UDOT Civil Rights Technical Guide for Resident Engineers by TLCS

Civil Rights Technical Guide for Resident Engineers

UTAH DEPARTMENT OF TRANSPORTATION

Revised January 2017

Civil Rights Technical Guide Table of Contents SECTION I A. B. C.

DISADVANTAGED BUSINESS ENTERPRISE CONTRACT REQUIREMENTS

Contractor Requirements.................................................................................................. 17 Resident Engineer Responsibilities ................................................................................... 18 Frequently Asked Questions.............................................................................................. 24

SECTION III A. B. C.

Overview of Civil Rights Mission and Program.................................................................... 2 Overview of Federal Laws Prohibiting Discrimination......................................................... 3 Overview of Resident Engineer Responsibilities................................................................. 8

SECTION II A. B. C.

INTRODUCTION

EQUAL OPPORTUNITY CONTRACT COMPLIANCE REQUIREMENTS

Contractor Requirements.................................................................................................. 28 Resident Engineer Responsibilities ................................................................................... 31 Frequently Asked Questions.............................................................................................. 34

SECTION IV TRAINING SPECIAL PROVISION REQUREMENTS 38 A. Contractor Requirements.................................................................................................. 39 B. Resident Engineer Responsibilities ................................................................................... 43 C. Frequently Asked Questions.............................................................................................. 45

SECTION V LABOR AND DAVIS-BACON WAGE REQUIREMENTS 48 A. Contractor Requirements.................................................................................................. 52 B. Resident Engineer Responsibilities ................................................................................... 61 C. Frequently Asked Questions.............................................................................................. 64 SECTION V OTHER CIVIL RIGHTS REQUIREMENTS 78 A. Contractor Requirements.................................................................................................. 79 B. Resident Engineer Responsibilities ................................................................................... 80 C. Frequently Asked Questions.............................................................................................. 81

Utah Department of Transportation

for Resident Engineers

RESIDENT ENGINEER TECHNICAL GUIDE REFERENCE DOCUMENTS Exhibit A. Exhibit B. Exhibit C. Exhibit D. Exhibit E. Exhibit F. Exhibit G. Exhibit H. Exhibit I. Exhibit J. Exhibit L. Exhibit M. Exhibit N. Exhibit O. Exhibit P. Exhibit Q. Exhibit R. Exhibit S. Exhibit T. Exhibit Ta.

EEO Laws, Regulations and Policies EEO Acronyms Bid Conditions UDOT DBE Program Policy Statement C-141 DBE Commercially Useful Function (CUF) Interview DBE Hold Harmless Agreement DBE Current Commitment Calculation Spreadsheet DBE Commitment Change Order Instructions EEO Policy Requirements EEO Complaint Procedure Template C-131 EEO Bulletin Board Project Review HIC Attendance Verification Spreadsheet C-130 Training Commitment Form Training Hours Reimbursement Affidavit C-136 Labor & EEO Interview of Workers Certified Payroll Check List for Federal-Aid Construction Projects Instructions for Completing the Annual PR-1391 Report Instructions for the 1444 Classification Report C-138 Region Civil Rights Final Checklist and C-137 Civil Rights Documentation on Federal Aid Projects

Civil Rights Technical Guide

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Utah Department of Transportation

Civil Rights Technical Guide for Resident Engineers

SECTION I INTRODUCTION

This Civil Rights Technical Guide for Resident Engineers is designed to help Resident Engineers working on UDOT Federal-Aid projects with their responsibility to monitor contractor conformance to the Federal laws and regulations governing Equal Opportunity. Contractors and subcontractors working on UDOT Federal-Aid projects are prohibited from discriminating in employment, and are also required to undertake affirmative action to ensure equal employment opportunity in their workforces. The contents of this guide have been designed to help Resident Engineers and their Project Teams:

• Understand the contractual obligation to comply with the laws administered by FHWA and UDOT with reference to Civil Rights, Labor Compliance, Title VI, and the DBE Program on highway construction projects. • Understand the role of the UDOT Civil Rights Office in enforcing and monitoring Labor Compliance, DBE, Title VI, Federal Equal Employment Opportunity, and Affirmative Action laws that apply to Federal contractors and subcontractors. • Understand the role of the UDOT Resident Engineer and the Project Team to document contractor conformance with specific contract requirements regarding Labor Compliance, DBE, Title VI, Federal Equal Employment Opportunity and Affirmative Action laws on the projects they are responsible for. This Civil Rights Technical Guide for Resident Engineers does not create new legal requirements or change any current legal requirements. Instead, it reflects the view of UDOT and is intended to serve as a basic resource document on FHWA and UDOT-administered policies, laws, and regulations. Every effort has been made to insure that the information contained in the Manual is accurate and contains the most current information available.

I N T R O D U C T I O N

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Civil Rights Technical Guide A.

OVERVIEW OF CIVIL RIGHTS MISSION AND PROGRAM

The UDOT Civil Rights Office administers and monitors the equal employment opportunity laws that apply to contractors, subcontractors, and consultants working on UDOT Federal-aid highway construction projects. UDOT Civil Rights monitors compliance with these laws primarily through compliance reviews, during which a Compliance Specialist examines a contractor’s affirmative action efforts and employment practices. The UDOT Civil Rights Office also investigates complaints filed by individuals alleging discrimination on the basis of race, color, sex, religion, national origin, or disability. The Civil Rights Office encourages voluntary compliance and provides technical assistance regarding the requirements of the equal employment opportunity laws that apply to all construction contractors and subcontractors. The Office coordinates with the Federal Highway Administration (FHWA), Department of Labor (DOL), Office of Federal Contract Compliance Programs (OFCCP), the Utah Anti-Discrimination Division (UADD), and the Equal Employment Opportunity Commission (EECO). The UDOT Civil Rights Office carries out its responsibilities by: • Offering technical assistance to contractors/subcontractors to help them understand regulatory requirements and the compliance review process. • Conducting compliance reviews and complaint investigations of contractors’ and subcontractors’ personnel policies and practices. • Coordinating between contractors/subcontractors and the Department of Labor’s employment and training programs, outside organizations, and recruitment sources to help employers identify and recruit qualified employees. • Negotiating agreements with contractors and subcontractors found in violation of regulatory requirements. • Monitoring contractors’ and subcontractors’ progress in fulfilling the terms of their employment goals, provision requirements, and training goals through periodic compliance reports. • Recommending enforcement actions to the OFCCP or other applicable agencies when necessary.

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Utah Department of Transportation

for Resident Engineers B.

OVERVIEW OF FEDERAL LAWS PROHIBITING DISCRIMINATION

The UDOT Civil Rights Office’s programs and policies are based on laws that have been enacted by the Federal government beginning with the Civil Rights Act of 1964. A brief summary of applicable laws, executive orders, regulations and policies can be found at the following link: _Exhibit A___. A list of commonly used Acronyms is also available at the following link: __Exhibit B__. The specific requirements of some of these laws are as follows: Federal Equal Employment Opportunity (EEO) Laws • Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination based on race, color, religion, sex, or national origin. • The Equal Pay Act of 1963 (EPA) protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination. • The Age of Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older. • Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments. • Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with disabilities who work under any program or activity that receives or benefits from Federal financial assistance. • The Civil Rights Act of 1991 provides monetary damages in cases of intentional employment discrimination. The Equal Employment Opportunity Commission (EEOC) enforces all of these laws. The EEOC also provides oversight and coordination of all Federal equal employment opportunity regulations, practices, and policies. The UDOT Civil Rights Office, works with the FHWA and the OFCCP to ensure compliance with the law. Discriminatory Practices Under Title VII, ADA, and ADEA, it is illegal to discriminate in any aspect of employment, including: • Hiring and firing

I N T R O D U C T I O N

• Compensation, assignment, or classification of employees • Transfer, promotion, layoff, or recall • Job advertisements • Recruitment • Testing • Use of company facilities • Training and apprenticeship programs • Fringe benefits • Pay, retirement plans, and disability leave • Other terms and conditions of employment

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Civil Rights Technical Guide Discriminatory practices under these laws also include: • Harassment on the basis of race, color, religion, sex, national, origin, disability, or age. • Retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices. • Employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities. • Denying employment opportunities to a person because of marriage to, or association with an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools, or places of worship associated with a particular racial, ethnic, or religious group. • Employers are required to post notices to all employees advising them of their rights under the laws the EEOC enforces and of their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading. Other Discriminatory practices are specifically defined by the following laws: Title VII Title VII prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex. National Origin Discrimination • It is illegal to discriminate against an individual because of birth place, ancestry, culture, or linguistic characteristics common to a specific ethnic group. • A rule requiring that employees speak only English on the job may violate Title VII unless an employer shows that the requirement is necessary for conducting business. If the employer believes such a rule in necessary, employees must be informed when English is required and the consequences for violating the rule. • An employer is required to reasonably accommodate the religious beliefs of an employee, or prospective employee, unless doing so would impose an undue hardship. Sex Discrimination Title VII’s broad prohibitions against sex discrimination specifically cover: • Sexual Harassment: This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender. (The “hostile environment” standard also applies to harassment on the basis of race, color, national origin, religion, age, and disability.) • Pregnancy-based Discrimination: Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.

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Utah Department of Transportation

for Resident Engineers Age Discrimination in Employment Act (ADEA) The ADEA’s broad ban against age discrimination also specifically prohibits: • Statements or specification in job notices or advertisements of age preference and limitations. An age limit may only be specified in the rare circumstance where age has been proven to be a bona fide occupational qualification (BFOQ). • Discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs. • Denial of benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers. Equal Pay Act (EPA) The EPA prohibits discrimination on the basis of sex in the payment of wages or benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions. Note that: • Employers may not reduce wages of either sex to equalize pay between men and women. • A violation of the EPA may occur where a different wage was, or is, paid to a person who worked in the same job before, or after, an employee of the opposite sex. • A violation may also occur where a labor union causes the employer to violate the law. Title I of the Americans with Disabilities Act (ADA) The ADA prohibits discrimination on the basis of disability in all employment practices. It is necessary to understand several important ADA definitions to know who is protected by the law and what constitutes illegal discrimination:

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Civil Rights Technical Guide ADA Definitions: An individual with a disability under the ADA is a person who has a physical or mental impairment

Individual with a Disability that substantially limits one or more major life activities, has a record of such an impairment, or is

regarded as having such an impairment. Major life activities are activities that an average person can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, and working.

Qualified Individual with a A qualified employee or applicant with a disability is someone who satisfies skill, experience, educaDisability tion, and other job-related requirements of the position held (or desired), and who, with or without reasonable accommodation, can perform the essential functions of that position.

Reasonable Accommodation

Undue Hardship

Prohibited Inquiries and Examinations

Drug and Alcohol Use

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Reasonable accommodation may include, but is not limited to , making existing facilities used by employees readily accessible and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; reassigning to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examination, training materials, or policies; and providing qualified readers or interpreters. Reasonable accommodation may be necessary to apply for a job, to perform job functions, or to enjoy the benefits and privileges of employment that are enjoyed by people without disabilities. An employer is not required to lower production standards to make an accommodation. An employer generally is not obligated to provide personal use items such as eyeglasses or hearing aids. An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an undue hardship on the operation of the employerâ&#x20AC;&#x2122;s business. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a businessâ&#x20AC;&#x2122;s size, financial resources, and the nature and structure of its operation. Before extending an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with business necessity. Employees and applicants currently engaging in the illegal use of drugs are not protected by the ADA, when an employer acts on the basis of such use. Tests for illegal use of drugs are not considered medical examinations and, therefore, are not subject to the ADAâ&#x20AC;&#x2122;s restrictions on medical examinations. Employers may hold individuals who are illegally using drugs and individuals with alcoholism to the same standards of performances as other employees.

Utah Department of Transportation

for Resident Engineers The Civil Rights Act of 1991 The Civil Rights Act of 1991 made major changes in the Federal laws against employment discrimination enforced by the EEOC. Enacted in part to reverse several Supreme Court decisions that limited the rights of persons protected by these laws, the Act also provides additional protections. The Act authorized compensatory and punitive damages in cases of intentional discrimination, and provides for obtaining attorneys’ fees and the possibility of jury trials. It also directs the EEOC to expand its technical assistance and outreach activities. Title VI of the Civil Rights Act of 1964 Title VI prohibits exclusion from participation in, denial of benefits, and discrimination under federally-assisted programs on the grounds of race, color, or national origin. Federal Assistance includes: • Money • Provision of valuable services • Training • Commodities • Use or interest in land Title VI applies to programs or activities that receive Federal financial assistance. The term is defined by statute to mean all of the operations of: • A department, agency, special purpose district, or other instrumentality of a state or local government receiving assistance. • The entity of a state or local government that distributes assistance and each department and agency (and each state and local government entity) to which assistance is extended. • A college, university, or other post-secondary institution or public system of higher education receiving assistance.

I N T R O D U C T I O N

• A local education agency, as defined by statute, receiving assistance • An entire corporation, partnership, or private organization, if: o Assistance is extended to such corporation, etc. as a whole, or o That which is principally engaged in the business of education, health care, housing, social services, or parks and recreation.

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Civil Rights Technical Guide C.

OVERVIEW OF RESIDENT ENGINEER RESPONSIBILITIES

Covered Federal and Federally-assisted construction contractors and subcontractors must comply with 23 CFR and FHWA 1273. In addition, Federal and Federally-assisted contractors and subcontractors must also comply with Executive Order (EO) 11246. The Office of Federal Contract Compliance Programs (OFCCP) administers Executive Order 11246. To comply with EO 11246, contractors must demonstrate good-faith efforts to meet their affirmative action goals for the employment of minorities and women in the construction industry. Resident Engineers and their project teams have project-specific responsibilities to document contractor conformance with the following Civil Rights Bid Conditions that are a part of the standard UDOT contract for all Federal-Aid projects: • IX

Disadvantaged Business Enterprise (DBE)

• X EEO Affirmative Action Requirements on Federal and Federal-Aid Construction

Contracts of $10,000 or More

• XI Specific Equal Employment Opportunity Responsibilities • XII Title VI Appendix A • XIII FHWA 1273 Required Contract Provisions A complete copy of the current UDOT Bid Conditions can be found at the following link: _Exhibit C_. The specific project documentation requirements associated with the Bid Conditions are outlined in the following sections of this manual: • Disadvantaged Business Enterprise (DBE) Requirements • Equal Opportunity Contract Compliance Requirements • Training Special Provision Requirements • Labor and Davis-Bacon Wage Requirements • Other Requirements

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Utah Department of Transportation

for Resident Engineers SECTION II D.B.E. CONTRACT REQUIREMENTS

IX.

The UDOT DBE Program is designed to ensure that opportunities for Federally-assisted contracts for highway, transit, and aviation projects are made available to small business concerns that are owned and controlled by socially and economically disadvantaged individuals. Implementation of the DBE program is guided by USDOT regulations found in 49 CFR Part 26. A copy of the Utah Department of Transportation DBE Policy Statement is available at the following link: _Exhibit D__. The goals of the UDOT DBE Program are achieved by including the following Bid Conditions in every construction contract:

Disadvantaged Business Enterprise (DBE)

This section outlines the DBE Bid and Performance conditions for the contract and contains the following project-specific information: â&#x20AC;˘ The Contract DBE Goal Percentage (determined by the Civil Rights Office), and â&#x20AC;˘ The DBE Bid Assurance, Part A (or Part B) Goal Percentages (determined by the Contractor). The contract DBE Goal is shown in paragraph A.1(b) of Special Provision IX. Whenever the goal set by the Civil Rights Office is greater than 0.0 percent it is race conscious and the DBE commitment made by the contractor at bid becomes a contract specification upon award. Consequently, it is accorded the same priority as compliance with all other legal obligations of financial assistance agreed to by the Department.

The Resident Engineer is responsible for contract compliance with this specification. Twenty-three (23), terms are defined in Section B, Definitions. These definitions are presented below and should be reviewed by the Resident Engineer and any project team members responsible to verify compliance with this specification.

D. B. E. C O N T R A C T R E Q U I R E M E N T S

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Civil Rights Technical Guide DBE Special Provision Definitions:

Contract

Contractor

Contract means a legally binding relationship obligating a seller to furnish supplies or services including but not limited to, construction and professional services, and the buyer to pay for them.

Contractor means one who participates, through a contract or subcontract (at any tier.)

A DBE is a for-profit small business concern:

Disadvantaged Business Enterprise DBE

•

Which has been certified to DBE status by UUCP.

•

Which is at least 51% owned by one or more individuals who are both socially and economically disadvantaged, or in the case of a corporation, in which 51% of the stock of which is owned by one or more such individuals.

•

Whose management and daily business operations are controlled by one or more of the socially or economically disadvantaged individuals who own it.

•

Whose size is limited to average annual gross receipts of $22,014,000 over the previous three fiscal years. (The Secretary of Transportation may adjust this amount from time to time for inflation.) OR

•

Whose size is limited to the current SBA business size standard(s) found in 23 CFR part 121 appropriate to the type(s) of work the firm seeks to perform in DOT-assisted contracts.

