Kingsley Road Sidewalk Project (VDOT)

The purpose of this Invitation for Bid is to install curb & gutter and sidewalk with the public right-of-way from approximately 455 LF east of Cottage Street SW to Desale Street SW along Kingsley Road SW. The project includes new curb & gutter, mill and overlay, sidewalk, storm drainage system, driveways and entrance aprons, and an ADA accessible (pedestrian) curb ramp. The project will provide pedestrian access and curb & gutter along this portion of Kingsley Street SW.

Background

Located in Northern Virginia and approximately 14 miles from Washington D.C., the Town of Vienna is an incorporated town within Fairfax County—adjacent to Tysons Corner (Northeast), Oakton and Fairfax City (Southwest), Merrifield/Mosaic District (Southeast) and Reston (Northwest). The Town is 4.4 square miles and home to approximately 17,088 residents.

Vienna is primarily a residential community with at least 71 percent of the land developed for residential purposes, excluding rights-of-way. The Town has approximately 3.5 million square feet of commercial and industrial space—60 percent is used for professional office space, 30 percent of the space is used for retail, and the remaining 10 percent is used for industrial purposes. Vienna is also home to a diverse business base serving independent retailers and even the nation’s largest credit union, Navy Federal Credit Union.

Project Details

• Reference ID: IFB 26-01
• Department: Department of Public Works
• Department Head: Brad Baer (Director)

Important Dates

• Questions Due: 2026-07-14T18:00:16.259Z

Evaluation Criteria

• NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY (EXECUTIVE ORDER 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 for female and minority participation, expressed in percentage terms of the Contractor's aggregate work force in each trade on all construction works in the covered area, are as follows:

  Females- 6.9%

  Minorities - See Attachment "A"

  The goals are applicable to all the Contractor's construction work performed in the covered area, whether or not it is Federal or federally assisted. If the Contractor performs construction work in a geographical area located outside of the covered area, it shall apply the goals established for such geographical area where the work is actually performed. With regard to this second area, the Contractor also is subject to the goals for both its federally involved and non-federally involved construction.

  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 in 41 CFR 60-4.3(a), and its efforts to meet the goals established herein. 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 Executives 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 workings days the award of any construction subcontract in excess of $10,000 at any tier for construction works under this contract. The notification shall list the name, address and telephone number of the subcontractor, 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.

• REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONSTRUCTION CONTRACTS —

  FHWA-1273 -- Revised July 5, 2022

  REQUIRED CONTRACT PROVISIONS

  FEDERAL-AID CONSTRUCTION CONTRACTS

  I. General

  II. Nondiscrimination

  III. Non-segregated Facilities

  IV. Davis-Bacon and Related Act Provisions

  V. Contract Work Hours and Safety Standards Act Provisions

  VI. Subletting or Assigning the Contract

  VII. Safety: Accident Prevention

  VIII. False Statements Concerning Highway Projects

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

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

  XI. Certification Regarding Use of Contract Funds for Lobbying

  XII. Use of United States-Flag Vessels:

• PAYMENT FOR MATERIAL STORED OFF-SITE —

  INTENTIONALLY OMITTED

• Article 1 —

  Contract Documents

  Definitions

• SECTION 107 – LEGAL RESPONSIBILITIES of the Specifications is revised as follows: —

  SECTION 107 – LEGAL RESPONSIBILITIES of the Specifications is revised as follows:

  Section 107.15 – Use of Small, Women-Owned, and Minority-Owned Businesses (SWaMs) is replaced in its entirety with the following:

  Section 107.15 – Use of Disadvantaged Business Enterprises (DBEs)

  NOTE: Effective October 3, 2025, the United States Department of Transportation (USDOT) adopted an Interim Final Rule (IFR) revising the DBE requirements in the Code of Federal Regulations, Title 49, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs.  In accordance with the IFR and USDOT’s Official Frequently Asked Questions providing guidance regarding the IFR, the DBE goal for this Contract is 0%; and the Department will not count DBE participation toward a program goal, nor will it perform commercially useful function (CUF) reviews. Otherwise, the requirements of the USDOT DBE Program set out in this Special Provision remain effective. 

  (a)      DBE Program - Interim Requirements

  Bidders, the Contractor, and all subcontractors, suppliers, and contract sureties involved in the performance of work on this federal-aid contract shall comply with the terms and conditions of this Special Provision and in Code of Federal Regulations Title 49, Part 26,  Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs, as amended, (USDOT DBE Program), incorporated by reference into this Special Provision. The Contractor shall physically include this same Special Provision in every subcontract made or executed with a subcontractor or supplier.

  Disadvantaged Business Enterprise (DBE) means a small business concern as certified by SBSD, including the Contractor, subcontractors, suppliers, or manufacturers performing work, or furnishing materials, supplies, equipment, or services necessary for the Contract.

  The Contractor, for itself and for its subcontractors and suppliers, whether certified DBE firms or not, shall commit to complying fully with the auditing, record keeping, confidentiality, cooperation, and anti-intimidation or retaliation provisions contained in USDOT DBE Program and the Contract. By bidding on this Contract, and by accepting and executing this Contract, the Contractor agrees to assume these contractual obligations and to bind the Contractor’s subcontractors contractually to the same at the Contractor’s expense.

  The Contractor and its subcontractors and suppliers shall not discriminate based on race, color, sex, or national origin in the performance of this Contract. The Contractor shall carry out applicable requirements of USDOT DBE Program and the Contract in the award, administration, and performance of this Contract. Failure by the Contractor to carry out these requirements is a material breach of this Contract, which will result in the termination of this Contract or other such remedy, as VDOT deems appropriate, which may include, but is not limited to: (1) withholding monthly progress payments; (2) assessing sanctions; (3) assessing liquidated damages; and/or (4) disqualifying the contractor from future bidding.

  (b)      Financial Services

   The Contractor and each subcontractor are encouraged to use the services of financial institutions owned and controlled by socially and economically disadvantaged individuals in the community. The use of such services is not required and the fees charged will not be counted for credit toward a DBE contract goal when the contract has a goal.  

  (c)      Certifications Made By Bidder and Contractor

  By submitting a bid, by signing this Contract, and by signing each subcontract with a subcontractor incorporating this Special Provision, the Contractor and subcontractors certify to each of the following conditions and assurances:

  1. 1. They will comply with and carry out the applicable requirements of the USDOT DBE Program and the Contract in the bidding, award, execution, performance, and administration of the Contract and subcontracts.
  2. 2. That all reasonable steps were and will be taken to ensure that DBEs had and will have a full and fair opportunity to compete for and perform work on the Contract. Any agreements between a bidder and a DBE whereby the DBE promises not to provide quotations for performance of work to other bidders are prohibited.
  3. 3. That they shall not discriminate based on race, color, age, sex, or national origin in the performance of the Contract or in the award and performance of any subcontract.
  4. 4. That in the event a bond surety assumes responsibility for completion of work for any reason, including without limitation when the Department terminates the prime Contractor, the surety shall be obligated to meet the same DBE contract terms and requirements as were required of the original prime Contractor in accordance with the requirements of the USDOT DBE Program and this Special Provision.

  Failure by the Contractor, subcontractor, or supplier retained by the Contractor, or surety to comply with all requirements of the USDOT DBE Program or this Special Provision is a material breach of this Contract. The Department has the authority and discretion to determine the extent to which these requirements have not been met, and will assess against the Contractor any remedies available at law or provided in the Contract in the event of such a contract breach, which may result in termination of the Contract or such other remedy as the Department deems appropriate, which may include, but is not limited to: (1) withholding monthly progress payments; (2) assessing sanctions; (3) assessing liquidated damages; and/or (4) disqualifying the Contractor from future bidding as non-responsible.

  (d)      Contractor Compliance Requirements

  NOTE: Due to the USDOT’s revisions of the DBE requirements in 49 CFR Part 26 for the USDOT DBE program, the DBE goal for this Contract is 0%; the Department will not count participation toward the DBE goal, nor will it conduct commercially useful function (CUF) reviews.  Otherwise, the requirements of the USDOT DBE Program in this Special Provision remain effective. 

  1.  Documentation Required During Bidding: A bidder shall submit a completed Form C-48, Subcontractor/Supplier Solicitation and Utilization, as a part of the bid documents. Form C-48 must be received no later than 10:00 a.m. the next business day after the date and time stated in the Invitation for Bids for receipt of bids, or the bid will be rejected as non-responsive. This form may be submitted electronically by email to: vdotcontracts@vdot.virginia.gov.

  The required form and instructions for submitting it can be obtained from the List of Construction Forms on VDOT’s website at: https://www.vdot.virginia.gov/doing-business/technical-guidance-and-support/construction/.

  Bid Rejection: The failure of a bidder to submit the required documentation within the timeframes in accordance with this Special Provision will be sufficient cause for rejection of that bidder’s bid as non-responsive or non-responsible, as applicable. In such event, the Department may award the contract to the next lowest bidder, cancel the award and re-advertise the proposed contract at a later date, or proceed otherwise as determined by Department.

  2.  Documentation Required During Contract Performance

  The District Civil Rights Office (DCRO) will monitor progress of payments to subcontractors based on Forms C-63 the Contractor submits during the designated quarterly reporting periods.

  Form C-63: The Contractor shall furnish, and shall require each subcontractor to furnish, information relative to their involvement on the project for each quarter or at another time interval determined by VDOT and communicated to the Contractor during the life of the Contract in which participation occurs and verification is available. The information shall be indicated on Form C-63. The Department reserves the right to request proof of payment via copies of cancelled checks with appropriate identifying notations. Failure to provide Form C-63 to the DCRO within five (5) business days after the reporting period may result in delay of approval of the Contractor’s monthly progress estimate for payment. Signatures on all forms indicated herein shall be those of authorized representatives of the Contractor as shown on the Prequalification Application, Form C-32 or the Prequalification/Certification Renewal Application, Form C-32A, or authorized by letter from the Contractor.  Form C-63 can be obtained from the List of Construction Forms on the VDOT website at: https://www.vdot.virginia.gov/doing-business/technical-guidance-and-support/construction/.

  If the Contractor fails to correctly complete and submit any of the required documentation required by this Special Provision within the specified time frames, the Department will withhold payment of the monthly progress estimate until such time as the required submissions are received. Where such failures to provide required submittals or documentation are repeated the Department may disqualify the Contractor, the Contractor’s members in the case of a joint venture, and any of the Contractor’s affiliates, from bidding as a prime Contractor, or participating as a subcontractor on VDOT projects until such submissions are received in accordance with the section on Disqualification of Contractor of this Special Provision.

  3.     Documentation Required for Semi-Final Payment

  On those projects nearing completion, the Contractor must submit Form C-63 marked “Semi- Final” within twenty (20) days after the submission of the last regular monthly progress estimate to the DCRO. The form must include each subcontractor  used on the Contract work and the work performed. The form shall include the actual dollar amount paid to each subcontractor for the accepted creditable work on the Contract. The form shall be certified under penalty of perjury, or other applicable law, to be accurate and complete.

  4.     Documentation Required for Final Payment

   On those projects that are complete, the Contractor shall submit a final Form C-63 marked “Final” to the DCRO, within thirty (30) days after the final estimate. The form must include each subcontractor used on the Contract, the work performed, and the actual dollar amount paid to each subcontractor for the work on the Contract.

  (e)      Disqualification of Contractor

  Contractors may be disqualified from bidding for failure to comply with the requirements of this Special Provision in accordance with the provisions of Section 102.08 of the Specifications. Disqualification means the suspension or revocation of the Contractor’s prequalification privileges. The disqualification of the Contractor will also result in the disqualification of each member of the joint venture when the Contractor is a joint venture, and disqualification of any affiliate of the Contractor.

• § 200.322 Procurement of recovered materials. —

  A non-Federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

• REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONSTRUCTION CONTRACTS —

  FHWA-1273 – Revised October 23, 2023

  REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONSTRUCTION CONTRACTS 

  I.  General

  II.  Nondiscrimination

  III.  Non-segregated Facilities

  IV.  Davis-Bacon and Related Act Provisions

  V.  Contract Work Hours and Safety Standards Act Provisions

  VI.  Subletting or Assigning the Contract

  VII.  Safety: Accident Prevention

  VIII.  False Statements Concerning Highway Projects

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

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

  XI.  Certification Regarding Use of Contract Funds for Lobbying

  XII.  Use of United States-Flag Vessels:

• SECTION 107 – LEGAL RESPONSIBILITIES of the Specifications is revised as follows: —

  Section 107.15 – Use of Small, Women-Owned, and Minority-Owned Businesses (SWaMs) is replaced in its entirety with the following:

  Section 107.15 – Use of Disadvantaged Business Enterprises (DBEs)

  (a)      Disadvantaged Business Enterprise Program Requirements 

  Bidders, the Contractor, and all subcontractors, suppliers, and contract sureties involved in the performance of work on this federal-aid contract shall comply with the terms and conditions of this Special Provision and the United States Department of Transportation (USDOT) DBE Program in Title 49, Part 26 of the Code of Federal Regulations, as amended, (USDOT DBE Program), which are incorporated by reference into this Special Provision. The Contractor shall physically include this same Special Provision in every subcontract that it makes or executes with a subcontractor or supplier for which it intends to claim DBE credit.

  Disadvantaged Business Enterprise (DBE) means a small business concern that is certified as such in accordance with this Special Provision, and includes the Contractor, subcontractors, suppliers, or manufacturers performing work, or furnishing materials, supplies, equipment, or services necessary for the Contract.

  The Contractor, for itself and for its subcontractors and suppliers, whether certified DBE firms or not, shall commit to complying fully with the auditing, record keeping, confidentiality, cooperation, and anti-intimidation or retaliation provisions contained in USDOT DBE Program and the Contract. By bidding on this Contract, and by accepting and executing this Contract, the Contractor agrees to assume these contractual obligations and to bind the Contractor’s subcontractors contractually to the same at the Contractor’s expense.

  The Contractor and its subcontractors and suppliers shall not discriminate on the basis of race, color, sex, sexual orientation, gender identity, or national origin in the performance of this Contract. The Contractor shall carry out applicable requirements of USDOT DBE Program and the Contract in the award, administration, and performance of this Contract. Failure by the Contractor to carry out these requirements is a material breach of this Contract, which will result in the termination of this Contract or other such remedy, as VDOT deems appropriate, which may include, but is not limited to: (1) withholding monthly progress payments; (2) assessing sanctions; (3) assessing liquidated damages; and/or (4) disqualifying the contractor from future bidding.

  All administrative remedies noted in this Special Provision will be imposed unless the Contractor exercises the right of appeal within the required timeframe(s) specified herein. Appeal requirements, processes, and procedures are stated herein. Where applicable, the Department will notify the Contractor of any changes to the appeal requirements, processes, and procedures after receiving notification of the Contractor’s desire to appeal.

  (b)      DBE Prequalification and Certification 

  To be eligible to perform work on this federal-aid contract firms must be prequalified in accordance with the requirements of Section 102.01 of the Specifications. To receive credit toward meeting the Contract DBE goal, firms must be certified as DBEs by the Virginia Department of Small Business and Supplier Diversity (DSBSD) or the Metropolitan Washington Airports Authority (MWAA) in accordance with the USDOT DBE Program and this Special Provision. Eligibility to receive credit also requires that DBEs identified as participating in the Contract to meet the goal are certified in a North American Industry Classification System (NAICS) code applicable to the specific types of work the DBE would perform. A directory listing of eligible certified DBEs and their assigned NAICS codes for the types of work they are certified to perform as DBEs can be obtained from the DSBSD website: www.sbsd.virginia.gov.

  (c)      Bank Services

  The Contractor and each subcontractor are encouraged to use the services of banks owned and controlled by socially and economically disadvantaged individuals. Such banking services and the fees charged for services typically will not be eligible for DBE Program contract goal credit. Such information is available from the VDOT’s Internet Civil Rights Division website:

  https://www.vdot.virginia.gov/media/vdotvirginiagov/doing-business/programs-for-businesses/dbe-program/VDOT_DBE_Program_Plan.pdf

  (d)      DBE Program-Related Certifications Made by Bidders and Contractors

  By submitting a bid, by signing this Contract, and by signing each subcontract with a subcontractor incorporating this Special Provision, the Contractor and subcontractors certify to each of the following DBE-related conditions and assurances:

  1. 1. That they have complied and will comply with the requirements of the USDOT DBE Program and the Contract in submitting the bid, that they shall comply fully with these requirements in the bidding, award, execution, performance, and administration of the Contract and subcontracts, and that failure to comply may result in disqualification or other legal sanctions.
  2. 2. That all reasonable steps were and will be taken to ensure that DBEs had and will have a full and fair opportunity to compete for and perform work on the Contract. Any agreements between a bidder and a DBE whereby the DBE promises not to provide quotations for performance of work to other bidders are prohibited.
  3. 3. That they shall not discriminate on the basis of race, color, age, sex, sexual orientation, gender identity, or national origin in the performance of the Contract or in the award and performance of any subcontract.
  4. 4. That they made and shall make good faith efforts to seek out and consider DBEs as potential subcontractors to obtain DBE participation in the proposed contract at or above the goal for DBE participation established by VDOT by contacting DBEs to solicit their interest, capability, and prices in sufficient time to allow them to respond effectively; and, if necessary, they have submitted as a part of its bid true, accurate, complete, and detailed documentation of the good faith efforts it performed to meet the DBE goal.
  5. 5. That once awarded the Contract, the Contractor shall utilize the DBEs listed in Form C-111 to perform the work designated at or above the amount or percentage of the dollar value specified in the bidding documents, and shall not unilaterally terminate, substitute for, or replace any listed DBE in whole or in part with another DBE, any non-DBE firm, or with the Contractor's own forces or those of an affiliate of the Contractor without the prior written consent of VDOT as set out within the requirements of this Special Provision.
  6. 6. That once awarded the Contract, they shall designate and make known to the Department a liaison officer who is assigned the responsibility of administering and promoting an active and inclusive DBE program as required by the USDOT DBE Program and this Special Provision. The designation and identity of this officer need be submitted only once by the Contractor during any twelve (12) month period at the preconstruction conference for the first contract the Contractor has been awarded during that reporting period. The Department will post such information for informational and administrative purposes at VDOT’s Internet Civil Rights Division website.
  7. 7. That once awarded the Contract, they shall comply fully with all regulatory and contractual requirements of the USDOT DBE Program and this Special Provision, and that each DBE participating in the Contract shall fully perform the designated work items with the DBE’s own forces and equipment under the DBE’s direct supervision, control, and management.
  8. 8. That in the event a bond surety assumes responsibility for completion of work for any reason, including without limitation when the Department terminates the prime Contractor, the surety shall be obligated to meet the same DBE contract terms and requirements as were required of the original prime Contractor in accordance with the requirements of the USDOT DBE Program and this Special Provision.

  Failure by the Contractor, DBE, any other subcontractor or supplier retained by the Contractor, or surety to comply with all requirements of the USDOT DBE Program and/or this Special Provision is a material breach of this Contract. The Department has the authority and discretion to determine the extent to which these requirements have not been met, and will assess against the Contractor any remedies available at law or provided in the Contract in the event of such a contract breach, which may result in termination of the Contract or such other remedy as the Department deems appropriate, which may include, but is not limited to: (1) withholding monthly progress payments; (2) assessing sanctions; (3) assessing liquidated damages; and/or (4) disqualifying the Contractor from future bidding as non-responsible.

  (e)      DBE Requirements

  The Contract will only be awarded to a bidder and Contractor who makes a good faith effort to meet or exceed the DBE goal.  After award of the Contract, the Contractor must comply with the requirements of this Special Provision and make a good faith effort to meet or exceed the DBE goal in the performance of the Work. DBE Forms can be obtained from the VDOT website at: https://vdotforms.vdot.virginia.gov/.

  Good faith efforts means all necessary and reasonable steps that the bidder or Contractor takes to achieve the DBE goal or comply with the requirements of this Special Provision which, by their scope, intensity, and appropriateness to the objective, can reasonably be expected to obtain sufficient DBE participation, even if not fully successful. 

  The following requirements shall apply to the Contract for DBE compliance purposes.

  1. Contract Goal, Good Faith Efforts Specified:  Bidders and the Contractor shall evidence attainment of DBE participation equal to or greater than the DBE goal by submission of the forms specified below to the Department within the time required. 

  A. During Bidding: A bidder has made good faith efforts if the bidder does either of the following things: 

  (1) The bidder documents that it has attained DBE participation equal to or greater than the DBE goal established for the project by submitting a completed Form C-111, Minimum DBE Requirements, and Form C-48, Subcontractor/Supplier Solicitation and Utilization, as a part of the bid documents.

  Form C-111 and Form C-48 must be received no later than 10:00 a.m. the next business day after the date and time stated in the Invitation for Bids for receipt of bids, or the bid will be rejected as non-responsive. These forms may be submitted electronically via Bid Express or by email to: vdotcontracts@vdot.virginia.gov.

  (2) If the bidder is unable to attain sufficient DBE participation to meet the DBE goal, the bidder must show the amount of DBE participation that it commits to attain in its Form C-111 submitted in accordance with subsection (A), above, then submit Form C-49, DBE Good Faith Efforts Documentation, to document its good faith efforts to meet the DBE goal.  Form C-49 must be submitted within two (2) business days after the bid opening, or the bid will be rejected as non-responsive.  The form may be submitted electronically via Bid Express or by email to: vdotcontracts@vdot.virginia.gov.

  A Form C-49 shall also be required when, after review of the apparent lowest bid, VDOT determines the bidder failed to meet the DBE goal or other requirements. The form must be received by the State Contract Engineer within two (2) business days after official notification of such failure.

  The bidder must attach additional pages to Form C-49, if necessary, in order to fully document specific good faith efforts made to obtain the DBE participation specified in the proposed contract work.

  B. Post-Bid: In addition, the apparent low bidder must submit within five (5) days after bid opening the following forms, properly executed, or the bid will be rejected as a matter of responsibility:

  (1) Form C-112, Certification of Binding Agreement providing confirmation from each DBE listed in the Form C-111 that it is participating in the Contract in the kind and amount of work designated. DBEs bidding as prime contractors are not required to submit Form C-112 unless they are utilizing other DBEs as subcontractors.

  (2) Form C-110, DBE Regular Dealer/Distributor Affirmation must be submitted when a DBE listed on Form C-111 is a regular dealer or distributor, as defined below to provide confirmation of the DBE’s participation according to the requirements of this section. The Department will make a preliminary counting determination to assess the DBE’s eligibility for 60 or 40 percent credit, respectively, of the cost of materials and supplies based on the DBE’s demonstrated capacity and intent to perform as a regular dealer or distributor under the Contract. The Department’s preliminary determination shall be made based on the DBE’s written response to relevant questions and the DBE’s affirmation that its subsequent performance of a commercially useful function will be consistent with the preliminary counting of such participation.  Where the DBE supplier does not affirm that its participation will meet the specific requirements of either a regular dealer or distributor, the Department shall make adjustments in counting such participation toward the DBE goal. The bidder is responsible for verifying that the information provided by the DBE supplier is consistent with the counting of such participation toward the goal.

  2. Good Faith Efforts Described

  A. The Department will determine if the bidder or Contractor made good faith efforts by considering the quality, quantity, and intensity of the different kinds of efforts that the bidder or Contractor has made and, if given all relevant circumstances, the efforts were those that one could reasonably expect a bidder or a contractor to take if they were actively and aggressively trying to meet the DBE goal. Efforts to obtain DBE participation are not good faith efforts if they could not reasonably be expected to produce a level of DBE participation sufficient to meet the DBE goal.

  B. The following list contains examples of good faith efforts that may be taken to obtain DBE participation. This is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive. Other factors or types of efforts of similar intent may be relevant in appropriate cases:

  (1) Soliciting through reasonable and available means, such as but not limited to, attendance at pre-bid meetings, advertising, and written notices to DBEs who have the capability to perform the work of the Contract. Examples include: advertising in at least one daily/weekly/monthly newspaper of general circulation, as applicable; phone contact with a completely documented telephone log, including the date and time called, contact person, or voice mail status; and internet contacts with supporting documentation, including dates advertised. The bidder shall solicit this interest no less than five (5) business days before the bids are due so that the solicited DBEs have enough time to reasonably respond to the solicitation. The bidder shall determine with certainty if the DBEs are interested by taking reasonable steps to follow up initial solicitations as evidenced by documenting such efforts as requested on Form C-49, DBE Good Faith Efforts Documentation.

  (2) Selecting portions of the work to be performed by DBEs in order to increase the likelihood that the DBE goals will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate DBE participation, even when the Contractor might otherwise prefer to completely perform all portions of this work in its entirety or use its own forces;

  (3) Providing interested DBEs with adequate information about the plans, specifications, and requirements of the Contract in a timely manner, which will assist the DBEs in responding to a solicitation;

  (4) Negotiating for participation in good faith with interested DBEs;

  i. Evidence of such negotiation shall include the names, addresses, and telephone numbers of DBEs that were considered; dates DBEs were contacted; a description of the information provided regarding the plans, specifications, and requirements of the Contract for the work selected for subcontracting; and, if insufficient DBE participation seems likely, evidence as to why additional agreements could not be reached for DBEs to perform the work;

  ii. A bidder using good business judgment should consider a number of factors in negotiating with subcontractors, including DBE subcontractors, and should take a firm’s price, qualifications, and capabilities, as well as contract goals, into consideration. However, the fact that there may be some additional costs involved in finding and using DBEs is not sufficient reason for a bidder’s failure to meet the Contract goal for DBE participation, as long as such costs are reasonable and comparable to costs customarily appropriate to the type of work under consideration. Also, the ability or desire of a bidder to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make diligent good faith efforts. Bidders are not, however, required to accept higher quotes from DBEs if the bidder can show the price difference to be excessive, unreasonable, or greater than would normally be expected by industry standards;

  (5) A bidder cannot reject a DBE as being unqualified without sound reasons based on a thorough investigation of the DBE’s capabilities. The DBE’s standing within its industry, membership in specific groups, organizations, associations, and political or social affiliations, and union versus non-union employee status are not legitimate causes for the rejection or non-solicitation of bids in the bidder’s efforts to meet the project goal for DBE participation;

  (6) Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as required by VDOT or by the bidder or Contractor;

  (7) Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, or related assistance or services subject to the restrictions contained in this Special Provision;

  (8) Effectively using the services of appropriate personnel from VDOT and from DSBSD; available minority/women community or minority organizations; contractors’ groups; local, state, and Federal minority/ women business assistance offices; and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and utilization of qualified DBEs.

