APPENDIX 2. CONSTRUCTION (PHS GPS 9505)

The following highlights policies and procedures in addition to 45 CFR Parts 74 and 92 and governing programmatic regulations applicable to PHS construction grants.

An applicant for a PHS construction grant must assure that it will not advertise for bids or negotiate a contract for any part of the grant-supported activity until working drawings and specifications have been approved. One set of design standards against which these drawings and specifications will be reviewed is program specific and is meant to ensure that the facility will suitably accommodate the service to be provided there. These standards are set forth in programmatic regulations and in other program policy issuances. In addition to these standards, there are general design requirements applicable to all PHS-assisted construction.

The following design requirements (1) are to be included in the review and evaluation of all working drawings and specifications:

1. Life Safety Code--National Fire Protection Association (NFPA) Publication No. 101 and supplements that apply for the code classification and type of occupancy of the particular facility.

2. Elimination of architectural barriers to the physically handicapped--The Architectural Barriers Act of 1968, as amended; Federal Property Management Regulation 101-19.6; and the Uniform Federal Accessibility Standards, issued August 7, 1984, by GSA. These requirements are contained in Technical Handbook 4.12, Design of Barrier-Free Facilities. See also section 4, "Public Policy Requirements."

3. Protection of the natural environment, including protection against natural disasters--National Environmental Policy Act of 1969. With respect to earthquakes, structures will be evaluated in accordance with the lateral forces provisions of the Uniform Building Code.

4. Uneconomical, hazardous, or unnecessary use of flood plains for construction--Executive Order 11988.

5. Flood insurance coverage--Section 102 of the Flood Disaster Protection Act (Public Law 93-234). See also section 4, "Public Policy Requirements."

6. Provisions for potable water supply--Safety of Public Water Systems Act (Title XIV of the Public Health Service Act).

7. Preservation of historical and archaeological sites-- Section 106, National Historic Preservation Act of 1966 and the Historical and Archeological Preservation Act of 1960, as amended. See also section 4, "Public Policy Requirements." Contact the State Historic Preservation Liaison Officer or National Trust for Historic Preservation (2) for additional details.

8. Conservation of vital energy resources (gas, oil, electricity, etc.)-- Facility design will be evaluated on the basis of American Society of Heating, Refrigeration, and Air Conditioning Engineers (ASHRAE) standards for energy conservation.

9. Conservation of petroleum and natural gas--Executive Order 12185.

10. Where necessary, special structural and other features to protect life and to minimize damage to facilities from tornados.

11. Clean Air Act, 77 Statute 392, as amended by Executive Order 11752.

12. Seismic safety for federally assisted construction-- Earthquake Hazards Reduction Act of 1977 (Public Law 95-124), as amended, and Executive Order 12699, Seismic Safety of Federal and Federally Assisted or Regulated New Building Construction, dated January 5, 1990.

Where State and local codes or requirements exceed the design requirements set forth in Technical Handbook 2.1 or standards incorporated in it, the more stringent requirements will be applied. Where State or local codes are proposed to be used as a basis for facility design in lieu of the HHS design requirements, a prior determination must be made by the appropriate HHS Office of Engineering Services that the specific State or local code is equivalent to, or exceeds, HHS requirements.

Applicants for construction grants may include a project contingency fund in initial cost estimates to provide for unanticipated charges. Such funds will be limited to 5 percent of construction and equipment costs before bids are received and will be reduced to 2 percent after a contract has been awarded.

Under construction grant programs, costs incurred before an award for architect's fees and consultant's fees necessary to the planning and design of the project are allowable if the project is approved and funded.

When phased 3 construction methods are employed, the grantee will normally be authorized to proceed with construction and to receive grant payments before approval of later phase contract awards, provided a guaranteed maximum price is obtained by the grantee before the award of the first construction contract for completion of the total project within the amount of funds available to meet the cost of the project.

PHS prior approval requirements for contracting under discretionary grants are found in section 8, "Changes in Expenditures/Activities."

PHS will find acceptable only those contracting methods that--

• Ensure that all qualified contractors are given an opportunity to bid and have their bids fairly considered.
  
  
• Guarantee, insofar as possible, that the contract(s) will result in the completion of a facility (ready for occupancy) that conforms to the design and specifications approved by the PHS awarding office (or any appropriate modification thereof with PHS awarding office approval, as required) at a cost that is within the owner's ability to pay (the term "owner" refers to the legal entity that holds (or will hold) title to the property on which the grant-supported construction is performed and is generally the applicant or grantee).

Therefore, PHS-assisted prime construction contracts under grants must conform to the following requirements.

All construction work must be procured by the methods described in 45 CFR Part 74, Subpart P, and 45 CFR Part 92.36. Normally, this means formal advertising resulting in lump sum, fixed-price contracts, although other procurement methods and other types of contracts may be authorized when formal advertising is impractical.