DBE Goals mean:

DBE Goals

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•

UDOT’s overall goal on DOT-assisted projects. The current approved DBE Goal and methodology is available at: the following link: _http://www.udot.utah.gov/main/f?p=100:pg:0:::1:T,V:225,

•

The race neutral portion of the overall goal reflects the level of DBE participation that would be expected absent the effects of discrimination.

•

There is an implied DBE goal on projects with no goals (0.0 percent) that have subcontracting opportunities.

•

The race neutral portion of the overall goal reflects the level of DBE participation that will be achieved in response to assigned DBE goals. The race conscious portion of the overall goal reflects the level of DBE participation that will be achieved in response to the assigned DBE project goals.

Utah Department of Transportation

for Resident Engineers DBE Special Provision Definitions (contâ&#x20AC;&#x2122;d):

DBE Joint Venture

Equal Opportunity Action

Good Faith Efforts

Lack of Financial Fitness

Prompt Payment

DBE Joint Venture means an association of a DBE firm and one or more firms to carry out a single, for profit business enterprise, for which the parties combine their property, capital, efforts, skills, and knowledge, and in which the DBE is responsible for a distinct, clearly defined portion of the work of the contract and whose share in the capital contribution, control, management, risks, and profits of the joint venture to a degree commensurate with its ownership interest. The Departmentâ&#x20AC;&#x2122;s Civil Rights Office must approve a DBE joint venture prior to bid opening in order to be utilized for the satisfaction of contract DBE goals. A DBE joint venture application must be submitted allowing ample lead-time for the Civil Rights Office to review, evaluate, and verify information provided for in the application. An interview of the applicant may be necessary at the discretion of the department prior to the approval of the application. If an interview is deemed necessary it will be scheduled at the convenience of all parties.

Equal Opportunity Action requires individuals to be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group. If a bidder requests or accepts bids for subcontract work, the bidder will request and accept bids from DBEs in the work classifications that potentially will be subcontracted.

Good Faith Efforts mean efforts to achieve a DBE goal or other requirements of the contract that by their scope, intensity, and appropriateness to the objective, can reasonably be expected to fulfill the program requirements.

Lack of Financial Fitness is a performance-based definition based solely on failure to pay promptly. There is no reference to financial status or financial capability.

Prompt Payment means payment made no later than 30 work days after receipt of payment by the contractor or subcontractor, to a subcontractor, service provider or supplier at any lower tier.

D. B. E. C O N T R A C T R E Q U I R E M E N T S

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Civil Rights Technical Guide DBE Special Provision Definitions (cont’d): A Race Conscious measure or program is focused specifically on assisting only DBEs, including women-owned DBEs. UDOT must establish contract goals to meet any portion of its overall DBE goal that it does not project being able to meet using race neutral means. To ensure that the DBE program continues to be narrowly tailored to overcome the effects of discrimination, UDOT must adjust the use of contract goals as follows:

Race Conscious

•

If during the course of any year it is determined that the overall goal will be exceeded, UDOT will reduce or eliminate the use contract goals to the extent necessary to ensure that the use of contract goals does not result in exceeding the overall goal.

•

If it is determined that UDOT will fall short of its overall goal, then appropriate modifications in the use of race neutral and/or race conscious measures will be made to allow UDOT to meet the overall goal.

A Race Neutral measure or program can be used to assist all small businesses. UDOT must meet the maximum feasible portion if its overall DBE goal by using race-neutral means of facilitating DBE participation. Race neutral participation includes:

Race Neutral

•

Any time a DBE wins a prime contract through customary competitive procurement procedures.

•

Any time a DBE Is awarded a subcontract on a prime contract that does not carry a DBE goal.

•

Any time a DBE Is awarded a subcontract from a prime contractor that did not consider its DBE status in making the award, even if there is a DBE goal.

•

For the purposes of this specification, race-neutral also includes gender-neutrality.

•

A Regular Employee is a person who:

•

Would be working for the DBE firm on any other subcontract with any other contractor.

•

Is a permanent employee of the DBE firm.

Regular Employee

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•

Has been recruited through the traditional recruitment and/or employment centers.

•

Has not been recently employed by the prime contractor on the present project.

•

Is not a member of a construction crew that regularly works for a non-DBE.

•

Is not a licensed contractor who is at the time “unemployed” or “between jobs.”

Utah Department of Transportation

for Resident Engineers DBE Special Provision Definitions (cont’d): Regular Equipment is equipment that is owned or leased and operated on a long-term agreement and not on an ad hoc or contract-by-contract agreement. The following guidelines apply:

Regular Equipment

•

The equipment would be used by the DBE firm on any other subcontract with any other contractor.

•

The equipment would be owned by the DBE firm, OR the equipment would be leased/rented from traditional equipment lease/rental sources.

•

The DBE firm would have a rental/lease agreement for any rented or leased equipment.

•

The equipment cannot belong to: 1. Prime contractor, 2. Another subcontractor on the present project, or. 3. A supplier of materials being installed by the DBE firm.

•

Reasonable Bid

The equipment cannot come from another contractor fully operated. (DBE must operate any leased/rented equipment.)

A Reasonable Bid is a bid the Department would accept if it were the only bid submitted. Generally, this bid is within 10% of the engineer’s estimate

A responsible bidder has the apparent ability and capacity to perform the contract requirements

Responsible Bidder

In addition to normal prequalification, a responsible bidder is defined as one who has signed (manually or electronically) and submitted with the bid the DBE Bid Conditions Assurance of good-faith effort included as Part 1 of Special Provision IX certifying the intention to meet the DBE goal of a proposed contract or to continue good-faith efforts to do so. These goals may be met by subcontracting or leasing contracts with a DBE or purchasing material from a DBE insofar as the work for material becomes a part of a proposed contract.

C O N T R A C T R E Q U I R E M E N T S

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Civil Rights Technical Guide DBE Special Provision Definitions (cont’d): A Responsive Bidder is a bidder who unequivocally offers to provide services or supplies in conformity with the material terms of the solicitation. In addition to normal prequalification and other bidding requirements, a responsive bidder, in relationship to Special Provision IX, is defined as one who submits evidence of proposed subcontract performance with certified DBE firms to achieve the required dollar amount necessary to achieve the advertised DBE percentage goal.

Responsive Bidder Bidders may be considered as presumptively responsive if they have failed to satisfy the advertised DBE goals set for the proposed contract but have certified in their bid that good-faith efforts have been expended to meet the goal and that they will continue during the performance of the contract to locate, solicit, and involve DBE firms in contract performance. Documentation of the bidder’s good-faith efforts must be included with the bid package for the Department’s review and assessment. Failure to do so shall render the bid non-responsive. The Department will reject the bid.

Satisfactory Completion occurs when: •

A subcontractor has satisfactorily completed in all respects the work under the contract

•

The contractor and subcontractor have notified the Resident Engineer in writing that the work of the subcontractor has been completed.

•

The Resident Engineer will be given a reasonable length of time to check quantities if necessary. Checking quantities does not guarantee the absolute correctness of quantities.

•

The contractor and subcontractor have satisfactorily executed and delivered to the Resident Engineer all documents, certificates, and proofs of compliance required by the contract. The satisfactory execution and delivery of these documents, certificates, and proofs of compliance to the Resident Engineer is a material requirement of the contract

•

The Resident Engineer accepts the work of the subcontract in writing.

Satisfactory Completion

Satisfactory Completion refers only to payment of retainage and accrued interest. A determination of satisfactory completion and payment in full for work performed does not relieve the contractor nor the subcontractor from any contractual obligation.

Satisfactory Performance

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Satisfactory Performance means the work performed and the materials furnished are in conformity with the plans and specifications.

Utah Department of Transportation

for Resident Engineers DBE Special Provision Definitions (cont’d): A Socially and Economically Disadvantaged Individual is any citizen (or lawful admitted permanent resident) of the United States who is:

•

An individual whom the Department finds to be a socially and economically disadvantaged individual on a case-by-case basis.

•

Any individual in the following groups, members of which are refutably presumed to be socially and economically disadvantaged:

o “Black Americans,” which includes persons having origins in any of the black racial groups of Africa;

o “Hispanic Americans,” which includes persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American or other Spanish or Portuguese culture or origin, regardless of race;

C O N T R A C T

Socially and Economically Disadvantaged

o Native Americans,” which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians;

Individuals

o “Asian-Pacific Americans,” which includes persons whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia, Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S. trust territories of the Pacific Islands (Republic of Palau), the Commonwealth of the Northern Mariana Islands, Macao, Fiji, Tonga, Kirbati, Juvalu, Nauru, Federated States of Micronesia, or Hong Kong; o “Subcontinent Asian Americans,” which includes persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal, or Sri Lanka; or o Women. •

Any additional groups whose members are designated as socially and economically disadvantaged by the SBA, at such time the SBA designation becomes effective.

R E Q U I R E M E N T S

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Civil Rights Technical Guide DBE Special Provision Definitions (cont’d): A subcontracting arrangement is generally considered to exist when a person or firm assumes an obligation to perform a part of the contract work and the following conditions are present:

Subcontractor

•

The person or firm performing the work is particularly experienced and equipped for such work.

•

Compensation is related to the amount of work accomplished rather than being on an hourly basis.

•

Choice of work methods, except as restricted by the specifications, and the furnishing and controlling of labor and equipment are exercised by the subcontractor with only general supervision being executed by the prime contractor.

•

Personnel involved in the operation are under the direct supervision of the subcontractor and are included on the subcontractor’s payroll.

All conditions involved shall be considered and no one condition alone will normally determine whether a subcontract actually exists. In all cases a DBE subcontractor must be an independent organization, and the ownership and control by the socially and economically disadvantaged individual(s) must be real and continuing. The prime contractor, a subcontractor, or a supplier shall not be responsible for the various operating and management activities of a DBE firm.

PAGE | 16

Supplier

Provides or furnishes materials, goods, or services that may be incorporated into a project. The supply transaction is to be documented by an appropriate purchase agreement that includes the required provisions for Federal-aid construction projects.

UUCP

The UUCP is the Utah United Certification Program. It provides “one-stop shopping” to applicants for DBE certification, such that an applicant is required to apply only once for a DBE Certification that is honored by all recipients of Federal-aid Funds in the State of Utah.

Utah Department of Transportation

for Resident Engineers A.

CONTRACTOR REQUIREMENTS

Upon award of a contract, the DBE Commitment becomes a contract specification which establishes the minimum goal for contract performance. It is the Contractor’s responsibility to determine the level of professional competence and financial responsibility of any proposed DBE subcontractor. The contractor shall ascertain that the proposed DBE subcontractor is particularly experienced and equipped for the work of the subcontract and it is the contractor’s responsibility to monitor performance and assure that the DBE’s who are hired to fulfill the goal perform a commercially useful function. Prompt payment for the work accomplished by DBE subcontractors is an integral part of the contractor’s commitment to the DBE subcontractor.

D. B.

Contractor Submittals

The following submittals are required from the contractor in regard to his DBE responsibilities:

•

A C-115 and a C-116 for each subcontractor who has a race-conscious DBE commitment associated with the award of the contract.

•

Timely payment and prompt entry of subcontractor payments into the PDBS Subcontractor Payment System. Payments must be correctly associated with the bid items for which work was performed.

It is intended that the Contractor shall utilize the subcontractors designated in the DBE Commitment in the performance of the contract. Any changes in the Contractor’s DBE Commitment, such as substitution of a DBE subcontractor, substitution of contract items, or decrease in total dollar amount must be approved by the Department and must be covered by a change order. A subcontractor who is under contract to fulfill DBE goals shall not be terminated (or replaced) by a prime contractor without the prior written consent of the Civil Rights Office. Unauthorized substitutions or eliminations may result in the imposition of sanctions. If a contractor has a valid reason, or justification, for a change in the DBE commitment, the following documentation should be submitted to the Resident Engineer:

•

A letter outlining the justification for a change in the DBE commitment, including a proposed solution.

•

If a substitution is requested, a Hold Harmless Letter from the original DBE will be required.

•

If a reduction in the goal is requested, documentation of a good-faith effort to solicit and use other DBEs to perform work on the project will be required.

C O N T R A C T R E Q U I R E M E N T S

PAGE | 17

Civil Rights Technical Guide B.

RESIDENT ENGINEER RESPONSIBILITIES

The Resident Engineer is responsible to certify that DBE participation on the project has been in accordance with the performance guidelines outlined in Section IX, Bid Conditions Disadvantaged Business Enterprises (DBE). The guidelines are summarized below: Counting DBE Participation toward Goals for Performance Subcontracts to DBEs that exceed the Goal For Bid Evaluation will be considered in part as race conscious participation and in part as race neutral participation. Any dollar amounts in excess of the Goal For Bid Evaluation will be considered as race neutral participation. The following guidelines apply to DBE Participation: 1. Only the value of the work actually performed by the DBE will count toward DBE goals. 2. Contractors may count toward their contract goals a portion of the total dollar value of a contract with a joint venture eligible under the standards of this bid condition equal to the percentage of the ownership and controls of the DBE partner in the joint venture. 3. The Engineer will recognize and grant DBE credit for work subcontracted and performed by DBE subcontractors ONLY in the types of work for which DBE certification has been granted by the UUCP prior to bid opening. It is necessary that all Bidders refer to the UUCP DBE Directory for direction and guidance. A current copy of the UUCP DBE directory is available through the Civil Rights Office at the following link: _http://www.udot.utah.gov/main/f?p+100:pg:::::V,T:,198. 4. Contractors may count toward their goals only the value of the work actually performed by the DBE toward the DBE goals as follows: a. Work Performed by the DBE’s own forces using “regular employees” and “regular equipment.” b. The cost of supplies and materials obtained and purchased by the DBE and equipment leased for the work of the contract. c. Work that a DBE subcontracts to a lower tier DBE firm. 5. Contractors may not count toward the DBE goals: a. Supplies and material purchased and equipment leased by the DBE from the prime contractor or its affiliates or another subcontractor on the project. b. Work that a DBE subcontracts to a lower tier non-DBE Firm. 6. Contractors may count toward their goals only expenditures to a DBE that performs a commercially useful function in the work of the contract as follows: a. A DBE performs a “commercially useful function: when it is responsible for the execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, the DBE must also be responsible, with respect to materials and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself.

PAGE | 18

Utah Department of Transportation

for Resident Engineers Counting DBE Participation toward Goals for Performance (contâ&#x20AC;&#x2122;d) b. The Department shall evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the contract is commensurate with the work it is actually performing and the DBE credit claimed for its performance of the work, and other relevant factors. c. A DBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, The Department must examine similar transactions, particularly those in which DBEs do not participate. d. A DBE does not perform a commercially useful function if it does not perform or exercise responsibility for at least 30 percent of the total cost of its contract with its own work force, or the DBE subcontracts a greater portion of the work of a contract than would be expected on the basis of normal industry practice for the type of work involved. 7. The Department shall use the following factors in determining whether a DBE trucking company is performing a commercially useful function: a. The DBE must itself own and operate at least one fully licensed, insured, and operation truck used on the contract. b. The DBE must be responsible for the management and supervision of the entire trucking arrangement for the purpose of meeting DBE goals. c. The DBE receives credit for the total value of the transportation services it provides on the contract using trucks it owns, insures, and operates using drivers it employs. d. The DBE may lease trucks from another DBE firm, including an owner-operator who is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the contract. e. The DBE may also lease trucks from a non-DBE firm, including from an owner-operator. The DBE who leases trucks from a non-DBE is entitled to credit for the total value of the transportation services provided by the non-DBE lessees not to exceed the value of transportation services provided by DBE-owned trucks on the contract. Additional participation by non-DBE lessees receives credit only for the fee or commission it receives as a result of the lease arrangement.

Example: DBE X uses two of its own trucks on a contract. It leases two trucks from DBE Firm Y and six trucks from non-DBE Firm Z. DBE credit would be awarded for the total value of transportation services provided by Firm X and Firm Y, and may also be awarded for the total value of transportation services provided by four of the six trucks provided by Firm Z. In all, full credit would be allowed for the participation of eight trucks. With respect to the other two trucks provided by Firm Z, DBE credit could be awarded only for the fees or commissions pertaining to those trucks Firm X receives as a result of the lease with Firm Z.

D. B. E. C O N T R A C T R E Q U I R E M E N T S

For purposes of the paragraph d, a lease must indicate that the DBE has exclusive use of and control over the truck. This does not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, so long as the lease gives the DBE absolute priority for use of the leased truck. Leased trucks must display the name and identification number of the DBE.

PAGE | 19

Civil Rights Technical Guide Counting DBE Participation toward Goals for Performance (contâ&#x20AC;&#x2122;d) 8. Contractors may count expenditures with DBEs for materials or supplies as provided in the following: a. If the materials or supplies are obtained from a DBE manufacturer, 100 percent of the cost of the materials or supplies counts toward DBE goals.