  C. In addition, the Department will scrutinize the bidder’s documented efforts, and will review the efforts of other bidders in meeting the DBE goal. For example, if the apparent low bidder fails to meet the goal, but other bidders meet it, a question may be raised as to whether, with additional efforts, the apparent low bidder could have met the goal. Alternatively, if the apparent low bidder fails to meet the goal but meets or exceeds the average DBE participation obtained by other bidders, the Department may view this, in conjunction with other factors, as evidence of the apparent successful bidder having made good faith efforts. The Department will also require the bidder to submit copies of each DBE and non-DBE subcontractor quote submitted to the bidder when a non-DBE subcontractor was selected over a DBE for work on the contract to review whether DBE prices were substantially higher; and contact the DBEs listed on a contractor's solicitation to inquire as to whether they were contacted by the bidder. Pro forma mailings to DBEs requesting bids are not alone sufficient to satisfy good faith efforts.

  D. A bidder’s promise to use DBEs after contract award is not considered to be responsive to the contract solicitation or to constitute good faith efforts.

  3. Bid Rejection: The failure of a bidder to submit the required documentation within the timeframes in accordance with this Special Provision will be sufficient cause for rejection of that bidder’s bid as non-responsive or non-responsible, as applicable. In such event, the Department may award the contract to the next lowest bidder, cancel the award and re- advertise the proposed contract at a later date, or proceed otherwise as determined by Department. The required forms and instructions for submitting them can be obtained from the VDOT website at: https://vdotforms.vdot.virginia.gov/.

  4. Administrative Reconsideration of Good Faith Efforts 

  Where the Department upon initial review of the bid results determines the apparent low bidder has failed or appears to have failed to meet the requirements of this Special Provision, that bidder upon notification of the Department’s initial determination will be offered the opportunity for administrative reconsideration before VDOT rejects that bid and awards the contract to the next lowest bidder. The bidder shall submit such request for reconsideration in writing to the State Contract Engineer within five (5) business days of receipt of notification by the Department and shall be given the opportunity to provide written documentation or argument concerning the issue of whether the bidder met the DBE goal or made adequate good faith efforts to do so to the Administrative Reconsideration Panel (Panel), either in person or by telephone or video conference as the Panel chooses. The Panel will be made up of VDOT Division Administrators or their designees, none of whom took part in the initial determination that the bidder failed to meet the goal or make adequate good faith efforts to do so. After reconsideration, the Panel shall notify the bidder in writing of its decision and explain the basis for finding that the bidder did or did not meet the goal or make adequate good faith efforts to do so.

  If, after reconsideration, the Panel determines the bidder failed to meet the requirements of the Contract goal and has failed to make adequate good faith efforts to achieve the level of DBE participation as specified in the bid proposal, the bidder’s bid will be rejected.

  If after reconsideration, the Panel determines sufficient documented evidence was presented to demonstrate that the apparent low bidder made reasonable good faith efforts, the Department will award the Contract and reduce the DBE requirement to the bidder’s actual commitment shown in the bidder’s Form C-111 submitted at the time of its bid. However, such action will not relieve the Contractor of its responsibility for complying with the reduced DBE requirement during the life of the Contract or any administrative sanctions as may be appropriate. The Contractor is still encouraged to seek additional DBE participation during the life of the Contract.

  5. Contract Changes:  During construction there may be changes in the Work necessary for the satisfactory completion of the Project. The DBE Contract goal applicable to the Contract includes change orders that have more than a minimal impact on the overall Contract amount or the expected DBE participation, regardless of whether the Department or the Contractor initiates the change order.

  A. Increases in Contract Amount

  To meet the DBE Contract goal as applied to a Change Order increasing the overall Contract amount, the Contractor must make good faith efforts to obtain additional DBE participation to meet the DBE Goal on the increase in the overall Contract amount. The Contractor may meet this obligation either by obtaining additional work from DBE subcontractors or suppliers or by documenting good faith efforts to do so.

  For example, if a project has a 10% DBE participation goal, and during the project the Department issues a change order that will add $500,000 to the overall Contract amount, the 10% goal applies to this additional $500,000. To meet the DBE Contract goal as applied to the Change Order, the Contractor must make good faith efforts to obtain an additional $50,000 in DBE participation.

  If the Contractor obtains additional DBE participation from existing or additional DBEs sufficient to meet the increased DBE Contract goal, the Contractor shall submit a revised Form C-111 exhibiting the DBE participation it commits to attain.  If after making good faith efforts the Contractor is unable to obtain additional DBE participation, it shall document its good faith efforts by submitting a revised Form C-111 and Form C-49. If the Department determines that these Forms demonstrate that the Contractor made reasonable good faith efforts, the Department will reduce the DBE Goal to the Contractor’s actual commitment shown in the revised Form C-111. The Contractor is still encouraged to seek additional DBE participation during the life of the Contract.

  The Contractor may notify the Department if it believes that a change order has such a minimal impact on the final net Contract amount or the expected DBE participation that it would not be sensible to apply the goal to the Change Order. The Department will contact the FHWA for guidance on whether it is necessary to alter DBE requirements affecting the Contract.

  B. Decreases in Amount of DBE Work

  If changes in the Work eliminate or decrease the amount of work designated to be performed by DBEs, the Contractor must follow the procedures for Termination of DBE, and must make good faith efforts to meet the Contract DBE goal by finding additional work for DBEs to perform or finding additional DBEs to perform work under the Contract to the extent needed to meet the Contract DBE goal.

  (f)       Compliance with DBE Requirements

  1. Contractor Compliance 

  The District Civil Rights Office (DCRO) will monitor progress being made toward meeting the DBE goal based on Forms C-63 that the Contractor submits during the designated quarterly reporting period.

  If the Contractor fails to conform to the schedule of DBE participation as shown on the progress schedule, or if at any point it is clearly evident that the remaining dollar value of allowable credit for performing work is insufficient to obtain the scheduled participation, and the Contractor has not taken the actions required when a DBE is unwilling or unable to perform, the Contractor may be disqualified from bidding as provided in the section on Disqualification of Contractor of this Special Provision (i) for a period up to ninety (90) days, (ii) until such time as conformance with the schedule of DBE participation is achieved, or (iii) until the Contractor has taken the required actions when a DBE is unwilling or unable to perform; whichever occurs last.  Disqualification may be avoided if either of the following occurs: (1) the DBE is unable or unwilling to complete their portion of the work, and the Contractor shows reasonable good faith effort to achieve the DBE goal otherwise; or (2) the Department has eliminated or delayed work, or there have been quantitative underruns in work, which the Contractor as shown on the progress schedule had planned to sublet to a DBE firm.

  2. DBE Non-Performance:  If a DBE, through no fault of the Contractor, is unable or unwilling to fulfill their agreement with the Contractor, the Contractor shall immediately notify VDOT in writing and provide all relevant facts. If a Contractor intends to terminate, relieve a DBE subcontractor of the responsibility to perform work under their subcontract, substitute the certified DBE, or otherwise change the scope of work of the DBE, the Contractor is required to comply with the Termination of DBE section of this Special Provision. 

  3. Project Completion: If the Contractor fails upon completion of the project to meet the DBE goal or otherwise comply with the requirements of this Special Provision, the Contractor may be disqualified as provided in the section on Disqualification of Contractor of this Special Provision for a period of ninety (90) days.  Disqualification may be avoided if the Contractor submits documentation to the State Contract Engineer substantiating that (1) the failure was due solely to quantitative underrun(s), elimination of items subcontracted to DBEs, or circumstances beyond their control; and (2) all feasible means have been used to obtain the required participation. The State Contract Engineer upon evaluation of such documentation shall make a determination whether or not the Contractor has met the requirements of the Contract in accordance with this Special Provision.

  (g)      Counting DBE Participation Toward Contract Goal

  A DBE’s participation in the Contract will count toward meeting the Contract goal in accordance with the following.

  1. DBE Participation: When a DBE participates in the Contract, only the value of the work, goods, or services that are performed or provided by the DBE will count toward the Contract DBE goal as provided below:

  A. Count the entire amount of that portion of the construction contract (or other contract not covered by paragraph (B) below) that is performed by the DBE’s own forces, including the cost of the work, supplies, materials, equipment, or services performed or provided by the DBE and equipment leased by the DBE for the work of the contract, but excluding supplies and equipment a DBE subcontractor purchases or leases from the prime Contractor or its affiliates.

  B. Count the entire amount of fees or commissions charged by a DBE for providing a bona fide service, such as professional, technical, consultant or managerial services, or for providing bonds or insurance specifically required for the performance of the Contract toward DBE goals, provided that the fee is reasonable and not excessive as compared with fees customarily allowed for similar services. 

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

  D. Commercially Useful Function (CUF): The Contractor may count expenditures to a DBE toward the DBE goal only if the DBE performs a Commercially Useful Function (CUF) on that contract as provided in the section on Performing a Commercially Useful Function (CUF) of this Special Provision.

  E. Payment Required: A DBE subcontractor’s participation will not count toward the Contractor’s final compliance with its DBE obligations on the Contract until the Contractor has paid the DBE the amount being counted.

  F. Joint Ventures: When a DBE performs work as a member of a joint venture with a non-DBE firm, the Contractor may count toward the DBE goal only that portion of the total dollar value of the Contract equal to the distinctly defined portion of the Contract work that the DBE has performed with the DBE’s own forces or in accordance with the provisions of this Section. The Department shall be contacted in advance regarding any joint venture involving both a DBE firm and a non-DBE firm to coordinate Department review and approval of the joint venture’s organizational structure and proposed operation where the Contractor seeks to claim the DBE’s credit toward the DBE goal.

  G. Cost-plus subcontracts will not be considered to be in accordance with normal industry practice and will not normally be allowed for DBE credit.

  2. Suppliers: Expenditures with DBEs for materials or supplies will be counted toward DBE goals as follows:

  A. DBE Manufacturers: the Contractor may count one hundred (100) percent of the cost of the materials or supplies obtained from a DBE manufacturer. For the purposes of this Special Provision, a manufacturer is a firm that owns (or leases) and operates 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 project specifications. Manufacturing includes blending or modifying raw materials or assembling components to meet contract specifications. When a DBE makes minor modifications to the materials, supplies, articles, or equipment, the DBE is not a manufacturer. Minor modifications are additional changes to a manufactured product that are small in scope and add minimal value to the final product.

  B. DBE Regular Dealers

  (1) The Contractor may count 60 percent of the cost of materials or supplies (including transportation costs) purchased from a DBE regular dealer. For the purposes of this Special Provision, a regular dealer is defined as a firm that owns (or leases) and operates a store, warehouse, or other establishment in which the materials, supplies, articles, or equipment of the general character described by the specifications and required and used under the Contract are bought, kept in sufficient quantities, and regularly sold or leased to the public in the usual course of business. Items kept and regularly sold by the DBE are of the “general character” when they share the same material characteristics and application as the items specified by the Contract.

  (2) The Department will determine if a DBE is a regular dealer as described in this section, when the DBE over a reasonable period of time, keeps sufficient quantities and regularly sells the items in question. The Department will also ensure that a regular dealer of bulk items as described in this section owns or leases and operates the distribution equipment for the product it sells. The Department will determine whether each DBE supplier has the demonstrated capacity to perform a commercially useful function (CUF) as a regular dealer prior to its participation. The Department’s system will be maintained and used to identify all DBE suppliers with the capacity to be eligible for 60 percent credit, contingent upon performance of a CUF.

  i. To be a regular dealer, the DBE firm shall be an established business that engages, as its principal business and under its own name, in the purchase and sale or lease of the products or equipment in question. A DBE supplier performs a CUF as a regular dealer and receives credit for 60 percent of the cost of materials or supplies (including transportation cost) when: at least 51 percent of the items under a purchase order or subcontract are provided from the DBE’s inventory; and when necessary, any of the other items under such purchase order or subcontract that are delivered from and by other sources are of the general character of those items provided from the DBE’s inventory.

  ii. A DBE may be a regular dealer in such bulk items as petroleum products, steel, concrete or concrete products, gravel, stone, or asphalt without owning, operating, or maintaining a place of business where it keeps such items in stock if the DBE both owns and operates distribution equipment used to deliver the products; provided further that the DBE is certified with an appropriate North American Industry Classification System (NAICS) code for supply of such bulk items. Any supplementation of a regular dealer’s own distribution equipment must be by a long-term operating lease and not on an ad hoc or contract-by-contract basis to be eligible for credit to meet the DBE contract goal.

  iii. A DBE supplier of items that are not typically stocked due to their unique characteristics (e.g. limited shelf life or items ordered to specification) should be considered in the same manner as a regular dealer of bulk items as described in this section. If, however, the DBE supplier of these items does not own or lease distribution equipment, as described above, it is not a regular dealer.

  iv. Packagers, brokers, manufacturers’ representatives, or other persons who arrange, facilitate, or expedite transactions are not regular dealers within the meaning of this section.

  (3) If a DBE regular dealer is used for DBE contract goal credit, no additional credit will be given for hauling or delivery to the project site goods or materials sold by that DBE regular dealer. Those delivery costs shall be deemed included in the price charged for the goods or materials by the DBE regular dealer, who shall be responsible for their distribution.

  C. DBE Distributors: If materials or supplies are purchased from a DBE distributor that neither maintains sufficient inventory nor uses its own distribution equipment for the products in question, the Contractor may count forty (40) percent of the cost of the materials or supplies (including transportation costs). A DBE distributor is an established business that engages in the regular sale or lease of the items specified by the Contract. A DBE distributor assumes responsibility for the items it purchases once they leave the point of origin (e.g., a manufacturer’s facility), making it liable for any loss or damage not covered by the carrier’s insurance. A DBE distributor performs a CUF when it demonstrates ownership of the items in question and assumes all risk for loss or damage during transportation, evidenced by the terms of the purchase order or a bill of lading (BOL) from a third party, indicating Free on Board (FOB) at the point of origin or similar terms that transfer responsibility of the items in question to the DBE distributor. If these conditions are met, the Contractor may receive 40 percent credit for items drop-shipped by a DBE firm. Terms that transfer liability to the distributor at the delivery destination (e.g., FOB destination), or deliveries made or arranged by the manufacturer or another seller do not satisfy this requirement.

  D. DBE Truckers or Haulers: A Contractor may count toward the DBE contract goal one hundred (100) percent of the fees paid to a DBE trucker or hauler for the delivery of material and supplies required on the project job site, but not for the cost of those materials or supplies themselves, provided that the trucking or hauling fee is determined by VDOT to be reasonable, as compared with fees customarily charged by non-DBE firms for similar services. A Contractor shall not count costs for the removal or relocation of excess material from or on the job site when the DBE trucker or hauler is not the manufacturer of or a regular dealer in those materials and supplies. The DBE trucker or hauler shall also perform a Commercially Useful Function (CUF) on the project and not operate merely as a pass through for the purposes of gaining credit toward the DBE goal. Prior to submitting a bid, the Contractor shall determine, or contact the VDOT Civil Rights Division or its district offices for assistance in determining, whether a DBE trucker or hauler will meet the criteria for performing a CUF on the project. See section on Performing a Commercially Useful Function (CUF); Factors Used to Determine if a DBE Trucking Firm is Performing a CUF.

  E. DBE Brokers: If materials or supplies are purchased from a DBE who is not a manufacturer, a regular dealer, nor a distributor, as defined above, the Contractor may count the entire amount of fees or commissions charged that the Department deems to be reasonable, including transportation charges for the delivery of materials or supplies. The Contractor may not count any portion of the cost of the materials and supplies toward DBE goals. For the purposes of this Special Provision, a broker is a packager, manufacturer’s representative, or other person or firm who arranges, facilitates, or expedites delivery of materials, supplies, and equipment, or regularly arranges for, expedites, or facilitates the providing of project services as a course of routine business but does not own or operate the delivery equipment necessary to transport materials, supplies, or equipment to or from a job site.

  F. The Department will determine the amount of credit awarded to a DBE for the provision of materials and supplies (e.g., whether a firm is acting as a regular dealer, distributor, or broker) on a contract-by-contract basis.

  3. DBE Decertification: When the DSBSD or MWAA (referred to in this section individually or together as certifier) decertifies a DBE its participation will be counted toward the DBE goal as follows:

  A. When the Contractor has made a commitment to use a decertified subcontractor, but a subcontract has not been executed, the decertified subcontractor’s work does not count toward the DBE goal. The Contractor must meet the DBE goal with an eligible DBE to the extent needed to meet the DBE goal, or must demonstrate that it has made good faith efforts to do so.

  B. When the Contractor has executed a subcontract before the certifier notified the subcontractor of its decertification, the Contractor may continue to use the subcontractor and may continue to receive credit toward the DBE goal for the subcontractor’s work. In such case, however, the Contractor may not extend or add work to the subcontract after the subcontractor was notified of its decertification without the Department’s prior written consent.

  C. When the Department has awarded a contract to a DBE prime Contractor, but the Contract has not been executed before decertification, the decertified Contractor’s work does not count toward the DBE goal. The Contractor must meet the DBE goal with an eligible DBE to the extent needed to meet the DBE goal or must demonstrate that it has made good faith efforts to do so.

  D. When VDOT has executed a prime contract with a DBE firm that is later decertified, the portion of the decertified Contractor’s performance of the Contract remaining after the certifier issued the notice of decertification may continue to count toward satisfying the DBE goal.

  E. The following exceptions apply to this section on Decertification:

  (1) When a certifier decertifies a DBE solely because it exceeds the business size standard during the performance of the Contract, the Department will continue to count the portion of the decertified DBE’s performance of the Contract remaining after the firm received the notice of its decertification toward the DBE goal.

  (2) When the DBE’s decertification is because it was acquired by or merged with a non-DBE, the Department will not continue to count the portion of the decertified DBE’s performance on the Contract remaining after the certifier decertified the DBE toward the Contract goal, even if the Contractor has executed a subcontract with the DBE or the Department has executed a prime contract with the DBE that was later decertified. If eliminating the credit of the decertified DBE firm will affect the Contractor’s ability to meet the DBE goal, the Contractor must subcontract to an eligible DBE to the extent needed to meet the DBE goal, or must demonstrate that it has made a good faith effort to do so.

  (h)      Performing a Commercially Useful Function (CUF)

  No credit toward the DBE goal will be allowed for payments or expenditures to a DBE if that DBE does not perform a CUF on the Contract. A DBE performs a CUF when the DBE is solely responsible for execution of a distinct element of the Contract work and the DBE actually performs, manages, and supervises the work involved with the DBE’s own forces or in accordance with the provisions of the DBE Participation for Contract Goal Credit section of this Special Provision. To perform a CUF the DBE alone shall be responsible and bear the risk for the material and supplies used on the Contract, selecting a supplier or dealer from those available, negotiating price, determining quality and quantity, ordering the material and supplies, installing those materials with the DBE’s own forces and equipment where applicable, and paying for those materials and supplies itself. A determination as to whether the DBE is performing a CUF will be based on the amount of work subcontracted, industry practices, whether the amount the DBE firm is to be paid is commensurate with the work the DBE actually performs and the DBE credit claimed for the DBE’s performance, and other relevant factors.

  1. Monitoring CUF Performance: It shall be the Contractor’s responsibility to ensure that all DBEs selected for subcontract work on the Contract, for which the Contractor seeks to claim credit toward the DBE goal, perform a CUF. Further, the Contractor is responsible for and shall ensure that each DBE fully performs the DBE’s designated tasks with the DBE’s own forces and equipment under the DBE’s own direct supervision and management or in accordance with the provisions of the DBE Participation for Contract Goal Credit section of this Special Provision. For the purposes of this provision the DBE‘s equipment will mean either equipment directly owned by the DBE as evidenced by title, bill of sale or other such documentation, or leased by the DBE, and over which the DBE has control as evidenced by the leasing agreement from a firm not owned in whole or part by the prime Contractor or an affiliate of the Contractor.

  VDOT will monitor the Contractor’s DBE involvement during the performance of the Contract. However, VDOT is under no obligation to warn the Contractor that a DBE’s participation will not count toward the goal.

  2. DBEs Must Perform a Useful and Necessary Role in Contract Completion: A DBE does not perform a CUF if the DBE’s 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 will examine similar transactions, particularly those in which DBEs do not participate.

  3. DBEs Must Perform the Contract Work With Their Own Workforces: If a DBE does not perform and exercise responsibility for at least thirty (30) percent of the total cost of the DBE’s contract with the DBE’s 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 involve, VDOT will presume that the DBE is not performing a CUF and such participation will not be counted toward the Contract goal. In such event, the DBE may present evidence to rebut the presumption. The Department may determine that the DBE is performing a CUF given the type of work involved and normal industry practices. If the DBE does not rebut the presumption, no DBE credit will be given for the work.

  4. Final Determination On Whether a CUF Is Performed: The Department has the final authority to determine whether a DBE has performed a CUF on the Contract. To determine whether a DBE is performing or has performed a CUF, VDOT will evaluate the amount of work subcontracted by that DBE or performed by other firms and the extent of the involvement of other firms’ forces and equipment. Any DBE work performed by the Contractor or by employees or equipment of the Contractor shall be subject to disallowance, unless the independent validity and need for such an arrangement and work is demonstrated.

  5. Factors Used to determine if a DBE Trucking Firm is performing a CUF

  A. To perform a CUF the DBE trucking firm must be responsible for the management and supervision of the entire trucking operation for which the DBE is responsible by subcontract on the Contract. There cannot be a contrived arrangement for the purpose of meeting the DBE goal, including, but not limited to, any arrangement that would not customarily and legally exist under regular construction project subcontracting practices;

  B. The DBE must own and operate at least one fully licensed, insured, and operational truck used in the performance of the Contract work. This does not include a supervisor’s pickup truck or a similar vehicle that is not suitable for and customarily used in hauling the necessary materials or supplies;

  C. The DBE receives credit for the total value of the transportation services it provides on the Contract using trucks the DBE owns, insures, and operates using drivers that the DBE employs;

  D. The DBE may lease trucks from another DBE firm, including from 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 firm 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 non-DBE leased trucks equipped with drivers, not to exceed the value of transportation services on the Contract provided by DBE-owned trucks or leased trucks with DBE employee drivers. For additional participation by non-DBE owned trucks equipped with drivers, the DBE receives credit only for the fee or commission it receives as a result of the lease arrangement, and only if the Department provides written consent in advance.

  EXAMPLE

  DBE Firm X uses two (2) of its own trucks on a contract. The firm leases two (2) trucks from DBE Firm Y and six (6) trucks equipped with drivers from non-DBE Firm Z.

  	Source of Trucks	Value of Transp. Services (For Illustrative Purposes Only)
  Firm X
  Truck 1	Owned by DBE	$100 per day
  Truck 2	Owned by DBE	$100 per day
  Firm Y
  Truck 1	Leased from DBE	$110 per day
  Truck 2	Leased from DBE	$110 per day
  Firm Z
  Truck 1	Leased from Non DBE	$125 per day
  Truck 2	Leased from Non DBE	$125 per day
  Truck 3	Leased from Non DBE	$125 per day
  Truck 4	Leased from Non DBE	$125 per day
  Truck 5	Leased from Non DBE**	$125 per day
  Truck 6	Leased from Non DBE**	$125 per day

  DBE credit would be awarded for the total transportation services provided by DBE Firm X and DBE Firm Y, and may also be awarded for the total value of transportation services by four (4) of the six (6) trucks provided by non-DBE Firm Z (not to exceed the value of transportation services provided by DBE-owned trucks).

  Credit = 8 Trucks

  Total Value of Transportation Services = $820

  In all, full DBE credit would be allowed for the participation of eight (8) trucks (twice the number of DBE trucks owned and leased) and the dollar value attributable to the Value of transportation services provided by the 8 trucks.

  ** Note: With respect to the other two trucks provided by non-DBE Firm Z, DBE credit could be awarded only for the fees or commissions pertaining to those trucks that DBE Firm X receives as a result of the lease with non-DBE Firm Z.

  F. The DBE may lease trucks without drivers from a non-DBE truck leasing company. If the DBE leases trucks from a non-DBE truck leasing company and uses its own employees as drivers, it is entitled to credit for the total value of these hauling services.

  Example: DBE Firm X uses two of its own trucks on a contract. It leases two additional trucks from non-DBE Firm Z. Firm X uses its own employees to drive the trucks leased from Firm Z. DBE credit would be awarded for the total value of the transportation services provided by all four trucks.

  G. For purposes of this section, the lease must indicate that the DBE leasing the truck has exclusive use of and control over the truck. This will not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, provided the lease gives the DBE absolute priority for and control over the use of the leased truck. Leased trucks must display the name and identification number of the DBE that has leased the truck at all times during the life of the lease.

  (i)       Verification of DBE Participation

  1. Subcontracts: Within fourteen (14) days after contract execution, the Contractor shall submit to the Responsible Engineer, with a copy to the District Civil Rights Office (DCRO), a fully executed subcontract agreement for each DBE used to claim credit in accordance with the requirements stated on Form C-112. The subcontract agreement shall be executed by both parties stating the work to be performed, the details or specifics concerning such work, and the price which will be paid to the DBE subcontractor. Because of the commercial damage that the Contractor and its DBE subcontractor could suffer if their subcontract pricing, terms, and conditions were known to competitors, the Department staff will treat subcontract agreements as proprietary Contractor trade secrets with regard to Freedom of Information Act requests. In lieu of subcontract agreements, purchase orders may be submitted for haulers, suppliers, and manufacturers. These too, will be treated confidentially and protected. Such purchase orders must contain, as a minimum, the following information: authorized signatures of both parties; description of the scope of work to include contract item numbers, quantities, and prices; and required federal contract provisions.