The grantee (owner) must obtain PHS awarding office approval of plans and specifications both before bids or proposals are solicited and before the award of a prime construction contract. The procurement methods to be employed must be reviewed by the regional Office of Engineering Services and must be approved by the PHS awarding agency or regional office. In those construction programs where a State agency has final approval authority, the State agency must concur in the contract award. The grantee (owner) is responsible for ensuring that the project is constructed to completion in accordance with the approved plans or specifications and for obtaining necessary approvals for changes (see section 8, "Changes in Expenditures/Activities").

The grantee (owner), including the firms acting for it in a professional capacity, must take adequate steps to ensure that the total cost of all contracts, i.e., total cost of construction, awarded under a project will be within the amount of funds available for the project.

This can be accomplished by accurate price estimating and/or the use of bid alternates. A precise description of the scope of work, specifications, materials, and construction techniques in the invitation to bid will facilitate accurate cost estimating by both the bidder and the grantee's (owner's) professional representatives. The description of work becomes especially important when multiple contracts will be let in support of the same project, since each contractor must know exactly what is involved in the portions of the job he is bidding on. Invitations to bid must stipulate a time for completion of the project, expressed either in calendar days or as a fixed date, for each prime contract to be awarded under the project.

Where more than one PHS (HHS) program will support a construction project or where the PHS-supported project is less than the entire facility or construction to be bid, the grantee must obtain bids that provide, to the maximum extent possible, the costs for that portion of the total job that will be financed by PHS funds. This may be done by showing the cost for each building or site in the project if it consists of more than one building or construction site and may be divided for bidding and construction purposes, or by identifying to the extent possible or prorating the applicable costs when the project is a single site or contains common space and may not be divided for bidding and construction purposes.

Where practicable, the grantee (owner) may request, in the invitation for bids, alternates to the base bid that are keyed to specified and explicitly stated changes in the project scope, materials, or construction techniques. Alternates may be used when the amount of the low bid exceeds the amount of funds available to the owner to award a contract, and the grantee (owner) must make adjustments to the project so as to reduce costs in order to award a contract within the funds available. Additive alternates may be used when available funds exceed the amount of the low bid, thus making it possible to incorporate necessary features that otherwise would not have been included in the project. Alternates that are selected will be included in determining the low aggregate bid. If all bids exceed the funds available even after the steps described above have been taken, the grantee (owner) may--

1. Decline to award a contract and instead issue a revised invitation to bid containing changes in specifications or other factors affecting price that have been approved by the PHS awarding office.

2. Negotiate with the low bidder (this is an exception to formal advertising), or if that bidder should refuse, in writing, to negotiate, negotiate with the next lowest bidder. Any changes in design and specifications resulting from such negotiations must be approved by the PHS awarding office. If efforts to negotiate are unsuccessful, all bids shall be canceled and the project shall be rebid.

3. If a construction management firm is currently employed by the grantee (owner), authorize that firm to perform the construction work after obtaining PHS awarding office prior approval. The price for the work involved must not exceed the line-item prices stipulated in the construction management contract (guaranteed maximum price) as approved by the PHS awarding office (see below for requirements for a construction management agreement).

4. Enter into a design-construct contract for a functionally equivalent facility by the methods described below.

Construction management services are management services that may be produced on a negotiated basis rather than by formal advertising. These services include technical consultation during the design state of a project and organization and direction of construction activities during the construction phase. The services of construction managers may also be procured by formal advertising in those cases where State or local governments prohibit the procurement of construction management services on a negotiated basis. Where bids are taken, the bidders should be prequalified.

The construction management contract must place total financial responsibility on the construction manager to complete construction of the project at or below the guaranteed maximum price. If the contract exceeds $100,000, the construction manager shall be required to provide 100-percent performance and payment bonds to ensure the grantee (owner) that the facility can be completed within the amount of available funds (see 45 CFR Part 74, Subpart C).

When a construction management firm is retained by the grantee (owner), a guaranteed maximum price must be obtained from the construction manager before PHS will authorize the award of the first construction contract. This requirement shall apply whether or not phased construction techniques are employed. Each portion of the work for which a separate contract is expected to be let shall be separately priced as an individual line item in the guaranteed maximum price contract.

Contracting for construction work on a project covered by a construction management agreement as in item 3 above is subject to the requirements for bidding and award of contracts, except that bids may be obtained by prequalification and selective solicitation. When prequalification and selective solicitation are used, the construction manager must (1) issue, no more than 6 months in advance of the date of the invitation to bid, a "sources sought" announcement in newspapers or other publications having general circulation in the area specifically describing the nature of the construction work required, the separate contracts that will be let, and the standards for prequalification; (2) prequalify all firms that respond to the announcement and which are determined to meet the prequalification standards; (3) establish bidders lists for each of the invitations to bid, including at least all firms qualified in (2), and that may also include other known qualified firms; (4) by written invitation, solicit bids from all firms on the bidders list; (5) consider bids from any contractor who requests permission to bid and who is determined by the grantee (owner) to meet the prequalification standards; and (6) advertise the project formally if fewer than three responsive bids are received in response to the selective solicitation.