For the purposes of this paragraph, a manufacturer is a firm that operates or maintains a factory or establishment that produces, on the premises, the materials, supplies, articles, or equipment required under the contract and of the general character described by the specifications.

b. If the materials or supplies are purchased from a DBE regular dealer, 60 percent of the cost of the materials or supplies counts toward DBE goals.

For the purposes of this paragraph, a regular dealer is a firm that owns, operates, or maintains a store, warehouse, or other establishment in which the materials, supplies, articles or equipment of the general character described by the specifications and required under the contract are bought, kept in stock, and regularly sold or leased to the public in the usual course of business.

(3) To be a regular dealer, the firm must be an established, regular business that engages, as its principal business and under its own name, in the purchase and sale or lease of the products in question. (4) A Firm may be a regular dealer in such bulk items as petroleum products, steel, cement, gravel, stone, or asphalt without owning, operating or maintaining a place of business if the firm both owns and operates distribution equipment for the products. Any supplementing of regular dealersâ&#x20AC;&#x2122; own distribution equipment shall be by a long-term lease agreement and not on an ad hoc or contract-by-contract basis. (5) Packagers, brokers, manufacturersâ&#x20AC;&#x2122; representatives, or other persons or firms who arrange, or expedite, transactions are not regular dealers. (6) A DBE trucking company that picks up a product from a manufacturer or regular dealer and delivers the product to the Contractor performs a delivery service. Credit will not be given based on a percentage of the cost of the product; credit will be allowed only for the cost of the transportation service.

PAGE | 20

Utah Department of Transportation

for Resident Engineers DBE Documentation Requirements: The DBE Commitment is found in the Civil Rights Menu of PDBS (UDOTâ&#x20AC;&#x2122;s Project Development Business System). The DBE Commitment is to be used as a tool to monitor contractor compliance with the contract requirements associated with the DBE commitment on the project.

The Resident Engineer should refer to the DBE Commitment when approving subcontracts (C-115 & C-116) to verify that the subcontracting of work honors the original contract commitments which were made to DBEs as a part of the bid.

DBE Commitment

In addition, care should be taken before approving 2nd tier subcontracts for DBEs. Although DBE subcontractors may negotiate a 2nd tier subcontract with anyone they desire, if the 2nd tier subcontractor is a non-DBE, then the work that is subcontracted may not be counted toward the fulfillment of the contract DBE goal.

Supplies and materials purchased and equipment leased by a DBE from the prime Contractor, or another subcontractor on the project cannot be counted toward the DBE goal. If the prime happens to be among the group of Utah contractors who also supply materials to other contractors, the Resident Engineer should make sure that they are aware of the potential for disqualification of the DBE work if the DBE uses the prime or another subcontractor on the project as a supplier.

The C-141 DBE Interview for Commercially Useful Function must be completed at least once during the life of the project for each DBE working on a UDOT Federal-aid highway construction contract, regardless if they work on site or not or if they are part of the original DBE commitment or not. An interview with each DBE should be conducted as soon as possible once the DBE begins work on the project, whether their work is a race conscious, or a race neutral contribution to the project goal.

C-141: DBE Commercially Useful Function (CUF)

The form and the accompanying instructions contain specific information that will alert the Resident Engineer to any potential DBE problems that may need to be addressed so that the DBEâ&#x20AC;&#x2122;s participation will count towards the project DBE goal. (A copy of the C-141 is available at the following link: _Exhibit E_.)

Project Site Review

D. B. E. C O N T R A C T R E Q U I R E M E N T S

In general, a DBE performing a commercially useful function, manages their own work, supervises daily operations, and performs the work stated in the contract with their own employees and equipment. Specific rules regarding DBE participation are found in the Bid Conditions are also outlined in Counting DBE Participation toward Goals for Performance, presented in this section. (49 CFR 26.55)

PAGE | 21

Civil Rights Technical Guide DBE Documentation Requirements: The DBE Item Payment Analysis is found in the Civil Rights Menu of PDBS. The 2012 Standard Specifications require that subcontractors must be paid and that payments be entered into the PDBS Subcontractor Payment System within 30 days of each estimate. Contractors should be instructed to record these payments on an item-by-item basis.

DBE Item Payment Analysis

The Resident Engineer should regularly review the Item Payment Analysis giving specific attention to any items that are underrunning, overrunning, or those that have been eliminated. This is a forecast of potential DBE issues that might need to be addressed before the project can close, such as alerting the contractor of the possibility of underrunning the DBE commitment and, or processing a DBE change order to transfer the DBE commitment from underrunning items to race neutral items also performed by a DBE.

Note: If a subcontractor works on new bid items which were created by change order, an additional C-115 must be created so that the bid items associated with the additional work will be available for use in the PDBS Subcontractor Payment System when the time comes to record payment to the subcontractor for work on those items. It is essential that payments are associated with the correct bid items, particularly in the case of a DBE subcontractor, as it determines the accuracy of the DBE Item Payment Analysis.

A DBE subcontractor who is under contract to fulfill DBE goals on a project shall not be terminated by a prime contractor without the prior written consent of the Resident Engineer and the Civil Rights Office. If a DBE is unable, or unwilling to perform, UDOT will require the prime contractor to make good-faith efforts to replace the DBE subcontractor with another DBE to fulfill the goal. The contractor should:

Changes to the

•

Immediately notify the Resident Engineer and the Civil Rights Office in writing.

•

Provide reasonable justification for a termination or substitution and any other relevant details.

•

Provide a Hold-Harmless Agreement from the DBE subcontractor. (A Hold-Harmless Agreement is available at the following link: _Exhibit F_.)

•

Where possible, propose the use of race neutral commitments already in place to supplement the race conscious commitment, so that the original contract goal for the project will be met.

•

Propose a substitute DBE to perform the work, or provide evidence that a good-faith effort to find a substitute DBE was made, but one could not be found.

DBE Commitment

PAGE | 22

Utah Department of Transportation

for Resident Engineers DBE Documentation Requirements: Any change in the DBE commitment requires the approval of the Department through a Civil Rights Change Order. Changes to the DBE commitment are necessary any time a contractor wants to replace or modify a race conscious commitment to a DBE subcontractor, or when department generated changes decrease the original quantities on individual bid items and consequently create an under-run on DBE work items. Changes to only race neutral work does not require a Civil Rights Change Order.

Department-generated decreases in quantities on individual bid items do not require prior approval of the Civil Rights Manager. However, at the conclusion of the project the Resident Engineer must justify the quantity of the under-run by explaining the reason and substituting race neutral funds to meet the original contract goal wherever possible.

DBE Change Orders

DBE subcontractor terminations and substitutions require prior written authorization of proposed changes to the DBE commitment from the Civil Rights Office. The Resident Engineer must have this documentation prior to approval of a new C-115 assigning DBE committed bid items to an alternate subcontractor.

The DBE Change Order must be executed to make the authorized changes to the DBE commitment a part of the contract. The first step in this process is to evaluate the current status of the DBE commitment through the use of the DBE Commitment Calculation spreadsheet provided by the Civil Rights Office. A copy of this spreadsheet can be downloaded for use at the following link: _Exhibit G_.

Once the amount of race neutral work required to make up the goal has been obtained by the use of the DBE Commitment Calculation spreadsheet, the change order can be entered into the PDBS system. Detailed instructions for this process are available at the following link: _Exhibit H_.

D. B. E. C O N T R A C T R E Q U I R E M E N T S

PAGE | 23

Civil Rights Technical Guide C.

FREQUENTLY ASKED QUESTIONS Frequently Asked Questions about DBE Requirements: Race Conscious DBE participation is one where the prime contractor is required and committed at bid to use DBE’s to meet a project goal. Upon award, the contractor’s commitments become a part of the contract specifications and consequently there is a legal obligation to use the committed DBE to do the work.

What is the difference between race conscious and race neutral DBE participaRace Neutral DBE participation occurs anytime a DBE wins a prime contract through the customary tion on a project?

competitive procedure, or is awarded a subcontract on a prime contract that does not carry a DBE goal (0%); or anytime a prime contractor voluntarily allows an equal opportunity for DBE’s to bid on and complete a portion of the work and does not use the DBE’s status as a commitment on the bid to help him meet the project goal.

Typically, a prime contractor will submit a C-115 for a material supplier because the supplier is a Why has the prime contrac- DBE and a subcontract is required so that DBE participation can be reflected in the PDBS Project Accounting System. (When a subcontract is executed, and payments to the subcontractor are tor submitted a C-115 for a entered into the subcontractor payment system, the DBE supplier’s participation is included on material supplier? the DBE Item Payment Analysis and in the DBE participation percentages presented on the C-128, Report on Assembly of Final Estimate.

Typically, a prime contractor will submit a C-115 for a trucking company because the trucking company is a DBE and a subcontract is required so that DBE participation can be reflected in the PDBS Project Accounting System. (When a subcontract is executed, and payments to the subcontractor are entered into the subcontractor payment system, the DBE trucking company’s participation is included on the DBE Item Payment Analysis and in the DBE participation percentages presented on the C-128, Report on Assembly of Final Estimate.

Why would the prime contractor submit a C-115 for one trucking company and a lease agreement for another company?

Whether a contractor submits a lease agreement, or a C-115 (subcontract) for a trucking company depends on the nature of the work performed and the type of business arrangement between the two parties. The overriding factor will be whether the trucking company is hauling to and from the site, or whether they are participating in on-site construction activities.

If the trucks and drivers are not working on site, but only being used to haul material to and from the site, then the Davis-Bacon wages required on Federal-Aid projects do not apply to the drivers of those trucks. In this case, a lease agreement is usually submitted to document the business relationship as one where the trucking company has been hired to deliver materials to the site.

PAGE | 24

Utah Department of Transportation

for Resident Engineers Frequently Asked Questions about DBE Requirements (cont’d): When counting DBE participation toward a project goal, DBE regulations allow for a one-to-one match of DBE trucks and non-DBE subcontracted or leased trucks. A DBE trucking company who maintains this ratio can receive 100 percent credit for DBE participation toward a goal. A DBE If a DBE trucking company trucking company who uses additional non-DBE trucks over and above the one-to-one match, is using leased trucks, what can only receive credit for the commission (or markup) associated with the additional trucks. (A kind of information do I sample calculation is available for reference at the following link: _Exhibit E _ .)

need to document so that I can correctly certify the val- An inspector should be aware of the trucks on the project, including who owns them, who is drivue of the DBE commitment? ing them, who is paying the drivers and who is directing their work. All of these questions, which are summarized in the instructions accompanying the C-141, Commercial Useful Function Project Site Review will help to determine if a DBE Trucking Company who is using leased trucks can receive full credit for their DBE participation.

The questions on the C-141, Commercially Useful Function Project Site Review are designed to help the interviewer determine if a DBE is performing a commercially useful function. (See the following link: _Exhibit E_). DBEs must be licensed and certified to work in the contract assignments they are asked to perform and should be interviewed at least once during the project.

How do I tell if a DBE is performing a Commercially Useful Function? In general, a DBE performing a commercially useful function, manages their own work, supervises

daily operations, and performs the work stated in the contract with their own employees and equipment. Specific rules regarding DBE participation are found in the Bid Conditions are also outlined in paragraphs 6, 7 and 8 of this section, Counting DBE Participation toward Goals for Performance.

The following are potential indicators of fraud in the DBE program:

What are the indicators of fraud associated with the DBE Program?

•

A Prime and a DBE who have a legal business affiliation or a joint bank account.

•

The absence of written contracts between a prime and a DBE.

•

A lease agreement between a prime and a DBE.

•

A purchase agreements for a prime to supply materials to a DBE.

•

A prime who performs work on behalf of a DBE.

•

DBE employees who appear on the prime’s certified payroll.

D. B. E. C O N T R A C T R E Q U I R E M E N T S

Note: If fraud is suspected, please contact the Civil Rights Office immediately.

PAGE | 25

Civil Rights Technical Guide Frequently Asked Questions about DBE Requirements (cont’d): Good-Faith efforts are documented evidence that all necessary and reasonable steps to achieve a DBE goal, or other requirement, that by their scope, intensity, and appropriateness to the objective, could reasonably be expected to obtain sufficient DBE participation, even if they were not fully successful.

What are Good-Faith Efforts?

Where there is an established contract goal, it is the Department’s responsibility to make a fair and reasonable judgment whether a contractor that did not meet the goal made adequate goodfaith efforts. It is important to consider the quality, quantity, and intensity of the different kinds of efforts that the contractor has made. The efforts employed by the contractor should be those that one could reasonably expect a contractor to take if the contractor were actively and aggressively trying to obtain DBE participation sufficient to meet the DBE contract goal. Mere pro forma efforts are not good-faith efforts to meet the DBE contract requirements. The Department emphasizes, however, that its determination concerning the sufficiency of a contractor’s good-faith efforts is a judgment call, meaning that quantitative formulas are not required.

Note: Please contact the Civil Rights Office if assistance in making an evaluation of good-faith efforts is required.

The Contractor’s DBE commitment at bid becomes a contract specification upon award of the contract and consequently establishes the minimum goal for contract performance.

What are the sanctions for failure to meet the DBE Commitment on a project?

It a contractor fails to achieve the minimum goal, established in the contract at the time of the award of the contract, or later as modified by change order, the contract payments shall be reduced as a liquidated damage (and not as a penalty) by an amount equal to the dollar amount of work not performed by the DBE. The dollar amount of any sanction will be computed using the unit prices indicated in the DBE subcontract. Exceptions: •

Any authorized adjustment in the DBE Commitment that has been approved by the Resident Engineer and the Civil Rights Office and documented by change order.

•

Any race neutral participation substituted for the race conscious deficiencies through the change order process.

If a contractor fails to achieve the minimum goal, the Resident Engineer shall also report that the Contractor does not fully meet contract requirements under the Contract Administration section of the C-119, Contractor Performance Rating.

PAGE | 26

Utah Department of Transportation

for Resident Engineers SECTION III E. E. O. CONTRACT REQUIREMENTS

The UDOT Equal Opportunity Contract Compliance Program was developed and is administered by the Civil Rights Office to monitor the operations of all construction companies under contract with the Department on Federal-aid projects to ensure that they do not discriminate on the basis of race, color, religion, sex, national origin, age or disability in any aspect of their employment and contracting practices. It also defines the actions taken when it has been determined that contractors are out of compliance with the required contract provisions.

The objectives of the UDOT Equal Opportunity Contract Compliance Program are established by including the following Bid Conditions in every construction contract:

Attention Contractors EEO Affirmative Action Requirements

XI.

Specific Equal Employment Opportunity Responsibilities

XII.

Title VI Appendix A & Appendix E

XIII.

FHWA -1273 Required Contract Provisions Federal-Aid Construction Contracts

Also required is the Cargo Preference Act, the Buy America section of the project specific 01455 specification (if applicable), and the project specific Davis-Bacon wage rates (if applicable). These sections outline the general Equal Opportunity and Affirmative Action Contract Compliance requirements for all contractors, at any tier, who participate in a contract or subcontract for $10,000.00 or more. Section X, Attention Contractors, EEO Affirmation Action Requirements, contains the Office of Federal Contract Compliance Programs (OFCCP) goals for minority representation in each trade by County, and also the State-wide goal for female utilization, which is 6.9 percent. These goals are applicable to all contractors’ or subcontractors’ construction work performed in the covered areas, whether or not the work is part of a Federally-assisted contract. Although the contractor has a number of responsibilities associated with this specification, most of these activities are monitored by the Civil Rights Office through their compliance review process. The Resident Engineer’s role is to assist the Civil Rights Office by monitoring the project specific requirements associated with the program, and by serving as a resource to the workers on their projects who may have concerns regarding their equal opportunity rights under the law.

C O N T R A C T R E Q U I R E M E N T S

PAGE | 27

Civil Rights Technical Guide A.

CONTRACTOR REQUIREMENTS

Upon award of any Federal-aid contract of $10,000.00 or more, a contractor agrees to the Affirmative Action and Equal Employment Opportunity Program defined in FHWA 1273. The responsibilities associated with this program have been outlined in detail in the Civil Rights Technical Guide for Contractors, which is a companion to this guide. The results of a proactive equal opportunity program should be evident to the Resident Engineer who works with a contractor on a specific construction project, as compliance with these requirements will mean the project-specific submittals associated with equal employment opportunity will be readily available for use on the project.

Contractor Submittals The following submissions are required prior to beginning work:

•

OFCCP Notification: Every contractor who has a construction contract in excess of $10,000 at any tier is required to provide written notification to the Director of the Office of Federal Contract Compliance Programs (OFCCP) within 10 working days of award of a contract.