  2. Form C-63: The Contractor shall also furnish, and shall require each subcontractor to furnish, information relative to all DBE involvement on the project for each quarter or at another time interval determined by VDOT and communicated to the Contractor during the life of the Contract in which participation occurs and verification is available. The information shall be indicated on Form C-63, DBE and SWAM Payment Compliance Report. The Department reserves the right to request proof of payment via copies of cancelled checks with appropriate identifying notations. Failure to provide Form C-63 to the DCRO within five (5) business days after the reporting period may result in delay of approval of the Contractor’s monthly progress estimate for payment. The names and certification numbers of DBE firms provided by the Contractor on the various forms indicated in this Special Provision shall be exactly as shown on the DSBSD’s or MWAA’s latest list of certified DBEs. Signatures on all forms indicated herein shall be those of authorized representatives of the Contractor as shown on the Prequalification Application, Form C-32 or the Prequalification/Certification Renewal Application, Form C-32A, or authorized by letter from the Contractor. If DBE firms are used which have not been previously documented with the Contractor’s bid and for which the Contractor now desires to claim credit toward the project goal, the Contractor shall be responsible for submitting necessary documentation in accordance with the procedures stipulated in this Special Provision to cover such work prior to the DBE beginning work. Form C-63 can be obtained from the VDOT website at: https://vdotforms.vdot.virginia.gov/.

  3. Project Schedule Narrative: The Contractor shall submit to the Engineer with a copy to the DCRO, a project schedule narrative with each progress schedule submission as required by Section 108.03 of the Specifications or other such specific contract scheduling specification or VDOT-requested updates.  The Contractor shall include a log of applicable DBE activities relative to work activities of the Contractor’s progress schedule, including the approximate start times and durations of all DBE participation to be claimed for credit that shall result in full achievement of the DBE goal required in the Contract. 

  Narratives or other agreeable format of schedule information requirements and subsequent progress determination shall be based on the commitment information shown on the latest Form C-111 as compared with the appropriate Form C-63.  On contracts awarded on the basis of good faith efforts, narratives or other agreeable format of schedule information requirements and subsequent progress determination shall be based on the commitment shown on the latest Form C-111 as compared with the appropriate Form C-63.

  4. Revised Form C-111:  Prior to beginning any major component or quarter of the work, as applicable, in which DBE work is to be performed, the Contractor shall furnish a revised Form C-111 showing the name(s) and certification number(s) of any current DBEs not previously submitted who will perform the work during that major component or quarter for which the Contractor seeks to claim credit toward the Contract DBE goal. The Contractor shall obtain the prior approval of the Department for any assistance it may provide to the DBE beyond its existing resources in executing its commitment to the work in accordance with the requirements listed in the section on Good Faith Efforts Described of this Special Provision. If the Contractor is aware of any assistance beyond a DBE’s existing resources that the Contractor, or another subcontractor, may be contemplating or may deem necessary and that have not been previously approved, the Contractor shall submit a new or revised narrative statement for VDOT’s approval prior to assistance being rendered.

  If the Contractor fails to correctly complete and submit any of the required documentation required by this Special Provision within the specified time frames, the Department will withhold payment of the monthly progress estimate until such time as the required submissions are received. Where such failures to provide required submittals or documentation are repeated the Department may disqualify the Contractor, the Contractor’s members in the case of a joint venture, and any of the Contractor’s affiliates, from bidding as a prime Contractor, or participating as a subcontractor on VDOT projects until such submissions are received in accordance with the section on Disqualification of Contractor of this Special Provision.

  (j)       Documentation Required for Semi-Final Payment

  On those projects nearing completion, the Contractor must submit Form C-63 marked “Semi- Final” within twenty (20) days after the submission of the last regular monthly progress estimate to the DCRO. The form must include each DBE used on the Contract work and the work performed by each DBE. The form shall include the actual dollar amount paid to each DBE for the accepted creditable work on the Contract. The form shall be certified under penalty of perjury, or other applicable law, to be accurate and complete. The Department will use this certification and other information available to determine applicable DBE credit allowed to date by the Department and the extent to which the DBEs were fully paid for that work. The Contractor shall acknowledge by the act of filing the form that the information is supplied to obtain payment regarding a federal participation contract. A letter of certification, signed by both the Contractor and appropriate DBEs, will accompany the form, indicating the amount including retainage, if any, that remains to be paid to the DBEs.

  (k)      Documentation Required for Final Payment

  On those projects that are complete, the Contractor shall submit a final Form C-63 marked “Final” to the DCRO, within thirty (30) days after the final estimate. The form must include each DBE used on the Contract and the work performed by each DBE. The form shall include the actual dollar amount paid to each DBE for the creditable work on the Contract. VDOT will use this form and other information available to determine if the Contractor and DBEs have satisfied the DBE goal percentage specified in the Contract and the extent to which credit was allowed. The Contractor shall acknowledge by the act of signing and filing the form that the information is supplied to obtain payment regarding a federal participation contract.

  (l)       Prompt Payment Requirements

  The Contractor shall promptly pay DBEs in accordance with the requirements of the USDOT DBE Program, § 2.2-4354 of the Code of Virginia, and the Contract, including but not limited to, Sections 107.01, 109.08, 109.09, and 109.10 of the Specifications, and the following.

  1. Within seven (7) days after the Contractor’s receipt of amounts paid by the Department for work performed by the DBE, the Contractor shall either pay the DBE for its share of the total payment received attributable to the work the DBE performed; or shall notify the Department and the DBE in writing of the Contractor’s intention to withhold all or a part of the DBE’s payment along with the reasons for nonpayment.

  2. In the event that the Contractor has not received payment from the Department for work performed by a DBE under the Contract, the Contractor shall be liable for the entire amount owed to such DBE and shall pay such DBE within sixty (60) days of the receipt of an invoice following satisfactory completion of the work for which the DBE has invoiced. The Contractor shall not be liable for amounts otherwise reducible due to the DBE’s noncompliance with the terms of the Contract. However, in the event that the Contractor withholds all or a part of the amount invoiced by the DBE under the terms of the Contract, the Contractor shall notify the DBE within fifty (50) days of the receipt of such invoice, in writing, of its intention to withhold all or a part of the DBE's payment with the reason for nonpayment, specifically identifying the contractual noncompliance, the dollar amount being withheld, and the lower-tier subcontractor (if any) responsible for the contractual noncompliance. Payment by the Department shall not be a condition precedent to the Contractor’s payment to any DBE, regardless of the receipt of payment for amounts owed to the Contractor. Any provision in a subcontract to the contrary shall be unenforceable.  

  3. For the purposes of this Special Provision:

  A. Payment of the DBE’s portion of the work shall mean the Contractor has issued payment in full, less agreed upon retainage, if any, to the DBE for that portion of the DBE’s work that VDOT paid to the Contractor on the monthly progress estimate.

  B. A DBE’s work is satisfactorily completed when all the tasks called for in the subcontract have been accomplished, documented, and accepted as required by the contract documents by the Department.

  C. When the Department has made partial acceptance of a portion of the Contract, the work of any DBE covered by that partial acceptance is deemed to be satisfactorily completed.

  4. Retainage: Nothing contained herein shall preclude the Contractor from withholding retainage or withholding payment to the DBE in accordance with the terms of the subcontract in order to protect the Contractor from loss or cost of damage due to a breach of agreement by the DBE.  The Contractor shall make prompt and full payment of any retainage held by the Contractor within 30 days after the DBE’s work is satisfactorily completed.

  5. If the Contractor fails to make payment for the DBE’s portion of the work within the time frame specified herein, the DBE shall notify the Department and the Contractor’s bonding company in writing. Upon such written notice, the Contractor’s bonding company and the Department will investigate the cause for nonpayment. Barring mitigating circumstances that would make the DBE ineligible for payment, the Contractor’s bonding company shall be responsible for insuring payment to the DBE in accordance with the requirements of the Contract and the Contractor’s payment bond.

  6. The Contractor agrees to assume these prompt payment obligations, and to bind the Contractor’s subcontractors contractually to these obligations.

  (m)     Termination of DBE

  1. Requirements for Termination of DBE

  A.   The Contractor must utilize the specific DBEs listed on its Form C-111 to perform the work and supply the materials for which each is listed. The Contractor is prohibited from terminating a DBE or any portion of a DBE’s work without the prior written consent of the Department, unless the Department is the cause of the termination or reduction in work.  A termination includes any reduction or underrun in work listed for a DBE not caused by a material change to the Contract by the Department. The prohibition applies to instances that include, but are not limited to, when the Contractor seeks to perform work originally designated for a DBE with its own forces or those of an affiliate, a non-DBE, or another DBE.

  Unless the Department provides consent in advance for the Contractor to use a different DBE, the Contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE.

  B.   The Department will consent only if the Department determines, for reasons stated in its response to the Contractor’s request, that the Contractor has good cause to terminate the listed DBE or eliminate any portion of the DBE’s work.

  C.   Good cause does not exist if the Contractor seeks to terminate a DBE or eliminate any portion of its work that the Contractor relied upon to obtain the Contract so that the Contractor can self-perform the work for which the DBE contractor was engaged, or so that the Contractor can substitute another DBE or non-DBE subcontractor after Contract award. Good cause includes the following circumstances:

  1. The listed DBE subcontractor fails or refuses to execute a written subcontract;

  2. The listed DBE subcontractor fails or refuses to perform the work of its subcontract in a way consistent with normal industry standards. Provided, however, that good cause does not exist if the failure or refusal of the DBE subcontractor to perform its work on the subcontract results from the bad faith or discriminatory action of the prime contractor;

  3. The listed DBE subcontractor fails or refuses to meet the prime contractor’s reasonable, nondiscriminatory bond requirements;

  4. The listed DBE subcontractor becomes bankrupt, insolvent, or exhibits credit unworthiness;

  5. The listed DBE subcontractor is ineligible to work on public works projects because of suspension and debarment or disqualification proceedings pursuant to applicable state or federal law;

  6. VDOT determines that listed DBE subcontractor is not a responsible contractor;

  7. The listed DBE subcontractor voluntarily withdraws from the project and provides VDOT with written notice of its withdrawal;

  8. The listed DBE subcontractor is ineligible to receive DBE credit for the type of work required;

  9. A DBE owner dies or becomes disabled with the result that the listed DBE contractor is unable to complete its work on the Contract;

  10. Other documented good cause.

  D. Prior to transmitting a request to terminate a DBE subcontractor to the Department, the Contractor must give notice in writing to the DBE subcontractor, with a concurrent copy to the DCRO, of its intent to request termination and the reason for the proposed termination request. The written notice must give the DBE five (5) days to respond, advising the DCRO and the Contractor of the reasons, if any, why the DBE objects to the proposed termination of its subcontract and why the Department should not approve the prime Contractor’s request. The Department may authorize a response period shorter than five (5) days if required for public safety. The Department will consider both the Contractor’s request and the DBE’s response and explanation before approving the Contractor’s termination and substitution request, or determining if any action should be taken against the Contractor.

  E. All Contractor requests to terminate, substitute, or replace a certified DBE shall be in writing, and shall include the following information:

  1. The date the Contractor determined the DBE to be unwilling, unable, or ineligible to perform;

  2. The projected date that the Contractor shall require a substitution or replacement DBE to commence work if consent is granted to the request;

  3. A brief statement of facts describing and citing specific actions or inaction by the DBE giving rise to the Contractor’s assertion that the DBE is unwilling, unable, or ineligible to perform;

  4. A brief statement of the affected DBE’s capacity and ability to perform the work as determined by the Contractor;

  5. A brief statement of facts regarding actions taken by the Contractor which are believed to constitute good faith efforts toward enabling the DBE to perform;

  6. The current percentage of work completed on each bid item by the DBE;

  7. The total dollar amount currently paid per bid item for work performed by the DBE;

  8. The total dollar amount per bid item remaining to be paid to the DBE for work completed, but for which the DBE has not received payment, and with which the Contractor has no dispute;

  9. The total dollar amount per bid item remaining to be paid to the DBE for work completed, but for which the DBE has not received payment, and over which the Contractor and/or the DBE have a dispute.

  2. Substitution of DBE

  When the Contractor terminates a DBE or any portion of the DBE’s work, or if work committed to a DBE is reduced due to overestimations made prior to award, the Contractor shall use good faith efforts to include additional DBE participation to the extent needed to meet the DBE goal. The Contractor shall document its good faith efforts. If the Department requests the Contractor’s good faith documentation, the Contractor shall submit the documentation within seven (7) days, which may be extended for an additional seven (7) days at the Contractor’s request.

  When a DBE substitution is necessary, the Contractor shall submit a revised Form C- 111 with the name of another DBE firm, the proposed work to be performed by that firm, and the dollar amount of the work to replace the unfulfilled portion of the work of the originally committed DBE firm. In addition, the Contractor shall submit a revised Form C-48, a Form C-112, and a copy of the subcontract for the requested substitute DBE in accordance with this Special Provision. Should the Contractor fail to submit the documentation and information as required any work performed by the substitute DBE will not be counted toward the Contract goal.

  Should the Contractor be unable to find another DBE to perform at least the same amount of work under the Contract as the terminated DBE, the Department will review the quality, thoroughness, and intensity of the Contractor’s good faith efforts. Efforts that are viewed by the Department as merely superficial or pro-forma will not be considered good faith efforts to meet the Contract goal for DBE participation. The Contractor must document the steps taken that demonstrated its good faith efforts to obtain participation as set forth in the section on Good Faith Efforts Described of this Special Provision. The Department will provide a written determination to the Contractor stating whether or not good faith efforts have been demonstrated.

  (n)      Disqualification of Contractor

  Contractors may be disqualified from bidding for failure to comply with the requirements of this Special Provision. Disqualification means the suspension or revocation of the Contractor’s prequalification privileges. The disqualification of the Contractor will also result in the disqualification of each member of the joint venture when the Contractor is a joint venture, and disqualification of any affiliate of the Contractor.

  Prior to disqualification as provided herein, the Contractor may submit documentation to the State Contract Engineer to substantiate that the failure to meet the DBE requirement was due solely to quantitative underrun(s), elimination of items subcontracted to DBEs, or to circumstances beyond their control, and that all feasible means have been used to obtain the required participation.

  The State Contract Engineer upon evaluation of such documentation shall make a determination whether or not the Contractor has met the requirements of the Contract. Prior to the issuance of a written determination of disqualification, the State Contract Engineer shall (i) notify the Contractor in writing of the results of the evaluation, (ii) disclose the factual support for the determination, and (iii) allow the Contractor an opportunity to inspect any documents that relate to the determination, if so requested by the Contractor within five (5) business days after receipt of the notice.

  Within ten (10) business days after receipt of the notice, the Contractor may submit rebuttal information challenging the evaluation. The State Contract Engineer shall issue the written determination of disqualification or ineligibility based on all information in the possession of the Department, including any rebuttal information, within five (5) business days of the date the State Contract Engineer received such rebuttal information.

  If the State Contract Engineer’s evaluation reveals that the Contractor met the requirements of the Contract, the State Contract Engineer shall cancel the proposed disqualification action. If the State Contract Engineer’s evaluation reveals that the Contractor should be disqualified from bidding, the State Contract Engineer shall so notify the Contractor. The decision of the State Contract Engineer to disqualify the Contractor shall state the basis for the determination, which shall be final unless the Contractor appeals the decision within ten (10) calendar days after receipt of the decision by instituting a legal action as provided in Va. Code § 2.2-4364.

  If the decision is made to disqualify the Contractor as described herein, the disqualification period will begin upon the Contractor’s failure to institute a legal action to appeal the decision within the designated time frame, or upon a court's decision upholding or affirming the disqualification decision, as applicable.

  As used in this Special Provision, "all feasible means" refers to reasonable good faith efforts to obtain sufficient DBE participation to meet the DBE goal in accordance with the section on Good Faith Efforts Described of this Special Provision.

  (o)      Criminal or Fraudulent Conduct

  1. Criminal Conduct: Failure of a bidder, Contractor, or subcontractor to comply with the Virginia Department of Transportation Road and Bridge Specifications and these Special Provisions wherein there appears to be evidence of criminal conduct shall be referred to the Attorney General for the Commonwealth of Virginia and/or the FHWA Inspector General for criminal investigation and, if warranted, prosecution.

  2. Suspected DBE Fraud: In appropriate cases, VDOT will bring to the attention of the U. S. Department of Transportation (USDOT) any appearance of false, fraudulent, or dishonest conduct in connection with the DBE program, so that USDOT can take the steps, e.g., referral to the Department of Justice for criminal prosecution, referral to the USDOT Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules provided in 49 CFR Part 31.

• SECTION 107 – LEGAL RESPONSIBILITIES —

  August 18, 2017

  Of the Specifications is revised as follows:

  Section 107.15 – Use of Small, Women-Owned, and Minority-Owned Businessis renamed Use of Disadvantaged Business Enterprises (DBEs)and replaced with the following:

• SUBMISSION OF BIDS AND BID OPENING —

  A. Bidders must use the attached Official Bid Form to submit their bid. All bids must show unit price, if applicable, and total price. All bidders must sign and date any issued addendums or any other documentation considered to be part of the Bid Package. KEEP A COPY OF THE IFB FOR YOUR FILES AND DO NOT SUBMIT IT WITH THE BID PACKAGE. By signing the Official Bid Form, the bidder acknowledges they have read this solicitation, understand it, and agree to be bound by its terms and conditions. Bids may be submitted by mail or delivered in person.

  B. Bids shall not be faxed, mailed or hand delivered to any department or building in the Town of Vienna.

  C. The Bidder shall assume full responsibility for uploading bid documents to the OpenGov Procurement website. The OpenGov Procurement website does not allow late bid submittals.

  Bidders are reminded that changes to the IFB, in the form of addenda, are often issued between the issue date and within ten business (10) days before the closing of the IFB. Bidders are solely responsible for checking the Town website to ensure that they have the most current information regarding the IFB.

• Vendor —

  THE GENERAL TERMS AND CONDITIONS WHICH FOLLOW APPLY TO ALL PURCHASES AND BECOME A DEFINITE PART OF EACH FORMAL INVITATION FOR BID, REQUEST FOR PROPOSALS, PURCHASE ORDER AND/OR OTHER AWARD ISSUED BY THE TOWN OF VIENNA, VIRGINIA, UNLESS OTHERWISE SPECIFIED IN THE SOLICITATION DOCUMENTS. BIDDERS/OFFERORS OR THEIR AUTHORIZED REPRESENTATIVES ARE EXPECTED TO FULLY INFORM THEMSELVES AS TO THE CONDITIONS, REQUIREMENTS, AND SPECIFICATIONS BEFORE SUBMITTING BIDS/PROPOSALS; FAILURE TO DO SO WILL BE AT THE BIDDERS'/OFFERORS' OWN RISK AND HE CANNOT SECURE RELIEF ON THE PLEA OF ERROR.

  SUBJECT TO STATE, COUNTY AND LOCAL LAWS AND ALL RULES, REGULATIONS AND LIMITATIONS IMPOSED BY LEGISLATION OF THE FEDERAL GOVERNMENT, BIDS/PROPOSALS ON ALL SOLICITATIONS ISSUED BY THE PURCHASING OFFICE WILL BIND BIDDERS/OFFERORS TO APPLICABLE CONDITIONS AND REQUIREMENTS HEREIN SET FORTH UNLESS OTHERWISE SPECIFIED IN THE SOLICITATION.

• SECTION 107 – LEGAL RESPONSIBILITIES of the Specifications is revised as follows: —

  Section 107.15 – Use of Small, Women-Owned, and Minority-Owned Businesses (SWaMs) is replaced in its entirety with the following:

  Section 107.15 – Use of Disadvantaged Business Enterprises (DBEs)

  NOTE: Effective October 3, 2025, the United States Department of Transportation (USDOT) adopted an Interim Final Rule (IFR) revising the DBE requirements in the Code of Federal Regulations, Title 49, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs.  In accordance with the IFR and USDOT’s Official Frequently Asked Questions providing guidance regarding the IFR, the DBE goal for this Contract is 0%; and the Department will not count DBE participation toward a program goal, nor will it perform commercially useful function (CUF) reviews. Otherwise, the requirements of the USDOT DBE Program set out in this Special Provision remain effective. 

  (a)      DBE Program - Interim Requirements

   Bidders, the Contractor, and all subcontractors, suppliers, and contract sureties involved in the performance of work on this federal-aid contract shall comply with the terms and conditions of this Special Provision and in Code of Federal Regulations Title 49, Part 26,  Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs, as amended, (USDOT DBE Program), incorporated by reference into this Special Provision. The Contractor shall physically include this same Special Provision in every subcontract made or executed with a subcontractor or supplier.

  Disadvantaged Business Enterprise (DBE) means a small business concern as certified by SBSD, including the Contractor, subcontractors, suppliers, or manufacturers performing work, or furnishing materials, supplies, equipment, or services necessary for the Contract.

  The Contractor, for itself and for its subcontractors and suppliers, whether certified DBE firms or not, shall commit to complying fully with the auditing, record keeping, confidentiality, cooperation, and anti-intimidation or retaliation provisions contained in USDOT DBE Program and the Contract. By bidding on this Contract, and by accepting and executing this Contract, the Contractor agrees to assume these contractual obligations and to bind the Contractor’s subcontractors contractually to the same at the Contractor’s expense.

  The Contractor and its subcontractors and suppliers shall not discriminate based on race, color, sex, or national origin in the performance of this Contract. The Contractor shall carry out applicable requirements of USDOT DBE Program and the Contract in the award, administration, and performance of this Contract. Failure by the Contractor to carry out these requirements is a material breach of this Contract, which will result in the termination of this Contract or other such remedy, as VDOT deems appropriate, which may include, but is not limited to: (1) withholding monthly progress payments; (2) assessing sanctions; (3) assessing liquidated damages; and/or (4) disqualifying the contractor from future bidding.

  (b)      Financial Services

  The Contractor and each subcontractor are encouraged to use the services of financial institutions owned and controlled by socially and economically disadvantaged individuals in the community. The use of such services is not required and the fees charged will not be counted for credit toward a DBE contract goal when the contract has a goal.  

  (c)      Certifications Made By Bidder and Contractor

  By submitting a bid, by signing this Contract, and by signing each subcontract with a subcontractor incorporating this Special Provision, the Contractor and subcontractors certify to each of the following conditions and assurances:

  1. 1. They will comply with and carry out the applicable requirements of the USDOT DBE Program and the Contract in the bidding, award, execution, performance, and administration of the Contract and subcontracts.
  2. 2. That all reasonable steps were and will be taken to ensure that DBEs had and will have a full and fair opportunity to compete for and perform work on the Contract. Any agreements between a bidder and a DBE whereby the DBE promises not to provide quotations for performance of work to other bidders are prohibited.
  3. 3. That they shall not discriminate based on race, color, age, sex, or national origin in the performance of the Contract or in the award and performance of any subcontract.
  4. 4. That in the event a bond surety assumes responsibility for completion of work for any reason, including without limitation when the Department terminates the prime Contractor, the surety shall be obligated to meet the same DBE contract terms and requirements as were required of the original prime Contractor in accordance with the requirements of the USDOT DBE Program and this Special Provision.

  Failure by the Contractor, subcontractor, or supplier retained by the Contractor, or surety to comply with all requirements of the USDOT DBE Program or this Special Provision is a material breach of this Contract. The Department has the authority and discretion to determine the extent to which these requirements have not been met, and will assess against the Contractor any remedies available at law or provided in the Contract in the event of such a contract breach, which may result in termination of the Contract or such other remedy as the Department deems appropriate, which may include, but is not limited to: (1) withholding monthly progress payments; (2) assessing sanctions; (3) assessing liquidated damages; and/or (4) disqualifying the Contractor from future bidding as non-responsible.

  (d)      Contractor Compliance Requirements

  NOTE: Due to the USDOT’s revisions of the DBE requirements in 49 CFR Part 26 for the USDOT DBE program, the DBE goal for this Contract is 0%; the Department will not count participation toward the DBE goal, nor will it conduct commercially useful function (CUF) reviews.  Otherwise, the requirements of the USDOT DBE Program in this Special Provision remain effective. 

  1. Documentation Required During Bidding: A bidder shall submit a completed Form C-48, Subcontractor/Supplier Solicitation and Utilization, as a part of the bid documents. Form C-48 must be received no later than 10:00 a.m. the next business day after the date and time stated in the Invitation for Bids for receipt of bids, or the bid will be rejected as non-responsive. This form may be submitted electronically via Bid Express or by email to: vdotcontracts@vdot.virginia.gov.

  The required form and instructions for submitting it can be obtained from the List of Construction Forms on VDOT’s website at: https://www.vdot.virginia.gov/doing-business/technical-guidance-and-support/construction/.

  Bid Rejection: The failure of a bidder to submit the required documentation within the timeframes in accordance with this Special Provision will be sufficient cause for rejection of that bidder’s bid as non-responsive or non-responsible, as applicable. In such event, the Department may award the contract to the next lowest bidder, cancel the award and re-advertise the proposed contract at a later date, or proceed otherwise as determined by Department.

  2. Documentation Required During Contract Performance

  The District Civil Rights Office (DCRO) will monitor progress of payments to subcontractors based on Forms C-63 the Contractor submits during the designated quarterly reporting periods.

  Form C-63: The Contractor shall furnish, and shall require each subcontractor to furnish, information relative to their involvement on the project for each quarter or at another time interval determined by VDOT and communicated to the Contractor during the life of the Contract in which participation occurs and verification is available. The information shall be indicated on Form C-63. The Department reserves the right to request proof of payment via copies of cancelled checks with appropriate identifying notations. Failure to provide Form C-63 to the DCRO within five (5) business days after the reporting period may result in delay of approval of the Contractor’s monthly progress estimate for payment. Signatures on all forms indicated herein shall be those of authorized representatives of the Contractor as shown on the Prequalification Application, Form C-32 or the Prequalification/Certification Renewal Application, Form C-32A, or authorized by letter from the Contractor.  Form C-63 can be obtained from the List of Construction Forms on the VDOT website at: https://www.vdot.virginia.gov/doing-business/technical-guidance-and-support/construction/.

