[Federal Register Volume 87, Number 127 (Tuesday, July 5, 2022)]
[Notices]
[Pages 39887-39889]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14256]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2016-0027]


Revision of Form FHWA-1273

AGENCY: Federal Highway Administration (FHWA), Department of 
Transportation (DOT).

ACTION: Notice of availability.

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SUMMARY: This final notice announces the availability of revised Form 
FHWA-1273--``Required Contract Provisions Federal-Aid Construction 
Contracts.'' This form includes certain contract provisions that are 
required on all Federal-aid construction contracts other than 
Appalachian construction contracts. This form also includes proposal 
notices that Federal-aid recipients must incorporate or reference in 
all solicitation-for-bids or request-for-proposals documents for 
Federal-aid construction projects.

DATES: The revised Form FHWA-1273 is effective September 6, 2022. 
Consistent with FHWA's regulations at 23 CFR part 633, subpart A, 
Federal-aid contractors and recipients must use the new form beginning 
on this date. Federal-aid recipients must use the new form on this 
date.

FOR FURTHER INFORMATION CONTACT: Brian Hogge, Office of Infrastructure, 
(334) 399-0081, <a href="/cdn-cgi/l/email-protection#95d7e7fcf4fbbbddfaf2f2f0d5f1fae1bbf2fae3"><span class="__cf_email__" data-cfemail="88cafae1e9e6a6c0e7efefedc8ece7fca6efe7fe">[email protected]</span></a> or Michael Harkins, Office of the 
Chief Counsel, (202) 366-1523, <a href="/cdn-cgi/l/email-protection#24694d474c4541480a6c45564f4d4a5764404b500a434b52"><span class="__cf_email__" data-cfemail="5b163238333a3e3775133a29303235281b3f342f753c342d">[email protected]</span></a>. Office hours 
for FHWA are from 8:00 a.m. to 4:30 p.m., eastern, Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    An electronic copy of this notice and all background material may 
be viewed online at www.regulations.gov using the docket number listed 
above. A copy of this notice will be placed in the docket. Electronic 
retrieval help and guidelines are available on the website. It is

[[Page 39888]]

available 24 hours each day, 365 days each year. An electronic copy of 
this document may also be downloaded from the Office of the Federal 
Register's website at www.FederalRegister.gov and the Government 
Publishing Office's website at www.GovInfo.gov.

Background

    On November 28, 2016, at 81 FR 85673, FHWA published a notice and 
request for comments regarding FHWA's proposal to revise Form FHWA-
1273. As provided in 23 CFR 633.103, Form FHWA-1273 includes contract 
provisions and proposal notices that are required by regulations 
promulgated by FHWA or other Federal agencies. The provisions include 
nondiscrimination, prevailing wage rates, subcontracting, job-site 
safety, and other important requirements that must be included in every 
Federal-aid construction contract other than Appalachian construction 
contracts. According to 23 CFR 633.104(a), FHWA will update the form as 
regulatory revisions occur. Since Form FHWA-1273 was last revised on 
May 1, 2012, a number of revisions have occurred that necessitate the 
revision of the form.

Discussion of Comments

I. Summary

    All comments received in response to the notice and request for 
comments have been considered in adopting this final notice. Comments 
were received from four representatives of four State departments of 
transportation (State DOT). The following discussion identifies and 
summarizes the major comments submitted in response to the November 28, 
2016, notice, as well as FHWA's response to those comments.