•

Identification of EEO Officer(s): The contractor shall designate in writing the EEO Officer(s) who will have responsibilities for the project, either before, or at the preconstruction conference. (FHWA 1273.11.2)

•

EEO Policy: The contractor should submit a copy of his company EEO policy to the Region Contract Specialist (in the Region where the contractor’s home office is located) upon the award of the first contract (or subcontract) in any given calendar year and any time that an update to the policy is made. (For more information, see the following link: _Exhibit I_.) (FHWA 1273.11.2)

•

Project Specific EEO Complaint Procedure: The contractor should submit a project-specific EEO Complaint Procedure to the Resident Engineer, either before, or at the preconstruction conference. Subcontractors should submit EEO Contact Information to the Prime Contractor with their executed C-115 & C-116s to be posted on the bulletin board with the project-specific EEO Complaint Procedure. (The Resident Engineer will not approve the C-115 & C-116 until this information has been provided.) (An EEO Complaint Procedure template is located at the following link: _Exhibit J_.) (23 CFR 230.409.e.2.viii), (FHWA 1273.11.5.d)

•

C-115 & C-116: An executed C 115 and a C-116 must be submitted to the Resident Engineer and approved before a subcontractor appears on the project to work.

•

EEO Meeting Documentation: Periodic meetings of supervisory personnel office employees will be conducted before the start of work and then not less than once every sox months, at which time the contractor’s EEO policy and its implementation will be reviewed and explained. The meetings will be conducted by the EEO officer. Examples of meeting dicumentation are agendas, meeting minutes, rosters, etc., that actually document that meetings have taken place. (FHWA 1273.11.3.a)

Submissions Prior to Beginning Work

PAGE | 28

Utah Department of Transportation

for Resident Engineers Contractor Submittals cont’d The following project-specific documents are required to be posted on the project bulletin board:

Bulletin Board Requirements

•

Contractor’s EEO Policy Statement and the EEO Policy Statements of each subcontractor. (Information on EEO Policy Statements can be found at the following link: _Exhibit I_.)

•

The Project Specific Complaint Procedure (A template and instructions for the EEO Complaint Procedure is available at the following link: _Exhibit J_.)

•

The Project Wage Decision. (See the project contract documents.)

•

Any 1444s which have been submitted (including the DOL response when received).

•

The Davis-Bacon Act (Government Construction) poster.

•

Notice to All Employees Working on Federal or Federally Financed Construction Projects.

•

FHWA-1022 (False Statements on Federal-Aid Roads) poster.

In addition to the project-specific information, all posters required by law should also be posted on the project bulletin board. These currently include, but are not limited to the following:

•

Equal Employment Opportunity is the Law Notice and Supplemental Notice;

•

The Fair Labor Standards Act Federal Minimum Wage poster;

•

Your Rights Under the Family and Medical Leave Act poster;

•

The Job Safety and Health Protection (OHSA) poster; and

•

The Utah Department of Workforce Services Unemployment Insurance Notice to Workers.

Information regarding posting requirements is available on the US Department of Labor Website. Many of these posters are available in both English and Spanish. Please consult with your legal counsel if you have questions regarding your company’s specific requirements. (23 CFR 230.409.e.2.i)

E. E. O. C O N T R A C T R E Q U I R E M E N T S

For a full list of Bulletin Board requirements, follow link to form C131: _Exhibit L_

PAGE | 29

Civil Rights Technical Guide Contractor Submittals contâ&#x20AC;&#x2122;d FHWA regulations require that all contractors who work on Federal-Aid projects must maintain a workplace free of harassment, intimidation, and coercion. UDOT will ensure that this is happening by asking Contractor employees during EEO/Labor interview if they have been harassed, intimidated or coerced at work.

Harassment, Intimidation And Coercion

All contractors on the project must have HIC language within the EEO policy, stating that they maintain a workplace free of harassment, intimidation, and coercion. This must be included on the Bulletin Board. (41 CFR 60.4.3.7a)

(HIC) Training

PAGE | 30

Utah Department of Transportation

for Resident Engineers B.

RESIDENT ENGINEER RESPONSIBILITIES

The Resident Engineerâ&#x20AC;&#x2122;s project specific Equal Opportunity Contract Compliance responsibility is to conduct periodic inspections of project sites to insure that working conditions and employee facilities do not indicate discriminatory treatment. Inspections include on-site interviews of employees, bulletin board reviews and verification of contractor submittals required to document compliance with Equal Employment Opportunity (EEO) requirements. Specific documentation requirements are summarized below:

E. E.

EEO Documentation Requirements:

EEO Policy (Company Program)

A contractor should submit a copy of his company EEO policy to the Region Contract Specialist (in the Region where the contractorâ&#x20AC;&#x2122;s home office is located) upon the award of the first contract (or subcontract) for more than $10,000.00, in any given calendar year, and any time that an update to the policy is made. (FHWA 1273 II.3) (Instructions regarding the EEO Policy are available at the following link: _Exhibit I_.) The Region Contract Specialist will post this information to the Civil Rights Directory in ProjectWise.

The Resident Engineer should verify that a current EEO Policy has been submitted by checking the information in ProjectWise. If policy is not found in Projecwise, contact RCS to validate data and if necessary request copy from contractor for your files. (41 CFR 60.4.3.7a)

EEO Complaint

The contractor should submit a project-specific EEO Complaint Procedure to the Resident Engineer, either before, or at the preconstruction conference. (FHWA II.5(d)), 23 CFR 230.409.e.2.viii) Subcontractors should submit EEO Contact Information to the Prime Contractor with their executed C-115 & C-116s to be posted on the bulletin board with the project-specific EEO Complaint Procedure. (The Resident Engineer should not approve a C-115 & C-116 until this contact information has been provided.)

Procedure (Project Specific)

The Resident Engineer should verify that the Complaint Procedure contains the correct project-specific information and periodically monitor the subcontractor contact information on page 2 ( as a part of the regular bulletin board review) to see that the form is updated when new subcontractors are added to the project. A copy of the Complaint Procedure should be saved in ProjectWise with the other project-specific civil rights documentation. The version saved in ProjectWise should be a final draft that contains the information for all of the subcontractors who participated on the project.

C O N T R A C T R E Q U I R E M E N T S

PAGE | 31

Civil Rights Technical Guide EEO Documentation Requirements cont’d:

EEO Meeting Documentation

Identification of the EEO Officers (for the project)

Periodic meetings of supervisory and personnel office employees will be conducted before the start of work and then not less often than once every six months, at which time the contractor’s EEO policy and its implementation will be reviewed and explained. The meetings will be conducted by the EEO Officer. (FHWA 1273.II.3.a)

The contractor shall designate in writing the EEO Officer(s) who will have responsibilities for the project, either before, or at the preconstruction conference. (FHWA 1273.11.2)

The Resident Engineer should save a copy of the written document in ProjectWise with the other project-specific civil rights documentation. An executed C 115 and a C-116 must be submitted to the Resident Engineer for approval before a subcontractor appears on the project to work.

The Resident Engineer should consider the following information before granting approval of a subcontract:

C-115: Request to

•

A general contractor must perform at least 30% of the work. (FHWA 1273 VI.1.)

Sublet Work

•

Subcontracted work to a DBE should honor the original contract commitments which were made to DBEs as a part of the bid. Check the DBE Commitment to verify this information.

•

C-116: Subcontract Agreement Certification For Federal-Aid Projects

A fully executed copy of each executed subcontract for the project should be placed in ProjectWise, including all of the required supplementary Equal Opportunity Bid Conditions that print with the C-116. Because the C-115 and C-116 are an abbreviated confirmation of the contract between the contractor and a subcontractor, the Resident Engineer should randomly select one of every ten subcontracts and request the submittal of a copy of the full contract for review by the Resident Engineer to make sure these agreements comply with the required Federal-Aid provisions. This documentation should be saved in ProjectWise.

PAGE | 32

Utah Department of Transportation

for Resident Engineers EEO Documentation Requirements cont’d: At the beginning of the project and bi-monthly thereafter, the Resident Engineer should check the project bulletin board to see if the correct information is posted, accessible, and readable. Form C-131 should be used for this purpose. The following guidelines apply to the bulletin board:

Bulletin Board Reviews

•

The bulletin board must be located on the job site, in an area accessible to employees and potential employees, 24 hours a day.

•

The bulletin board needs to be up at the beginning of the project and reviewed for compliance at that time.

•

If it is not in compliance, notify the contractor immediately so that any deficiencies can be corrected. Payments are to be held until the board is in compliance.

•

Reviews should be completed bi-monthly thereafter.

•

The area around the bulletin board must be clear and unobstructed.

•

If there is a cover on the bulletin board, the cover must be easily opened, and transparent and clean.

A copy of Form C-131 is available at the following link: _Exhibit L_. Copies of the bi-monthly bulletin board reviews should be placed in ProjectWise, along with the other project specific civil rights documentation. (23 CFR 230.409.e.2.i)

Harassment,

Review the bulletin board for HIC language in EEO policy.

Intimidation

R.E. will ensure that HIC training is happening by asking the contractor’s employees, during EEO/ Labor interviews, if they have been harassed, intimidated or coerced at work.

And Coercion (HIC) Training

(41 CFR 60.4.3.7a)

E. E. O. C O N T R A C T R E Q U I R E M E N T S

PAGE | 33

Civil Rights Technical Guide C.

FREQUENTLY ASKED QUESTIONS Frequently Asked Questions about EEO Requirements: Every EEO Policy must include the following statement:

What is the statement that “It is the policy of this company to assure that applicants are employed, and that employees are must be included in every treated during employment, without regard to their race, religion, sex, color, national origin, age, EEO Policy? or disability. Such action shall include: employment, upgrading, demotion, transfer, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training including apprenticeship, pre-apprenticeship, and/or on-the-job training.” (FHWA 1273 11.1(b).).

If a subcontractor does not have an EEO Policy in ProjectWise, do not approve a C-115 and C-116. The Resident Engineer should request that the Prime ask the subcontractor provide a copy of the EEO Policy to the Region Contract Specialist.

If the subcontractor cannot provide an EEO Policy because they do not have one, the short answer is to tell the Prime to find another subcontractor.

If a subcontractor does not have an EEO Policy, what The long answer is that signing a subcontract on a Federal-Aid projects represents a commitment to an Affirmative Action program that the subcontractor might not be ready for. The EEO Policy is should I do? only the first step in a long-term commitment to actively recruit, employ, compensate, train and promote employment without regard to race, religion, sex, color, national origin, age, or disability.

The question that is often asked is: Can’t the subcontractor just adopt the Prime’s EEO Policy? While adopting the Prime’s policy for use on a particular job might be possible, it does not fully represent the affirmative action commitment required of all UDOT contractors who work on Federal-Aid projects. The Civil Rights Office is available to provide assistance to any contractor who would like more information regarding compliance with equal opportunity contract requirements.

How often are Bulletin Board

A bulletin board review should be performed at the beginning of the project and bi-monthly thereafter.

Reviews required?

PAGE | 34

Utah Department of Transportation

for Resident Engineers Frequently Asked Questions about EEO Requirements (cont’d): The required FHWA-1273 and additional Federal documentation are now included when the C-116 Does the C-116 that is sub- is printed. Any Buy America provision, or proper wage rates (not included in the print out) that are mitted to the RE for approv- in the prime contractor’s UDOT construction contract are to be inserted by the prime contractor al need to include all of the (when applicable) prior to the signing of the C-116.

additional Federal

documentation that prints A decision was made to make this information a part of the printed C-116, to ensure that the when a subcontract is required contract provisions were included in every subcontract. Consequently, the entire docugenerated in PDBS?

ment, including the applicable wage decision and any Buy America provisions, are to be submitted to the Resident Engineer with the signed cover document for approval and should be saved in ProjectWise in their entirety.

Why would the prime contractor submit a C-115 for one trucking company and a lease agreement for another company?

If the contractor is leasing trucks only and supplying its own drivers, then a lease agreement would be submitted to document the relationship between the contractor and the trucking company.

If the contractor is leasing trucks that are supplied with drivers that are not employees of the prime, a subcontract might better document the business relationship, because it places the responsibility for control of the work and payment of the drivers with the trucking company.

E. E. O. C O N T R A C T R E Q U I R E M E N T S

However, if the trucks and drivers are not working on site, but only being used to haul material to and from the site, then the Davis-Bacon wages required on Federal-Aid projects do not apply to the drivers of the trucks. In this case, a lease agreement is usually submitted to document the business relationship as one where the trucking company has been hired to deliver materials to the site.

PAGE | 35

Civil Rights Technical Guide Frequently Asked Questions about EEO Requirements (cont’d): When reviewing a complete copy of a contractor’s contract with a subcontractor, the Resident Engineer should watch for the following: •

Does the subcontract include all of the standard EEO documents included in the prime’s contract? o Attention Contractors EEO Affirmative Action Requirements on Federal-Aid Construction Contracts of $10,000 or More. o Specific Equal Employment Opportunity Responsibilities.

When I review

o Title VI Appendix A Non-Discrimination Notice & Appendix E

a complete copy of a subcontract

o FHWA 1273 – Required Contract Provisions on Federal-Aid Construction Contracts

agreement, what

o Cargo Preference Act o Project-Specific Wage Decision (when applicable).

should I be looking for? •

Does the subcontract include the prime contract’s Buy-America Requirement.?

•

Does the subcontract require the subcontractor to meet UDOT insurance requirements?

•

Does the subcontract specify the UDOT standard retention requirement of 5 percent?

•

Does the subcontract require that subcontractors obtain the approval of the prime before negotiating any 2nd tier subcontract?

•

Does the subcontract require the subcontractor to meet the prompt payment specification regarding its obligations to suppliers and 2nd tier subcontractors (when applicable)?

Harassment or intimidation is a personalized form of anti-social behavior, specifically aimed at particular individuals. It is bullying or coercion or any other intentional behavior that would cause a person of ordinary sensibilities fear of injury or harm.

What is Harassment, Intimidation and Coercion?

In the work place, injury or harm includes fear that opportunities for fair treatment, better pay, benefits, training, or promotion will be adversely impacted if a person does not comply with an arbitrary standard, or because a person is the wrong race, color, national origin, religion, sex, age or because they have a disability. (An arbitrary standard is one that was developed without any basis.) A hostile, or offensive work environment can also include inappropriate or derogatory comments or actions regarding race, color, religion, sex, age or disability. Every person has the right to work in a harassment-free environment, and the responsibility to assist their employer in providing that environment for others as well.

PAGE | 36

Utah Department of Transportation

for Resident Engineers Frequently Asked Questions about EEO Requirements (cont’d):

What is Sexual Harassment?

Sexual harassment ranges from verbal or physical harassment of a sexual nature to the unwelcome or inappropriate promise of rewards in exchange for sexual favors. Sexual harassment is illegal. As defined by the US EEOC. “It is unlawful to harass a person (an applicant or employee) because of that person’s sex.”

E. E. O. C O N T R A C T R E Q U I R E M E N T S

PAGE | 37

Civil Rights Technical Guide SECTION IV TRAINING SPECIAL PROVISIONS REQUIREMENTS

The main objectives of the UDOT OJT program are: 1) To require training for minorities, women and other disadvantaged workers in crafts where they are under-represented, in an effort to provide opportunities for better paying skill trade jobs and journeyman positions. 2) To meet UDOT’s goal of ensuring equal opportunity within the highway construction industry.

1) To increase the participation of minority groups, women and other disadvantaged individuals available to meet the projected future labor needs within the highway construction industry in the State of Utah.

The objectives of the program are met by assigning training hours to specific Federal-aid highway construction contracts where there is adequate time for the completion of training and the greatest potential for long-term benefits to the trainees involved. The specific requirements associated with the OJT Program are address in the following Bid Conditions included in every construction contract: XI.

Specific Equal Employment Opportunity Responsibilities

Section XI, Specific Equal Employment Opportunity Responsibilities, contains the following project-specific information: • The Training Goal (where applicable as determined by the Civil Rights Office).

The Resident Engineer’s role is to assist the Civil Rights Office by monitoring the project specific requirements associated with this program, including assuring that the trainees involved are officially enrolled in a certified program and that the trainees and the training organization are both compensated according to program guidelines.

PAGE | 38

Utah Department of Transportation

for Resident Engineers A.

CONTRACTOR REQUIREMENTS

Training and upgrading of minorities and women toward journeyman status is the primary objective of the Training Special Provision. The contractor shall enroll minorities and/or women, where possible, and document good-faith efforts prior to the hire of non-minority males in order to demonstrate compliance with the Training Special Provision. The following is a summary of the basic requirements of the OJT specification:

Contractor Requirements:

Program Description

As part of the Equal Employment Opportunity Affirmative Action Program, the Contractor shall provide on-the-job training aimed at developing full journey status in the type of trade or job classification involved. The number of hours of training to be provided under the contract will be as shown on the bid schedule. Apprentices must be enrolled in an Office of Apprenticeship Training Employer and Labor Services (OATELS â&#x20AC;&#x201C; formerly BAT) approved program; or if the employee is a foreign-born and English-challenged worker, enrolled in the AGC Daily Dose English Program.

Training Hours

The minimum number of training hours is shown in the bid schedule. If the contractor provides training for more than the number of hours specified in the bid schedule, the per-hour payment will continue to be paid for all hours of training up to a maximum of double the assigned goal.