  If the Contractor fails to correctly complete and submit any of the required documentation required by this Special Provision within the specified time frames, the Department will withhold payment of the monthly progress estimate until such time as the required submissions are received. Where such failures to provide required submittals or documentation are repeated the Department may disqualify the Contractor, the Contractor’s members in the case of a joint venture, and any of the Contractor’s affiliates, from bidding as a prime Contractor, or participating as a subcontractor on VDOT projects until such submissions are received in accordance with the section on Disqualification of Contractor of this Special Provision.

  3. Documentation Required for Semi-Final Payment

  On those projects nearing completion, the Contractor must submit Form C-63 marked “Semi- Final” within twenty (20) days after the submission of the last regular monthly progress estimate to the DCRO. The form must include each subcontractor  used on the Contract work and the work performed. The form shall include the actual dollar amount paid to each subcontractor for the accepted creditable work on the Contract. The form shall be certified under penalty of perjury, or other applicable law, to be accurate and complete.

  4. Documentation Required for Final Payment

  On those projects that are complete, the Contractor shall submit a final Form C-63 marked “Final” to the DCRO, within thirty (30) days after the final estimate. The form must include each subcontractor used on the Contract, the work performed, and the actual dollar amount paid to each subcontractor for the work on the Contract.

  (e)      Disqualification of Contractor

  Contractors may be disqualified from bidding for failure to comply with the requirements of this Special Provision in accordance with the provisions of Section 102.08 of the Specifications. Disqualification means the suspension or revocation of the Contractor’s prequalification privileges. The disqualification of the Contractor will also result in the disqualification of each member of the joint venture when the Contractor is a joint venture, and disqualification of any affiliate of the Contractor.

• SECTION 107.03 FEDERAL AID PROVISIONS of the Specifications is amended to add at the end of the section the following: —

  Made in the USA Requirements.  All products and materials that are to be permanently incorporated into the project shall be produced in the United States in accordance with the requirements of this Special Provision, and the Buy America Act requirements in 23 CFR § 635.410, and the Build America, Buy America Act (BABA) requirements in 2 CFR Parts 184 and 200, which are incorporated by reference into this Special Provision.

  (a) Categorization of products and materials.

   Products or materials permanently incorporated into the project shall be classified into one of the following categories:

  • Iron or Steel Products;
  • Manufactured Products;
  • BABA Construction Materials; or
  • Excluded Materials.

  The following Excluded Materials are exempt from any and all of the requirements of this Special Provision: cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives.

  A product or material will not be considered to fall into multiple categories, except as otherwise provided for specified Manufactured Products. The classification of a product or material as falling into one of the categories listed above must be made based on its status at the time it is brought to the work site for incorporation into the project. In general, the work site is the location of the project at which the Iron or Steel Product, Manufactured Product, BABA Construction Material, or Excluded Material will be incorporated.

  A product or material permanently incorporated into a project must meet the Made in the USA requirements for the category in which it is classified.

  1. Iron or Steel Products.  Iron or Steel Products must meet the following requirements:

       a. Definitions. As used in this section:

           “Coating” means the application of epoxy, galvanizing, painting or any other such process that protects or enhances the value of the material to which the coating is applied.  

           “Component” means an article, material, or supply, whether manufactured or unmanufactured, incorporated directly into an iron or steel product.

           “Domestic Iron or Steel Product” means all iron or steel materials or products meeting the criteria as produced in the United States.

           “Iron or Steel Products” means articles, materials, or supplies that consist wholly or predominantly of iron or steel or a combination of both.  This includes any ferrous metal.

           “Manufacturing processes” means any process which alters or modifies the chemical content, physical size or shape, or final finish of iron or steel materials or products (such as rolling, extruding, bending, machining, fabrication, grinding, drilling, finishing, or coating). The manufacturing process is considered complete when the resultant product is ready for use as an item in the project (e.g. fencing, posts, girders, pipe, manhole covers, etc.) or is incorporated as a component of a more complex product by means of further manufacturing.

           “Non-Domestic Iron or Steel Products” means any item containing foreign or unknown source iron or steel billet.  This also includes iron or steel ingots or billets produced in the United States, but shipped outside the United States of America for any manufacturing process and returned for permanent use in a project.

           “Predominantly of iron or steel or a combination of both” means that the cost of the iron and steel content exceeds 50 percent of the total cost of all its components. The cost of iron and steel is the cost of the iron or steel mill products (such as bar, billet, slab, wire, plate, or sheet), castings, or forgings utilized in the manufacture of the product and a good faith estimate of the cost of iron or steel components.

           "Produced in the United States" means all manufacturing processes from the initial melting stage through the application of coatings, occurred in the United States, the District of Columbia, and Puerto Rico or any of the territories and possessions of the United States. 

       b. Requirements.

  All Iron or Steel Products to be permanently incorporated for use on federal aid projects shall be Produced in the United States.  This means that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.  This applies to any iron or steel item brought onto the project, regardless of the percentage of iron or steel that exists in the pay item or in the final form they take.

  These requirements do not apply to items used temporarily in the construction of a project such as temporary sheet piling, temporary bridges, steel scaffolding, falsework or such temporary material or product or material that remains in place for the Contractor’s convenience. 

  Raw materials such as iron ore, pig iron, processed, pelletized and reduced iron ore, waste products (including scrap, that is, iron or steel no longer useful in its present form from old automobiles, machinery, pipe, railroad rail, or the like and steel trimmings from mills or product manufacturing) and other raw materials used in the production of iron or steel products may, however, be imported.  Extracting, handling, or crushing the raw materials which are inherent to the transporting the materials for later use in the manufacturing process are exempt from the requirements of this section.  

       c. Maximum Allowable Amount of Non-Domestic Iron or Steel. 

  The maximum allowable amount of Non-Domestic Iron or Steel that may be used in the project shall not exceed one-tenth of one percent (0.1%) of the total Contract amount or $2,500, whichever is greater.  The cost of the Non-Domestic Iron or Steel Products is defined as the monetary value of such products as delivered to the work site, including transportation, assembly, installation and testing, and shall be supported by invoices or bill of sale to the Contractor. 

  2. Manufactured Products.  Manufactured products must meet the following requirements:

       a. Definitions. As used in this section:

           “Component” means an article, material, or supply, whether manufactured or unmanufactured, incorporated directly into a manufactured product.

           “Excluded materials” means cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives.

           “Manufactured Product” means an article, material, or supply that has been: (i) processed into a specific form and shape, or (ii) Combined with other articles, materials, or supplies to create a product with different properties than the individual articles, materials, or supplies.  If an item is classified as an Iron or Steel Product, a BABA Construction Material, or an Excluded Material in accordance with this Special Provision, then it is not a Manufactured Product.  However, an article, material, or supply classified as a Manufactured Product may include components that are Iron or Steel Products, BABA Construction Materials, or Excluded Materials.  Mixtures of Excluded Materials delivered to a work site without final form for incorporation into a project are not a Manufactured Product.

           “Manufacturer” means the entity that performs the final manufacturing process that produces a Manufactured Product.

           “Predominantly of iron or steel or a combination of both” means that the cost of the iron and steel content exceeds 50 percent of the total cost of all its components. The cost of iron and steel is the cost of the iron or steel mill products (such as bar, billet, slab, wire, plate, or sheet), castings, or forgings utilized in the manufacture of the product and a good faith estimate of the cost of iron or steel components.

           “Produced in the United States” with respect to Manufactured Products only, means that the Manufactured Product must have had its final manufacturing process occur in the United States, the District of Columbia, and Puerto Rico or any of the territories and possessions of the United States (also known as the “final assembly requirement”).

       b. Requirements.

           (1) General

  All Manufactured Products shall be Produced in the United States.  This means that, for all Manufactured Products which are permanently incorporated into the project, the final manufacturing process that produces a Manufactured Product must have occurred in the United States.

           (2) For Manufactured Products containing iron, steel, or other ferrous materials:

                 (a) If components of the Manufactured Product are not wholly or Predominantly iron or steel or a combination of both, then the Manufactured Product shall meet the general requirements in Section (a)(2)(b)(1), above.

                 (b) If components of the Manufactured Product are made wholly or Predominantly of iron or steel or a combination of both, then the requirements for both Manufactured Products in Section (a)(2)(b)(1), and Iron or Steel Products Section (a)(1)(b), apply to the following:

  • Precast concrete;
  • Cabinets or other enclosures for traffic control systems such as, Intelligent Transportation Systems (ITS) and other electronic hardware systems.

                 (c) Otherwise, a Manufactured Product made wholly or Predominantly of iron or steel or combination of both is subject to the Iron or Steel Product requirements in Section (a)(1)(b), above.

       c. Maximum Allowable Amount of Non-Compliant Manufactured Products. 

  The maximum allowable amount of non-compliant Manufactured Products that may be used on the project is limited to a total value of no more than the lesser of $1,000,000 or 5% of total applicable costs for the project.

  The costs used in this calculation are the actual costs of furnishing the materials to the site, not the bid item prices.  The contract cost is not a direct factor in this determination.

  For this calculation, “project” refers to the single Federal financial assistance award under the scope of the applicable National Environmental Policy Act (NEPA) finding, determination, or decision, and includes all design phase, right of way phase, and construction costs for this contract and other contracts falling under the scope of the NEPA finding, determination, or decision.   In addition, the ‘‘total value of the non-compliant products’’ does not include the value of those products subject to any waivers of the Made in the USA requirements.

  The 5% threshold is calculated using the following formula:

  (total value of all non-compliant BABA Construction Materials and Manufactured Products used on the project, combined)

  ÷

  (total applicable costs, i.e. the total costs all compliant and non-compliant BABA Construction Materials, Manufactured Products, and iron or steel used on the project, combined).

  ≤ 5%

  3. BABA Construction Materials. BABA Construction Materials must meet the following requirements:

       a. Definitions.

  “BABA Construction Materials” means articles, materials, or supplies that consist of only one of the items listed in paragraph (1) of this definition, except as provided in paragraph (2) of this definition.  To the extent one of the items listed in paragraph (1) contains as inputs other items listed in paragraph (1), it is nonetheless a construction material.

  (1)  The listed items are:

       i. Non-ferrous metals

       ii. Plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables);

       iii. Glass (including optic glass);

       iv. Fiber optic cable (including drop cable);

       v. Optical Fiber;

       vi. Lumber;

       vii. Engineered wood; and

       viii.  Drywall.

  (2)  Minor additions of articles, materials, supplies, or binding agents to a   construction material do not change the categorization of the construction material.  However, if the addition of another material changes the nature of the construction material, even if the relative proportion of the additional material is small, then the altered material is considered a Manufactured Product, not a BABA Construction Material.

  “Excluded materials” means cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives.

  “Produced in the United States” for the purpose of this section, means that all manufacturing processes for the Construction Material occurred in the United States, the District of Columbia, and Puerto Rico or any of the territories and possessions of the United States.

       b. Requirements

  Standards.  To be considered Produced in the United States, the BABA Construction Materials listed below that are to be permanently incorporated into the project shall meet the standards specified:

  (1) Non-ferrous metals. All manufacturing processes, from initial smelting or melting through final shaping, coating, and assembly, must occur in the United States.

  (2) Plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables). All manufacturing processes, from initial combination of constituent plastic or polymer-based inputs, or, where applicable, constituent composite materials, until the item is in its final form, must occur in the United States.

  (3) Glass. All manufacturing processes, from initial batching and melting of raw materials through annealing, cooling, and cutting, must occur in the United States.

  (4) Fiber optic cable (including drop cable). All manufacturing processes, from the initial ribboning (if applicable), through buffering, fiber stranding and jacketing, must occur in the United States. All manufacturing processes also include the initial batching and melting of raw materials through annealing, cooling, and cutting for glass, and all manufacturing processes, from the initial preform fabrication stage through the completion of the draw for optical fiber, if applicable.

  (5) Optical fiber. All manufacturing processes, from the initial preform fabrication stage through the completion of the draw, must occur in the United State

  (6) Lumber. All manufacturing processes, from initial debarking through treatment and planing, must occur in the United States.

  (7) Drywall. All manufacturing processes, from initial blending of mined or synthetic gypsum plaster and additives through cutting and drying of sandwiched panels, must occur in the United States.

  (8) Engineered wood. All manufacturing processes from the initial combination of constituent materials until the wood product is in its final form, must occur in the United States.

  Only a single standard above should be applied to a single construction material.

  Any items that consist of at least one of the listed BABA Construction Materials combined together through a manufacturing process with another listed BABA Construction Material or with a non-listed item are to be classified as Manufactured Products, not BABA Construction Materials.

  BABA Construction Materials requirements do not apply to the Excluded Materials; or any mixture or material composed of or derived from these items delivered to the work site without final form for incorporation into the project.

       c. Maximum Allowable Amount of Non-Compliant BABA Construction Materials.

  The maximum amount of non-compliant BABA Construction Materials that may be used on the project is limited to a total value of no more than the lesser of $1,000,000 or 5% of total applicable costs for the project. 

  The costs used in this calculation are the actual costs of furnishing the materials to the site, not the bid item prices.  The contract cost is not a direct factor in this determination.

  For this calculation, “project” refers to the single financial assistance award under the scope of the applicable NEPA finding, determination, or decision, and includes all design phase, right of way phase, and construction costs for this contract and other projects falling under the scope of the NEPA finding, determination, or decision.  In addition, the ‘‘total value of the non-compliant products’’ does not include the value of those products subject to any waivers of the Made in the USA requirements.

  The 5% threshold is calculated using the following formula:

  (total value of all non-compliant BABA Construction Materials and Manufactured Products used on the project, combined)

  ÷

  (total applicable costs, i.e. the total costs all compliant and non-compliant BABA Construction Materials, Manufactured Products, and Iron or Steel Products used on the project, combined).

  ≤ 5%

  (b) Waivers.

  Waivers of the Made in the USA requirements may only be issued by FHWA.  The Contractor shall not anticipate that FHWA will waive any of these requirements.  If the Contractor believes a waiver is needed, the Contractor shall promptly notify the Engineer.  The Engineer will review the Contractor’s request, and will coordinate with FHWA if the Contractor’s request for a waiver is substantiated.  The circumstances for which a waiver may be granted are set forth in: 23 U.S. Code § 313(b); BABA Public Law 117-58 § 70914 (b) through (d); and 2 CFR § 184.7.

  (c) Certification of Compliance

  Upon delivery and prior to permanently incorporating any items containing Iron or Steel, any Manufactured Products, or any BABA Construction Materials into the project, the Contractor shall certify compliance with the requirements of this Special Provision using the following forms: Form C-76 Certificate of Compliance for Iron and Steel; Form C-76A Certificate of Compliance for BABA Construction Materials; and Form C-76B Certificate of Compliance for Manufactured Products, collectively forms.  Each of the forms submitted by the Contractor shall certify whether or not the items listed meet the requirements of this Special Provision, must be signed and dated by the Contractor’s Superintendent or other authorized representative, and must include a Submittal Number. The Submittal Number is the Contractor’s project specific sequential numbering system that will allow the Contractor and Department to track the total number of certificates provided and the individual items containing iron or steel, manufactured products, or BABA Construction Materials associated with each certificate.  The Contractor shall use three separate sequential numbering sequences (1) for Iron and Steel, (2) for Manufactured Products, and (3) for BABA Construction Materials. 

  (d) Supporting Documentation

  Supporting documentation (such as mill test reports, manufacturer/supplier certifications, etc.) to demonstrate compliance with the Made in the USA requirements shall be organized by Submittal Number and maintained by the Contractor from the date of delivery until five years after project acceptance, unless otherwise directed by the Department. The Contractor may maintain this documentation electronically or in paper format.

  The Department or FHWA may review the Contractor’s supporting documentation to verify compliance with these requirements at any time. Supporting documentation shall be provided within five business days of the request. The burden of proof to meet these requirements rests with the Contractor. If the supporting documentation does not undeniably demonstrate to FHWA or the Department that the iron and steel products identified on Form C-76, the BABA Construction Materials identified on Form C-76A, or the manufactured products identified on Form C-76B were produced in the United States, then the Department may deduct payment from moneys due the Contractor for the value of the iron and steel, manufactured products, or BABA Construction Materials that did not meet these requirements.

• Purpose —

  The purpose of this Invitation for Bid is to install curb & gutter and sidewalk with the public right-of-way from approximately 455 LF east of Cottage Street SW to Desale Street SW along Kingsley Road SW. The project includes new curb & gutter, mill and overlay, sidewalk, storm drainage system, driveways and entrance aprons, and an ADA accessible (pedestrian) curb ramp. The project will provide pedestrian access and curb & gutter along this portion of Kingsley Street SW.

• CLARIFICATION OF TERMS —

  If any prospective bidder/offeror has questions about the specifications or other solicitation documents, the prospective bidder/offeror should contact the Procurement Officer or the person whose name appears on the face of solicitation NO LATER THAN TEN (10) WORKING DAYS BEFORE opening/closing date. Any revisions to the solicitation will be made only by addendum issued by the Procurement Officer.

• CONTRACT DOCUMENTS —

  The Advertisement for Bid, Information for Bidders, Form of Bid, Owner-Contractor Agreement, Drawings, General Conditions and Special Conditions and any supplements thereto, Specifications and all Addenda issued prior to, and all Modifications issued after execution of the Contract, shall form part of this Contract and the provisions thereof shall be as binding upon the parties hereto as if they were herein fully set forth. Any soils, geotechnical or other reports, surveys and analyses which may be made available to the Contractor for review or information under this Contract, are not adopted by reference into, nor are they part of the Contract Documents. A Modification is (1) a written Amendment to the Contract signed by both parties, (2) a written Change Order signed by both parties (3) a written Field Order or, (4) a Unilateral Change Order issued by the Owner. The table of contents, titles, headings, running headlines and marginal notes contained herein and in said documents are solely to facilitate reference to various provisions of the Contract Documents and in no way affect, limit or cast light upon the interpretation of the provisions to which they refer.

• § 200.325 Bonding Requirements —

  For construction or facility improvement contracts or subcontracts exceeding the Simplified Acquisition Threshold ($250,000), the Federal awarding agency or pass-through entity may accept the bonding policy and requirements of the non-Federal entity provided that the Federal awarding agency or passthrough entity has made a determination that the Federal interest is adequately protected. If such a determination has not been made, the minimum requirements must be as follows:

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

  (b) A performance bond on the part of the contractor for 100 percent of the contract price. A ‘‘performance bond’’ is one executed in connection with a contract to secure fulfillment of all the contractor’s obligations under such contract.

  (c) A payment bond on the part of the contractor for 100 percent of the contract price. A ‘‘payment bond’’ is one executed in connection with a contract to assure payment as required by law of all persons supplying labor and material in the execution of the work provided for in the contract.

• STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUCTION CONTRACT SPECIFICATIONS (EXECUTIVE ORDER 11246) —

  1. As, used in this provision:

  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:

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

  (ii) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish Culture or origin, regardless of race);

  (iii) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East,

  Southeast Asia, the Indian Subcontinent, or the Pacific Islands); and

  (iv) 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.

  3. If the Contractor is participating (pursuant to 41 CFR 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 obligations under the EEO 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 and 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 goals 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. Covered construction Contractors performing construction work in geographical areas where they do not have a Federal or federally assisted construction contract shall apply the minority and female goals established for the geographical area where the work is being performed. Goals are published periodically in the Federal Register in notice form, and such notices may be obtained from any Office of Federal Contract Compliance Programs office or from Federal procurement contracting officers. The Contractor is expected to make substantially uniform progress in meeting 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, shall assign two or more women to each construction project. The Contractor shall specifically ensure that all foreman, superintendents and other on-site 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 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 unions 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 which the Contractor has a collective bargaining agreement has not referred to the Contractor a minority person or women 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 complied under 7b above.

  f. Disseminate the Contractor's EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the Contractor in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper or annual report; 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 EEO policy on bulletin boards accessible to all employees at each location where construction work is performed.

  g. Review, at least annually, the company's EEO policy and affirmative action obligations under these specifications with all employees having any responsibility for hiring, assignment, layoff, termination, or other employment decisions including specific review of these items with onsite supervisory personnel such as Superintendents and General Foremen 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 EEO policy externally by including in any news media advertisement that the Contractor is "An Equal Opportunity Employer" for minority and female, and providing written notification to and discussing the Contractor's EEO policy with other Contractors and Subcontractors with whom the Contractor does or anticipates doing business.

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

  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 of all minority and female personnel for promotional opportunities and encourage these employees to seek or to prepare for such opportunities through appropriate training or other means.

  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 EEO 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 EEO 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 (7a 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 7a 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 workforce 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 noncompliance.

  9. Goals for women have been established. However, the Contractor IS required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female and all women, both minority and non-minority. Consequently, the Contractor may be in violation of the Executive Order if a particular group is employed in a substantially disparate manner, that is even thought the Contractor has achieved its goals for women, 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, sexual orientation, gender identity, 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 the Equal Opportunity Clause, including 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 Contract 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 will proceed in accordance with 41 CFR 60-4.8.

  14. The Contractor shall designate and make known to the Department a responsible official as the EEO Officer to monitor all employment related activity, to ensure that the company EEO 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 will 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).

• Disadvantaged Business Enterprise (DBE) Program Requirements —

  Any Contractor, subcontractor, supplier, DBE firm, and contract surety involved in the performance of work on a federal-aid contract shall comply with the terms and conditions of the United States Department of Transportation (USDOT) DBE Program as the terms appear in Part 26 of the Code of Federal Regulations (49 CFR as amended), the USDOT DBE Program regulations; and the Virginia Department of Transportation’s (VDOT or the Department) Road and Bridge Specifications and DBE Program rules and regulations.

  For the purposes of this provision, Contractor is defined as the Prime Contractor of the Contract; and sub-contractor is defined as any DBE supplier, manufacturer, or subcontractor performing work or furnishing material, supplies or services to the Contract. The Contractor shall physically include this same contract provision in every supply or work/service subcontract that it makes or executes with a subcontractor having work for which it intends to claim credit.

  In accordance with 49 CFR Part 26 and VDOT’s DBE Program requirements, the Contractor, for itself and for its subcontractors and suppliers, whether certified DBE firms or not, shall commit to complying fully with the auditing, record keeping, confidentiality, cooperation, and anti-intimidation or retaliation provisions contained in those federal and state DBE Program regulations. By bidding on this contract, and by accepting and executing this contract, the Contractor agrees to assume these contractual obligations and to bind the Contractor’s subcontractors contractually to the same at the Contractor’s expense.

  The Contractor or subcontractor shall not discriminate on the basis of race, color, sex, sexual orientation, gender identity, or national origin in the performance of this contract. The Contractor shall carry out applicable requirements of 49 CFR Part 26 in the award, administration, and performance of this contract. Failure by the Contractor to carry out these requirements is a material breach of this contract, which will result in the termination of this contract or other such remedy, as VDOT deems appropriate.

  All administrative remedies noted in this provision are automatic unless the Contractor exercises the right of appeal within the required timeframe(s) specified herein. Appeal requirements, processes, and procedures shall be in accordance with guidelines stated herein and current at the time of the proceedings. Where applicable, the Department will notify the Contractor of any changes to the appeal requirements, processes, and procedures after receiving notification of the Contractor’s desire to appeal.

  All time frames referenced in this provision are expressed in business days unless otherwise indicated. Should the expiration of any deadline fall on a weekend or holiday, such deadline will automatically be extended to the next normal business day.

• ATTACHMENTS —

  A. Employment and Materials Preference for Appalachian Development Highway System or Appalachian Local Access Road Contracts (included in Appalachian contracts only).

• BIDDING DOCUMENTS —

  A. Bidding Documents include the Information for Bidders, Form of Bid, the Bid Bond and the proposed Contract Documents, including any Addenda issued prior to receipt of bids. All requirements and obligations of the Bidding Documents are hereby incorporated by reference into the Contract Documents and are binding on the Successful Bidder upon Award of the Contract.

  B. Bidders may obtain complete sets of the Bidding Documents from the issuing office designated in the Advertisement for Bid in the number and for the price, if any, stated therein.

  C. Bidders shall use complete sets of Bidding Documents in preparing Bids; the Town shall not assume any responsibility for errors or misinterpretations resulting from the use of incomplete sets of Bidding Documents.

  D. The Town in making copies of the Bidding Documents available on the above terms does so only for the purpose of obtaining Bids on the Work and does not confer a license or grant for any other use.

• CONSTRUCTION SCHEDULE - BAR CHART —

  A. SCOPE

  1. The following additional scheduling requirements are a part of this Contract.

  2. Work under this Section shall consist of furnishing a Construction Schedule showing in detail how the Contractor plans to execute and coordinate the Work. The Contract Schedule shall be based on and incorporate the Contract Milestones and Completion Dates specified in the Owner-Contractor Agreement and shall show the order in which Contractor shall perform the Work, projected dates for the start and completion of separable portions of the Work, and any other information concerning Contractor’s Work scheduling as the Owner may request.

  3. The Construction Schedule shall be in the form of a bar chart and shall consist of horizontal lines, or bars, plotted along a daily time scale. Each pay item designated in the unit price shall be denominated as a separate activity and represented by a horizontal bar or bars on the chart. The time scale shall indicate all required Milestone and Completion Dates as set forth in the Owner-Contractor Agreement. The horizontal bar(s) shall indicate the start and finish dates as well as the total time period of performance for each pay item activity. The Contractor shall arrange the chart so as to show the pay item activities which are necessary to fulfill each and every Milestone and Completion Date requirement.

  4. Each Work item on the bar chart shall be broken into reasonable work segments/activities (where practicable) with individual starting and stopping dates. As a minimum, work shall be segmented to demonstrate its relationship to the various Milestone Dates, if any. The segmented Work activities shall be cost loaded to show its dollar value as a part of the entire pay item. Activity titles shall be self-explanatory; abbreviations shall be shown in the legend.