In design-construct contracting, construction firms respond to a request for proposals by submitting building designs that they claim will meet the grantee's (owner's) performance requirements within a guaranteed maximum price covering all architectural, engineering, and construction services required.

The design-construct firm must be selected in a manner that will allow maximum feasible competition. Because of the nature of design-construct contracting, the following departures from formal advertising are authorized:

1. Cost must be treated as a competitive factor although the grantee (owner) may insert in the request for proposals a specified maximum permissible figure.

2. A contract may be awarded regardless of the number of proposals received or the number of firms that are determined to have met qualification standards.

3. The grantee (owner) may negotiate cost or design with one or any number of firms.

The selection of a design-construct firm must be accomplished by a process that includes public announcement of requests for proposals, provided that at least one form of the announcement receives nationwide distribution; consideration of all proposals from firms that are determined to be qualified; and selection based on the firm's qualifications and responsiveness to the criteria in the request for proposals.

On all design-construct projects, the owner must--

1. Ensure a firm total cost by including in the design-construct contract a provision that extra costs resulting from errors or omissions in the drawings or estimates will be the design-construct firm's responsibility.

2. Justify cost on the basis of comparability with similar construction.

OTHER CONSTRUCTION CONTRACT
REQUIREMENTS AND OPTIONS

At the option of the grantee (owner), a liquidated damage provision may be included in the construction contract for assessment of damages when the contractor has not completed construction by the date specified in the contract. Where there is an assessment of damages, any amounts paid belong to the owner.

Labor standards and equal employment opportunity requirements for federally assisted construction must be included in the information provided to bidders on construction contracts under PHS grants and be included in the contract documents for all such projects (see 45 CFR Part 74, Subpart P and Appendix F, and 45 CFR Part 92.36).

Unanticipated changes or modifications to previously approved construction contracts shall be handled in accordance with 45 CFR Part 74, Subpart L; 45 CFR Part 92.30; and section 8, "Changes in Expenditures/ Activities."

Invitations for bids must stipulate a time for completion of the project, expressed either in calendar days or as a fixed date, for each prime contract to be awarded under the project.

If it is discovered, either during or after the period of performance of a PHS-assisted construction contract, that an employee is entitled to wages but cannot be located for the purposes of payment (or for some reason refuses to accept payment), the grantee or loan recipient may eventually have to make a repayment to the Federal Government. Therefore, PHS suggests that the contractor be required to turn over unclaimed wages to the grantee institution.

The grantee institution should notify the Grants Management Officer (GMO) of the PHS awarding office that an escrow account has been established in the affected employee's name and should maintain the account for a period of either 2 years following the completion of the contract or such longer period as may be required by State or local law. Upon the expiration of this period, any amounts still unclaimed will be disbursed by refunding to PHS either the entire amount if the construction project received 100-percent PHS participation or the same percentage of the amount remaining in the account as the percentage of PHS participation in the project. In the event the project was participated in by more than one PHS program at differing rates, the percentage on which the refund is based should be an average percentage arrived at by weighting each program's rate of participation by the dollar amount of that program's contribution.

If the contractor has made a reasonable effort to locate the employee by having mail forwarded and by contacting his union, the institution need not repeat such attempts. If there is reason to believe that the contractor's efforts to locate employees due wages were not thorough, it will be to the institution's advantage to attempt to locate such employees. Doing so will reduce the likelihood of future claiming actions.

If any wages held in escrow are paid to an employee or his legal representative during the period in which the account is maintained, a complete report must be made to the GMO of the PHS awarding office when the account is closed.

Department of Labor (DOL) regulations at 41 CFR Part 60-4 require that all grantees awarding federally assisted construction contracts over $10,000 notify the applicable regional, area, or field office of the DOL Office of Federal Contract Compliance Program.

Except as provided below, the following clauses must be included in the information furnished to bidders on PHS construction projects under grants and must be included in the contract documents for all such projects. However, Paragraph E, Minimum Wages, shall be included only when required by the Federal program legislation.

A. Equal Employment Opportunity

1. During the performance of this contract, the contractor agrees as follows:


a. The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.

b. The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin.

c. The contractor will send to each labor unit representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

d. The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965 and of the rules, regulations, and relevant orders of the Secretary of Labor.

e. The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965 and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.

f. In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted procedures authorized in Executive Order 11246 of September 24, 1965 and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965 or by rule, regulation, or order of the Secretary of Labor or as otherwise provided by law.

g. The contractor will include the portion of the sentence immediately preceding paragraph a and the provisions of paragraphs a through g in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965 so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event a contractor becomes involved in, or is threatened with litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.