II. Analysis of and Response to Comments by Section

Section II. Nondiscrimination

    Comment: A representative of the Wyoming DOT recommended not to 
incorporate the provisions of DOT Order 1050.2A, Appendixes A and E, 
into the required assurances in Section II.10.c. The commenter stated 
some of the provisions in DOT Order 1050.2A, Appendixes A and E were 
not applicable to Federal-aid construction projects.
    FHWA Response: The FHWA does not agree with this comment. All 
entities receiving federal financial assistance must comply with Title 
VI and all applicable federal civil rights statutes and implementing 
regulations. DOT's regulations implementing Title VI of the Civil 
Rights Act of 1964, require, at 49 CFR 21.7(a)(1), every recipient of 
Federal financial assistance to submit an assurance that the program or 
facility supported by such assistance will be conducted or operated in 
compliance with all requirements imposed by or pursuant to DOT's Title 
VI regulations. DOT's Title VI regulations at 49 CFR 21.7(a)(1) also 
direct the Secretary to specify the form of the required assurances, 
and the extent to which like assurances will be required of 
subgrantees, contractors and subcontractors, among others. In 
accordance with this direction, DOT Order 1050.2A, issued April 24, 
2013, sets forth the form of Title VI assurances required of DOT 
recipients and contractors working on Federal-aid contracts.
    The FHWA, as a modal operating administration of DOT, is required 
to secure from applicants and recipients receiving Federal financial 
assistance the Standard Title VI Assurances and Nondiscrimination 
provisions included in DOT Order 1050.2A. Specific Assurance number 3 
in the Order requires FHWA recipients to insert the clauses of Appendix 
A and E in every contract or agreement subject to the cited acts and 
regulations. For the purpose of this Notice, FHWA is interpreting the 
word ``insert'' to allow references to the requirements of DOT Order 
1050.2, Appendix A and E in contracts and agreements subject to the 
General provisions of Form FHWA-1273 (see I. General, Section 1).
    During the public review and comment period associated with the 
November 28, 2016, Federal Register notice and request for comments, 
FHWA received an internal comment that the proposed revisions to the 
first sentence in Section II, 1. Equal Employment Opportunity resulted 
in reduced clarity. To maintain clarity and consistency, FHWA is not 
implementing the proposed revision to this sentence.

Section IV. Davis-Bacon and Related Act Provisions

    Comment 1: A representative of the Florida DOT recommended that the 
language, ``(W)here the applicable law requires that projects be 
treated as a project on a Federal-aid highway,'' be changed to, ``All 
projects (excluding those funded under the recreational trail set-
aside) will be treated as if on a Federal-aid highway.''
    FHWA's Response 1: The FHWA does not agree with this comment. The 
proposed language is consistent with the statutory provisions for the 
applicability of prevailing wage rate requirements. Under 23 U.S.C. 113 
and FHWA's implementing guidance, prevailing wage rate requirements are 
applicable to Federal-aid construction projects within the right-of-way 
of a Federal-aid highway (this excludes roadways functionally 
classified as local roads and rural minor collectors). In addition, the 
statutory language authorizing certain transportation programs requires 
projects using these program funds to be treated as if on a Federal-aid 
highway. Examples include: the Surface Transportation Block Grant 
Program provision in 23 U.S.C. 133(i) [excluding recreational trails 
projects under subsection (h)(5)]; the Nationally Significant Freight 
and Highway Projects provision in 23 U.S.C. 117(k); and the National 
Highway Freight Program in 23 U.S.C. 167(l). Thus, Federal-aid projects 
using these specific funds, but not all projects, must be treated as if 
the project were on a Federal-aid highway and, therefore, prevailing 
wage rate requirements apply regardless of the location of the project.
    Comment 2: The Minnesota DOT recommended that the proposed language 
on ``treatment of projects'' (projects treated as projects on a 
Federal-aid highway) be clarified to include the exemption for 
recreational trail set-aside projects. It suggested stating ``(T)he 
provisions of this subpart apply to all projects funded by the surface 
transportation block grant program regardless of where the project is 
located, except that projects funded by recreational trail set-asides 
are not subject to the provisions of this subpart.''
    FHWA's Response 2: The FHWA agrees that clarification is needed. 
The FHWA has included a sentence that provides examples of Federal-aid 
program funding categories with `treatment of project' provisions. When 
using Federal-aid funds from these programs, contracting agencies must 
include contract provisions noting the applicability of prevailing wage 
rate requirements.
    Comment 3: The Minnesota DOT requested clarification on whether the 
``treatment of projects'' provision of this subpart would apply to 23 
CFR 646.216(f) authorizing railroad construction by force account or 
existing contracts.
    FHWA's Response 3: The provisions of this subpart do not apply to 
railroad construction performed by railroad forces or railroad-let 
contracts.
    Comment 4: The Alabama DOT commented that in Section IV.3.a., the 
social security numbers and home addresses should not be included on 
weekly payroll submissions.
    FHWA's Response 4: The requirement to exclude full social security 
numbers and addresses of laborers and