  B. UPDATES AND REVISIONS

  1. The chart shall be updated to show actual progress and the effect of modifications, delays and other events. A second bar for each work item, in a contrasting color or pattern, shall be drawn parallel to the proposed schedule to show actual progress and to forecast future progress. The actual start and stop dates shall be entered, as well as the actual dates of the Milestone events. Updates are to be submitted monthly, with and as a part of, the payment requests.

  2. The updated Construction Schedule submitted by Contractor shall not show a completion date later than the Contract Time, subject to any time extensions approved by Owner; provided, however, that if Contractor believes he is entitled to an extension of the Contract under the Contract Documents, Contractor shall submit to Owner, with each update, a separate schedule analysis (entitled “Requested Time Adjustment Schedule”) indicating suggested adjustments in the Contract Time which should, in the opinion of the Contractor, be made by time extension, due to changes, delays or conditions occurring during the past month or previously, or which are expected or contemplated by Contractor (whether such conditions are excusable under the Contract or are due to Contractor fault); this separate schedule, if submitted, shall be accompanied or preceded by a formal time extension request as required by the Contract and a detailed narrative justifying the time extension requested. To the extent any time extension requests are pending at the time of any update in the Construction Schedule, the “Requested Time Adjustment Schedule” shall be updated also each month, to reflect any adjustments made by Contractor in the Construction Schedule, or any time extensions previously granted by Owner, and to reflect actual or expected progress. Owner shall not have any obligation to consider any time extension request unless the requirements of the Contract Documents, and specifically, but not limited to these requirements, are complied with; and Owner shall not be responsible or liable to Contractor for any constructive acceleration due to failure of Owner to grant time extensions under the Contract Documents should Contractor fail to substantially comply with the submission requirements and the justification requirements of this Contract for time extension requests. Contractor’s failure to perform in accordance with the Construction Schedule shall not be excused, nor be chargeable to Owner, because Contractor has submitted time extension requests or the “Requested Time Adjustment Schedule”.

  3. Neither the updating of Contractor’s work schedule nor the submission, updating, change or revision of any other report or schedule submitted to Owner by Contractor under this Contract nor Owner’s review or absence of objection regarding any such report or schedule shall have the effect of amending or modifying, in any way, the Contract Completion Date, Milestone Dates or of modifying or limiting in any way Contractor’s obligations under this Contract.

  4. All of Contractor’s detailed calculations and documents supporting all schedules, reports, and forecasts shall be available to Owner on request.

  5. Each updated Construction Schedule submitted by the Contractor shall be accompanied by a narrative report which reflects the following:

  a. Description of Work accomplished since submission of previous progress schedule;

  b. Comparison of the actual status of the Work with Contractor’s project schedule;

  c. Status of equipment and material deliveries;

  d. Personnel staffing schedule;

  e. Causes of any delays;

  f. Revision of schedules; and

  g. Action proposed to restore schedule.

  C. SCHEDULE OF OFF-SITE ACTIVITIES

  INTENTIONALLY OMITTED

• Scope —

  The scope of this project includes the following items of work on the installation of the curb & gutter and sidewalk along Kingsley Road SW. The “Plans” refer to the plan package entitled: PLAN AND PROPOSED PROFILE PEDESTRIAN ACCESS IMPROVEMENTS KINGSLEY ROAD SW SIDEWALK, prepared by Whitman Requardt & Associates, LLP dated May 2026. The drawings can be downloaded through the following link, and are incorporated by reference:  https://www.viennava.gov/Town-Government/Town-Project-Updates/Kingsley-Road-SW-Frederick-to-DeSale-Sidewalk 

  The contractor shall have 250 days from Notice to Proceed to complete the project.

  DBE PERCENTAGE REQUIREMENT: 0%

  The scope of work is as follows:

  1.  Perform a preconstruction survey review of the proposed street(s) to confirm the existing conditions shown in the Plans. The Contractor shall be responsible for existing features, including residential sprinkler systems, within the limits of work that are not shown in the Plans which would require replacement or temporary relocation to perform the roadway, grading, drainage, and sidewalk construction. The cost for this work is to be included in the Contractor’s unit price bid and within the appropriate unit price categories provided.

  2.  The Contractor is responsible for all survey layout, utility coordination/relocation (if applicable), material, tools, equipment, equipment, labor, permits, traffic control, cleanup and restoration and priced within other unit prices. The Contractor is responsible to restore all existing signs and pavement markings unless directed by the Plans.

  3.  Locate underground utilities prior to the start of construction. Protect all structures and utilities. The Contractor shall coordinate any adjustments with the appropriate utility owner. Locations of utilities shown on the plans are NOT guaranteed and all underground utilities may not be shown on the plans. The Contractor is solely responsible for any disruption in utility service and shall be solely responsible for any damage/repairs required. The Contractor shall coordinate with the Town and property owners regarding existing residential sprinkler systems to ensure the systems are protected and not damaged due to construction activities. Any damage and costs to replace or relocate existing sprinkler systems will be the responsibility of the Contractor. No additional time or compensation will be provided for any utility delays.

  4.  Provide and place all work zone traffic control devices necessary to facilitate the construction of the proposed elements. The Contractor shall follow the Plans (and all notes) as it relates to the project’s maintenance of traffic/sequence of construction as shown in the project’s Plans. The Contractor shall also place temporary orange safety fence around work zone areas, as required by the Town to prevent intrusion of pedestrians.

  5.  Provide and install erosion and sediment control devices. The Contractor shall provide an employee Certified by the Department of Conservation and Recreation during any land disturbing operations. The contractor shall comply with the Environmental Stipulation per VDOT Specification 107.16.

  6.  Modify or grade around at-grade utility appurtenances as indicated in the Plans to match finished grade. The Contractor shall provide a unit cost (per-hour) in the bid form for a licensed plumber to fix or relocate such conflicts in the event the Town is not readily available to respond. Correcting/Relocating sanitary sewer and water line laterals is the contractor’s responsibility at no additional cost to the project but must be coordinated with the Town before any correcting/relocating begins.

  7.  Construct concrete sidewalks, curb and gutter as shown on the plans. Concrete shall be VDOT Type A4 with a 28-day compressive strength of 4,000 psi, except as noted within the project’s Plans. Concrete mix designs shall follow the latest edition of the VDOT 2020 Road and Bridge Specifications and shall be provided to the Town’s inspector for approval prior to placing.

  8.  All trenches necessary for the construction of the storm sewer system shall be backfilled at the end of day. No open trenches are permitted to be left open upon the completion of a workday.

  9.  Provide the following submittals (and sample slabs as required) for review by the Town’s Engineer:

       a. All permits required for the project

       b. Maintenance of Traffic/Construction Phasing Plan that is consistent with the proposed TMP/SOC Plan shown in the Plans

       c. Pavement Design for VDOT St’d WP-2 widening as specified in the Plans

       d. Bituminous Concrete Mix Design

       e. Materials Delivery Tickets

       f. As-Built red-line markups of Plans

       g. VDOT Erosion and Sediment Control Contractor Certification

  10.  Provide all other work as shown on the plans to complete the project.

       a. The Contractor is to provide positive drainage for all areas of construction. No introductions of ponding areas shall be permitted. The Town will require the Contractor to adjust grades as necessary (at no additional cost to the project) as needed to provide positive drainage.

       b. All signs/posts, within the project’s limits, shall be relocated/reset or removed (per plans) as appropriate and in accordance with the Plans, Town/VDOT and MUTCD requirements.

           i. The Contractor shall install all proposed signage/posts and pavement markings per the Plans, Town/VDOT and MUTCD requirements.

• ATTACHMENTS —

  A. Employment and Materials Preference for Appalachian Development Highway System or Appalachian Local Access Road Contracts (included in Appalachian contracts only)

• Specifications —

  1.  References

  All work shall comply with applicable state and local regulatory agencies. Work shall be in accordance with the most recent edition of, but not limited to, the following references:

       a. Virginia Erosion and Sediment Control Handbook

       b. Town of Vienna Public Infrastructure Manual (PIM) and Details

       c. Town of Vienna Amendments to VDOT’s 2020 Road and Bridge Specifications

       d. Latest edition of the VDOT 2020 Road and Bridge Specifications

       e. Latest edition of the VDOT 2016 Road and Bridge Standards

       f. Virginia Manual on Uniform Traffic Control Devices 11.0

       g. 2026 Virginia Work Area Protection Manual, including all revisions thereof

       h. The Virginia Department of Transportation Traffic Calming Guide for Neighborhood Streets

       i. ASSHTO LRFD Bridge Design Specifications, 8th Edition 2017; and VDOT Modifications

  Where a conflict exists between these referenced specifications, the supplemental specifications and Town of Vienna Special Provisions, see direction from the Town’s Engineer.

  2.  Limits of Construction

  This project is within Town Right of Way, Permanent Drainage Easement, or Temporary Construction Easements granted to the Town for areas along Kingsley Road SW. The Contractor shall not store any materials/equipment overnight (or during any non-working hours, i.e., weekends, holidays, etc.) without express written permission from the Town. Contractor and Contractor’s personnel shall not intrude on any private property adjacent to the project. The Contractor is responsible for ensuring all grounds/surfaces within five (5) feet of the temporary construction easement are equal to pre-construction conditions following completion of construction. Any restoration required, at the Town’s discretion, is at the Contractor's expense. Pre ad Post condition photos for the job site are required to be provided to the Town Construction Manager.

  The Contractor is responsible for procuring a staging area for any required stockpiling material and overnight storage of any equipment required, at no additional cost to the project. Use of the Town’s property yard shall not be permitted.

  3.  Submittals

  Preconstruction submittals shall be approved by the Town’s Engineer before starting the related Work. Test results shall be received within 7 days of test completion. The Town Engineer shall have up to two weeks to review the submittals. Submittals that are not approved shall be corrected and re-submitted for review. Work may not start until submittals have been approved. If material test results indicate a failure of materials to meet their design strength, the Town may require the Contractor to remove and replace the affected materials at the Contractor’s expense.     

  4.  Measurement and Payment

  This is a unit price contract. Measurement of unit price items shall be in accordance with the VDOT Road and Bridge Specifications, Division 1: Section 109 and the following sections where applicable.

       a. The following items are measured in unit prices as defined in their respective section. For incidental Work that falls outside of the description for these categories, the price shall be included within the unit pricing of related items of Work provided in the Bid Form. Units shall be per the units shown on the Bid Form.

           i. Clearing and Grubbing – Section 301.03

           ii. Drainage Structure – Section 302.04

           iii. Regular Excavation – Section 303.06

           iv. Sub-base Course – Section 308.05

           v. Aggregate Base Course – Section 309.06

           vi. Base Course – Section 315.08

           vii. Top Course – Section 315.08

           viii. Hydraulic Cement Concrete Pavement - Section 316.06

           ix. Underdrain - Section 501.04

           x. Curb & Gutter – Section 502.04

           xi. Entrance Gutter/Driveway Aprons – Section 502.04

           xii. Detachable Warning Surface - Section 504.04

           xiii. Sidewalks – Section 504.04

           xiv. Pavement Demolition – Section 508.03

           xv. Removing/Relocating/Adjusting - Section 510.04

           xvi. Maintaining Traffic – Section 512.04

           xvii. Contractor Construction Surveying – Section 517.06

           xviii. Topsoil – Section 602.04

           xix. Seeding/Overseeding/Lime/Fertilizer - Section 603.04

           xx. Signage – Sections 700.05 & 701.04

           xxi. Pavement Markings – Section 704.04         

• DEFINITIONS —

  A. THE BID: A Bid is a complete and properly signed proposal to do the Work or designated portion thereof for the sums stipulated therein, submitted in accordance with the Bidding Documents.

  B. BASE BID: The Base Bid is the sum stated in the Bid for which the Bidder offers to perform the Work described in the Bidding Documents as the base, to which work may be added or from which work may be deleted for sums stated in Alternate Bids, if any.

  C. ALTERNATES: An Alternate Bid (or Alternate) is an amount stated in the Bid to be added to or deducted from the amount of the Base Bid if the corresponding change in the Work, as described in the Bidding Documents, is accepted.

• Attachment A —

  Economic Area Goal (Percent)

  Virginia:

  021 Roanoke-Lynchburg, VA

  SMSA Counties:

  4640 Lynchburg, VA ..................................................................................................... 19.3

  VA Amherst; VA Appomattox; VA Campbell; VA Lynchburg

  6800 Roanoke, VA ....................................................................................................... 10.2

  VA Botetourt; VA Craig; VA Roanoke; VA Roanoke City; VA Salem

  Non-SMSA Counties ............................................................................................................. 12.0

  VA Alleghany; VA Augusta; VA Bath; VA Bedford; VA Bland; VA Carroll; VA Floyd; VA Franklin; VA Giles; VA Grayson; VA Henry; VA Highland;

  VA Montgomery; VA Nelson; VA Patrick; VA Pittsylvania; VA Pulaski; VA Rockbridge; VA Rockingham; VA Wythe; VA Bedford City; VA Buena Vista:

  VA Clifton Forge; VA Covington; VA Danville; VA Galax; VA Harrisonburg; VA Lexington; VA Martinsville; VA Radford; VA Staunton; VA Waynesboro; WV Pendleton.

  022 Richmond, VA

  SMSA Counties:

  6140 Petersburg - Colonial Heights - Hopewell, VA .................................................... 30.6

  VA Dinwiddie; VA Prince George; VA Colonial Heights; VA Hopewell; VA Petersburg.

  6760 Richmond, VA ...................................................................................................... 24.9

  VA Charles City; VA Chesterfield; VA Goochland, VA Hanover; VA

  Henrico; VA New Kent; VA Powhatan; VA Richmond.

  Non-SMSA Counties ............................................................................................................. 27.9

  VA Albemarle; VA Amelia; VA Brunswick; VA Buckingham, VA Caroline; VA Charlotte; VA Cumberland; VA Essex; VA Fluvanna; VA Greene; VA

  Greensville; VA Halifax; VA King and Queen; VA King William; VA Lancaster; VA Louisa; VA Lunenburg; VA Madison; VA Mecklenburg; VA

  Northumberland; VA Nottoway; VA Orange; VA Prince Edward; VA Richmond VA Sussex; VA Charlottesville; VA Emporia; VA South Boston

  023 Norfolk - Virginia Beach - Newport News VA:

  SMSA Counties:

  5680 Newport News- Hampton, VA ............................................................................. 27.1

  VA Gloucester; VA James City; VA York; VA Hampton; VA Newport News; VA Williamsburg.

  5720 Norfolk - Virginia Beach - Portsmouth, VA - NC ......................................... 26.6

  NC Currituck; VA Chesapeake; VA Norfolk; VA Portsmouth; VA Suffolk; VA Virginia Beach.

  Non-SMSA Counties ............................................................................................................. 29.7

  NC Bertie; NC Camden; NC Chowan; NC Gates; NC Hertford; NC Pasquotank; NC Perquimans; VA lsle of Wight; VA Matthews; VA Middlesex; VA Southampton;

  VA Surry; VA Franklin.

  Washington, DC:

  020 Washington, DC.

  SMSA Counties:

  8840 Washington, DC - MD - VA ................................................................................ 28.0

  DC District of Columbia; MD Charles; MD Montgomery MD Prince Georges; VA Arlington; VA Fairfax; VA Loudoun; VA Prince William; VA Alexandria; VA Fairfax

  City; VA Falls Church.

  Non- SMSA Counties ............................................................................................................ 25.2

  MD Calvert; MD Frederick; MD St. Marys: MD Washington; VA Clarke; VA Culpeper; VA Fauquier; VA Frederick; VA King George; VA Page; VA

  Rappahannock; VA Shenandoah; VA Spotsylvania; VA Stafford; VA Warren: VA Westmoreland; VA Fredericksburg; VA Winchester WV Berkeley;

  WV Grant; WV Hampshire; WV Hardy; WV Jefferson; WV Morgan.

  Tennessee:

  052 Johnson City - Kingsport - Bristol, TN - VA

  SMSA Counties:

  3630 Johnson City - Kingsport -Bristol, TN-VA ............................................................ 2.6

  TN Carter; TN Hawkins; TN Sullivan; TN Washington; VA Scott: VA Washington; VA Bristol.

  Non-SMSA Counties ............................................................................................................. 3.2

  TN Greene; TN Johnson; VA Buchanan; VA Dickenson; VA Lee; VA Russell; VA Smyth; VA Tazewell; VA Wise; VA Norton; WV McDowell; WV Mercer.

  Maryland:

  019 Baltimore MD

  Non-SMSA Counties ............................................................................................................ 23.6

  MD Caroline; MD Dorchester; MD Kent; MD Queen Annes; MD Somerset; MD Talbot; MD Wicomico; MD Worchester; VA Accomack; VA Northampton.

• GENERAL —

  1. Form FHWA-1273 must be physically incorporated in each construction contract funded under title 23, United States Code, as required in 23 CFR 633.102(b) (excluding emergency contracts solely intended for debris removal). The contractor (or subcontractor) must insert this form in each subcontract and further require its inclusion in all lower tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services). 23 CFR 633.102(e).

  The applicable requirements of Form FHWA-1273 are incorporated by reference for work done under any purchase order, rental agreement or agreement for other services. The prime contractor shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider. 23 CFR 633.102(e).

  Form FHWA-1273 must be included in all Federal-aid design-build contracts, in all subcontracts and in lower tier subcontracts (excluding subcontracts for design services, purchase orders, rental agreements and other agreements for supplies or services) in accordance with 23 CFR 633.102. The design-builder shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider.

  Contracting agencies may reference Form FHWA-1273 in solicitation-for-bids or request-for-proposals documents, however, the Form FHWA-1273 must be physically incorporated (not referenced) in all contracts, subcontracts and lower-tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services related to a construction contract). 23 CFR 633.102(b).

  2. Subject to the applicability criteria noted in the following sections, these contract provisions shall apply to all work performed on the contract by the contractor's own organization and with the assistance of workers under the contractor's immediate superintendence and to all work performed on the contract by piecework, station work, or by subcontract. 23 CFR 633.102(d).

  3. A breach of any of the stipulations contained in these Required Contract Provisions may be sufficient grounds for withholding of progress payments, withholding of final payment, termination of the contract, suspension / debarment or any other action determined to be appropriate by the contracting agency and FHWA.

  4. Selection of Labor: During the performance of this contract, the contractor shall not use convict labor for any purpose within the limits of a construction project on a Federal-aid highway unless it is labor performed by convicts who are on parole, supervised release, or probation. 23 U.S.C. 114(b). The term Federal-aid highway does not include roadways functionally classified as local roads or rural minor collectors. 23 U.S.C. 101(a).

• § 200.326 Contract Provisions —

  Appendix II to Part 200 - Contract Provisions for Non-Federal Entity Contracts Under Federal Awards

  In addition to other provisions required by the Federal agency or non-Federal entity, all contracts made by the non-Federal entity under the Federal award must contain provisions covering the following, as applicable.

  (A) Contracts for more than the simplified acquisition threshold currently set at $250,000, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate.

  (B) All contracts in excess of $10,000 must address termination for cause and for convenience by the non-Federal entity including the manner by which it will be effected and the basis for settlement.

  (C) Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part 60- 1.3 must include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 1964- 1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.”

  (D) Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non-Federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 3141-3144, and 3146- 3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency.

  (E) Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708). Where applicable, all contracts awarded by the non-Federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.

  (F) Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of “funding agreement” under 37 CFR §401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.

  (G) Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended—Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).

  (H) Debarment and Suspension (Executive Orders 12549 and 12689)—A contract award (see 2 CFR 180.220) must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.

  (I) Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)—Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.

• Section 108.03 Progress Schedule of the Specifications is deleted and replaced by this provision. —

  I.  General Requirements

  The Contractor shall develop and maintain a Progress Schedule for the entire duration of the Project, which shall be used by all involved parties to plan and execute all work required to complete the Project. The Progress Schedule will be used by the Department to monitor the project, assess progress, and evaluate the effects of time-related issues on the project. Unless specifically stated otherwise, ‘days’ shall be understood as calendar days.

  At the Pre-Construction Conference, in accordance with Section 105.02 or as mutually agreed upon by the Engineer and the Contractor, the Contractor shall attend a Scheduling Conference with the Engineer to discuss the Contractor’s overall plan to accomplish the Work. The Contractor shall also discuss its detail work plan for the initial sixty (60) days; as well as project specific requirements and other key issues that are expected to impact the Progress Schedule or are necessary for the preparation, maintenance, and submittal of the Progress Schedule.

• GENERAL —

  1.  Form FHWA-1273 must be physically incorporated in each construction contract funded under title 23, United States Code, as required in 23 CFR 633.102(b) (excluding emergency contracts solely intended for debris removal). The contractor (or subcontractor) must insert this form in each subcontract and further require its inclusion in all lower tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services). 23 CFR 633.102(e).

  The applicable requirements of Form FHWA-1273 are incorporated by reference for work done under any purchase order, rental agreement or agreement for other services. The prime contractor shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider. 23 CFR 633.102(e).

  Form FHWA-1273 must be included in all Federal-aid design- build contracts, in all subcontracts and in lower tier subcontracts (excluding subcontracts for design services, purchase orders, rental agreements and other agreements for supplies or services) in accordance with 23 CFR 633.102. The design-builder shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider.

  Contracting agencies may reference Form FHWA-1273 in solicitation-for-bids or request-for-proposals documents, however, the Form FHWA-1273 must be physically incorporated (not referenced) in all contracts, subcontracts and lower-tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services related to a construction contract). 23 CFR 633.102(b).

  2.  Subject to the applicability criteria noted in the following sections, these contract provisions shall apply to all work performed on the contract by the contractor's own organization and with the assistance of workers under the contractor's immediate superintendence and to all work performed on the contract by piecework, station work, or by subcontract. 23 CFR 633.102(d).

  3.  A breach of any of the stipulations contained in these Required Contract Provisions may be sufficient grounds for withholding of progress payments, withholding of final payment, termination of the contract, suspension / debarment or any other action determined to be appropriate by the contracting agency and FHWA.

  4.  Selection of Labor: During the performance of this contract, the contractor shall not use convict labor for any purpose within the limits of a construction project on a Federal-aid highway unless it is labor performed by convicts who are on parole, supervised release, or probation. 23 U.S.C. 114(b). The term Federal-aid highway does not include roadways functionally classified as local roads or rural minor collectors. 23 U.S.C. 101(a).

• PREPARATION & SUBMISSION —

  In order to be considered for selection, the bidder/offeror must submit a complete response to the Invitation for Bid/Request for Proposals via the OpenGov Procurement Website. The bid/proposal shall be signed by an authorized representative of the bidders'/offerors' firm and delivered to the proper location by the time and date specified on the cover page.

• DBE Certification —

  The only DBE firms eligible to perform work on a federal-aid contract for DBE contract goal credit are firms certified as Disadvantaged Business Enterprises by the Virginia Department of Small Business and Supplier Diversity (DSBSD) or the Metropolitan Washington Airports Authority (MWAA) in accordance with federal and VDOT guidelines. DBE firms must be certified in the specific work listed for DBE contract goal credit. A directory listing of certified DBE firms can be obtained from the Virginia Department of Small Business and Supplier Diversity website: www.sbsd.virginia.gov.

• QUALIFICATION OF BIDDER —

  A. Bidders, whether residents or nonresidents of Virginia, will be required to show evidence of a certificate of registration as required by Chapter 11 of Title 54.1 of the Code of Virginia prior to the award. Bidders do not, however, need to show such evidence prior to bidding. If a bid is $120,000 or more, or if the Contractor’s annual volume is $750,000 or more, the Contractor must be licensed as a “Class A Contractor”. If a bid is $10,000 or more but less than $120,000, or the total annual volume is $150,000 or more but less than $750,000, the Contractor must be licensed as at least a “Class B Contractor”.

  B. VDOT Prequalified Contractors and/or Subcontractors are required for this project.

• Bank Services —

  The Contractor and each subcontractor are encouraged to use the services of banks owned and controlled by socially and economically disadvantaged individuals. Such banking services and the fees charged for services typically will not be eligible for DBE Program contract goal credit. Such information is available from the VDOT’s Internet Civil Rights Division website: http://www.virginiadot.org/business/resources/Civil_Rights/VDOT_DBE_Program_Plan.pdf

• Progress Schedule Submissions —

  Progress Schedule Submissions

  Unless otherwise directed in writing by the Engineer, the Contractor shall prepare, maintain, and submit a Progress Schedule in accordance with the following requirements:

       1.  Baseline Progress Schedule

  Within fifteen (15) days of the Contract execution date or within seven (7) days prior to beginning work, whichever occurs first, the Contractor shall submit to the Engineer for review and acceptance, a Baseline Progress Schedule representing the Contractor’s original complete
  detailed plan to accomplish the entire scope of the Project according to the Contract. Upon acceptance by the Engineer, the Baseline Progress Schedule shall become the Schedule of Record (SOR). The Baseline Progress Schedule submission shall consist of:

           A. Baseline Schedule – A logic driven Baseline Schedule depicting all detailed activities required to complete the entire scope of the Project, including as applicable, work to be performed by subcontractors, the Department, and other involved parties. The Baseline Schedule shall be prepared and submitted according to the following:

              (1)  Software: The Baseline Schedule shall be prepared using any scheduling software of the Contractor’s choosing that is capable of meeting the detail requirements as specified herein. However, an electronic backup copy of the Baseline Schedule shall be submitted in any of the following acceptable file formats Primavera P6 (XER), Microsoft Project (MPP, XML), or Microsoft Excel (XLS) based on the software.

              (2)  Project ID and Name: The Project ID and Name for each submission shall be unique and defined as follows:

                      (a)  For Project Schedules prepared in the Primavera P6 software, the Project ID shall be defined using the Contract ID as a prefix followed by                             a short ID indicating the specific version of the schedule (PS01, BS, BSR1, etc.). For example, Baseline Schedule (C000XXXXXXX_BS,                                 C000XXXXXXX_BSR1, etc.). And the Project Name shall reflect the Project Description as shown in the Contract, appended to indicate                                 the specific version of the schedule (e.g., Route 10 Over I-95 Bridge Replacement Baseline Schedule).