Subcontracting

If a portion of the contract work is subcontracted, and a determination is made that subcontractor trainees will be used to meet the goal, the Training Special Provision should be a part of the subcontractorâ&#x20AC;&#x2122;s contract. However, primary responsibility for meeting the training requirements imposed by this special provision remains with the prime contractor.

Minorities and Women

Training and upgrading of minorities and women toward journeyman status is a primary objective of the Training Special Provision. Minority trainees and women should be enrolled (e.g., by conducting systematic and direct recruitment through public and private sources likely to yield minority and women trainees) to the extent that such persons are available within a reasonable area of recruitment. The steps taken to achieve compliance with the Federal Projects with Full Size Plan Sheets requirements of the Training Special Provision must be demonstrated. However, this training commitment is not intended, nor should it be used to discriminate against any applicant for training, whether a member of a minority group or not.

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Civil Rights Technical Guide Contractor Requirements (contâ&#x20AC;&#x2122;d):

Classification

Trainees must be reported in the correct classification for the work performed. If they work outside of the classification for the apprenticeship program they are enrolled in, the hours are not credited towards their journeyman status, nor will they be credited towards the OJT goal for a project.

Certification

Trainees must have a current certification date in the PDBS Certified Payroll Contractor Employee Set-Up Screen. The date must be updated every 90 days and a copy of the certification provided to the Resident Engineer. If the certification date is not updated, employee hours will not be credited toward the OJT goal.

Distribution of Hours

The number of trainees should be distributed among the work classifications on the basis of need and the availability of journeymen in the various classifications within a reasonable area of recruitment.

C-130 OJT Form

The C-130 OJT, Training Commitment Form, must be submitted to the Resident Engineer at the preconstruction meeting or shortly after, but prior to beginning work on project. This form estimates the number of training hours anticipated by classification and is available at the following link: _______ Exhibit N_.

Apprentice-toJourneyman Ratio

PAGE | 40

The PDBS Certified Payroll System will generate an Apprentice-to-Journeyman Ratio report for the project. This report should be reviewed regularly to ensure compliance with the required Apprentice to Journeyman Ratio for the project. If there are issues of non-compliance, any apprentices outside the ratio requirement must be paid journeyman wages.

Utah Department of Transportation

for Resident Engineers Contractor Requirements (cont’d): Each trainee should be provided with a copy of the training program at the time of enrollment and a certification showing the type and length of training should be provided once the program has been satisfactorily completed.

Records should be maintained and periodic reports should be furnished to the Resident Engineer documenting contract performance as it relates to the Training Special Provision. The record keeping requirements for this specification can be met by:

Records •

Weekly entry of the certified payroll information into the PDBS Certified Payroll System for the duration of the project.

•

Entry of the certification dates into the PDBS Certified Payroll System before beginning work on the project and timely entry of renewal dates every 90 days for the duration of the project.

•

Submission of a copy of the certification letter from the OATELS that documents trainee registration and Davis-Bacon certification for each 90-day period that a trainee works on the project.

Reimbursement

The prime contractor is reimbursed for the training hours worked through the monthly pay estimate, or bi-weekly estimate if applicable. The reimbursement must be forwarded to the appropriate training agencies utilized by the prime contractor and/or any subcontractors working on the project. Contractors may reimburse subcontractors directly and then require them to reimburse the training agency they use.

C-139 Training Reimbursement Letter

All contractors are required to complete a C-139, Training Reimbursement Letter, at the conclusion of the project. Two forms are available at the following link: Exhibit O & O(a); one for the prime contractor and one for any subcontractors using trainees on the project. These forms documents payment in full to all training agencies for their work on the project. They require signatures from both the contractor and the training agencies involved. The project will not close until the Reimbursement Letter or Letters have been completed and submitted to the Resident Engineer as a part of the project documentation

OJT Supportive Services

Apprentices working on Federal-Aid projects are eligible for travel and daycare reimbursement. Details concerning this program can be obtained by calling the Civil Rights Office for assistance.

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PAGE | 41

Civil Rights Technical Guide Contractor Requirements (cont’d):

LD’s will be assessed if the project goal is not achieved and there has been no negotiation and approval from the Civil Rights Office for a change to the goal prior to substantial completion.

Liquidated Damages / Disincentive

Any request for a modification to a goal should be should be submitted to the Civil Rights Office along with documentation of good-faith efforts on the part of the contractor soon as possible so that an informed and impartial decision can be made.

LD’s are based on the estimated number of hours submitted for each classification on the C-130, Training Commitment Form, at the beginning of the project. They are calculated by combining the base rate + the fringe rate x the number of hours which were not achieved for each classification.

Contractor Submittals The following guidelines apply to the documentation required for projects with an OJT Training goal:

OJT Training

PAGE | 42

•

The C-130 OJT, Training Commitment Form, must be submitted to the Resident Engineer at the preconstruction meeting or shortly after, but prior to beginning work on the project.

•

Certification dates for individual trainees should be entered into the PDBS Certified Payroll System before beginning work and then updated every 90 days for the duration of the project.

•

A copy of the certification letter from the OATELS that documents trainee registration and Davis-Bacon certification should be submitted to the Resident Engineer before trainees begin work on the project and at each 90-day period that trainees continue to work.

•

The contractor should notify the Resident Engineer, or a member of the inspection team, when an apprentice or trainee first comes on the job.

•

Weekly entry of the certified payroll information into the PDBS Certified Payroll System for the duration of the project is required for the trainee hours to post to the PDBS project ledger in a timely manner.

•

A C-139, Training Reimbursement Letter, documenting payment of all funds to the training organizations involved should be submitted to the Resident Engineer by the contractor, and any applicable subcontractors, at the conclusion of work on the project.

Utah Department of Transportation

for Resident Engineers B.

RESIDENT ENGINEER RESPONSIBILITIES

The Resident Engineerâ&#x20AC;&#x2122;s project specific OJT Training responsibility is to conduct periodic on-site interviews of employees in a training program to insure that they are working in the classification associated with their training registration. In addition, OJT documentation and payroll information submitted by the contractor must correlate with PDBS project accounting payments to the contractor for training hours and also with the reimbursement affidavit from the contractor indicating that payment has been made to the training organizations involved for their service to the trainees. OJT Documentation Requirements:

C-130 OJT Training Commitment Form

The C-130 OJT, Training Commitment Form, must be submitted to the Resident Engineer at the preconstruction meeting or shortly after, but prior to beginning work on the project. This form estimates the number of training hours anticipated for each classification and identifies the corresponding training program. (A copy of this form is available for use at the following link: ________ Exhibit N_)

The Resident Engineer should know who the trainees are on the project and take the opportunity to interview these individuals to make sure that they are working in the training classification associated with their training program registration.

The C-130 OJT, Training Commitment Form, should be placed in ProjectWise as a part of the project-specific civil rights documentation.

A copy of the certification letter from the OATELS (Office of Apprenticeship Training Employer and Labor Services - formerly BAT) that documents trainee registration and Davis-Bacon certification should be submitted to the Resident Engineer before trainees begin work on the project and at each 90-day period that trainees continue work on the project.

OATELS Certification Letters

Letters certifying active enrollment in an approved program and the Davis-Bacon certification should be collected for each trainee before the trainee begins work and then every ninety days for the duration of the project. These letters should be placed in ProjectWise as a part of the project-specific civil rights documentation.

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Civil Rights Technical Guide OJT Documentation Requirements contâ&#x20AC;&#x2122;d: A C-139, Training Reimbursement Letter, documenting payment of all funds to the training organizations involved should be submitted to the Resident Engineer by the contractor, and any applicable subcontractors, at the conclusion of work on the project. (Copies of these forms are available for use at the following link: _Exhibit O & O(a)_.)

C-139 Training Reimbursement Letter

The Resident Engineer should verify that the PDBS project accounting payment to the contractor for training hours matches the contractorâ&#x20AC;&#x2122;s payment(s) to the applicable training organization(s) for their services. (This is a pass through of $10.00 per hour for verified hours worked by the individual trainees as part of the training program.)

The C-139, Training Reimbursement Letter, is required before a contract can be closed. It should be saved in ProjectWise and attributed as a Close-Out Document.

PAGE | 44

Utah Department of Transportation

for Resident Engineers C.

FREQUENTLY ASKED QUESTIONS Frequently Asked Questions about On-The Job Training:

What is OATELS?

What is the Journeyman Apprentice Ratio Report and why is it important?

OATELS is the Office of Apprenticeship Training Employer and Labor Services, formerly known as the BAT.

The Journeyman-to-Apprentice Ratio Report is found in the Report drop-down menu of the PDBS Certified Payroll System. It summarizes the total journeyman and apprentice hours worked by craft or classification on a particular project and then calculates the ratio of journeyman to apprentice hours. Contractors must comply with the OATELs prescribed Journeyman-to-Apprentice ratio. Compliance can be determined by running the project Journeyman-to-Apprentice Ratio Report. Contractors should regularly review this report to ensure compliance with the required Journeyman to Apprentice Ratio for the project. If the number of apprentices exceeds the prescribed ratio, the additional apprentices must be paid as journeymen. Please contact the Civil Rights Office if you have a project with concerns in this area.

The contract special provision, Specific Equal Employment Opportunity Responsibilities, Training Special Provisions, defines how trainees are to be paid: •

What is the minimum amount an apprentice or trainee can be paid on a Federal-Aid project?

Apprentices or trainees on Federal-aid projects may not be paid less than 60% of the journeyman rate for the classification being trained.

For an apprentice / trainee to qualify for payment less that the full wage as defined by the specifications, the following conditions must exist: •

The contractor must have submitted the required documentation showing registration and level of apprenticeship / trainee to the project office prior to commencement of the work.

•

The contractor must be in compliance with the required ratio of journeymen to trainees for the project.

Employees classified, on payrolls, as apprentices or trainees, who are not registered must be paid the full rates shown in wage determination for the classification of work actually performed. If an active apprenticeship program is no longer approved, the Civil Rights Office should be contacted immediately.

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Civil Rights Technical Guide Frequently Asked Questions about On-The-Job Training cont’d: The OJT Trainee Project Hours Worked Report is found in the Report drop-down menu of the PDBS Civil Rights System. It imports project information regarding trainee hours worked from the PDBS Certified Payroll System.

A contractor must complete two tasks for the information on this report to be up to date and accurate:

Where do I find the OJT Trainee Project

•

Entry of the trainee certification dates into the PDBS Certified Payroll System before beginning work on the project and timely entry of renewal dates every 90 days for the duration of the project.

•

Weekly entry of the certified payroll information into the PDBS Certified Payroll System for the duration of the project.

Hours Worked Report?

If a contractor feels that the information presented in the report in inaccurate, it is likely that one of these two requirements has not been met.

When the closing date for a new estimate is entered into the PDBS Project Accounting system, the trainee hours worked are pulled over to the project ledger. If the contractor’s payrolls are not up to date at that time, then any trainee hours that have been worked will not be available in the system when the entry is generated. Since the closing date of the estimate determines what hours are pulled over, any hours entered after the estimate is generated, that have a date falling in the time window of a closed estimate will not be captured on a current estimate.

Why don’t the Trainee Hours on the OJT Trainee Project Hours Worked Report match the Training Hours posted to the PDBS Project Accounting Ledger?

The first step in preventing this problem is to encourage the contractor to promptly enter certified payroll information in accordance with the specifications.

If an estimate has been generated and held open for a period of time while documentation issues or other matters are being resolved, the dates for the estimate can be removed and the estimate regenerated to capture any additional hours before sending a final draft to the contractor for signature.

Or, an adjusting entry to PDBS can be made at the end of the project to balance the trainee hours worked with the hours paid in the project ledger.

PAGE | 46

Utah Department of Transportation

for Resident Engineers Frequently Asked Questions about On-The-Job Training contâ&#x20AC;&#x2122;d: The contractor should be encouraged to make every effort to meet the goal, which is a contractual obligation associated with the bid. However, If it appears that a contractor will not be able to meet the training goal for the project, he should be advised to contact the Civil Rights Office immediateThe Contractor has notified ly. Do not wait until the end of the project when any request for an adjustment will appear to have the RE that he will been made simply to avoid sanctions.

not be able to meet the project training goal, is there something that can be done?

Whether or not the Civil Rights Office will authorize an adjustment to the goal will depend on a number of factors, including good-faith efforts to provide training opportunities to employees, the current number of contractor employees enrolled in training programs and the number of other projects underway by the contractor that may also have training goals. Any adjustment to the goal will have to be made by change order.

LDâ&#x20AC;&#x2122;s will be assessed if the project goal is not achieved and there has been no negotiation and approval from the Civil Rights Office for a change to the goal prior to substantial completion.

What are the sanctions associated with failure to meet the Project Training Goal?

A request for a modification to a goal should be should be submitted to the Civil Rights Office along with documentation of good-faith efforts on the part of the contractor soon as possible so that an informed and impartial decision can be made.

LDâ&#x20AC;&#x2122;s are based on the estimated number of hours submitted for each classification on the OJT 130 Training Commitment Form at the beginning of the project. They are calculated by combining the base rate + the fringe rate x the number of hours which were not achieved for each classification.

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Civil Rights Technical Guide SECTION V LABOR & DAVIS-BACON WAGE REQUIREMENTS

UDOT construction contracts for Federal-Aid projects require the payment of a specified wage for all workers on the project. The requirements and specified wage rates are found in the following section of the Bid Conditions:

XIII.

FHWA 1273 – Required Contract Provisions [on] Federal-Aid Construction Contracts

XIV.

Wage Rates Applicable

This section is applicable to all Federal-Aid construction projects exceeding $2,000.00 and to all related subcontracts and lower-tier subcontracts (regardless of subcontract size). The requirements apply to all projects located within the right of way of a roadway that is functionally classified as a Federal-aid highway. This excludes roadways functionally classified as local roads, or rural minor collectors, which are exempt, although UDOT may elect to apply these requirements to other projects.

Section IV of FHWA 1273 outlines the FHWA program requirements concerning Davis-Bacon Wages and other labor requirements. The Resident Engineer is responsible to certify contractor compliance with the requirements of this section.

Federal-Aid contracts awarded by UDOT are subject to the following Federal Labor Laws: Federal Labor Law Summary: The Davis-Bacon Act mandates that wages paid to laborers and mechanics must not be less than the hourly rates, including fringe benefits, in the wage determination found in the contract. Laborers and mechanics must be:

Davis-Bacon Act

The Related Acts

PAGE | 48

•

Paid weekly.

•

Properly classified for the work actually performed.

•

Paid according to the classification.

The Related Acts are Federal statues which authorize Federal assistance in the form of contributions, grants, loans, insurance, or guarantees for programs including the construction of highways, and airports. The language of these statutes include references to the Davis-Bacon labor standards provisions and the requirement that laborers and mechanics be paid prevailing wage rates. Consequently you will see the term DBRA, which is an acronym for Davis-Bacon and Related Acts.

Utah Department of Transportation

for Resident Engineers Federal Labor Law Summary (cont’d): The following compliance requirements were established by the Contract Work Hours and Safety Standards Act of 1962: •

A standard work week is defined as 40 hours.

•

Overtime is one and one-half times the basic hourly rate of pay for all hours over 40 in a work week, exclusive of fringe benefit payments.

•

The “Basic Rate” is defined as the straight time hourly rate actually being paid. When computing overtime, the basic rate shall not be confined to the contract minimum rate.

•

The prime contractor is liable for withholdings for any unpaid wages and liquidated damages in the sum of $10 per day for each calendar day an employee was required or permitted to work in excess of the standard workweek of forty hours without payment of overtime.

•

The prime contractor is liable for the unpaid wages and damages of his subcontractors

•

Intentional violations are a federal offense. The penalty is a $1,000 fine and/or six months in prison.

Contract Work Hours and Safety Standards Act of 1962 (CWHSSA)

The following compliance requirements were established by the Copeland Anti-Kickback Act: Full wages earned must be paid. Deductions from wages must be authorized:

Copeland “Anti-Kickback Act” (29 CFR Subtitle A Part 3)

False Information Act

•

Legal deductions are: FICA, Federal Withholding Tax, State Withholding Tax and Medicare.

•

Other deductions must be acknowledged in writing by employee.

•

The signed acknowledgement must accompany the first payroll in which the deduction occurs. UTAH STATE LAW REQUIRES the signed acknowledgement to be similar to the following: “I authorize my employer to deduct [amount of dollars] from my weekly payroll check for the following:”

•

The contractor, and all subcontractors, must submit weekly statements of compliance with all project certified payrolls.

The False Information Act made the use of false statements a felony under Title XVIII, Section 1001 of the United States Code.

L A B O R & D A V I S B A C O N W A G E R E Q U I R E M E N T S

PAGE | 49

Civil Rights Technical Guide Federal Labor Law Summary (cont’d): The Fair Labor Standards Act established compensable working time definitions:

Fair Labor Standards Act (FLSA)

•

“Hours worked” is defined as all time during which an employee is required to be on duty.