The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, that if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality, or subdivision of such government which does not participate in work on or under the contract.

The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.

The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.

B. Certification of Nonsegregated Facilities

(Applicable to contracts and subcontracts exceeding $10,000 which are not exempt from the provisions of paragraph A, "Equal Opportunity," of this form.)

1. By entering into an agreement related to the work described in the contract documents, the contractor or subcontractor certifies that it does not maintain or provide for its employees any segregated facilities at any of its establishments and that it does not permit employees to perform their services at any location under its control where segregated facilities are maintained. The contractor or subcontractor further certifies that it will not maintain or provide for employees any segregated facilities at any establishments under its control and that it will not permit employees to perform their services at any location under its control where segregated facilities are maintained. The contractor or subcontractor agrees that a breach of this certification is a violation of paragraph A, "Equal Opportunity." As used herein, the term "segregated facilities" means waiting rooms, work areas, and washrooms, restaurants and other eating areas, time clocks, restrooms, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees on the basis of race, color, religion, or national origin, because of habit, local custom, or otherwise. The contractor further agrees that (except where identical certifications are obtained from proposed subcontractors for specific time periods) it will obtain identical certifications from proposed subcontractors prior to the award of subcontracts exceeding $10,000 which are not exempt from the provisions of paragraph A, "Equal Opportunity," that it will retain such certifications in its files, and that it will forward the following notice to such proposed subcontractors (except where the proposed subcontractors have submitted identical certifications for specific time periods):

"NOTICE TO PROSPECTIVE
SUBCONTRACTORS OF REQUIREMENTS
FOR CERTIFICATION OF
NONSEGREGATED FACILITIES"

A certification of nonsegregated facilities, as required by the May 9, 1967 order (32 FR 7439, May 19, 1967) on elimination of segregated facilities by the Secretary of Labor, must be submitted prior to the award of a subcontract exceeding $10,000 which is not exempt from the provisions of "Equal Opportunity." The certification may be submitted either for each subcontract or for all subcontracts during a period, i.e., quarterly, semiannually, or annually.

2. The penalty for making false statements in certifications required by paragraph B.1 is prescribed in 18 U.S.C. 1001.

C. Solicitations

The following notice shall be included in and shall be part of all solicitations for offers and bids on all federally assisted construction contracts or subcontracts in excess of $10,000 to be performed in designated geographical areas:

"NOTICE OF REQUIREMENT FOR AFFIRMATIVE
ACTION TO ENSURE EQUAL EMPLOYMENT
OPPORTUNITY (Executive Order No. 11246)

1.The Offeror's or Bidder's attention is called to the "Equal Opportunity Clause" and the "Standard Federal Equal Employment Opportunity Construction Contract Specifications" set forth herein.

2. The goals and timetables for minority and female participation expressed in percentage terms for the Contractor's aggregate workforce in each trade on all construction work in the covered area are as follows:





Timetables	Goals for Minority Participation In Each Trade	Goals for Female Participation In Each Trade
	___________________________________	___________________________________
	(Insert Goals for Each Year)





These goals are applicable to all the Contractor's construction work (whether or not it is Federal or federally assisted) performed in the covered area.

The Contractor's compliance with the Executive Order and the regulations in 41 CFR Part 60-4 shall be based on its implementation of the Equal Opportunity Clause, specific affirmative action obligations required by the specifications set forth herein under paragraph D, and its efforts to meet the goals established for the geographical area where the contract resulting from this solicitation is to be performed. The hours of minority and female employment and training must be substantially uniform throughout the length of the contract and in each trade, and the contractor shall make a good faith effort to employ minorities and women evenly on each of its projects. The transfer of minority or female employees or trainees from Contractor to Contractor or from project to project for the sole purpose of meeting the Contractor's goals shall be a violation of the contract, the Executive Order, and the regulations in 41 CFR Part 60-4. Compliance with the goals will be measured against the total work hours performed.



3. The Contractor shall provide written notification to the Director of the Office of Federal Contract Compliance Programs within 10 working days of award of any construction subcontract in excess of $10,000 at any tier of construction work under the contract resulting from this solicitation. The notification shall list the name, address, and telephone number of the contractor; employer identification number; estimated dollar amount of the subcontract; estimated starting and completion dates of the subcontract; and the geographical area in which the contract is to be performed.

4. As used in this Notice and in the contract resulting from this solicitation, the "covered area" is (State, County, and City)."

D. Equal Opportunity Clauses

Standard Federal Equal Employment Opportunity Construction Contract Specifications (Executive Order 11246) (Applicable to all federally assisted contracts in excess of $10,000 to be performed in designated geographical areas.)