                      (b)  For Project Schedules prepared in the Microsoft Project software, the Project Name (Title) shall be defined using the Contract ID as a                                     prefix followed by a short ID indicating the specific version of the schedule (PS01, BS, BSR1, etc.). For example, Baseline Schedule                                       (C000XXXXXXX_BS, C000XXXXXXX_BSR1, etc.).

  (3)  Work Breakdown Structure (WBS): The Baseline Schedule shall be organized using a logical Project Work Breakdown Structure (WBS). The Work shall be broken down to an appropriate level of WBS nodes and sub-nodes to allow for a hierarchical grouping and summarization of related activities required to complete each phase, feature, deliverable, or work package, as appropriate. Each WBS element shall be defined using a short alpha-numeric WBS Code and a WBS Name describing the WBS element. At a
  minimum, the WBS shall include as applicable:

  (a)  Level 1: “Milestones” node for all Contract and other key milestones; “Preliminary” node for all pre-construction activities; and “Construction” node for all construction activities.

  (b)  Level 2: Under the “Preliminary” node, Level 2 “Submittals”, “VDOT Review”, “Materials” sub-nodes for all initial activities such as submittals, VDOT reviews, long lead materials, etc. Under the “Construction” node, Level 2 “General/Start-up”, “Phase” or “Feature of Work”, and “Close-out” sub-nodes, as applicable.

  (c)  Level 3: Under the “Phase” or “Feature of Work” node, Level 3 sub-nodes for “Sub- features” or “Location” for all associated construction activities, as applicable.

  (4)  Level of Details: The Work shall be broken down into discrete activities to an appropriate level of detail to allow for identification of work by the responsible party; as well as the type, amount, and specific location of work the activity represents.

  (5)  Activity Definition: Activities shall be discrete and shall be defined as follows:

  (a)  Each activity shall be defined using a unique Activity ID which shall remain
  unchanged throughout the duration of the Project. If an activity is deleted in a
  subsequent submission, the corresponding Activity ID shall not be used for any other activity. If the Project Schedule is prepared and submitted using Microsoft Project, then a “Unique Activity ID” Custom Field shall be defined using the “Text1” data field with formula set to equal “Unique ID”.

  (b)  Each activity shall be defined using an Activity Name to indicate the type of work, phase (or stage), and specific location in which the work occurs, as applicable (e.g., Drive Steel Piles - Phase 1 - Abut A). For work to be performed by the Department or other contractors, and third parties, the Activity Name shall include “VDOT” or the name of the corresponding responsible party.

  (c)  Activity durations shall be defined in whole days based on the assigned calendar. For activities such as “Concrete Cure Time”, that are not restricted by a standard working calendar, activity durations shall be expressed in terms of calendar days. Activity durations shall be limited to twenty (20) workdays, unless otherwise accepted by the Engineer. Longer durations may be allowed as approved by the Engineer for certain administrative, level of effort, or procurement activities that are typically performed over longer periods of time.

  (6)  Calendars: Each activity shall be assigned a project-level calendar to establish the
  planned workdays per week and any non-work days for holidays, weather days, or other restrictions, as applicable. Regardless of the actual or planned work hours/day, all calendars shall be based on a standard 8 work hours/day, with the same daily start and finish times. If the Project Schedule is prepared and submitted using Microsoft Project, then a “Calendar” Custom Field shall be defined using the “Text2” field with formula set to equal “Task Calendar”. Once the Baseline Schedule is accepted, any changes to calendars shall be identified and explained in the accompanying Schedule Narrative.

  (7)  Network Logic: Logic relationships shall be assigned to each activity to establish the sequence in which the Contractor plans to accomplish the Work and as follows:

  (a)  Activity relationship types shall be limited to finish-to-start (FS), start-to-start (SS), and finish-to-finish (FF).

  (b)  All activities, except the first activity shall be assigned at least one predecessor relationship and all activities, except the last activity shall be assigned at least one successor relationship.

  (c)  If an activity is assigned as a predecessor with a start-to-start (SS) relationship, then the activity must also be assigned as a predecessor to another related activity with a finish-to-start (FS) or finish-to-finish (FF) relationship, as applicable.

  (d)  The Contractor shall avoid the use of redundant logic relationships when possible.

  (e)  The use of lag shall be prohibited unless approved by the Engineer. The Contractor shall remove any lag and replace with an activity upon the request of the Engineer. When lags are used, the Contractor shall provide an explanation for use of the lags in the Schedule Narrative.

  (8)  Constraints: Use of Constraints shall be limited to milestones specified in the Contract, unless approved by the Engineer. Constraints shall be applied as follows:

  (a)  For Contracts that include a specified milestone that restricts the start date of an activity, the activity shall be constrained with a “Start No Later Than” or “Start No Earlier Than” constraint, as applicable, with the date specified in the Contract.

  (b)  For Contracts that include a specified milestone that establishes a completion date deadline such as Interim Completion or Substantial Completion, the Contract milestone activity shall be constrained with a “Finish On or Before” (Finish No Later Than) constraint, with the date specified in the Contract.

  (c)  Constraints such as “Start On” (Must Start On) or “Finish On” (Must Finish On) that delays the start or finish date of an activity to the specified date as allowed by network logic, or “Mandatory Start” or “Mandatory Finish” that violate network logic are prohibited.

  (9)  Progress As-built Information: The Baseline Schedule shall reflect the current status of the Project and all known information at the time of submission. The Baseline Schedule shall include any progress as-built information showing actual dates for all completed and on-going activities, as of the Data Date, as applicable. The Baseline Schedule shall be calculated using a Data Date as follows:

  a)  If the Baseline Schedule includes progress as-built information, then the Data Date shall be within three (3) days of the date of submission.

  b)  If the Baseline Schedule does not include progress as-built information, then the Data Date shall be the Contract execution date or the planned start date of the first activity, whichever is earlier.

  B.  Baseline Schedule Narrative – A Baseline Schedule Narrative describing the Contractor’s overall plan to accomplish the Work. The Baseline Schedule Narrative shall be the basis for the Baseline Schedule and shall provide the following supporting information, as applicable:

  1.  Milestones: Current status of the Project milestones including, as applicable Contract milestones and other key events such as major traffic switches.

  2.  Work By Others: Work to be performed by the Department and other involved parties (e.g., utilities), including activities requiring coordination; and a description of when the work must be performed to avoid impacts to the Work.

  3.  Overall Sequence of Work: Explanation of the proposed overall sequence of Work, including where the Work will begin and how the Work and crews will flow through the Project.

  4.  Project Critical Path: Description of the project critical path indicating the series of
  operations that are expected to drive the completion date of the project. A listing of the Project Schedule critical path activities will not be accepted as a substitute.

  5.  Scheduling Assumptions: Scheduling assumptions including, the general procedures and anticipated daily production rates for major operations that are expected to drive the schedule.

  6.  Lags: Identification of all logic relationships with Lag and explanation for the use of each Lag.

  7.  Constraints: Identification of all schedule Constraints used in the Baseline Schedule and an explanation for the use of each Constraint.

  8.  Calendars: Description of the project calendar(s) used in the Baseline Schedule, identifying the Calendar and the proposed number of work days per week, number of shifts per day, and number of hours per day. Also, the anticipated number of non-working days per month shall be identified for each calendar with considerations, as applicable, for holidays, normal adverse weather conditions; as well as seasonal or other known or specified restrictions (i.e. traffic, local events, environmental, permits, utility, etc.).

  9.  Resource Plan: The Contractor’s resource plan indicating the number and type of crews, crew make-up, and major equipment needed to accomplish the Work as planned. The resource plan shall also explain how the Contractor plans on meeting the resource requirements as reflected on the Baseline Schedule.

  10. DBE Participation: Log of the applicable DBE participation activities in the schedule and the DBE firms performing the work for which the Contractor intends to claim credit for attaining the DBE goal required in the Contract. The list shall indicate the start/finish dates and durations of the DBE participation activities.

  11. Issues and Concerns: Any known or foreseeable issues or concerns that are currently affecting or anticipated to affect the schedule. Also, describe how the issues will affect the schedule and any actions taken or needed to avoid or mitigate the impact.

  C.  Baseline Progress Earnings Schedule – A Baseline Progress Earnings Schedule showing the anticipated monthly earnings for the entire Project. A Baseline Progress Earnings Schedule is not required for projects with overall contract duration of ninety (90) days or less. The

  Baseline Progress Earnings Schedule submission shall be prepared using the VDOT Form C-13C as follows:

  1.  The Breakdown of Contract Items form shall be completed to show the bid items and costs associated with each Major Work Category.

  2.  The C-13C (Baseline) form shall be completed to show all required information and the monthly anticipated earnings for each Major Work Category.

  3.  The C-13C (Update) form shall be completed to show the current Projected Completion Date, Current Estimate Date, and actual monthly earnings, and anticipated earnings for each Major Work Category as of the Current Estimate Date.

  4.  The Controls Chart Data form shall be completed to show the Actual Monthly Earnings for each estimate date, as of the Current Estimate Date.

  2.  Update Progress Schedule

  After the Baseline Progress Schedule is accepted, on a monthly basis thereafter, and within seven (7) days after the estimate date, the Contractor shall submit an Update Progress Schedule submission to the Engineer for review and acceptance. The Update Progress Schedule submission shall represent the current status of the Project and the Contractor’s current plan to complete the remaining Work. The Update Progress Schedule submission shall consist of:

  A.  Update Schedule – An Update Schedule, which shall be based on a copy of the most recent accepted Project Schedule and shall be prepared according to the following:

  (1)  The Project ID for each submission shall be updated to indicate the specific Update Schedule version (e.g., C000XXXXXXX_U01, C000XXXXXXX_U01R1, C000XXXXXXX_U02). And the Project Name shall be updated to indicate the specific version of the schedule.

  (2)  All activities completed prior to the Data Date shall be updated to show actual start and actual finish dates. And all on-going activities shall be updated to show actual start dates and remaining duration to indicate the amount of time required to complete the remaining work as of the Data Date. Actual dates on or after the Data Date are prohibited.

  (3)  Activity percent complete for on-going activities shall be based on cost of work completed as of the Data Date relative to the total cost of work planned.

  (4)  All schedule related changes requested or approved by the Engineer shall be incorporated into the Update Schedule, including as applicable, added or deleted work, changes to Contract Milestones, changes in sequence of work, changes in duration, changes to Contract Amount, and other time-related changes.

  (5)  The Update Schedule shall be calculated using a Data Date of either the 4th, 11th, or 20th of the month, based on the Contractor’s estimate date as defined in Section 109.08(a) – Partial Payments, of the Specifications.

  B.  Update Schedule Narrative – An Update Schedule Narrative describing the current status of the project, deviations from scheduled performance, and changes in Contractor’s work plan, and the current work plan for accomplishing the remaining work as of the Data Date. The Schedule Update Narrative shall include a description of:

  1.  Milestones: The current status of scheduled Milestone dates, including a description of any deviations from the last accepted Project Schedule and the Contract. The Contractor shall provide an explanation for any Milestone that is scheduled to occur later than the date specified in the Contract and any actions taken or proposed to correct the delay.

  2.  Progress % Complete: The current status of the Project in terms of earnings relative to the SOR, based on the Progress Earnings Schedule. If progress is falling behind, provide an explanation for the progress deficiency and any actions taken or proposed to correct the deficiency.

  3.  Work Performed Last Period: The work performed during the last update period and any deviations from the work scheduled. A listing of the Project Schedule activities will not be accepted as a substitute.

  4.  Changes in Work Plan: Any major changes in the Contractor’s work plan in terms of sequence of construction, shifts, means and methods, manpower, or equipment.

  5.  Changes to Schedule: Any non-progress changes made to the Project Schedule since the previous submission including, changes requested or approved by Engineer. Also, any justification why changes requested by the Engineer should not be accomplished. A Claim Digger report or Schedule Comparison report will not be accepted as a substitute.

   6.  Project Critical Path: The critical path work and any deviations from the previous submission. A listing of the Project Schedule critical path activities will not be accepted as a substitute.

  7.  Days Lost Last Period: Number of days lost during the last update period, including affected activities; as well as any impacts on the critical path or project milestones. Also, describe any actions taken or proposed to mitigate any resulting delays.

  8.  DBE Participation: Log of the applicable DBE participation activities in the schedule and the DBE firms performing the work for which the Contractor intends to claim credit for attaining the DBE goal required in the Contract. The list shall indicate the start/finish dates and durations of the DBE participation activities. 

  9.  Pending Contract Issues: The status of pending issues such as access, permits, conflicts with other related or adjacent work, Change Orders, time extension requests, etc.

  10. Issues and Concerns: Any issues encountered during the last update period that are currently affecting the Project Schedule or other Project concerns that are anticipated to affect the schedule, including an explanation of any corrective actions taken or required to mitigate or avoid the effects.

  11. Work Planned Next Period: Work planned for the next update period, including any actions needed or expected performance by the Department or other involved parties (e.g., utilities) to avoid impacts to the Work.

  C.  Update Progress Earnings Schedule – An Update Progress Earnings Schedule showing the actual progress earnings to date and the projected earnings for the remaining periods, as of the Data Date. An Update Progress Earnings Schedule is not required for projects with overall contract duration of ninety (90) days or less. The Update Progress Earnings Schedule shall be prepared as follows:

  (1)  The C-13C (Baseline) form shall be updated to show the current Projected Completion Date based on the current Update Schedule.

  (2)  The  C-13C  (Update)  form  shall  be  completed  to  show  the  current  Projected Completion  Date,  Current  Estimate  Date,  and  actual  monthly  earnings,  and anticipated earnings for each Major Work Category as of the Current Estimate Date.

  (3)  The Controls Chart Data form shall be completed to show the Actual Monthly Earnings for each estimate date to date, as of the Current Estimate Date.

  3.  Revised Baseline Progress Schedule

  The Contractor shall submit a Revised Baseline Progress Schedule as determined by the Engineer. The Engineer may determine that a Revised Baseline Progress Schedule is required when:

  A.  The Engineer determines that the Work is being performed significantly different from the SOR; or the Engineer approves changes to the Contract that significantly impacts the Project Schedule or causes a major shift in the anticipated progress earnings. In which case, the Engineer will issue a written notice to the Contractor to submit a Revised Baseline Progress Schedule. The Contractor shall respond in writing within seven (7) days, either agreeing to comply with the Engineer’s request or providing justification why the request should not be accomplished.

  B.  The Contractor proposes to perform the Work significantly different from the SOR. In which case, the Contractor shall notify the Engineer in writing at least 14 days prior to performing the Work. The Contractor’s notice shall describe the proposed changes and potential impact on the Project Schedule. The Engineer will respond in writing within seven (7) days of the Contractor’s notice, either agreeing with the Contractor’s proposed revisions or providing reasons why the requested revisions should not be accomplished.

  If the Engineer requests a Revised Baseline Progress Schedule or accepts the Contractor’s proposed revisions, the Contractor shall submit a Revised Baseline Progress Schedule in lieu of the subsequent required Update Progress Schedule submission or as requested by the Engineer.

  If the Engineer does not accept the Contractor’s proposed revisions, the Contractor shall not incorporate the proposed revisions into the Project Schedule. In which case, the Contractor shall proceed under the previously accepted Progress Schedule and the current SOR shall remain.

  The Revised Baseline Progress Schedule shall be prepared and submitted in the form of a Baseline Progress Schedule, according to Section II.1 above; however, it shall reflect the current status of the Project as of the submittal date, any approved changes in the Work, and the proposed plan for completing the remaining Work. The Revised Baseline Progress Schedule submission shall consist of:

  A.  Revised Baseline Schedule – A Revised Baseline Schedule, which shall be based on the most recent accepted Project Schedule. The Revised Baseline Schedule shall be prepared according to Section II.1.A above and as follows:

  (1)  The Project ID for each submission shall be unique and shall be updated to indicate the specific Update Schedule version being submitted as a Revised Baseline (RB) (e.g., C000XXXXXXX_U06RB, C000XXXXXXX_ U20RB).

  (2)  All activities completed prior to the Data Date shall be updated to show actual start and actual finish dates. And all on-going activities as of the Data Date shall be updated to show actual start dates and remaining duration to indicate the amount of time required to complete the remaining work. Actual dates beyond the Data Date are prohibited.

  (3)  Activity percent complete for on-going activities shall be based on cost of work completed as of the Data Date relative to the total cost of work planned.

  (4)  All schedule related changes requested or approved by the Engineer shall be incorporated into the Revised Baseline Schedule, including as applicable, added or deleted work, changes in sequence of work, changes in duration, approved SIA; and changes to the Contract Amount, Contract Milestones, Completion Date, and other time-related requirements.

  (5)  Activity logic shall be modified as necessary to correct out-of-sequence progress for on-going and remaining activities to reflect the Contractor’s current plan for completing the remaining Work.

  (6)  The Revised Baseline Schedule shall be calculated using a Data Date of either the 4th, 11th, or 20th of the month, based on the Contractor’s estimate date as defined in Section 109.08(a) – Partial Payments, of the Specifications, or as approved by the Engineer.

  B.  Revised Baseline Schedule Narrative – A Revised Baseline Schedule Narrative, which shall be the basis for the Revised Project Schedule. The Revised Baseline Schedule Narrative shall be prepared according to Section II.1.B above; however, it shall reflect the current status of the project as of the submittal date, approved changes in the Work, and the proposed plan for completing the remaining Work.

  C.  Revised Baseline Progress Earnings Schedule – A Revised Baseline Progress Earnings Schedule showing the actual earnings to date and anticipated earnings for the remaining Work. The Revised Baseline Progress Earnings Schedule shall be prepared and submitted according to Section II.1.C above, and as follows:

  (1)  The C-13C (Baseline) form shall be adjusted accordingly to show the current Contract Dates and Amount.

  (2)  The C-13C (Baseline) form shall be completed to show the actual monthly earnings and anticipated earnings for each Major Work Category as of the Current Estimate Date.

  (3)  The C-13C (Update) form shall be completed to show the current Completion Date and actual monthly earnings and anticipated earnings for each Major Work Category as of the Current Estimate Date.

  (4)  The Controls Chart Data form shall be completed to show the Actual Monthly Earnings for each estimate date to date, as of the Current Estimate Date.

  4.  Early Completion Incentive Duration – For Contracts that include an incentivized provision for completing a portion of the Work before a specified milestone date or all of the Work before the Completion Date, the Contractor may insert an “Early Completion Date” milestone activity to indicate its intent to complete the Work early. In which case, the Contractor may insert an “Early Completion Incentive Duration” activity between the proposed “Early
  Completion Date” milestone activity and the Contract completion milestone activity. The incentive duration shall be specified in calendar days, which shall not exceed the maximum allowable incentive days at any time. The incentive duration shall be adjusted accordingly each Update Schedule to reflect any slippage or contraction of the Project Schedule.

  5.  Use of Total Float – Total float shall be considered a project property that is shared amongst all activities on the network. Total float shall be calculated relative to the Completion Date or

  a related Contract milestone, as applicable. The Contractor may submit a Progress Schedule showing completion of a portion of the Work before a specified milestone date or all of the Work before the Completion Date. If this occurs, any total float available in the Project
  Schedule, at any time, shall belong to the Project. It shall be understood that total float is not for the exclusive use or benefit of either the Department or the Contractor and that either
  party has the right to full use of any available total float. Until such time that all available total float is depleted, total float shall be used responsibly on a first come first serve basis for the benefit of the Project. Changes to the Project Schedule at any time for the purpose of
  manipulating float is prohibited, with the exception of adjustments to incentive duration activities for Contracts with incentive provisions for early completion, as defined herein. Negative total float will not be allowed in the Preliminary Schedule, Baseline Schedule, or Revised Baseline Schedule.

  6.  Progress Schedule Submittal Format and Reports

  Unless otherwise approved in writing by the Engineer, the Contractor shall submit for each Baseline Schedule, Update Schedule, or Revised Baseline Schedule submission, the following submittal items and reports, in the formats specified below:

  A.  File Naming Convention – Each electronic submittal file shall have a unique file name using a file naming convention that identifies the file by the Contract ID and version of Progress Schedule (e.g., BS, BSR1, U01, U04RB), type of submission (e.g., Baseline Schedule Narrative, Form C-13C), and Data Date of the submission. For example: C000XXXXXXX_BS_Baseline Schedule_04-01-21.

  B.  Transmittal Email – An electronic mail to the Engineer, identifying which Progress Schedule is being submitted for review and what submittal items are included.

  C.  Project Schedule – For each submission of the Project Schedule, the Contractor shall submit:

  (1)  An electronic backup copy of the working schedule in the “.mpp”, “.xer”, or “xls” file format, as appropriate.

  (2)  A time-scaled bar-chart plot of the “Complete Detailed Schedule” in “.pdf” file format, showing for each activity, Activity ID (Unique ID), Activity Name, Original Duration, Start, Finish, Activity % Complete, Remaining Duration, and Total Float.

  D.  Schedule Narrative – For each submission of the Project Schedule, the Contractor shall submit a file copy of the “Project Schedule Narrative” in “.pdf” format.

  E.  Progress Earnings Schedule – For each submission of the Project Schedule, the Contractor shall submit a Progress Earnings Schedule report as follows:

  (1)  A copy of the “Progress Earnings Schedule (Form C-13C)” in “.xlsm” file format.

  (2)  Copies of the “Monthly Progress Earnings Schedule” and “S-Curve” in “.pdf” file format.

• NONDISCRIMINATION —

  (23 CFR 230.107(a); 23 CFR Part 230, Subpart A, Appendix A; EO 11246)

  The provisions of this section related to 23 CFR Part 230, Subpart A, Appendix A are applicable to all Federal-aid construction contracts and to all related construction subcontracts of $10,000 or more. The provisions of 23 CFR Part 230 are not applicable to material supply, engineering, or architectural service contracts.

  In addition, the contractor and all subcontractors must comply with the following policies: Executive Order 11246, 41 CFR Part 60, 29 CFR Parts 1625-1627, 23 U.S.C. 140, Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.), and related regulations including 49 CFR Parts 21, 26, and 27; and 23 CFR Parts 200, 230, and 633.

  The contractor and all subcontractors must comply with: the requirements of the Equal Opportunity Clause in 41 CFR 60-1.4(b) and, for all construction contracts exceeding $10,000, the Standard Federal Equal Employment Opportunity Construction Contract Specifications in 41 CFR 60-4.3.

  Note: The U.S. Department of Labor has exclusive authority to determine compliance with Executive Order 11246 and the policies of the Secretary of Labor including 41 CFR Part 60, and 29 CFR Parts 1625-1627. The contracting agency and the FHWA have the authority and the responsibility to ensure compliance with 23 U.S.C. 140, Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.), and related regulations including 49 CFR Parts 21, 26, and 27; and 23 CFR Parts 200, 230, and 633.

  The following provision is adopted from 23 CFR Part 230, Subpart A, Appendix A, with appropriate revisions to conform to the U.S. Department of Labor (US DOL) and FHWA requirements.

  1. Equal Employment Opportunity: Equal Employment Opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (see 28 CFR Part 35, 29 CFR Part 1630, 29 CFR Parts 1625-1627, 41 CFR Part 60 and 49 CFR Part 27) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140, shall constitute the EEO and specific affirmative action standards for the contractor's project activities under this contract. The provisions of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR Part 35 and 29 CFR Part 1630 are incorporated by reference in this contract. In the execution of this contract, the contractor agrees to comply with the following minimum specific requirement activities of EEO:

  a. The contractor will work with the contracting agency and the Federal Government to ensure that it has made every good faith effort to provide equal opportunity with respect to all of its terms and conditions of employment and in their review of activities under the contract. 23 CFR 230.409 (g)(4) & (5).

  b. The contractor will accept as its operating policy the following statement:

  "It is the policy of this Company to assure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, sexual orientation, gender identity, color, national origin, age or disability. Such action shall include: 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, pre-apprenticeship, and/or on-the-job

  training."

  2. EEO Officer:The contractor will designate and make known to the contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active EEO program and who must be assigned adequate authority and responsibility to do so.

  3. Dissemination of Policy:All members of the contractor's staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action or are substantially involved in such action, will be made fully cognizant of and will implement the contractor's EEO policy and contractual responsibilities to provide EEO in each grade and classification of employment. To ensure that the above agreement will be met, the following actions will be taken as a minimum:

  a. 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 or other knowledgeable company official.

  b. All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty days following their reporting for duty with the contractor.

  c. All personnel who are engaged in direct recruitment for the project will be instructed by the EEO Officer in the contractor's procedures for locating and hiring minorities and women.

  d. Notices and posters setting forth the contractor's EEO policy will be placed in areas readily accessible to employees, applicants for employment and potential employees.

  e. The contractor's EEO policy and the procedures to implement such policy will be brought to the attention of employees by means of meetings, employee handbooks, or other appropriate means.

  4. Recruitment: When advertising for employees, the contractor will include in all advertisements for employees the notation: "An Equal Opportunity Employer." All such advertisements will be placed in publications having a large circulation among minorities and women in the area from which the project work force would normally be derived.

  a. The contractor will, unless precluded by a valid bargaining agreement, conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minorities and women. To meet this requirement, the contractor will identify sources of potential minority group employees and establish with such identified sources procedures whereby minority and women applicants may be referred to the contractor for employment consideration.

  b. In the event the contractor has a valid bargaining agreement providing for exclusive hiring hall referrals, the contractor is expected to observe the provisions of that agreement to the extent that the system meets the contractor's compliance with EEO contract provisions. Where implementation of such an agreement has the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Federal nondiscrimination provisions.

  c. The contractor will encourage its present employees to refer minorities and women as applicants for employment. Information and procedures with regard to referring such applicants will be discussed with employees.

  5. Personnel Actions: Wages, working conditions, and employee benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, age or disability.