[[Page 39889]]

mechanics on the required weekly payroll submissions is discussed in 
Section IV.3.b.(1). Payrolls and basic records, excluding weekly 
payroll submissions, shall include social security numbers and 
addresses of the laborers and mechanics as discussed in Section IV.3.a. 
This is consistent with the U.S. Department of Labor's (DOL) regulatory 
requirements titled Contract provisions and related matters in 29 CFR 
5.5. The provisions in 29 CFR 5.5(a)(3)(ii) prohibit contractors from 
including full social security numbers and home addresses on the 
required weekly payroll submission and the provisions of 29 CFR 
5.5(a)(3)(i) require full social security numbers and home addresses on 
payrolls and basic records.
    Subsequent to the November 11, 2016, Federal Register notice and 
request for comments announcing FHWA's intent to revise Form FHWA-1273, 
DOL issued several rulemakings regarding the Contract Provisions and 
Related Matters in 29 CFR 5.5. The FHWA is incorporating these 
provisions in Form FHWA-1273 with minor editorial changes to match the 
outline structure and context of Form FHWA-1273. The DOL regulatory 
revisions provided for an inflation-based adjustment of the liquidated 
damage rate in 29 CFR 5.5(b)(2) from $10 to $26. Form FHWA-1273, 
Section V.2 also includes a note to see 29 CFR 5.5(b)(2) for future 
updates to the liquidated damage rate.

Section IX. Implementation of Clean Air Act and Federal Water Pollution 
Control Act

    Comment: The Minnesota DOT (MnDOT) recommended identifying the 
party responsible for reporting violations by adding ``(T)he 
contracting agency must report violations.'' Since EPA may delegate 
authority to a State agency, MnDOT also recommended adding ``a state 
authority delegated by EPA'' to the list of enforcing authorities. 
Additionally, MnDOT suggested that the final paragraph related to flow-
down requirements be retained.
    FHWA Response: While FHWA understands Minnesota DOT concerns 
regarding reporting entities, the proposed language for this section is 
consistent with the provisions in Appendix II to 2 CFR part 200--
Contract Provisions for Non-Federal Entity Contracts Under Federal 
Awards and will remain unchanged. The FHWA agrees with Minnesota DOT 
regarding the flow-down paragraph and the following sentence will be 
added to the final document: ``The contractor agrees to include or 
cause to be included the requirements of this Section in every 
subcontract, and further agrees to take such action as the contracting 
agency may direct as a means of enforcing such requirements.''

Section X. Certification Regarding Debarment, Suspension, Ineligibility 
and Voluntary Exclusion

    Comment: The MnDOT commented that the term ``in a timely manner'' 
was too subjective to administer properly and suggested providing, 
instead, ``whose payments under an obligation to a tax authority are 
not current.''
    FHWA Response: The FHWA does not agree with this suggestion and no 
revisions are made in the final document. The terms ``agreement'' and 
``obligation'' do not have the same meaning. The language used in the 
proposed text was structured to conform to the definition of ``tax 
liability'' in the DOT Order 4200.6, Appropriations Act Requirements 
for Procurement and Non-Procurement Regarding Tax Delinquency and 
Felony Convictions, and is designed to track that definition as closely 
as possible.
Attachment A--Employment and Materials Preference for Appalachian 
Development Highway System or Appalachian Local Access Road Contracts
    Comment: The Alabama DOT requested clarification on the 
applicability of the Appalachian preference provisions.
    FHWA Response: The employment and materials preference provisions 
in Attachment A apply to all construction projects funded under the 
Appalachian Development Highway Program. Fiscal Year 2012 was the final 
authorization year for this program; however, some States may have 
available program balances that have not been obligated or have not 
lapsed. Therefore, it is necessary to retain Attachment A.

Final Form FHWA-1273

    Pursuant to 23 CFR 633.104(a), FHWA has updated Form FHWA-1273 to 
be consistent with existing regulatory requirements. The FHWA published 
the proposed revised Form FHWA-1273 for public comment on November 28, 
2016. After considering all the comments, FHWA has incorporated all 
appropriate edits into the revised Form FHWA-1273. As such, and in 
accordance with 23 CFR part 633, subpart A, the revised Form FHWA-1273, 
which can be found at www.fhwa.dot.gov/construction/cqit/form1273.cfm, 
must be used by recipients and contractors, as applicable under the 
regulations.
    Authority: 23 U.S.C. 315; 23 CFR 633.104; 49 CFR 1.85.

Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.
[FR Doc. 2022-14256 Filed 7-1-22; 8:45 am]
BILLING CODE 4910-22-P


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