1. As used in these specifications:



a. "Covered area" means the geographical area described in the solicitation from which this contract resulted.

b. "Director" means Director, Office of Federal Contract Compliance Programs, United States Department of Labor, or any person to whom the Director delegates authority.

c. "Employer identification number" means the Federal Social Security number used on the Employer's Quarterly Federal Tax Return, U.S. Treasury Department Form 941.

d. "Minority" includes:

(1) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin).

(2) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race).

(3) Asian and Pacific Islander (all persons having origins in any of the original peoples of Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands).

(4) American Indian or Alaskan Native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification).

2. Whenever the Contractor, or any Subcontractor at any tier, subcontracts a portion of the work involving any construction trade, it shall physically include in each subcontract in excess of $10,000 the provisions of these specifications and the Notice which contains the applicable goals for minority and female participation and which is set forth in the solicitations from which this contract resulted.

3. If the Contractor is participating (pursuant to 41 CFR Part 60-4.5) in a Hometown Plan approved by the U.S. Department of Labor in the covered area either individually or through an association, its affirmative action obligations on all work in the Plan area (including goals and timetables) shall be in accordance with that Plan for those trades which have unions participating in the Plan. Contractors must be able to demonstrate their participation in and compliance with the provisions of any such Hometown Plan. Each Contractor or Subcontractor participating in an approved Plan is individually required to comply with its obligation under the Equal Employment Opportunity Clause and to make a good faith effort to achieve each goal under the Plan in each trade in which it has employees. The overall good faith performance by other Contractors or Subcontractors toward a goal in an approved Plan does not excuse any covered Contractor's or Subcontractor's failure to take good faith efforts to achieve the Plan goals and timetables.

4. The Contractor shall implement the specific affirmative action standards provided in paragraphs 7.a through p of these specifications. The goal set forth in the solicitation from which this contract resulted are expressed as percentages of the total hours of employment and training of minority and female utilization the Contractor should reasonably be able to achieve in each construction trade in which it has employees in the covered area. The Contractor is expected to make substantially uniform progress toward its goals in each craft during the period specified.

5. Neither the provisions of any collective bargaining agreement nor the failure by a union with whom the Contractor has a collective bargaining agreement to refer either minorities or women shall excuse the Contractor's obligations under these specifications, Executive Order 11246, or the regulations promulgated pursuant thereto.

6. In order for the nonworking training hours of apprentices and trainees to be counted in meeting the goals, such apprentices and trainees must be employed by the Contractor during the training period and the Contractor must have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department of Labor.

7. The Contractor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of the Contractor's compliance with these specifications shall be based upon its effort to achieve maximum results from its actions. The Contractor shall document these efforts fully and shall implement affirmative action steps at least as extensive as the following:



a. Ensure and maintain a working environment free of harassment, intimidation, and coercion at all sites and in all facilities at which the Contractor's employees are assigned to work. The Contractor, where possible, will assign two or more women to each construction project. The Contractor shall specifically ensure that all foremen, superintendents, and other onsite supervisory personnel are aware of and carry out the Contractor's obligation to maintain such a working environment with specific attention to minority or female individuals working at such sites or in such facilities.

b. Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the Contractor or its union have employment opportunities available, and maintain a record of the organizations' responses.

c. Maintain a current file of the names, addresses, and telephone numbers of each minority and female off-the-street applicant and minority or female referral from a union, a recruitment source, or community organization and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to the Contractor by the union or, if referred, not employed by the Contractor, this shall be documented in the file with the reason therefore, along with whatever additional actions the Contractor may have taken.

d. Provide immediate written notification to the Director when the union or unions with which the Contractor has a collective bargaining agreement has not referred to the Contractor a minority person or woman sent by the Contractor or when the Contractor has other information that the union referral process has impeded the Contractor's efforts to meet its obligations.

e. Develop on-the-job training opportunities and/or participate in training programs for the area which expressly include minorities and women, including upgrading programs and apprenticeship and trainee programs relevant to the Contractor's employment needs, especially those programs funded or approved by the Department of Labor. The Contractor shall provide notice of these programs to the sources compiled under 7.b above.

f. Disseminate the Contractor's Equal Employment Opportunity policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the Contractor in meeting its Equal Employment Opportunity obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper, annual report, etc.; by specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posting the company Equal Employment Opportunity policy on bulletin boards accessible to all employees at each location which construction work is performed.

g. Review, at least annually, the company's Equal Employment Opportunity policy and affirmative action obligations under these specifications with all employees having responsibility for hiring, assignment, layoff, termination, or other employment decisions, including specific review of these items with onsite supervisory personnel such as superintendents, general foreman, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter.

h. Disseminate the Contractor's Equal Employment Opportunity policy externally by including it in any advertising in the news media, specifically including minority and female news media, and providing written notification to and discussing the Contractor's Equal Employment Opportunity policy with other Contractors and Subcontractors with whom the Contractor does or anticipates doing business.