  The following procedures shall be followed:

  a. The contractor will conduct periodic inspections of project sites to ensure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel.

  b. The contractor will periodically evaluate the spread of wages paid within each classification to determine any evidence of discriminatory wage practices.

  c. The contractor will periodically review selected personnel actions in depth to determine whether there is evidence of discrimination. Where evidence is found, the contractor will promptly take corrective action. If the review indicates that the discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons.

  d. The contractor will promptly investigate all complaints of alleged discrimination made to the contractor in connection with its obligations under this contract, will attempt to resolve such complaints, and will take appropriate corrective action within a reasonable time. If the investigation indicates that the discrimination may affect persons other than the complainant, such corrective action shall include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all of their avenues of appeal.

  6. Training and Promotion:

  a. The contractor will assist in locating, qualifying, and increasing the skills of minorities and women who are applicants for employment or current employees. Such efforts should be aimed at developing full journey level status employees in the type of trade or job classification involved.

  b. Consistent with the contractor's work force requirements and as permissible under Federal and State regulations, the contractor shall make full use of training programs (i.e., apprenticeship and on-the-job training programs for the geographical area of contract performance). In the event a special provision for training is provided under this contract, this subparagraph will be superseded as indicated in the special provision. The contracting agency may reserve training positions for persons who receive welfare assistance in accordance with 23 U.S.C. 140(a).

  c. The contractor will advise employees and applicants for employment of available training programs and entrance requirements for each.

  d. The contractor will periodically review the training and promotion potential of employees who are minorities and women and will encourage eligible employees to apply for such training and promotion.

  7. Unions: If the contractor relies in whole or in part upon unions as a source of employees, the contractor will use good faith efforts to obtain the cooperation of such unions to increase opportunities for minorities and women. 23 CFR 230.409. Actions by the contractor, either directly or through a contractor's association acting as agent, will include the procedures set forth below:

  a. The contractor will use good faith efforts to develop, in cooperation with the unions, joint training programs aimed toward qualifying more minorities and women for membership in the unions and increasing the skills of minorities and women so that they may qualify for higher paying employment.

  b. The contractor will use good faith efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability.

  c. The contractor is to obtain information as to the referral practices and policies of the labor union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to furnish such information to the contractor, the contractor shall so certify to the contracting agency and shall set forth what efforts have been made to obtain such information.

  d. In the event the union is unable to provide the contractor with a reasonable flow of referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability; making full efforts to obtain qualified and/or qualifiable minorities and women. The failure of a union to provide sufficient referrals (even though it is obligated to provide exclusive referrals under the terms of a collective bargaining agreement) does not relieve the contractor from the requirements of this paragraph. In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the contracting agency.

  8. Reasonable Accommodation for Applicants / Employees with Disabilities: The contractor must be familiar with the requirements for and comply with the Americans with Disabilities Act and all rules and regulations established thereunder. Employers must provide reasonable accommodation in all employment activities unless to do so would cause an undue hardship.

  9. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment: The contractor shall not discriminate on the grounds of race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The contractor shall take all necessary and reasonable steps to ensure nondiscrimination in the administration of this contract.

  a. The contractor shall notify all potential subcontractors, suppliers, and lessors of their EEO obligations under this contract.

  b. The contractor will use good faith efforts to ensure subcontractor compliance with their EEO obligations.

  10. Assurances Required:

  a. The requirements of 49 CFR Part 26 and the State DOT’s FHWA-approved Disadvantaged Business Enterprise (DBE) program are incorporated by reference.

  b. The contractor, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:

  (1) Withholding monthly progress payments;

  (2) Assessing sanctions;

  (3) Liquidated damages; and/or

  (4) Disqualifying the contractor from future bidding as non-responsible.

  c. The Title VI and nondiscrimination provisions of U.S. DOT Order 1050.2A at Appendixes A and E are incorporated by reference. 49 CFR Part 21.

  11. Records and Reports: The contractor shall keep such records as necessary to document compliance with the EEO requirements. Such records shall be retained for a period of three years following the date of the final payment to the contractor for all contract work and shall be available at reasonable times and places for inspection by authorized representatives of the contracting agency and the FHWA.

  a. The records kept by the contractor shall document the following:

  (1) The number and work hours of minority and nonminority group members and women employed in each work classification on the project;

  (2) The progress and efforts being made in cooperation with unions, when applicable, to increase employment

  opportunities for minorities and women; and

  (3) The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minorities and women.

  b. The contractors and subcontractors will submit an annual report to the contracting agency each July for the duration of the project indicating the number of minority, women, and nonminority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA-1391. The staffing data should represent the project work force on board in all or any part of the last payroll period preceding the end of July. If on-the-job training is being required by special provision, the contractor will be required to collect and report training data. The employment data should reflect the work force on board during all or any part of the last payroll period preceding the end of July.

• LATE BIDS/PROPOSALS —

  Bids/proposals that arrive after the specified due date and time, for any reason, are not accepted by the OpenGov Procurement website.

• NONDISCRIMINATION (23 CFR 230.107(a); 23 CFR Part 230, Subpart A, Appendix A; EO 11246) —

  The provisions of this section related to 23 CFR Part 230, Subpart A, Appendix A are applicable to all Federal-aid construction contracts and to all related construction subcontracts of $10,000 or more. The provisions of 23 CFR Part 230 are not applicable to material supply, engineering, or architectural service contracts.

  In addition, the contractor and all subcontractors must comply with the following policies: Executive Order 11246, 41 CFR Part 60, 29 CFR Parts 1625-1627, 23 U.S.C. 140, Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.), and related regulations including 49 CFR Parts 21, 26, and 27; and 23 CFR Parts 200, 230, and 633.

  The contractor and all subcontractors must comply with: the requirements of the Equal Opportunity Clause in 41 CFR 60- 1.4(b) and, for all construction contracts exceeding $10,000, the Standard Federal Equal Employment Opportunity Construction Contract Specifications in 41 CFR 60-4.3.

  Note: The U.S. Department of Labor has exclusive authority to determine compliance with Executive Order 11246 and the policies of the Secretary of Labor including 41 CFR Part 60, and 29 CFR Parts 1625-1627. The contracting agency and the FHWA have the authority and the responsibility to ensure compliance with 23 U.S.C. 140, Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.), and related regulations including 49 CFR Parts 21, 26, and 27; and 23 CFR Parts 200, 230, and 633.

  The following provision is adopted from 23 CFR Part 230, Subpart A, Appendix A, with appropriate revisions to conform to the U.S. Department of Labor (US DOL) and FHWA requirements.

  1.  Equal Employment Opportunity: Equal Employment Opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (see 28 CFR Part 35, 29 CFR Part 1630, 29 CFR Parts 1625-1627, 41 CFR Part 60 and 49 CFR Part 27) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140, shall constitute the EEO and specific affirmative action standards for the contractor's project activities under this contract. The provisions of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR Part 35 and 29 CFR Part 1630 are incorporated by reference in this contract. In the execution of this contract, the contractor agrees to comply with the following minimum specific requirement activities of EEO:

       a. The contractor will work with the contracting agency and the Federal Government to ensure that it has made every good faith effort to provide equal opportunity with respect to all of its terms and conditions of employment and in their review of activities under the contract. 23 CFR 230.409 (g)(4) & (5).

       b. The contractor will accept as its operating policy the following statement:

  "It is the policy of this Company to assure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, sexual orientation, gender identity, color, national origin, age or disability. Such action shall include: 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, pre-apprenticeship, and/or on-the-job training."

  2.  EEO Officer: The contractor will designate and make known to the contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active EEO program and who must be assigned adequate authority and responsibility to do so.

  3.  Dissemination of Policy: All members of the contractor's staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action or are substantially involved in such action, will be made fully cognizant of and will implement the contractor's EEO policy and contractual responsibilities to provide EEO in each grade and classification of employment. To ensure that the above agreement will be met, the following actions will be taken as a minimum:

       a.  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 or other knowledgeable company official.

       b. All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty days following their reporting for duty with the contractor.

       c. All personnel who are engaged in direct recruitment for the project will be instructed by the EEO Officer in the contractor's procedures for locating and hiring minorities and women.

       d. Notices and posters setting forth the contractor's EEO policy will be placed in areas readily accessible to employees, applicants for employment and potential employees.

       e. The contractor's EEO policy and the procedures to implement such policy will be brought to the attention of employees by means of meetings, employee handbooks, or other appropriate means.

  4.  Recruitment: When advertising for employees, the contractor will include in all advertisements for employees the notation: "An Equal Opportunity Employer." All such advertisements will be placed in publications having a large circulation among minorities and women in the area from which the project work force would normally be derived.

       a. The contractor will, unless precluded by a valid bargaining agreement, conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minorities and women. To meet this requirement, the contractor will identify sources of potential minority group employees and establish with such identified sources procedures whereby minority and women applicants may be referred to the contractor for employment consideration.

       b. In the event the contractor has a valid bargaining agreement providing for exclusive hiring hall referrals, the contractor is expected to observe the provisions of that agreement to the extent that the system meets the contractor's compliance with EEO contract provisions. Where implementation of such an agreement has the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Federal nondiscrimination provisions.

       c. The contractor will encourage its present employees to refer minorities and women as applicants for employment. Information and procedures with regard to referring such applicants will be discussed with employees.

  5.  Personnel Actions: Wages, working conditions, and employee benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, age or disability. The following procedures shall be followed:

       a. The contractor will conduct periodic inspections of project sites to ensure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel.

       b. The contractor will periodically evaluate the spread of wages paid within each classification to determine any evidence of discriminatory wage practices.

       c. The contractor will periodically review selected personnel actions in depth to determine whether there is evidence of discrimination. Where evidence is found, the contractor will promptly take corrective action. If the review indicates that the discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons.

       d. The contractor will promptly investigate all complaints of alleged discrimination made to the contractor in connection with its obligations under this contract, will attempt to resolve such complaints, and will take appropriate corrective action within a reasonable time. If the investigation indicates that the discrimination may affect persons other than the complainant, such corrective action shall include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all of their avenues of appeal.

  6. Training and Promotion: 

       a. The contractor will assist in locating, qualifying, and increasing the skills of minorities and women who are applicants for employment or current employees. Such efforts should be aimed at developing full journey level status employees in the type of trade or job classification involved.

       b. Consistent with the contractor's work force requirements and as permissible under Federal and State regulations, the contractor shall make full use of training programs (i.e., apprenticeship and on-the-job training programs for the geographical area of contract performance). In the event a special provision for training is provided under this contract, this subparagraph will be superseded as indicated in the special provision. The contracting agency may reserve training positions for persons who receive welfare assistance in accordance with 23 U.S.C. 140(a).

       c. The contractor will advise employees and applicants for employment of available training programs and entrance requirements for each.

       d. The contractor will periodically review the training and promotion potential of employees who are minorities and women and will encourage eligible employees to apply for such training and promotion.

  7.  Unions: If the contractor relies in whole or in part upon unions as a source of employees, the contractor will use good faith efforts to obtain the cooperation of such unions to increase opportunities for minorities and women. 23 CFR 230.409. Actions by the contractor, either directly or through a contractor's association acting as agent, will include the procedures set forth below:

       a. The contractor will use good faith efforts to develop, in cooperation with the unions, joint training programs aimed toward qualifying more minorities and women for membership in the unions and increasing the skills of minorities and women so that they may qualify for higher paying employment.

       b. The contractor will use good faith efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability.

       c. The contractor is to obtain information as to the referral practices and policies of the labor union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to furnish such information to the contractor, the contractor shall so certify to the contracting agency and shall set forth what efforts have been made to obtain such information.

       d. In the event the union is unable to provide the contractor with a reasonable flow of referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability; making full efforts to obtain qualified and/or qualifiable minorities and women. The failure of a union to provide sufficient referrals (even though it is obligated to provide exclusive referrals under the terms of a collective bargaining agreement) does not relieve the contractor from the requirements of this paragraph. In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the contracting agency.

  8.  Reasonable Accommodation for Applicants / Employees with Disabilities: The contractor must be familiar with the requirements for and comply with the Americans with Disabilities Act and all rules and regulations established thereunder. Employers must provide reasonable accommodation in all employment activities unless to do so would cause an undue hardship.

  9.  Selection of Subcontractors, Procurement of Materials and Leasing of Equipment: The contractor shall not discriminate on the grounds of race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The contractor shall take all necessary and reasonable steps to ensure nondiscrimination in the administration of this contract.

       a. The contractor shall notify all potential subcontractors, suppliers, and lessors of their EEO obligations under this contract.

       b. The contractor will use good faith efforts to ensure subcontractor compliance with their EEO obligations.

  10. Assurances Required: 

       a. The requirements of 49 CFR Part 26 and the State DOT’s FHWA-approved Disadvantaged Business Enterprise (DBE) program are incorporated by reference.

       b. The contractor, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:

  3. 1. Withholding monthly progress payments;
     2. Assessing sanctions;
     3. Liquidated damages; and/or
     4. Disqualifying the contractor from future bidding as non- responsible.

       c. The Title VI and nondiscrimination provisions of U.S. DOT Order 1050.2A at Appendixes A and E are incorporated by reference. 49 CFR Part 21.

  11.  Records and Reports: The contractor shall keep such records as necessary to document compliance with the EEO requirements. Such records shall be retained for a period of three years following the date of the final payment to the contractor for all contract work and shall be available at reasonable times and places for inspection by authorized representatives of the contracting agency and the FHWA.

       a. The records kept by the contractor shall document the following:

           (1) The number and work hours of minority and non- minority group members and women employed in each work classification on the project;

           (2) The progress and efforts being made in cooperation with unions, when applicable, to increase employment opportunities for minorities and women; and

           (3)The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minorities and women.

       b. The contractors and subcontractors will submit an annual report to the contracting agency each July for the duration of the project indicating the number of minority, women, and non- minority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA-1391. The staffing data should represent the project work force on board in all or any part of the last payroll period preceding the end of July. If on-the-job training is being required by special provision, the contractor will be required to collect and report training data. The employment data should reflect the work force on board during all or any part of the last payroll period preceding the end of July.

• WORK —

  The term “Work” as used herein refers to Work at the site of the project, is that normally done at the location of the project and includes all plant, labor, materials, supplies, fabrication, construction, equipment and other facilities and things necessary or proper for or incidental to the carrying out and completion of this contract. The term “Work” shall be construed to include material suitably stored and protected.

• Nonsegregated Facilities —

  This provision is applicable to all Federal-aid construction contracts and to all related construction subcontracts of more than $10,000. 41 CFR 60-1.5.

  As prescribed by 41 CFR 60-1.8, the contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensure that its employees are not assigned to perform their services at any location under the contractor's control where the facilities are segregated. The term "facilities" includes waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, washrooms, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees. The contractor shall provide separate or single-user restrooms and necessary dressing or sleeping areas to assure privacy between sexes.

• DBE Program-Related Certifications Made by Bidders\Contractors —

  By submitting a bid and by entering into any contract on the basis of that bid, the bidder/Contractor certifies to each of the following DBE Program-related conditions and assurances:

  1. That the management and bidding officers of its firm agree to comply with the bidding and project construction and administration obligations of the USDOT DBE Program requirements and regulations of 49 CFR Part 26 as amended, and VDOT’s Road and Bridge Specifications and DBE Program requirements and regulations.

  2. Under penalty of perjury and other applicable penal law that it has complied with the DBE Program requirements in submitting the bid, and shall comply fully with these requirements in the bidding, award, and execution of the Contract.

  3. To ensure that DBE firms have been given full and fair opportunity to participate in the performance of the Contract. The bidder certifies that all reasonable steps were, and will be, taken to ensure that DBE firms had, and will have, an opportunity to compete for and perform work on the Contract. The bidder further certifies that the bidder shall not discriminate on the basis of race, color, age, sex, sexual orientation, gender identity, or national origin in the performance of the Contract or in the award of any subcontract. Any agreement between a bidder and a DBE whereby the DBE promises not to provide quotations for performance of work to other bidders is prohibited.

  4. As a bidder, good faith efforts were made to obtain DBE participation in the proposed contract at or above the goal for DBE participation established by VDOT. It has submitted as a part of its bid true, accurate, complete, and detailed documentation of the good faith efforts it performed to meet the Contract goal for DBE participation. The bidder, by signing and submitting its bid, certifies the DBE participation information submitted within the stated time thereafter is true, correct, and complete, and that the information provided includes the names of all DBE firms that will participate in the Contract, the specific line item(s) that each listed DBE firm will perform, and the creditable dollar amounts of the participation of each listed DBE. The specific line item must reference the VDOT line number and item number contained in the proposal.

  5. The bidder further certifies, by signing its bid, it has committed to use each DBE firm listed for the specific work item shown to meet the Contract goal for DBE participation. Award of the Contract will be conditioned upon meeting these and other listed requirements of 49 CFR Part 26.53 and the contract documents. By signing the bid, the bidder certifies on work that it proposes to sublet; it has made good faith efforts to seek out and consider DBEs as potential subcontractors. The bidder shall contact DBEs to solicit their interest, capability, and prices in sufficient time to allow them to respond effectively, and shall retain on file proper documentation to substantiate its good faith efforts. Award of the Contract will be conditioned upon meeting these and other listed requirements of 49 CFR Part 26.53 and the contract documents.

  6. Once awarded the Contract, the Contractor shall make good faith efforts to utilize DBE firms to perform work designated to be performed by DBEs at or above the amount or percentage of the dollar value specified in the bidding documents. Further, the Contractor understands it shall not unilaterally terminate, substitute for, or replace any DBE firm that was designated in the executed contract in whole or in part with another DBE, any non-DBE firm, or with the Contractor's own forces or those of an affiliate of the Contractor without the prior written consent of VDOT as set out within the requirements of this provision.

  7. Once awarded the contract, the Contractor shall designate and make known to the Department a liaison officer who is assigned the responsibility of administering and promoting an active and inclusive DBE program as required by 49 CFR Part 26 for DBEs. The designation and identity of this officer need be submitted only once by the Contractor during any twelve (12) month period at the preconstruction conference for the first contract the Contractor has been awarded during that reporting period. The Department will post such information for informational and administrative purposes at VDOT’s Internet Civil Rights Division website.

  8. Once awarded the Contract, the Contractor shall comply fully with all regulatory and contractual requirements of the USDOT DBE Program, and that each DBE firm participating in the Contract shall fully perform the designated work items with the DBE’s own forces and equipment under the DBE’s direct supervision, control, and management. Where a contract exists and where the Contractor, DBE firm, or any other firm retained by the Contractor has failed to comply with federal or VDOT DBE Program regulations and/or their requirements on that contract, VDOT has the authority and discretion to determine the extent to which the DBE contract regulations and\or requirements have not been met, and will assess against the Contractor any remedies available at law or provided in the Contract in the event of such a contract breach.

  9. In the event a bond surety assumes the completion of work, if for any reason VDOT has terminated the prime Contractor, the surety shall be obligated to meet the same DBE contract terms and requirements as were required of the original prime Contractor in accordance with the requirements of this specification.

• PROJECT —

  The Project is the total construction of which the Work performed under Contract Documents may be the whole or a part.

• Nonsegregated Facilities —

  This provision is applicable to all Federal-aid construction contracts and to all related construction subcontracts of more than $10,000. 41 CFR 60-1.5.

  As prescribed by 41 CFR 60-1.8, the contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensure that its employees are not assigned to perform their services at any location under the contractor's control where the facilities are segregated. The term "facilities" includes waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, washrooms, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees. The contractor shall provide separate or single-user restrooms and necessary dressing or sleeping areas to assure privacy between sexes. 

• BIDDER’S REPRESENTATIONS —

  Each Bidder, by submitting his Bid, represents that:

  A. They have read and understands the Bidding Documents and his Bid is made in accordance therewith; and Bidder agrees to be bound by the terms and requirements set forth in the Bidding and Contract Documents;

  B. They have visited the site, has familiarized themself with the local conditions under which the Work is to be performed in accordance with Article A-8 and has correlated his observations with the requirements of the proposed Contract Documents;

  C. Their Bid is based upon the materials, systems and equipment required by the Bidding Documents without exception; and

  D. They have the capability, in all respects, and the moral, ethical and business integrity, reliability, technical ability, financial resources, plant, management, superintendents, equipment and materials which will assure effective and efficient good faith performance in full compliance with the Contract Documents and with any and all schedules and Milestone and Completion dates required by the Town. The Bidder acknowledges and represents that they have made allowances for normal inclement weather indigenous to the Project Site, in their estimating, planning and scheduling of the Work. The Bidder further acknowledges that the Contract Documents are, in their opinion, appropriate and adequate for completing this project and for the construction of sound and suitable Work. The Bidder hereby certifies that the Work shall be completed, in place, in full accordance with the Contract Documents, within the time limits specified.

• PRICING ERRORS —

  In case of an error in price extension, the firm fixed unit price shall govern.

• BID/PROPOSAL ACCEPTANCE PERIOD —

  Bids shall be binding upon the bidder for sixty (60) days following the bid opening date. Proposals shall be binding upon the offeror for ninety (90) days following the proposal due date. Any bid/proposal on which the bidder/offeror shortens the acceptance period may be rejected.

• Section 5. Special Provisions —

  Note: All references to the “Engineer” are deemed to be the Town of Vienna’s Engineer or Town of Vienna Construction Manager.

  TOWN OF VIENNA SPECIAL PROVISIONS 

  SP-1: EXISTING TOWN INFRASTUCTURE

  SP-2: EXISTING LANDSCAPING

  SP-3: GENERAL EXCAVATION

  SP-4: GENERAL STORAGE/EQUIPMENT STORAGE/MATERIAL STORAGE

  SP-5: MAINTENANCE OF TRAFFIC

  VDOT SUPPLEMENTAL SPECIFICATIONS, SPECIAL PROVISIONS, SPECIAL PROVISIONS COPIED NOTES

  Refer to Section F

  VDOT 2020 R&B SUPPLEMENTAL SPECIFICATIONS

  SS246-002020-02: SECTION 246 – PAVEMENT MARKING

  SS512-002020-03: SECTION 512 – MAINTAINING TRAFFIC

  SS704-002020-02: SECTION 704 – PAVEMENT MARKINGS AND MARKERS

  SP-1: EXISTING TOWN INFRASTRUCTURE

  Town /County/State road signs, delineators, guardrails, etc. shall not be removed unless otherwise specified on the Plans. Existing signs, delineators, guardrails, markers, trees, shrubs, fences, sidewalks, curb ramps, steps, etc. that are disturbed by any part of construction shall be replaced or restored to their original condition or to the satisfaction of the inspecting engineer, property owner, town, county, state, and/or any other agency having authority/jurisdiction. No additional compensation for these impacts as specified herein will be awarded to the Contractor, and the cost for such work shall be included in the price bid for all items part of this project.

  SP-2: EXISTING LANDSCAPING

  Contractor is responsible for the removal, storage, and (if necessary) replacement of all shrubbery. Restoration of the construction area to original or better condition shall be the responsibility of the Contractor. Contractor is responsible for all compaction of disturbed areas and shall complete work in accordance with the specifications outlined in the VDOT's Road and Bridge Specifications (current edition) and all Town of Vienna requirements. All compensation for work (including labor, materials and equipment) shall be included in the lump-sum cost for landscaping quantity for the project.

  SP-3: GENERAL EXCAVATION

  Contractor shall excavate outside the drip line of all trees to prevent root damage. No excavated material is to be placed or tracked on the pavement. Excavated material shall be stored away from the paved roadway and sidewalks. All spilled material will be removed immediately.

  SP-4: GENERAL STORAGE/EQUIPMENT STORAGE/MATERIAL STORAGE

  No equipment or material shall be stored or permitted to stand unprotected where vehicular or pedestrian traffic is maintained. No equipment or material shall be stored on the sidewalk at any time. If Contractor wishes to store equipment and/or materials on adjacent properties, the Contractor shall negotiate independently with property owners.

  SP-5: MAINTENANCE OF TRAFFIC

  The Contractor shall provide at least one person on the project site during all work operations who is currently certified either by VDOT in Intermediate Work Zone Traffic Control, or by the American Traffic Safety Services Association (ATSSA) as a Traffic Control Supervisor (TCS). This person shall have the verification card with them while on the project site. This person shall be responsible for the oversight of work zone traffic control within the project limits in compliance with the contract requirements involving the plans, specifications, the VWAPM, and the MUTCD. This person’s duties shall include the supervision of all construction work zone activities.

  If none of the Contractor’s on-site personnel responsible for the supervision of such work have the required verification with them or if they have an outdated verification card showing they are not currently verified, all work on the project will be suspended by the Town of Vienna.

  Portable Temporary Rumble Strips are not to be used on this project.

  MAINTENANCE OF TRAFFIC will be measured as Lump Sum (LS) will be paid for at the Contract LS price. The Contract LS price for Maintenance of Traffic will include all necessary devices and materials required by the VWAPM and these contract plans. This price shall include installing, moving, shifting, maintaining, and removing devices when no longer required, and relocating throughout the day.

• Review and Acceptance —

  Review and Acceptance

  The Engineer will review each Progress Schedule submission for acceptance and will respond within fourteen (14) days of receipt of the Contractor’s complete submittal. The Engineer will determine acceptance or rejection based on conformance with this specification and other requirements of the Contract and will respond as follows:

  1.  Accepted, No Exceptions – When the submission is complete and in full compliance with this specification and other requirements of the Contract, the Engineer will respond to the Contractor with a notice indicating the submission is “Accepted, No Exceptions”.

  2.  Accepted As Noted – When the submission is complete and generally in compliance with this specification and other requirements of the Contract, but contains minor flaws or exceptions, the Engineer will respond to the Contractor with a notice indicating the submission is “Accepted As Noted”. In which case, the Contractor shall make the necessary corrections in the next required Progress Schedule submission to address the Engineer’s comments or provide justifications in the narrative why the corrections should not be made.