•

Overtime is to be paid for a workweek in excess of 40 hours at a rate not less than one and one-half the regular rate.

•

Regular rate and exemptions to overtime are also defined.

The Fair Labor Standards Act and other Wage and Hour Information is available on the on-line Regulatory Library of the Wage and Hour Division of the United States Department of Labor at the following link: www.dol.gov/whd.

Section XIV, Wage Rates Applicable, contains the General Decision File for Project Report. This report is the wage decision that has been generated specifically for the project. The following is a summary of the basic information regarding Prevailing Wage Rates:

Prevailing Wage Rate Information:

Davis-Bacon Wage Rate Application

Wage Rate for Each Classification

PAGE | 50

The Davis-Bacon Act requires specific Federal wage rates to be paid on all contracts in excess of $2,000. The classification of the work performed determines the rate of pay. There are some Federal-aid projects (local roads or rural minor collectors) that do not require Davis-Bacon wages. They still require all other EEO documents and requirements for Federal-aid projects.

Total Wage Rate = Base rate + Fringe rate Total Overtime Wage Rate = (Base x 1.5) + Fringe rate

Utah Department of Transportation

for Resident Engineers Each County has its own general decision number. General decision numbers begin with UT02 (UT = Utah, 02 = year of update) and end with 2 zeroes and a 2 digit number assigned to each area.

Rates do not change until a new wage survey is conducted by the U.S. Department of Labor. Except when: •

Union classifications prevail.

•

Union labor agreements change wages.

Above each classification (or group of classifications), an alphanumeric “identifier” and date provide information about the source of classification(s) and wage rate(s):

The State of Utah has

•

29 Separate County Decisions

i.e. SUUT3003A: SU = non-union (survey), UT = Utah, 3003 = sequential number used by the WDGS (Wage Determination Generation System), A = character used internally in processing wage determination

Identifiers beginning with characters other than SU indicate classification(s) and wage rates determined from union agreements: •

i.e. TEAM0222A: TEAM = Teamsters Union, 0222 = local number, used internally in processing wage determination.

A = character

•

The date shown is the effective date of most current negotiated rate entered into the WDGS. (Wage rates that have been modified are marked with an “*” (asterisk).

The PDBS Certified Payroll System generates a unique Contractor Code for each wage classification on a decision. This code is the identifying number that appears in the drop down menu on the Contractor Payroll screen in PDBS.

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Civil Rights Technical Guide A.

CONTRACTOR REQUIREMENTS

The prime contractor and all subcontractors are responsible to pay employees working on the project not only in accordance with contract requirements, but also in accordance with both Federal and State law. A weekly certified payroll and a statement of compliance documenting this action must be entered into the PDBS Certified Payroll System. Each payroll must be entered within 7 days of the end of the pay period. The following is a summary of the basic certified payroll requirements: Contractor Requirements: The Project Wage Decision must be posted on the Bulletin Board

The wage determination and any additional classifications added through the 1444 process, and the minimum wage poster must be posted at project site.

Accurate Time Records must be kept, by Wage Decision

Classification The Prime Contractor, and each subcontractor, must enter a weekly payroll in UDOT’s PDBS Certified Payroll System within seven days following the end of the pay period. Delay in submitting payrolls will result in an automatic posting of a $50.00 disincentive per payroll to the PDBS Project Accounting System, in accordance with the Special Requirements Attachment regarding Certified Payrolls in UDOT’s Notice to Contractors included in all contract documents.

Weekly Certified Payrolls must be entered into the UDOT PDBS Certified Payroll System

Submittal may be accomplished using one of two available options: Option 1: The Contractor creates and continues to use the company’s existing payroll software program to import the weekly certified payroll into the UDOT PDBS Certified Payroll System. The software program format utilized by the contractor must be certified by UDOT prior to the first import submittal.

Option 2: The contractor can access and utilize the Contractor Module in PDBS to manually enter employee data and certified payroll information into the system. Certified payroll information and statements of compliance entered into the PDBS Certified Payroll System by either option must be accurate and complete. The time reported should accurately correlate to the classification of work performed by each employee and all hours and deductions reported should be easily reconciled with the individual employee paychecks.

PAGE | 52

Utah Department of Transportation

for Resident Engineers Contractor Requirements (cont’d): Fringe benefits must be paid to a “bona fide” trust fund, to the employee, or to a combination of the two

If Fringe Benefits are not paid in cash, they

If fringe benefits are paid to a bona fide fund:

•

The employee must be able to have access to that fund

must be paid to a

•

The Contractor must provide written information to employee regarding the fund

Bona Fide Fund

•

Fringe benefit monies must be deposited into the fund at least quarterly

& D A V I S

If fringe benefits are paid directly to the employee, the payroll must easily identify the payment.

Contractors that pay Fringe Benefits into a conventional fund, plan, or program, must make their records available to the UDOT Civil Rights Office

L A B O R

When a contractor elects to pay some, or all of an employee’s fringe benefits into a fund, plan or program, (instead of cash) the program must be bona fide, or common to the construction industry. These types of benefits are listed in the Davis-Bacon Act and are recognizable as conventional funds because they are funded under a trust or insurance program. Written information describing the plan and the benefits, costs and vesting, must be provided to employees. The contractor must make contributions to the plan on a regular basis (i.e. not less often than quarterly) and detailed records of all plan transactions must be kept. If a contractor’s fringe benefit program is not of the conventional type, it must be approved by the U.S. Department of Labor National Office. Whether a contractor’s plan is conventional, or unique (and consequently approved by the DOL), a copy of the plan or program, and the written information provided to the employees, must be made available to the UDOT Civil Rights Office upon request from a UDOT Compliance Specialist. Plan records and financial transactions must also be available for audit upon request. If a contractor has previously submitted a copy of their plan or program to the UDOT Civil Rights Office and has since made significant changes to the plan, a new copy containing the changes should be submitted to the Civil Rights Office for their records.

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Civil Rights Technical Guide Contractor Requirements (contâ&#x20AC;&#x2122;d):

Written approval for unfunded (non-cash) Fringe benefit plans Is required from the Department of Labor

Project records must be retained and available for inspection or audit for a period of three years after completion of the work

Contractor is required to make employees available for interview during working hours

A 1391 Report of project activity is required every July.

PAGE | 54

Utah wage rate decisions do not include fringe benefits which are not expressed in an hourly rate. Such plans are generally considered unfunded plans. If proposed plans of this type do not meet regulatory requirements, the contractor may be required to establish an escrow account where deposits are made weekly, or not less often than quarterly, for the value of the appropriate sick leave, vacation, or other benefit contributions. If a contractor does receive plan approval, and an employee terminates prior to becoming eligible under the plan, then the employee must be paid those amounts from the escrow account upon termination. Note: Resident Engineers should contact a UDOT Compliance Specialist for additional information before accepting certified payrolls where unfunded fringe benefits are included as a part of the pay.

The contractor, or subcontractor, is required to keep all records required by the contract for a period of three years after the project is complete and to make the required records available for inspection, copying, or transcription by authorized representatives of UDOT, the FHWA, and the Department of Labor. There records include the name, address, and social security number or each worker on the project, his correct classification, hourly rates of wages paid (including rates of contributions or cost anticipated for bona fide fringe benefits or the cash equivalent, daily and weekly number of hours worked, deductions made, and actual wages paid.) The contractor shall make the required records available for inspection, copying, or transcription by authorized representatives of UDOT, the FHWA, and the Department of Labor, and shall permit such representatives to interview employees during working hours on the job.

The contractor shall make employees available for interview by authorized representatives of UDOT, the FHWA, and the Department of Labor upon request and shall permit such representatives to interview employees during working hours on the job.

Each contractor, and each subcontractor, who has a Federal-Aid contract, or subcontract exceeding $10,000, is required to submit a 1391 report of their project activity during July of any given year. A separate report is required for each project. (Instructions for the completion of the report are available at the following link: __ Exhibit R_.)

Utah Department of Transportation

for Resident Engineers Contractor Submittals: In accordance with the Special Requirements Attachment regarding Certified Payrolls in UDOT’s Notice to Contractors included in all contract documents, the following information must be entered into the PDBS Certified Payroll System for each employee appearing on a certified payroll:

•

Social Security Number. Note: After the initial entry, only the last four digits of this number can be seen by others using the system.

•

Full name

Employee Information

•

Gender

(entered into the PDBS Certified Payroll System)

•

Race

•

Hire Date

•

Classification as an Apprentice, or Journeyman, and Craft

•

For an Apprentice, the Sponsoring Agency, required hours, OATELS registration date, period of apprenticeship, and the current apprenticeship certification date are also required.

Once an employee has been entered into the system, their name is available for use during the certified payroll entry process.

Contractors who elect electronic import of their company’s existing payroll into the UDOT PDBS Certified Payroll System (Option 1) should contact UDOT for certification of their import format prior to their first import submittal.

Payroll Set Up (in the PDBS Certified Payroll System)

Contractors who elect to manually enter their company payrolls into the UDOTA PDBS Certified Payroll System (Option 2) should be aware of the following guidelines:

All certified payrolls must be entered by project. Be sure to select the correct project for your payroll entry from the drop down menu.

New payrolls should be set up for entry into the system consecutively in date order. The option to insert a payroll at a later date, or to modify the original date or number on a payroll is not available. Consequently, careful attention to the correct setup of the individual payrolls to be entered is required.

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Civil Rights Technical Guide Contractor Submittals (cont’d): The following information is required for each employee who appears on a PDBS Certified Payroll:

Payroll Entry (in the PDBS Certified

•

The Contractor Code(s) and Group Classification(s) that correspond to the wage decision for the project. Note: The code and classification selected from the drop-down menu must accurately represent the work performed by the employee.

•

The hours worked itemized by day and separated into straight time and overtime.

•

The regular hourly rate of pay that was paid to the employee and the overtime hourly rate where applicable.

•

The hourly fringe rate, entered as either funds paid into a bona-fide plan, or cash paid to the employee or a combination of both.

•

The gross amount paid to the employee for work on the project.

•

Other amounts paid to the employee including work on other projects and any other payments. The sum of these amounts, along with the total wages for the project, should accurately reflect the total value of the employee’s pay for the week, so that an audit of the employee’s check would easily reconcile with the numbers entered into the certified payroll system.

•

Deductions for Federal taxes, State taxes, FICA, Medicare, and other deductions. A description of any other amounts should be entered by right clicking on the Other Deductions box in the Contractor Payroll screen.

•

The check number.

•

The system will calculate the Total Net Earned, which should reconcile with the check which was issued to the employee.

Payroll System))

The Certified Payroll System will automatically indicate whether the amount paid to an employee was in accordance with the wage decision classifications reported. If an error occurs, an entry explaining why there was an error, and what the course of action will be taken to correct it, will be required to complete the payroll.

PAGE | 56

Utah Department of Transportation

for Resident Engineers Contractor Submittals (cont’d):

SF 1444

If, after award of a contract, the contractor determines a new classification is necessary, the information to generate form GSA SF 1444, must be entered into UDOT’s PDBS Certified Payroll System. Then the form must be printed, signed and forwarded to the UDOT Civil Rights Office for processing. While the request is being processed, the contractor must pay the wage rate requested on the form.

Submission for Missing Wage Decision Classifications

A Compliance Specialist will review and forward the 1444 request to the U.S. Department of Labor for approval, as outlined in FHWA 1273.IV.1.6. If the USDOL does not agree with the proposed rate, they will determine a new rate. The contractor is then required to make up the difference to employees paid using the 1444 request wage. The contractor makes up the difference in wage by adjustment on a new payroll entry.

New approved classifications are “contract specific” and can only be used on the contract for which the request was originally made.

The following guidelines apply to Contractor Codes(s) and Group Classification(s) used to determine hourly rates of pay on a project:

Davis-Bacon Classifications on Payrolls

•

They must be in accordance with the wage determination found in the UDOT contract.

•

The classification chosen for an employee must accurately reflect the work which is performed.

•

When an employee works in more than one classification, an accurate record of time spent in each classification must be kept and itemized on a time record. If time cannot be segregated accurately, then the classification with the highest rate for work performed must be paid for all hours worked by the employee for that day.

•

Entries into UDOT’s PDBS Certified Payroll System must also accurately correlate with the classification(s) of work performed by the employee. Individual line item entries are required when time is spent on multiple classifications. All hours reported should reconcile with the employee’s time record.

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Civil Rights Technical Guide Contractor Submittals (cont’d): The following guidelines apply to the payment of overtime: •

Overtime must be paid for all hours worked in excess of 40 hours a week.

•

Overtime is paid at one and one-half times the basic wage rate.

•

The basic wage rate does not include payments for fringe benefits.

Overtime and Fringe Benefits: •

Overtime

Fringe Benefits are paid at the same rate for all hours worked regardless of whether they are regular time, or overtime. (ie. There is no premium rate for fringe benefits associated with overtime hours.)

Overtime Options for Employees who work in Multiple Classifications: •

Overtime can be assigned to the classification associated with the last hours worked during the week. (ie. Overtime would be paid for any hours worked over 40 in the last classification where time was spent – typically on a Friday.)

•

A Weighted Average can be used to apply overtime proportionately according to the percentage of regular time worked in each classification.

•

In either case, employees must be informed how overtime will be paid prior to going to work.

•

Applying overtime at the convenience of the employer (i.e. for example to the classification with the lowest rate of pay or to the classification typically worked by an employee) is not an option.

The following guidelines apply to the payment of fringe benefits:

Fringe Benefits

PAGE | 58

•

The fringe benefits that must be paid are itemized in the contract wage determination.

•

They apply to all hours worked and are paid at the same rate for both straight and overtime hours.

Fringe Benefits are reported on the Statement of Compliance as follows (check the appropriate radio button): •

Where fringe benefits are paid to approved plans, funds, or programs.

•

Where fringe benefits are paid in cash.

•

If there is a combination of fringe benefit payments, check both buttons and enter an explanation under the Exceptions screen.

Utah Department of Transportation

for Resident Engineers Contractor Submittals (cont’d): Deductions are defined as any money deducted from wages earned by an employee. They should not be confused with fringe benefits.

Deductions from wages must be authorized:

Deductions

1. The only legal deductions are: FICA, Federal Withholding Tax, State Withholding Tax and Medicare. 2. Other deductions must be acknowledged in writing by the employee. 3. UTAH STATE LAW REQUIRES the signed acknowledgement to be similar to the following: “I authorize my employer to deduct [amount of dollars] from my weekly payroll check for the following: 4. A copy of the signed acknowledgement must be forwarded to the Resident Engineer when the first payroll showing the deduction is entered into the Certified Payroll System.

Payroll adjustments are entered into the Certified Payroll System to document that restitution has been made for underpayment of wages.

The following guidelines apply to payroll adjustments:

Payroll Adjustments

Supplemental Payrolls

•

The restitution documentation should be entered as an adjustment associated with the original payroll by checking the adjustment box and entering the week ending date associated with the adjustment.

•

The Resident Engineer may request copies of both sides of a canceled adjustment check from the contractor as additional proof of payment.

•

Willful failure to pay wages due, including fringe benefits, can result in fines, debarment, and possible criminal action.

Supplemental payrolls are used to enter new information when an employee(s) has been inadvertently omitted from the information already submitted for a certified payroll.

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Civil Rights Technical Guide Contractor Submittals (cont’d): A Statement of Compliance must be entered in PDBS for each certified payroll. Entry of the Statement of Compliance information into the PDBS system is:

Statement of Compliance (WH-348)

•

A verification that all of the information entered into the PDBS Certified Payroll System is correct and complete.

•

A verification that the wage rates which were paid are not less than those required by contract wage determinations.

•

A certification that the work classifications indicated for each laborer, or mechanic, accurately represent the work which was performed.

•

An acknowledgement that the facts represented on the Statement of Compliance (Form WH348) are true.

The 1391 reporting screen is accessed in the PDBS Certified Payroll system, by selecting the project number, the contractor’s name, and the 1391 Salary Entry and Report option under the Report drop down menu. Instructions for completing the report are as follows:

•

The Reporting Month/Year should be entered by right clicking on the box and adding the date as follows: 7/1/20XX.

•

The Project % Complete should be entered in decimal format (i.e. 25 percent complete is entered as .25). This number represents the percent complete for the contractor, or subcontractor, who is reporting. Consequently, a subcontractor’s percent complete might be more, or less than the overall project percent complete reported by the prime.

•

Enter the Month and Year of peak employment as follows: XX/1/20XX. Again, this should represent the peak month for the contractor, or subcontractor, who is reporting, which may be different from the prime.

•

Number of Employees represents only the number of employees who will be reported in the box at the bottom on the report. Employees who have already been entered into the system on a certified payroll for the project do not have to be reported on this form. Only enter information for those employees who are salaried or otherwise exempt from Davis-Bacon wage requirements and consequently would not have appeared on a certified payroll. (i.e. foremen, superintendents, engineers, supervisors, owners, or clerical personnel.)

