation necessary to establish its compliance with Parts 653 and
654, and permit any authorized representative of the United States
Department of Transportation or its operating administrations, the State
Oversight Agency of (name of State), or the (insert name of grantee), to
inspect the facilities and records associated with the implementation of
the drug and alcohol testing program as required under 49 CFR Parts 653
and 654 and review the testing process. The contractor agrees further to
certify annually its compliance with Parts 653 and 654 before (insert
date) and to submit the Management Information System (MIS) reports
before (insert date before March 15) to (insert title and address of
person responsible for receiving information). To certify compliance the
contractor shall use the \"Substance Abuse Certifications\" in the
\"Annual List of Certifications and Assurances for Federal Transit
Administration Grants and Cooperative Agreements,\" which is published
annually in the Federal Register. The Contractor agrees further to
\[Select a, b, or c\] (a) submit before (insert date or upon request) a
copy of the Policy Statement developed to implement its drug and alcohol
testing program; OR (b) adopt (insert title of the Policy Statement the
recipient wishes the contractor to use) as its policy statement as
required under 49 CFR 653 and 654; OR (c) submit for review and approval
before (insert date or upon request) a copy of its Policy Statement
developed to implement its drug and alcohol testing program. In
addition, the contractor agrees to: (to be determined by the recipient,
but may address areas such as: the selection of the certified
laboratory, substance abuse professional, or Medical Review Officer, or
the use of a consortium).