i. Direct its recruitment efforts, both oral and written, to minority, female, and community organizations; to schools with minority and female students; and to minority and female recruitment and training organizations serving the Contractor's recruitment area and employment needs. Not later than 1 month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment source, the Contractor shall send written notification to organizations such as the above describing the openings, screening procedures, and tests to be used in the selection process.

j. Encourage present minority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer, and vacation employment to minority and female youth both on the site and in other areas of a Contractor's work force.

k. Validate all tests and other selection requirements where there is an obligation to do so under 41 CFR Part 60-3.

l. Conduct, at least annually, an inventory and evaluation at least of all minority and female personnel for promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities.

m. Ensure that seniority practices, job classifications, work assignments, and other personnel practices do not have a discriminatory effect by continually monitoring all personnel and employment related activities to ensure that the Equal Employment Opportunity policy and the contractor's obligations under these specifications are being carried out.

n. Ensure that all facilities and company activities are nonsegregated except that separate or single-user toilet and necessary changing facilities shall be provided to assure privacy between the sexes.

o. Document and maintain a record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations.

p. Conduct a review, at least annually, of all supervisors' adherence to and performance under the Contractor's Equal Employment Opportunity policies and affirmative action obligations.

8. Contractors are encouraged to participate in voluntary associations which assist in fulfilling one or more of their affirmative action obligations (7.a through p). The efforts of a contractor association, joint contractor-union, contractor-community, or other similar group of which the Contractor is a member and participant may be asserted as fulfilling any one or more of its obligations under 7.a through p of these specifications provided that the Contractor actively participates in the group, makes every effort to assure that the group has a positive impact on the employment of minorities and women in the industry, ensures that the concrete benefits of the program are reflected in the Contractor's minority and female work force participation, makes a good faith effort to meet its individual goals and timetables, and can provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the Contractor. The obligation to comply, however, is the Contractor's and failure of such a group to fulfill an obligation shall not be a defense for the Contractor's non-compliance.

9. A single goal for minorities and a separate single goal for women have been established. The Contractor, however, is required to provide equal employment opportunity to take affirmative action for all minority groups, both male and female, and all women, both minority and nonminority. Consequently, the Contractor may be in violation of the Executive Order if a particular group is employed in a substantially disparate manner (for example, even though the Contractor has achieved its goals for women generally, the Contractor may be in violation of the Executive Order if a specific minority group of women is underutilized).

10. The Contractor shall not use the goals and timetables or affirmative action standards to discriminate against any person because of race, color, religion, sex, or national origin.

11. The Contractor shall not enter into any subcontract with any person or firm debarred from Government contracts pursuant to Executive Order 11246.

12. The Contractor shall carry out such sanctions and penalties for violation of these specifications and of the Equal Employment Opportunity clause, including the suspension, termination, and cancellation of existing subcontracts as may be imposed or ordered pursuant to Executive Order 11246, as amended, and its implementing regulations, by the Office of Federal Contracts Compliance Programs. Any Contractor who fails to carry out such sanctions and penalties shall be in violation of these specifications and Executive Order 11246, as amended.

13. The Contractor, in fulfilling its obligations under these specifications, shall implement specific affirmative action steps, at least as extensive as those standards prescribed in paragraph 7 of these specifications, so as to achieve maximum results from its efforts to ensure equal employment opportunity. If the Contractor fails to comply with the requirements of the Executive Order, the implementing regulations, or these specifications, the Director shall proceed in accordance with 41 CFR Part 60-4.8.

14. The Contractor shall designate a responsible official to monitor all employment related activity to ensure that the company Equal Employment Opportunity policy is being carried out, to submit reports relating to the provisions hereof as may be required by the Government, and to keep records. Records shall at least include for each employee the name, address, telephone numbers, construction trade, union affiliation, if any, employee identification number when assigned, social security number, race, sex, status (e.g., mechanic, apprentice trainee, helper, or laborer) dates of changes in status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records shall be maintained in an easily understandable and retrievable form; however, to the degree that existing records satisfy this requirement, Contractors shall not be required to maintain separate records.

15. Nothing herein provided shall be construed as a limitation upon the application of other laws which establish different standards of compliance or upon the application of requirements for the hiring of local or other area residents (e.g., those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program).

E. Minimum Wages



1. All mechanics and laborers, employed or working directly upon the site of the work, shall be paid unconditionally and not less often than once a week and, without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by the Copeland Regulations (29 CFR Part 3)), the full amounts due at time of payment computed at wage rates not less than the aggregate of the basic hourly rates and the rates of payments, contributions, or costs for any fringe benefits contained in the wage determination decision of the Secretary of Labor, which is attached hereto and made a part hereof, regardless of any contractual relationships which may be alleged to exist between the Contractor or Subcontractor and such laborers and mechanics and the wage decision shall be posted by the Contractor at the site of the work in a prominent place where it can easily be seen by the workers.