PR-1391 Report of Project Activity

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Utah Department of Transportation

for Resident Engineers B.

RESIDENT ENGINEER RESPONSIBILITIES

The Resident Engineerâ&#x20AC;&#x2122;s project specific Labor and Davis-Bacon Wage responsibility is to verify that the contractor has paid his employees in accordance with contract requirements through the use of on-site employee interviews and the review of certified payroll documentation submitted by the contractor and entered into the PDBS Certified Payroll System. Labor & Davis-Bacon Wage Documentation Requirements: Labor interviews of individual project employees are conducted to supplement the contract compliance certification process by confirming that the contractor is complying with contract EEO and labor requirements.

The Resident Engineer, or an appropriate designee, should conduct interviews when the prime contractor is on the project site and also for each subcontractor that works on the project site.

C-136 Labor & EEO Interview

L A B O R & D A V I S

The authorized interviewer should select a random number of employees, representative of each craft on the project site. When possible, at least one Caucasian, one minority and one female from each contractor and subcontractor should be interviewed. At least a few employees from each contractor on site should be interviewed to verify each companyâ&#x20AC;&#x2122;s compliance. (Form C-136, Labor & EEO Interview of Workers is available at the following link: _Exhibit P_.)

B A C O N

When each interview has been completed, a comparison of the C-136 to the certified payroll for the same time frame should be made. All persons interviewed should be on the payroll and should have been paid the hourly rate for the classification associated with the work which was performed during the week of the interview.

W A G E

If an employee represented on a C-136 does not appear on a payroll for the corresponding week, notify the contractor and request the submission of a supplemental payroll for the missing employee. If there are any compliance issues that cannot be resolved at the Region level, the Region Contract Specialist should contact the Civil Rights Office for assistance.

R E Q U I R E M E N T S

of Workers

A pdf of the C-136 should be saved in the confidential folder in ProjectWise. The Resident Engineer should also have a procedure in place in the project office to prevent unauthorized disclosure of the information contained in these sensitive documents. Hard copies of interviews should be stored in a secure location as soon as possible after the interview and the information contained in the documents should only be reviewed by those individuals who are responsible for processing them. (29 CFR 5.5.a.3.iii)

PAGE | 61

Civil Rights Technical Guide Labor & Davis-Bacon Wage Documentation Requirements (cont’d): C-136 Labor & EEO Interview of Workers

It is against Federal regulations for anyone, regardless of their position with the State, to disclose the information acquired during an interview of a contractor’s or subcontractor’s employee to anyone, other than those involved in the processing of this confidential material, without the prior written consent of that employee. 29 CFR Part 5.6 (a(5); USCA Title 5, 552a.

(cont’d) Although the PDBS Certified Payroll System automatically verifies much of the basic data requirements, it does not replace or relieve the Resident Engineer, or his authorized representative, from the responsibility to review the information entered into the system for accuracy and compliance with project specifications. A thorough review of all information is necessary to verify compliance with labor and Davis-Bacon contract requirements:

The following general guidelines apply to the review of certified payrolls:

PDBS Certified Payroll Review and

•

The Payroll Preview screen was designed for the Project Office to use when reviewing payrolls. However, the Contractor Payroll Screen will need to be used to access an itemized list of the Other Deductions for an employee. If there are Other Deductions, you will need to verify that they have been authorized by the employee. (Right Click on the Other Deductions Box at the bottom of the screen.)

•

All deductions and the total net wages that were paid should be shown in the system. If the employee has worked on more than one project, the wages for the other projects should be recorded at the bottom of the employee time entry screen in Other Projects. In other words, the information on the bottom line of the Contractor Payroll Screen (and the Payroll Preview Screen) should correspond exactly with the check issued to the employee. If you have any questions, you are authorized to request a copy of the check from the contractor for verification.

•

The labor interview is a key resource in the verification process. It provides information about how an employee’s time is kept, whether the work classification and the rate of pay correspond to the work that was performed, and whether this information has been accurately recorded in the PDBS Certified Payroll System.

•

The Employee Error Exceptions Report should be generated frequently so any errors or exceptions noted in the system can be referred to the Contractor for explanation and/or correction.

Acceptance

A checklist (C-138) outlining the certified payroll review process is available at the following link: _Exhibit Q_.

PAGE | 62

Utah Department of Transportation

for Resident Engineers Labor & Davis-Bacon Wage Documentation Requirements (contâ&#x20AC;&#x2122;d): Each contractor, and each subcontractor, holding Federal-Aid contracts, or subcontracts exceeding $10,000, is required to submit a 1391 report of their project activity during July or any given year.

PR-1391 Report of Project Activity

A separate report is required for each project.

An annual request from the Civil Rights Office will remind all Resident Engineers of this reporting requirement. It is the Resident Engineerâ&#x20AC;&#x2122;s responsibility to immediately notify the active contractors on his projects that this report is due and to follow up to see that compliance with this requirement has been met.

Instructions for completing this form are found at the following link: _Exhibit R_.

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Civil Rights Technical Guide C.

FREQUENTLY ASKED QUESTIONS Frequently Asked Questions about labor & Davis-Bacon Requirements: DBRA is an acronym for Davis-Bacon and Related Acts. The Davis-Bacon Act mandates that wages paid to laborers and mechanics must not be less than the hourly rates, including fringe benefits, in the wage determination in the contract.

Laborers and mechanics must be:

What is DBRA?

•

Paid weekly.

•

Properly classified for the work actually performed.

•

Paid according to the classification.

CWHSSA is an acronym for the Contract Work Hours and Safety Standards Act. The following compliance requirements were established by the Contract Work Hours and Safety Standards Act of 1962:

What is CWHSSA?

PAGE | 64

•

A standard work week is defined as 40 hours.

•

Overtime is one and one-half times basic hourly rate of pay for all hours over 40 in a work week, exclusive of fringe benefit payments.

•

The “Basic Rate” is defined as the straight-time hourly rate actually being paid. When computing overtime, the basic rate shall not be confined to the contract minimum rate.

•

The prime contractor is liable for the unpaid wages and damages of his subcontractors

•

Intentional violations are a federal offense. The penalty is a $1,000 fine and/or six months in prison.

Utah Department of Transportation

for Resident Engineers Frequently Asked Questions about Labor & Davis-Bacon Requirements (cont’d):

How many labor interviews are required?

The Resident Engineer, or an appropriate designee, should conduct interviews when the prime contractor is on the project site and also for each subcontractor that works on the project site..

The authorized interviewer should select a random number of employees, representative of each craft on the project site. When possible, the designee should interview at least one Caucasian, one minority and one female from each contractor and subcontractor. If there is no turnover in contractor personnel, follow up with spot check interviews once every 45 days.

As a recipient of Federal financial assistance, UDOT has a responsibility to provide meaningful access to Limited English Proficiency persons. Consequently, we must ensure that LEP workers have the opportunity to communicate effectively. The Employee Interview form (C-136) is written in English and Spanish to assist the interviewer.

A contractor’s employees do not speak English,

& D A V I S

If Resident Engineer’s designee, or another team member, does not have the language skills necessary to conduct an EEO interview with a LEP worker, a translator should be contacted for assistance. Use of the LEP worker’s immediate supervisor is not recommended, as the worker may not feel free to give honest answers to the interview questions.

B A C O N

A list of UDOT team members available for assistance with translation is regularly updated and e-mailed to all UDOT workers. UDOT Resident Engineers and Consultant Resident Engineers who need access to an updated list, or who are having trouble finding a translator, should contact the Civil Rights Office for assistance.

W A G E

how should I conduct a labor interview?

L A B O R

R E Q U I R E M E N T S

PAGE | 65

Civil Rights Technical Guide Frequently Asked Questions about Labor & Davis-Bacon Requirements (cont’d): The Civil Rights Office has an established procedure for the investigation of complaints. Please refer any worker with a labor-related complaint to the Civil Rights Office for assistance.

A worker on a project

It is our responsibility to advocate for the worker, so if for any reason, you feel that the worker needs some assistance to contact the Civil Rights Office, please follow through by offering to help. However, do not offer an opinion regarding the validity of the complaint, or offer any other advice on the course of action that should be taken beyond contacting the Civil Rights Office.

has approached me with a complaint, what should I do?

The Resident Engineer should also advise the Region Contract Specialist of the situation so that the parties responsible for the certification of the project documentation are aware that a potential issue has come up.

Once you have referred the matter to the Civil Rights Office, do not discuss the details with anyone. It is against Federal regulations for anyone, regardless of their position with the State, to disclose the information acquired during an interview of a contractor’s or subcontractor’s employee to anyone, other than those involved in the processing of this confidential material, without the prior written consent of that employee. 29 CFR Part 5.6 (a(5); USCA Title 5, 552a.

PAGE | 66

Utah Department of Transportation

for Resident Engineers Frequently Asked Questions about Labor & Davis-Bacon Requirements (cont’d): Why can’t a subcontractor find his name in the drop-down menu of the Contractor Certified Payroll Screen?

A subcontractor’s name will not appear in the drop-down menu of the Contractor Payroll Screen until a signed a C-115 and a C-116 has been approved by the Resident Engineer and the signature dates have been entered into the PDBS Project Accounting System. A subcontractor is not authorized to work on the project without an approved subcontract. If the subcontract documentation has been submitted, but not entered into the system, this will remedy the problem. If the subcontract documentation has not been submitted, the Resident Engineer should not allow the subcontractor to continue to work until this issue has been solved.

When there is an error, or a problem, with a subcontractor’s certified payroll, who should I contact?

What types of workers are exempt from the Davis-Bacon Wage Requirement?

The prime contractor is responsible for the subcontractor’s adherence to labor compliance regulations. UDOT does not have a direct contract with subcontractors and consequently, must resolve all labor compliance matters with the prime contractor. The prime contractor is responsible and may be held liable for restitution of wages due for violations by a subcontractor.

Employees of companies who provide professional services on projects are exempt from the Davis-Bacon Wage requirement. These include surveyors, material testing personnel, and civil engineering personnel providing consulting or design services.

Foreman, supervisors, clerical, administrative and other management personnel employed by contractors are also exempt from the Davis-Bacon Wage requirement. However, foreman, or supervisors who actively participate in the work performed by their crews are subject to the Working-Forman Rule. Any contractor personnel in the exempt category should be listed under the exceptions on the WH-348 in the PDBS Certified Payroll System.

“An individual employed in a bona fide executive, administrative, or professional capacity as defined in 29 CFR Part 541 is not a laborer or mechanic for purposes of Davis-Bacon and Related Acts.” USDOL Field Operations Handbook 15e15(a).

What is the Working Foreman Rule?

A supervisory employee who is not exempt under 29 CFR Part 541 and who spends more than a substantial amount of time (20 percent) working with, (ie. performing the same work as) the crew on a Davis-Bacon project, must be paid at least the specified hourly rate for whatever craft he/she is working in.

L A B O R & D A V I S B A C O N W A G E R E Q U I R E M E N T S

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Civil Rights Technical Guide Frequently Asked Questions about Labor & Davis-Bacon Requirements (contâ&#x20AC;&#x2122;d): Are Guards and Watchmen covered under the

Guards and watchmen who serve in no other capacity are not covered under the Davis-Bacon Act, and are therefore among the group of administrative personnel exempt for Davis-Bacon wages.

Davis-Bacon Act? Are Pilot Car Operations covered under the

Pilot car operations are covered under the Davis-Bacon Act. Drivers must be paid at the rate of pay specified in the Truck Drivers portion of the contract wage rates. The applicable wage rate classification would typically be for a Pickup Truck Driver. The owner/operator rule does not apply to pilot car operators.

Davis-Bacon Act? Are Materials Testing and Inspection personnel covered under the

Materials testing and inspection personnel are considered a part of the class of workers who provide professional services. Professional services are those types of activities that require advanced education and training of a technical nature. Workers who provide professional services are exempt from Davis-Bacon wage requirements.

Davis-Bacon Act?

Are Surveyors covered under the Davis-Bacon Act?

Surveyors are considered a part of the class of workers who provide professional services. Professional services are those types of activities that require advanced education and training of a technical nature. Workers who provide professional services are exempt from Davis-Bacon wage requirements.

Are Weigh Personnel covered under the Davis-Bacon Act?

Is an Owner-Operator exempt from the Davis-Bacon Wage Requirement?

PAGE | 68

Weigh personnel are not covered under the Davis-Bacon Act, provided that their only duties are the weighing and recording of weights. An employee who owns at least a bona fide 20 percent equity interest in the enterprise in which he, or she, is employed, regardless of the type of business organization (e.g., corporation, partnership, or other), and who is actively engaged in its management, is considered a bona fide exempt executive. An individual with a 20 percent or greater interest in a business who is required to work long hours, makes no management decisions, supervises no one and has no authority over personnel does not qualify for the executive exemption. An Owner-Operator of a small construction company who works for and manages the company qualifies for the executive exemption. However, exemption from the wage requirement does not exempt the company from the requirement to enter certified payrolls into the PDBS Certified Payroll System or to pay the Davis-Bacon wage to any employees who are not owners. Payrolls should be entered and then the owner/operator entered as an exception under the WH-348 Statement of Compliance options.

Utah Department of Transportation

for Resident Engineers Frequently Asked Questions about Labor & Davis-Bacon Requirements (cont’d): The Site of the Work is the physical place or places where the work called for in the contract will remain and any other site where a significant portion of the work is constructed, provided that such site is established specifically for the performance of the contract or project.

Not included in site of the work are permanent home offices, branch plant establishments, fabrication plants, or tool yards of a contractor, or subcontractor, whose locations and continuance in operation are determined wholly without regard to a particular Federal or Federally-assisted contract or project.

How does the definition Batch plants, borrow pits, job headquarters, tool yards, etc., are part of the site of the work proof the Site of the Work vided they are dedicated exclusively or nearly so to the contract or project and are adjacent or impact the payment of virtually adjacent to the site of the work. Davis-Bacon Wages to contractor employees? If the staging area, pits, or batch plants can be accommodated on the project site, or on an adjacent property, but are located somewhere else simply to avoid paying Davis-Bacon wages, they should be included as a part of the site of work and the predetermined Davis-Bacon wages should be required.

Please contact the Civil Rights Office if you have any questions regarding the Site of the Work for a specific project. Recent court rulings and changes in the FAR may mean that some secondary sites will be considered to be within the regulatory definition of “site of the work” 29 CFR 5.2(l) and USDOL Field Operations Handbook 15b04.

Fabrication plants, batch plants, borrow pits, job headquarters, tool yards, etc., of a commercial or material supplier, which are established by a supplier of materials for the project before opening of bids, and not on the site of the work, as defined in 29 CFR 5.2(l), are not included in the site of How does the definition of the work. Such permanent, previously established facilities are not part of the site of the work, even where the operations for a period of time may be dedicated exclusively, or nearly so, to the the Site of the Work im- performance of a contract.

pact

Material Suppliers?

If, however, the material supplier has employees working offsite, who are required to go to the site of the work and there to perform more than an incidental amount of construction work (defined as 20 percent, or more) in any work week. The employees must be paid for all hours worked onsite at the applicable predetermined Davis-Bacon wage for the classification of work performed.

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Civil Rights Technical Guide Frequently Asked Questions about Labor & Davis-Bacon Requirements (cont’d): Truck Drivers (not truck owner operators) who come onto the site of the work to deliver, or remove materials or equipment are not covered under the Davis-Bacon Act. The general guidelines for trucking on a Federal-Aid project are as follows: •

Where the material, or equipment, is hauled from, and where the material or equipment is hauled to, will determine whether Davis-Bacon wages must be paid to the drivers.

When Hauling to a Federal-Aid Project: •

Davis-Bacon wages do not apply if the material, or equipment is hauled from: o A commercial source such as a commercial pit, or oil refinery. o A contractor’s private, permanent yard. o A public equipment rental company.

What are the rules

•

o A pit opened exclusively, or nearly so, to service a specific Federal-Aid project.

regarding the payment of Davis-Bacon wages to truck drivers who come onto the site of the work to deliver or remove materials? (Hauling Only)

Davis-Bacon wages apply if the material, or equipment is hauled from:

o A stockpile, set up specifically for a Federal-Aid project. o A crusher, or hot plant, set up exclusively, or nearly so, to service a specific Federal-Aid project. When Hauling Away from a Federal-Aid Project: •

Davis-Bacon wages do not apply if the material, or equipment is hauled to: o A commercial source, such as a recycling facility. o A contractor’s private, permanent yard. o A legal disposal site.

•

Davis-Bacon wages apply if the material, or equipment is hauled to: o A stockpile to be used on the project at a later time. o A location designated by UDOT, or a location specified in the contract. o The location of another Federal-Aid Project.

If you have any questions regarding the applicability of Davis-Bacon wages to the trucking operations on a Federal-Aid project, please contact the Civil Rights Office for assistance.