2. The Owner shall require that any class of laborers or mechanics, including apprentices and trainees, which is not listed in the wage determination and which is to be employed under the contract shall be classified or reclassified conformably to the wage determination and a report of the action taken shall be sent to the Department of Health and Human Services. If the interested parties cannot agree on the proper classification or reclassification of a particular class of laborers or mechanics, including apprentices and trainees to be used, the Owner shall submit the question together with his recommendation through the Department of Health and Human Services to the Secretary of Labor for final determination.

3. The Owner shall require, whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly wage rate and the Contractor is obliged to pay a cash equivalent of such a fringe benefit, an hourly cash equivalent thereof to be established. In the event interested parties cannot agree upon a cash equivalent of the fringe benefit, the question, accompanied by the recommendation of the Owner, shall be referred to the Secretary of Labor for determination.

4. If the Contractor does not make payments to a trustee or other third person, he may consider as part of the wages of any laborer or mechanic the amount of any cost reasonably anticipated in providing benefits under a plan or program of a type expressly listed in the wage determination decision of the Secretary of Labor which is part of this contract: Provided, however, the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.

F. Payrolls and Basic Records



1. The Contractor shall maintain payrolls and basic records relating thereto during the course of the work and shall preserve them for a period of three years thereafter for all laborers and mechanics, including apprentices and trainees, working at the site of the work. Such records shall contain the name and address of each employee, his correct classification, rate of pay (including rates of contribution for, or costs assumed to provide, fringe benefits), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Contractor has obtained approval from the Secretary of Labor as provided in paragraph E.4, the Contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected and records which show the costs anticipated or the actual cost incurred in providing such benefits.

2. The Contractor shall submit weekly a copy of all payrolls to the Owner. The prime contractor shall be responsible for the submission of copies of payrolls of all Subcontractors. Each such copy shall be accompanied by a statement signed by the Contractor indicating that the payrolls are correct and complete, that the wage rates contained therein are not less than those determined by the Secretary of Labor, and that the classification set forth for each laborer or mechanic, including apprentices and trainees, conform to the work he performed. Submission of the "Weekly Statement of Compliance" required under this contract and the Copeland Regulations of the Secretary of Labor (29 CFR Part 3) shall satisfy the requirement for submission of the above statement. The Contractor shall submit also a copy of any approval by the Secretary of Labor with respect to fringe benefits which is required by paragraph E.4.

3. Contractors employing apprentices or trainees under approved programs shall include a notation on the first weekly certified payrolls submitted to the Owner that their employment is pursuant to an approved program and shall identify the program.

4. The Contractor will make the records required under the Labor Standards clauses of the contract available for inspection by authorized representatives of the Owner, U.S. Department of Health and Human Services, and the U.S. Department of Labor, and shall permit such representatives to interview employees during working hours on the job.

G. Apprentices and Trainees



1. Apprentices will be permitted to work at less than the predetermined rate for the work they perform when they are employed and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Manpower Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau, or if a person is employed, in the first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program but who has been certified by the Bureau of Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen in any craft classification shall not be greater than the ratio permitted to the Contractor as to his entire work force under the registered program. Any employee listed on a payroll at an apprentice wage rate, who is not a trainee as defined in subparagraph 2 of this paragraph or is not registered or otherwise employed as stated above, shall be paid the wage rate determined by the Secretary of Labor for the classification of work actually performed. The Contractor will be required to furnish to the Owner or a representative of the U.S. Department of Labor written evidence of the registration of its program and apprentices as well as the appropriate ratios and wage rates (expressed in percentages of the journeyman hourly rates), for the area of construction prior to using any apprentices on the contract work. The wage rate paid apprentices shall be not less than the appropriate percentage of the journeyman's rate contained in the applicable wage determination.

2. Trainees

Trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval evidenced by formal certification, by the U.S. Department of Labor, Manpower Administration, Bureau of Apprenticeship and Training. The ratio of trainees to journeymen shall not be greater than permitted under the plan approved by the Bureau of Apprenticeship and Training. Every trainee must be paid not less than the rate specified in the approved program for his level of progress. Any employee listed in the payroll at a trainee rate who is not registered and participating in a training plan approved by the Bureau of Apprenticeship and Training shall be paid not less than the wage rate determined by the Secretary of Labor for the classification of work he actually performed. The Contractor will be required to furnish the Owner or a representative of the U.S. Department of Labor written evidence of the certification of his program, the registration of the trainees, and the ratios and wage rates prescribed in that program. In the event the Bureau of Apprenticeship and Training withdraws approval of a training program, the Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

3. Equal Employment Opportunity

The utilization of apprentices, trainees, and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30.

H. Compliance with Copeland Regulations



1.The Contractor shall comply with the Copeland Regulations of the Secretary of Labor (29 CFR Part 3) which are incorporated herein by reference. In addition, the Weekly Statement of Compliance required by these regulations shall also contain a statement that the fringe benefits paid are equal to or greater than those set forth in the minimum wage decision.

I. Contract Work Hours and Safety Standards Act-- Overtime Compensation and Safety Standards (40 U.S.C. 327-330)


1. The Contractor shall not require or permit any laborer or mechanic, including apprentices and trainees, in any workweek in which he is employed on any work under this contract to work in excess of 8 hours in any calendar day or in excess of 40 hours in such workweek on work subject to the provisions of the Contract Work Hours and Safety Standards Act unless such laborer or mechanic, including apprentices and trainees, receives compensation at a rate not less than one and one-half times his basic rate of pay for all such hours worked in excess of 8 hours in any calendar day or in excess of 40 hours in such workweek, whichever is the greater number of overtime hours. The "basic rate of pay" as used in this provision shall be the amount paid per hour, exclusive of the Contractor's contribution or cost for fringe benefits, and any cash payment made in lieu of providing fringe benefits or the basic hourly rate contained in the wage determination, whichever is greater.(4)

2. In the event of any violation of the provisions of paragraph I.1, the Contractor shall be liable to any affected employee for any amounts due and to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including apprentices and trainees, employed in violation of the provisions of paragraph I.1, in the sum of $10 for each calendar day on which such employee was required or permitted to be employed on such work in excess of 8 hours or in excess of the standard workweek of 40 hours without payment of the overtime wages required by paragraph I.1. (4)

3. The Contractor shall not require or permit any laborer or mechanic, including apprentices and trainees, employed in the performance of this contract to work in surroundings or under conditions which are unsanitary, hazardous, or dangerous to health as determined under construction safety and health standards promulgated by the Secretary of Labor by regulations (29 CFR Part 1926, 36 FR 7340, April 17, 1971) pursuant to Section 107 of the Contract Work Hours and Safety Standards Act.

J. Withholding of Funds



1. The Owner may withhold or cause to be withheld from the Contractor as much of the accrued payments or advances as may be considered necessary (a) to pay the laborers and mechanics, including apprentices and trainees, employed by the Contractor or any Subcontractor on the work, the full amount of wages required by the contract and (b) to satisfy any liability of any Contractor for liquidated damages under paragraph I hereof entitled "Contract Work Hours and Safety Standards Act-- Overtime Compensation and Safety Standards (40 U.S.C. 327-330)."

2. If the Contractor or any Subcontractor fails to pay any laborer or mechanic, including apprentices and trainees, employed or working on the site of the work, all or part of the wages required by the contract, the Owner may, after written notice to the prime contractor, take such action as may be necessary to cause suspension of any further payments or advances until such violations have ceased.

K. Subcontracts



1. The Contractor will insert in all subcontracts, paragraphs E through L inclusive entitled "Minimum Wages," "Payrolls and Basic Records," "Apprentices and Trainees," "Compliance with Copeland Regulations," "Contract Work Hours and Safety Standards Act--Overtime Compensation and Safety Standards (40 U.S.C. 327-330," "Withholding of Funds," "Subcontracts," and "Contract Termination--Debarment," and shall further require all Subcontractors to incorporate physically these same paragraphs in all subcontracts.

2. The term "Contractor" as used in such paragraphs in any subcontract shall be deemed to refer to the Subcontractor except when the phrase "Prime Contractor" is used.

L. Contract Termination - Debarment

A breach of paragraphs E through K inclusive, respectively entitled "Minimum Wages," "Payrolls and Basic Records," "Apprentices and Trainees," "Compliance with Copeland Regulations," "Contract Work Hours and Safety Standards Act--Overtime Compensation and Safety Standards (40 U.S.C. 327-330)," "Withholding of Funds," and "Subcontracts" may be grounds for termination of the contract and for debarment as provided in 29 CFR Part 5.6.




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(1) The design of facilities to be constructed or altered with PHS grant funds will be evaluated for compliance with design requirements contained in the most recent edition of Technical Handbook 2.1, Information for Project Applicants and State Agencies of Design and Construction-Related Activities. This handbook is part of HHS' Facilities Engineering and Construction Manual, which is available from the applicable HHS regional Office of Engineering Services.

(2) Board President, National Trust Historic Preservation, 1785 Massachusetts Avenue NW, Washington, DC 20036, 202-673-4000.

(3) "Phased (fast track) construction" refers to the practice of developing portions of the construction work into packages ready for bidding before total completion of design documents. Design documents are considered complete when they are adequate for construction of a usable facility or designated portion thereof for a realistic bid price.

(4) Exclude from construction projects insured under FHA/HUD Section 242 of the National Housing Act.



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