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Utah Department of Transportation

for Resident Engineers Frequently Asked Questions about Labor & Davis-Bacon Requirements (contâ&#x20AC;&#x2122;d):

What are the rules

As a matter of policy, the DBRA and CWHSSA provisions are not applied to bona fide owner-operators of trucks who are independent contractors.

concerning the

However, exemption from the wage requirement does not exempt the owner-operator from the requirement to enter certified payrolls into the PDBS Certified Payroll System or to pay the DaOwner-Operators vis-Bacon wage to any employees who are not owners. Payrolls should be entered and then the of Trucks and Other Hauling owner-operator entered as an exception under the WH-348 Statement of Compliance options.

Equipment?

This policy does not pertain to owner-operators of other equipment such as bulldozers, scrapers, backhoes, cranes, drilling rigs, welding machines, and the like. USDOL Field Operations Handbook 15e17.

If the concrete pumping truck is owned by the prime contractor, Davis-Bacon contract provisions apply.

What are the rules

If the concrete pumping truck is owned by the supplier, the rules regarding the delivery of materials determine whether or not Davis-Bacon contract provisions apply. Specifically, when a material supplierâ&#x20AC;&#x2122;s employees are required to go to the site of work and they spend more than an incidental amount of time (defined as 20 percent, or more) working there in any work week. The employees must be paid for all hours worked on-site at the applicable predetermined Davis-Bacon wage for the classification of work performed.

Concerning Concrete Pumping?

When a concrete pumping truck that is not owned by either the Prime Contractor, or the Supplier, is used on a Federal-Aid project, a subcontract agreement is required and the truck driver and/or pump operator must be paid Davis-Bacon wages in accordance with the wage-rate decision in the contract. The entry of certified payrolls into the PDBS Certified Payroll System is also required.

Whether the basis of payment on the contract between the Prime Contractor and the concrete pumping company is an hourly rate, or a cubic yard basis, or a lump sum basis, has no bearing on the Davis-Bacon requirement.

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Civil Rights Technical Guide Frequently Asked Questions about Labor & Davis-Bacon Requirements (contâ&#x20AC;&#x2122;d): If the crane is owned by the prime contractor, Davis-Bacon contract provisions apply.

What are the rules

If the crane is owned by a supplier, the rules regarding the delivery of materials determine whether or not Davis-Bacon contract provisions apply. Specifically, when a material supplierâ&#x20AC;&#x2122;s employees are required to go to the site of the work and they spend more than an incidental amount of time (defined as 20 percent, or more) working there in any work week. The employees must be paid for all hours worked on-site at the applicable predetermined Davis-Bacon wage for the classification of work performed.

concerning Crane Operations?

When a crane that is not owned by either the Prime Contractor, or the Supplier, is used on a Federal-Aid project, a subcontract agreement is required and the truck driver and/or crane operator must be paid Davis-Bacon wages in accordance with the wage-rate decision in the contract. The entry of certified payrolls into the PDBS Certified Payroll System is also required.

The basis of payment on the contract between the prime contractor and the crane service has no bearing on the Davis-Bacon requirement.

What are the rules regarding soil boring or drilling activities?

What are the rules

Soil boring contracts are considered covered by Davis-Bacon if they are directly related and incidental to, or an integral part of the actual construction process. This is to be distinguished from the situation where such contracts are for the formulation of engineering plans and specifications, designs, and the conduct of site investigations. The latter activities are regarded as preliminary work, and not as a part of the construction process [even though they may be a part of the work on a Design-Build, or other alternate delivery contract.] USDOL Field Operations Handbook 15d05.

There is a Davis-Bacon wage classification for a Power Equipment (1) Mechanic which appears on most wage decisions. Contractor employees who service and/or repair equipment on the site of the work, or on property adjacent to the site, or at a permanent repair facility that is dedicated to the project, are eligible to be paid wages under this classification.

concerning On-Site Equipment Repair?

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The US Department of Labor has ruled that employees of outside firms who repair tires, or equipment at the site of the project, or on property adjacent to the site, are covered by the contract labor provisions, if they perform a substantial amount of work at the site, which is defined as work exceeding 20 percent of the employeeâ&#x20AC;&#x2122;s time. USDOL Field Operations Handbook 15e19.

Utah Department of Transportation

for Resident Engineers Frequently Asked Questions about Labor & Davis-Bacon Requirements (cont’d): The general guidelines for the use of temporary agencies or leased employees are as follows:

What are the rules concerning the use of Temporary Agencies or Leased Employees?

•

If a temporary agency provides employees for a specific line item on a project (such as flagging) and provides a supervisor along with the employees, then a subcontract is required and the temporary agency must submit payrolls under their own name.

•

If a temporary agency supplies employees only, and no supervisor, two options are available to the contractor: o A subcontract can be executed for the temporary agency, who then must enter payrolls into the PDBS Certified Payroll System under their own name. o The temporary agency may provide certified payroll information to the contractor, who can enter the information for the temporary employees into the PDBS Certified Payroll system along with their regular employees. In either case, both the temporary agency and the contractor will be held jointly responsible if the correct wage rates are not paid, or if a payroll is submitted fraudulently.

What are the rules concerning the use of a payroll processing

When a contractor uses a payroll processing company to process payrolls for their own employees, the payroll processing company must provide certified payroll documentation for the contractor to enter into the PDBS Certified Payroll System under the contractor’s name. The contractor and the payroll processing company will be held jointly responsible if the correct wage rates are not paid, or if certified payroll information is submitted fraudulently.

company?

When an employee

An accurate record of time spent in each classification must be kept and itemized on the payroll. If time cannot be segregated accurately, the classification with the highest rate for work performed Is working in more than one must be paid for all hours worked by the employee for that day. If during the certified payroll review process, there is any question about whether or not an employee’s time has been accurately classification, what wage segregated, a reviewer may request a copy of the time records for verification.

should be paid? When a contractor has a project located in more than one County, what wage decision prevails?

Each County has its own Wage Decision, which is included in the contract documents. When a highway construction project is located in more than County, if the work can be accurately segregated by county, then the contractor may pay the wages specified in the applicable decision to the employees working in each county. If the contractor cannot accurately segregate the work by county, then the contractor must pay the highest decision wage rate in each classification for all hours worked.

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Civil Rights Technical Guide Frequently Asked Questions about Labor & Davis-Bacon Requirements (cont’d): Where are salaried or other exempt employees Salaried or other exempt employees are not entered on the main Contractor Payroll entry screen entered into the PDBS

in the PDBS Certified Payroll System. They are entered as an exception on the Statement of Compliance.

Certified Payroll System? Why can’t I find a radio button for Exceptions on the Statement of Compliance Options

Although our UDOT programmers are awesome, they have been unable to get the radio button for Exceptions to appear under the Statement of Compliance Options on the PDBS Contractor Payroll Entry screen. Although you can’t see it, it is there. So, if you will move your mouse to the spot where it should be and click, the exceptions entry screen will pop up for your use.

in the PDBS Certified Payroll System? The following guidelines apply to the payment of overtime: •

Overtime must be paid for all hours worked in excess of 40 hours a week.

•

Overtime is paid at one and one-half times the basic wage rate.

•

The basic wage rate does not include payments for fringe benefits.

Overtime and Fringe Benefits: •

What are the rules

Fringe Benefits are paid at the same rate for all hours worked regardless if they are regular time, or overtime. (ie. There is no premium rate for fringe benefits associated with overtime hours.)

concerning the payment of Overtime? Overtime Options for Employees who work in Multiple Classifications:

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•

A Weighted Average can be used to apply overtime proportionately according to the percentage of regular time worked in each classification.

•

In either case, employees must be informed about how overtime will be paid prior to going to work.

•

Applying overtime at the convenience of the employer (i.e. for example to the classification with the lowest rate of pay or to the classification typically worked by an employee) is not an option.

Utah Department of Transportation

for Resident Engineers Frequently Asked Questions about Labor & Davis-Bacon Requirements (cont’d): Contractors are required to itemize an employee’s other deductions in the PDBS Certified Payroll System. This information can be entered (and reviewed) by right clicking on the Other Deductions box at the bottom of the Contractor Employee Entry Screen.

The following guidelines apply to the Resident Engineer’s review of payroll deductions:

What are the requirements concerning the

•

The only legal deductions are: FICA, Federal Withholding Tax, State Withholding Tax and Medicare.

•

Other deductions must be acknowledged in writing by the employee.

•

UTAH STATE LAW REQUIRES the signed acknowledgement to be similar to the following: “I authorize my employer to deduct [amount of dollars] from my weekly payroll check for the following:”

•

A copy of the signed acknowledgement must be forwarded to the Resident Engineer when the first payroll showing the deduction is entered into the Certified Payroll System.

•

Typical other deductions might be for an employee’s share of medical insurance premiums, child support garnishments, or perhaps 401(k) contributions. A reviewer should watch for atypical deductions like those associated with clothing allowance or auto fees and ask for documentation from the contractor indicating that an employee has authorized these deductions.

documentation of Other Deductions reported in the PDBS Certified Payroll System?

The 1444 Classification by Project Report displays all of the requests for 1444s that have been submitted by the contractors working on a project. This report should be used to monitor whether contractors have signed and submitted their 1444s to the Civil Rights Office for approval. (See the following link for instructions on how to access this report: _Exhibit S_.)

What is the 1444 Classification by Project Report and

If contactors fail to submit these requests on a timely basis, authorization to close a project contract will be delayed until a response from the DOL has been received. If the proposed wage rate happens to be rejected and additional payments are due to workers, these will have to be taken care of as well.

why is it important? The Civil Rights Office recommends that Resident Engineers routinely check this report to make sure that the 1444 classifications in use on project certified payrolls have been submitted to the Civil Rights Office for processing.

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Civil Rights Technical Guide Frequently Asked Questions about Labor & Davis-Bacon Requirements (cont’d): FHWA 1273 requires the contractor to submit a weekly certified payroll for each week in which any contract work is performed. The weekly submission of payroll information, including the Statement of Compliance, into the PDBS Certified Payroll system is the documentation required to verify that employees have been paid in accordance with the specifications.

In an effort to encourage contractors to stay up-to-date on their record keeping responsibilities, the PDBS Certified Payroll System automatically generates a $50.00 disincentive for each certified payroll that has not been entered into the system within 7 days of the payroll date as defined by the specifications.

Regarding the withholding of funds to ensure payment of wages, FHWA 1273 states:

If a contractor, “The contracting agency 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 have not entered their pay- 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 rolls into the PDBS Certified the same prime contractor, so much of the accrued payments or advances as may be considered Payroll System, can I hold a necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed progress payment? 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 an apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the contracting agency may, after written notice to the contractor, 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.” FHWA 1273, IV.2. May 1, 2012.

or his subcontractors,

Since there is always some reluctance to hold a progress payment and penalize all of the contractors involved on a project because of the failure of one or two subcontractors to comply with the timely submission of certified payrolls, the Civil Rights Office recommends that Resident Engineers aggressively monitor the submission of certified payrolls and work closely with the prime contractors on their projects to encourage all participants to meet this requirement, so that withholding of progress payments does not become necessary.

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Utah Department of Transportation

for Resident Engineers Frequently Asked Questions about Labor & Davis-Bacon Requirements (contâ&#x20AC;&#x2122;d):

Can a contractor still enter their 1391 data into PDBS after the Civil Rights deadline for entry of this information has passed?

It is never too late to enter the 1391 information into the PDBS Certified Payroll System. Although the optimum result is to report within the deadline, there is a small window of time while the Civil Rights Office compiles the data for their annual report. They want to be as accurate as possible, and will add any new information up until their submission deadline. In any event, this information is required to be in the system whether the deadline has passed, or not, and is one of the items that will be verified before a project is authorized to close.

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Civil Rights Technical Guide SECTION VI OTHER CIVIL RIGHTS REQUIREMENTS

The remaining civil rights contract requirements are as follows: â&#x20AC;˘ Although the prompt payment for work is a part of the DBE requirements, UDOT standard specifications require the prompt payment of all subcontractors and the release of retention within 30 calendars days after a prime contractor receives payment from the Department.

â&#x20AC;˘ At the conclusion of a project the Resident Engineer is required to report the status of the project civil rights documentation on Form C-138, the Region Civil Rights Final Checklist. This form is to be filled out twice, once at 95% project completion and again when the project is submitted for final review to the Region Office. A copy of this form is available at the following link: _Exhibit T(a)_. Form C-137, which is a spreadsheet summary of the Civil Rights Documentation Requirements on Federal-Aid Projects, is also available for reference at the following link: _Exhibit T_.

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Utah Department of Transportation

for Resident Engineers A.

CONTRACTOR REQUIREMENTS

The prime contractor is required to enter their payments to subcontractors into the UDOT PDBS Subcontractor Payment Screen within 30 calendar days of receiving payment from the Department. Contractor Requirements: The following guidelines apply to the contractor’s responsibility for prompt payment of subcontractors:

•

The 2012 Standard Specifications require that subcontractors must be paid and the payments entered into the PDBS Subcontractor Payment System within 30 days of each estimate.

•

When entering payments into the PDBS Subcontractor Payment System, care should be taken to associate payments with the bid item for which the work was performed.

•

If a subcontractor works on new bid items which were created by change order, an additional C-115 must be created so that the bid items associated with the additional work will be available for use in the subcontractor payment system when the time comes to record payment to the subcontractor for work on those items.

Payment of Subcontractors

Contractor Submittals:

Subcontractor Payments (entered into the PDBS Subcontractor Payment System)

C-115s (for any additions to subcontractor’s work)

The Department considers the entry of payment dates into PDBS as an affidavit certifying prompt payment by the prime contractor. The entry date is tied to the date the pay estimate is processed by the Department’s comptroller and will be flagged red if the entry date is more than 30 calendar days after the comptroller processing date, indicating failure to make prompt payment.

Payments covering more than one bid item should be entered into the PDBS Subcontractor Payment System on an item-by-item basis, with care taken to associate the payments with the work performed.

When subcontractors are asked to work on additional bid items which were not covered by the original C-115, or new bid items which were created by change order, an additional C-115 must be submitted to the Resident Engineer for approval, so that the bid items associated with the additional work will be available for use in the subcontractor payment system when the time comes to record payment to the subcontractor for work on those items.

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Civil Rights Technical Guide B.

RESIDENT ENGINEER RESPONSIBILITIES

The Resident Engineer’s other civil rights responsibilities include the responsibility to verify that the contractor has paid all of the subcontractors for their work. At the conclusion of the project the Resident Engineer is also required to report to the Region Contract Specialist and Central Construction that the civil rights project documentation has been reviewed and is in order and to certify that all contract requirements have been met. Other Civil Rights Requirements: The Resident Engineer is required to verify that the prime contractor has paid all subcontractors for their work. A regular analysis of the data entered into the PDBS Subcontractor Payment System on an item-by-item basis is required to verify that subcontractors have been paid for all items of work.

Subcontractor Payments

If a determination of failure to make prompt payment is made, the Resident Engineer should provide written notification to the contractor requesting that payment be made within three working days of receipt of the written notification.

The Department considers failure to make prompt payment a contract violation for which the contractor is subject to the following measures: •

The contractor forfeits the privilege of bidding on Department projects until payment has been made.

•

The contractor forfeits the privilege of having a subcontract to perform work or supply materials on Department projects until payment has been made.

The Department may consider additional measures up to and including debarment for repeated failure to make prompt payment and may employ other mechanisms consistent with the specifications and applicable state and local law to ensure that payment is fully and promptly made.

Region Civil Rights Final Checklist (C-138)

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Form C-138, the Region Civil Rights Final Checklist, is for the Resident Engineer’s use in determining that all of the Civil Rights project-specific contract compliance issues have been satisfactorily addressed. It must be submitted as documentation with the first progress payment after project work has reached 95 percent. It is also one of the final documents required to close a construction contract. The Civil Rights Office recommends that Resident Engineers use this as a working document throughout a project to ensure that all civil rights compliance issues are addressed before the project approaches the close-out milestones. (A copy of this form is available for use at the following link: _Exhibit T(a)_.)

Utah Department of Transportation

for Resident Engineers C.

FREQUENTLY ASKED QUESTIONS

Frequently Asked Questions about Other Civil Rights Requirements:

What if there are no payments recorded to a

One of the reasons why the Resident Engineer is required to monitor subcontractor payments is to have some level of confidence that there are no pending claims prior to closing the contract. If the Resident Engineerâ&#x20AC;&#x2122;s analysis of subcontractor payments indicates that a significant amount of money is still due to a subcontractor, or that no payments have been made, this is typically an indication of a potential problem. At the very least, further questions should be asked so that the Resident Engineer has some assurance that the contractor has met his obligations to subcontractors and suppliers on the project.

subcontractor? The absence of any payments to a subcontractor is a red flag. In this situation, Central Construction will not authorize the closing of a contract until some explanation has been made and the matter has been resolved to their satisfaction. The Civil Rights Office recommends that these types of issues be resolved before the project is submitted for final review.

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CIVIL RIGHTS TECHNICAL GUIDE FOR RESIDENT ENGINEERS

udot.utah.gov/go/civilrights