  3.  Rejected, As Noted – When the submission is incomplete or not in compliance with this specification or other requirements of the Contract, the Engineer will respond to the Contractor with a notice indicating the submission is “Rejected, As Noted”. The Progress Schedule submission will be immediately rejected and returned by the Engineer for the following reasons:

  A.  Failure to include all required reports and submittal items.

  B.  Failure to calculate the Project Schedule using the correct Data Date.

  C.  Use of prohibited constraints.

  D.  Activities without predecessors or successors with exception of the first and last activities.

  E.  The Project Schedule shows actual dates equal to or greater than the Data Date.

  F.  Failure to respond to the Engineer’s review comments from the previous submission.

  If the submission is rejected and returned by the Engineer, the Contractor shall make the necessary corrections to address the Engineer’s comments and resubmit the Progress Schedule within seven (7) days of receipt of the Engineer’s response. 

  When the Engineer determines that a meeting with the Contractor is necessary to discuss proposed changes to the schedule or to resolve issues concerning acceptance of the Progress Schedule submission, the Contractor shall meet with the Engineer as requested.

  If the Contractor or Engineer discovers an error after the Engineer has accepted a Progress Schedule, the Contractor shall correct the error in the next required submission.

  The Engineer’s acceptance of a Progress Schedule submission does not attest to the validity of the Project Schedule, sequencing, logic, duration, or assumptions on which the schedule is based. Acceptance by the Engineer does not transfer any of the Contractor’s responsibilities to the
  Department. Failure of the Contractor to include in the Project Schedule any element of work required by the Contract for timely completion will not excuse the Contractor from completing the Work within the Contract specified Milestone(s) or the Contract time limit, as applicable.

  Upon acceptance by the Engineer, the Baseline Progress Schedule or a subsequent Revised Baseline Progress Schedule will be established as the Project “Schedule of Record (SOR)”. The SOR is the latest agreed upon and only Project Baseline with which all parties will plan and execute all work required to complete the Project; and against which progress of the Project and the Contractor’s performance will be assessed.

• FURNISH. INSTALL. PROVIDE —

  The term “Furnish” shall mean to make available for proof of existence, reproduction and use. “Install” shall mean to incorporate a specific item, product or material into the Work including all necessary labor, equipment, testing and additional materials necessary to make the item ready for use. “Provide” shall, unless specifically limited in context, mean to supply and incorporate a specified item, product or material into the Work; including all necessary labor, additional materials, equipment to perform the Work required for proper installation and testing such that the item is ready for use.

• BID SECURITY —

  A. Each bid must be accompanied by (1) cash; or (2) a Cashier’s Check or a Certified Check of the Bidder made payable to the Town of Vienna; or (3) a bidder’s bond accompanied by a written guarantee by a surety company licensed to do business in Virginia and acceptable to the Owner. The amount of this bid security will be 2½% of the bid amount for bids of $100,000 or less, and 5% of the bid amount for bids greater than $100,000. For purposes of this provision, the amount of the bid shall be the Base Bid plus all positive amount alternates. The bidder’s bond shall be issued by a surety company licensed to conduct business in Virginia and acceptable to the Town.

  B. Said bid security is given as a guarantee that the Bidder will enter into a contract if awarded the Work and, in the case of refusal or failure to so enter into said contract, the security shall be declared forfeited to the Town. Such security shall be returned to all but the three lowest Bidders within three days after the opening of bids and the remaining security will be returned within 48 hours after the Town and the successful Bidder have executed the Contract. If no Contract has been awarded or the Bidder has not been notified of the acceptance of his bid, within sixty (60) days of the bid opening, with VDOT review, the Bidder may withdraw his bid and request the return of his bid security. If, at the Town’s request, the Bidder agrees to extend and maintain his bid beyond the specified 45 days, his bid security will not be returned.

  C. The Bidder’s Cash, Certified or Cashier’s Check or Bid Bond shall be accompanied by a written guarantee by a surety company licensed to do business in Virginia and acceptable to the Town, that in the event a contract is awarded to the Bidder, said surety will furnish the required Performance, Labor and Material Payment and Guarantee Bonds, as required herein.

• Davis-Bacon and Related Act Provisions —

  This section is applicable to all Federal-aid construction projects exceeding $2,000 and to all related subcontracts and lower-tier subcontracts (regardless of subcontract size), in accordance with 29 CFR 5.5. The requirements apply to all projects located within the right-of-way of a roadway that is functionally classified as Federal-aid highway. 23 U.S.C. 113. This excludes roadways functionally classified as local roads or rural minor collectors, which are exempt. 23 U.S.C. 101. Where applicable law requires that projects be treated as a project on a Federal-aid highway, the provisions of this subpart will apply regardless of the location of the project. Examples include: Surface Transportation Block Grant Program projects funded under 23 U.S.C. 133 [excluding recreational trails projects], the Nationally Significant Freight and Highway Projects funded under 23 U.S.C. 117, and National Highway Freight Program projects funded under 23 U.S.C. 167.

  The following provisions are from the U.S. Department of Labor regulations in 29 CFR 5.5 “Contract provisions and related matters” with minor revisions to conform to the FHWA1273 format and FHWA program requirements.

  1. Minimum wages (29 CFR 5.5)

  a. All laborers and mechanics employed or working upon the site of the work, will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics.

  Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph 1.d. of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under paragraph 1.b. of this section) and the Davis-Bacon poster (WH–1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers.

  b. (1) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:

  (i) The work to be performed by the classification requested is not performed by a classification in the wage determination; and

  (ii) The classification is utilized in the area by the construction industry; and

  (iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.

  (2) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.

  (3) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.

  (4) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs 1.b.(2) or 1.b.(3) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.

  c. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.

  d. If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.

  2. Withholding (29 CFR 5.5)

  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 under this contract, or any other Federal contract with the same prime contractor, or any other federally assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, 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.

  3. Payrolls and basic records (29 CFR 5.5)

  a. Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.

  b. (1) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the contracting agency. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH–347 is available for this purpose from the Wage and Hour Division Web site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the contracting agency for transmission to the State DOT, the FHWA or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the contracting agency.

  (2) Each payroll submitted shall be accompanied by a “Statement of Compliance,” signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following:

  (i) That the payroll for the payroll period contains the information required to be provided under 29 CFR 5.5(a)(3)(ii), the appropriate information is being maintained under 29 CFR 5.5(a)(3)(i), and that such information is correct and complete;

  (ii) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in 29 CFR part 3;

  (iii) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract.

  (3) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH–347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph 3.b.(2) of this section.

  (4) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under 18 U.S.C. 1001 and 31 U.S.C. 231.

  c. The contractor or subcontractor shall make the records required under paragraph 3.a. of this section available for inspection, copying, or transcription by authorized representatives of the contracting agency, the State DOT, the FHWA, or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the FHWA may, after written notice to the contractor, the contracting agency or the State DOT, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12.

• Davis-Bacon and Related Act Provisions —

  This section is applicable to all Federal-aid construction projects exceeding $2,000 and to all related subcontracts and lower-tier subcontracts (regardless of subcontract size), in accordance with 29 CFR 5.5. The requirements apply to all projects located within the right-of-way of a roadway that is functionally classified as Federal-aid highway. 23 U.S.C. 113. This excludes roadways functionally classified as local roads or rural minor collectors, which are exempt. 23 U.S.C. 101. Where applicable law requires that projects be treated as a project on a Federal-aid highway, the provisions of this subpart will apply regardless of the location of the project. Examples include: Surface Transportation Block Grant Program projects funded under 23 U.S.C. 133 [excluding recreational trails projects], the Nationally Significant Freight and Highway Projects funded under 23 U.S.C. 117, and National Highway Freight Program projects funded under 23 U.S.C. 167.

  The following provisions are from the U.S. Department of Labor regulations in 29 CFR 5.5 “Contract provisions and related matters” with minor revisions to conform to the FHWA- 1273 format and FHWA program requirements.

  1.  Minimum wages (29 CFR 5.5)

       a. Wage rates and fringe benefits. All laborers and mechanics employed or working upon the site of the work (or otherwise working in construction or development of the project under a development statute), will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of basic hourly wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. As provided in paragraphs (d) and (e) of 29 CFR 5.5, the appropriate wage determinations are effective by operation of law even if they have not been attached to the contract. Contributions made or costs reasonably anticipated for bona fide fringe benefits under the Davis-Bacon Act (40U.S.C. 3141(2)(B)) on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph 1.e. of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics must be paid the appropriate wage rate and fringe benefits on the wage determination for the classification(s) of work actually performed, without regard to skill, except as provided in paragraph 4. of this section. Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classifications and wage rates conformed under paragraph 1.c. of this section) and the Davis-Bacon poster (WH–1321) must be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers.

       b. Frequently recurring classifications.

           (1) In addition to wage and fringe benefit rates that have been determined to be prevailing under the procedures set forth in 29 CFR part 1, a wage determination may contain, pursuant to § 1.3(f), wage and fringe benefit rates for classifications of laborers and mechanics for which conformance requests are regularly submitted pursuant to paragraph 1.c. of this section, provided that:

              (i) The work performed by the classification is not performed by a classification in the wage determination for which a prevailing wage rate has been determined;

              (ii) The classification is used in the area by the construction industry; and

              (iii) The wage rate for the classification bears a reasonable relationship to the prevailing wage rates contained in the wage determination.

           (2) The Administrator will establish wage rates for such classifications in accordance with paragraph 1.c.(1)(iii) of this section. Work performed in such a classification must be paid at no less than the wage and fringe benefit rate listed on the wage determination for such classification.

       c. Conformance.

           (1) The contracting officer must require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract be classified in conformance with the wage determination. Conformance of an additional classification and wage rate and fringe benefits is appropriate only when the following criteria have been met:

                 (i) The work to be performed by the classification requested is not performed by a classification in the wage determination; and

                 (ii) The classification is used in the area by the construction industry; and

                 (iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.

           (2) The conformance process may not be used to split, subdivide, or otherwise avoid application of classifications listed in the wage determination.

           (3) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken will be sent by the contracting officer by email to DBAconformance@dol.gov. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30–day period that additional time is necessary.

           (4) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer will, by email to DBAconformance@dol.gov, refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30–day period that additional time is necessary.

           (5) The contracting officer must promptly notify the contractor of the action taken by the Wage and Hour Division under paragraphs 1.c.(3) and (4) of this section. The contractor must furnish a written copy of such determination to each affected worker or it must be posted as a part of the wage determination. The wage rate (including fringe benefits where appropriate) determined pursuant to paragraph 1.c.(3) or (4) of this section must be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.

       d. Fringe benefits not expressed as an hourly rate. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor may either pay the benefit as stated in the wage determination or may pay another bona fide fringe benefit or an hourly cash equivalent thereof.

       e. Unfunded plans. If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, in accordance with the criteria set forth in § 5.28, 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. Interest. In the event of a failure to pay all or part of the wages required by the contract, the contractor will be required to pay interest on any underpayment of wages.

  2.  Withholding (29 CFR 5.5)

       a. Withholding requirements. The contracting agency may, upon its own action, or must, upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor so much of the accrued payments or advances as may be considered necessary to satisfy the liabilities of the prime contractor or any subcontractor for the full amount of wages and monetary relief, including interest, required by the clauses set forth in this section for violations of this contract, or to satisfy any such liabilities required by any other Federal contract, or federally assisted contract subject to Davis-Bacon labor standards, that is held by the same prime contractor (as defined in § 5.2). The necessary funds may be withheld from the contractor under this contract, any other Federal contract with the same prime contractor, or any other federally assisted contract that is subject to Davis-Bacon labor standards requirements and is held by the same prime contractor, regardless of whether the other contract was awarded or assisted by the same agency, and such funds may be used to satisfy the contractor liability for which the funds were withheld. In the event of a contractor's failure to pay any laborer or mechanic, including any apprentice or helper working on the site of the work all or part of the wages required by the contract, or upon the contractor's failure to submit the required records as discussed in paragraph 3.d. of this section, the contracting agency may on its own initiative and 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.

       b. Priority to withheld funds. The Department has priority to funds withheld or to be withheld in accordance with paragraph 2.a. of this section or Section V, paragraph 3.a., or both, over claims to those funds by:

           (1) A contractor's surety(ies), including without limitation performance bond sureties and payment bond sureties;

           (2) A contracting agency for its reprocurement costs;

           (3) A trustee(s) (either a court-appointed trustee or a U.S. trustee, or both) in bankruptcy of a contractor, or a contractor's bankruptcy estate;

           (4) A contractor's assignee(s);

           (5) A contractor's successor(s); or

           (6) A claim asserted under the Prompt Payment Act, 31U.S.C. 3901–3907.

  3.  Records and certified payrolls (29 CFR 5.5)

       a. Basic record requirements

           (1) Length of record retention. All regular payrolls and other basic records must be maintained by the contractor and any subcontractor during the course of the work and preserved for all laborers and mechanics working at the site of the work (or otherwise working in construction or development of the project under a development statute) for a period of at least 3 years after all the work on the prime contract is completed.

           (2) Information required. Such records must contain the name; Social Security number; last known address, telephone number, and email address of each such worker; each worker's correct classification(s) of work actually performed; hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in 40 U.S.C. 3141(2)(B) of the Davis-Bacon Act); daily and weekly number of hours actually worked in total and on each covered contract; deductions made; and actual wages paid.

           (3) Additional records relating to fringe benefits. Whenever the Secretary of Labor has found under paragraph 1.e. of this section that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in 40 U.S.C. 3141(2)(B) of the Davis-Bacon Act, the contractor must 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.

           (4) Additional records relating to apprenticeship. Contractors with apprentices working under approved programs must maintain written evidence of the registration of apprenticeship programs, the registration of the apprentices, and the ratios and wage rates prescribed in the applicable programs.

       b. Certified payroll requirements

           (1) Frequency and method of submission. The contractor or subcontractor must submit weekly, for each week in which any DBA- or Related Acts- covered work is performed, certified payrolls to the contracting agency. The prime contractor is responsible for the submission of all certified payrolls by all subcontractors. A contracting agency or prime contractor may permit or require contractors to submit certified payrolls through an electronic system, as long as the electronic system requires a legally valid electronic signature; the system allows the contractor, the contracting agency, and the Department of Labor to access the certified payrolls upon request for at least 3 years after the work on the prime contract has been completed; and the contracting agency or prime contractor permits other methods of submission in situations where the contractor is unable or limited in its ability to use or access the electronic system.

           (2) Information required. The certified payrolls submitted must set out accurately and completely all of the information required to be maintained under paragraph 3.a.(2) of this section, except that full Social Security numbers and last known addresses, telephone numbers, and email addresses must not be included on weekly transmittals. Instead, the certified payrolls need only include an individually identifying number for each worker ( e.g., the last four digits of the worker's Social Security number). The required weekly certified payroll information may be submitted using Optional Form WH–347 or in any other format desired. Optional Form WH–347 is available for this purpose from the Wage and Hour Division website at https://www.dol.gov/sites/dolgov/files/WHD/ legacy/files/wh347/.pdf or its successor website. It is not a violation of this section for a prime contractor to require a subcontractor to provide full Social Security numbers and last known addresses, telephone numbers, and email addresses to the prime contractor for its own records, without weekly submission by the subcontractor to the contracting agency.

           (3) Statement of Compliance. Each certified payroll submitted must be accompanied by a “Statement of Compliance,” signed by the contractor or subcontractor, or the contractor's or subcontractor's agent who pays or supervises the payment of the persons working on the contract, and must certify the following:

                (i) That the certified payroll for the payroll period contains the information required to be provided under paragraph 3.b. of this section, the appropriate information and basic records are being maintained under paragraph 3.a. of this section, and such information and records are correct and complete;

                 (ii) That each laborer or mechanic (including each helper and apprentice) working on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in 29 CFR part 3; and

                 (iii) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification(s) of work actually performed, as specified in the applicable wage determination incorporated into the contract.

           (4) Use of Optional Form WH–347. The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH–347 will satisfy the requirement for submission of the “Statement of Compliance” required by paragraph 3.b.(3) of this section.

           (5) Signature. The signature by the contractor, subcontractor, or the contractor's or subcontractor's agent must be an original handwritten signature or a legally valid electronic signature.

           (6) Falsification. The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under 18 U.S.C. 1001 and 31 U.S.C. 3729.

           (7) Length of certified payroll retention. The contractor or subcontractor must preserve all certified payrolls during the course of the work and for a period of 3 years after all the work on the prime contract is completed.

       c. Contracts, subcontracts, and related documents. The contractor or subcontractor must maintain this contract or subcontract and related documents including, without limitation, bids, proposals, amendments, modifications, and extensions. The contractor or subcontractor must preserve these contracts, subcontracts, and related documents during the course of the work and for a period of 3 years after all the work on the prime contract is completed.

       d. Required disclosures and access

           (1) Required record disclosures and access to workers. The contractor or subcontractor must make the records required under paragraphs 3.a. through 3.c. of this section, and any other documents that the contracting agency, the State DOT, the FHWA, or the Department of Labor deems necessary to determine compliance with the labor standards provisions of any of the applicable statutes referenced by § 5.1, available for inspection, copying, or transcription by authorized representatives of the contracting agency, the State DOT, the FHWA, or the Department of Labor, and must permit such representatives to interview workers during working hours on the job.

           (2) Sanctions for non-compliance with records and worker access requirements. If the contractor or subcontractor fails to submit the required records or to make them available, or refuses to permit worker interviews during working hours on the job, the Federal agency may, after written notice to the contractor, sponsor, applicant, owner, or other entity, as the case may be, that maintains such records or that employs such workers, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available, or to permit worker interviews during working hours on the job, may be grounds for debarment action pursuant to § 5.12. In addition, any contractor or other person that fails to submit the required records or make those records available to WHD within the time WHD requests that the records be produced will be precluded from introducing as evidence in an administrative proceeding under 29 CFR part 6 any of the required records that were not provided or made available to WHD. WHD will take into consideration a reasonable request from the contractor or person for an extension of the time for submission of records. WHD will determine the reasonableness of the request and may consider, among other things, the location of the records and the volume of production.

           (3) Required information disclosures. Contractors and subcontractors must maintain the full Social Security number and last known address, telephone number, and email address of each covered worker, and must provide them upon request to the contracting agency, the State DOT, the FHWA, the contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or other compliance action.

  4.  Apprentices and equal employment opportunity (29 CFR 5.5)

       a. Apprentices

         (1) Rate of pay. Apprentices will be permitted to work at less than the predetermined rate for the work they perform when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship (OA), or with a State Apprenticeship Agency recognized by the OA. A person who is not individually registered in the program, but who has been certified by the OA or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice, will be permitted to work at less than the predetermined rate for the work they perform in the first 90 days of probationary employment as an apprentice in such a program. In the event the OA or a State Apprenticeship Agency recognized by the OA withdraws approval of an apprenticeship program, the contractor will no longer be permitted to use apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

         (2) Fringe benefits. Apprentices must be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringe benefits must be paid in accordance with that determination.

         (3) Apprenticeship ratio. The allowable ratio of apprentices to journeyworkers on the job site in any craft classification must not be greater than the ratio permitted to the contractor as to the entire work force under the registered program or the ratio applicable to the locality of the project pursuant to paragraph 4.a.(4) of this section. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated in paragraph 4.a.(1) of this section, must be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under this section must be paid not less than the applicable wage rate on the wage determination for the work actually performed.

         (4) Reciprocity of ratios and wage rates. Where a contractor is performing construction on a project in a locality other than the locality in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyworker's hourly rate) applicable within the locality in which the construction is being performed must be observed. If there is no applicable ratio or wage rate for the locality of the project, the ratio and wage rate specified in the contractor's registered program must be observed.

       b. Equal employment opportunity. The use of apprentices and journeyworkers under this part must be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30.

       c. Apprentices and Trainees (programs of the U.S. DOT).

  Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in connection with Federal-aid highway construction programs are not subject to the requirements of paragraph 4 of this Section IV. 23 CFR 230.111(e)(2). The straight time hourly wage rates for apprentices and trainees under such programs will be established by the particular programs. The ratio of apprentices and trainees to journeyworkers shall not be greater than permitted by the terms of the particular program.

  5.  Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract as provided in 29 CFR 5.5.

  6.  Subcontracts. The contractor or subcontractor must insert FHWA-1273 in any subcontracts, along with the applicable wage determination(s) and such other clauses or contract modifications as the contracting agency may by appropriate instructions require, and a clause requiring the subcontractors to include these clauses and wage determination(s) in any lower tier subcontracts. The prime contractor is responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in this section. In the event of any violations of these clauses, the prime contractor and any subcontractor(s) responsible will be liable for any unpaid wages and monetary relief, including interest from the date of the underpayment or loss, due to any workers of lower-tier subcontractors, and may be subject to debarment, as appropriate. 29 CFR 5.5.

  7.  Contract termination: debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12.

  8.  Compliance with Davis-Bacon and Related Act requirements. All rulings and interpretations of the Davis- Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract as provided in 29 CFR 5.5.

  9.  Disputes concerning labor standards. As provided in 29 CFR 5.5, disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives.

  10.  Certification of eligibility.

       a. By entering into this contract, the contractor certifies that neither it nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of 40U.S.C. 3144(b) or § 5.12(a).

       b. No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of 40 U.S.C. 3144(b) or § 5.12(a).

       c. The penalty for making false statements is prescribed in the U.S. Code, Title 18 Crimes and Criminal Procedure, 18U.S.C. 1001.

  11.  Anti-retaliation. It is unlawful for any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, or to cause any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, any worker or job applicant for:

       a. Notifying any contractor of any conduct which the worker reasonably believes constitutes a violation of the DBA, Related Acts, this part, or 29 CFR part 1 or 3;

       b. Filing any complaint, initiating or causing to be initiated any proceeding, or otherwise asserting or seeking to assert on behalf of themselves or others any right or protection under the DBA, Related Acts, this part, or 29 CFR part 1 or 3;

       c. Cooperating in any investigation or other compliance action, or testifying in any proceeding under the DBA, Related Acts, this part, or 29 CFR part 1 or 3; or

       d. Informing any other person about their rights under the DBA, Related Acts, this part, or 29 CFR part 1 or 3.

• Disqualification of Bidder —

  Bidders may be disqualified from bidding for failure to comply with the requirements of this Special Provision, the Contract specifications, and VDOT Road and Bridge Specifications.

• Bidding Procedures —

  The following bidding procedures shall apply to the Contract for DBE Program compliance purposes:

  1. Contract Goal, Good Faith Efforts Specified: All bidders evidencing the attainment of DBE goal commitment equal to or greater than the required DBE goal established for the project must submit completed Form C-111, Minimum DBE Requirements, and Form C-48, Subcontractor/Supplier Solicitation and Utilization, as a part of the bid documents.

  Form C-111 may be submitted electronically or may be faxed to the Department, but in no case shall the bidder’s Form C-111 be received later than 10:00 a.m. the next business day after the time stated in the bid proposal for the receipt of bids. Form C-48 must be received within ten (10) business days after the bid opening.

  If, at the time of submitting its bid, the bidder knowingly cannot meet or exceed the required DBE contract goal, it shall submit Form C-111 exhibiting the DBE participation it commits to attain as a part of its bid documents. The bidder shall then submit Form C-49, DBE Good Faith Efforts Documentation, within two (2) business days after the bid opening.

  The lowest responsive and responsible bidder must submit its properly executed Form C-112, Certification of Binding Agreement, within three (3) business days after the bids are received. DBEs bidding as prime contractors are not required to submit Form C-112 unless they are utilizing other DBEs as subcontractors.

  If, after review of the apparent lowest bid, VDOT determines the DBE requirements have not been met, the apparent lowest successful bidder must submit Form C-49, DBE Good Faith Efforts Documentation, which must be received by the Contract Engineer within two (2) business days after official notification of such failure to meet the aforementioned DBE requirements.

  Forms C-48, C-49, C-111, and C-112 can be obtained from the VDOT website at: http://vdotforms.vdot.virginia.gov/

  Instructions for submitting Form C-111 can be obtained from the VDOT website at: http://www.virginiadot.org/business/resources/const/Exp_DBE_Commitments.pdf

  2. Bid Rejection:The failure of a bidder to submit the required documentation within the timeframes specified in the Contract Goal, Good Faith Efforts Specified section of this Special Provision may be cause for rejection of that bidder’s bid.

  If the lowest bidder is rejected for failure to submit the required documentation in the specified time frames, the Department may award the work to the next lowest bidder, or re-advertise the proposed work at a later date or proceed otherwise as determined by the Commonwealth.

  3. Good Faith Efforts Described: In order to award a contract to a bidder that has failed to meet DBE contract goal requirements, VDOT will determine if the bidder’s efforts were adequate good faith efforts, and if given all relevant circumstances, those efforts were made actively and aggressively to meet the DBE requirements. Efforts to obtain DBE participation are not good faith efforts if they could not reasonably be expected to produce a level of DBE participation sufficient to meet the DBE Program and contract goal requirements.

  Good faith efforts may be determined through use of the following list of the types of actions the bidder may make to obtain DBE participation. This is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive. Other factors or types of efforts of similar intent may be relevant in appropriate cases:

  a. Soliciting through reasonable and available means, such as but not limited to, attendance at pre-bid meetings, advertising, and written notices to DBEs who have the capability to perform the work of the Contract. Examples include: advertising in at least one daily/weekly/monthly newspaper of general circulation, as applicable; phone contact with a completely documented telephone log, including the date and time called, contact person, or voice mail status; and internet contacts with supporting documentation, including dates advertised. The bidder shall solicit this interest no less than five (5) business days before the bids are due so that the solicited DBEs have enough time to reasonably respond to the solicitation. The bidder shall determine with certainty if the DBEs are interested by taking reasonable steps to follow up initial solicitations as evidenced by documenting such efforts as requested on Form C-49, DBE Good Faith Efforts Documentation.

  b. Selecting portions of the work to be performed by DBEs in order to increase the likelihood that the DBE goals will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate DBE participation, even when the Contractor might otherwise prefer to completely perform all portions of this work in its entirety or use its own forces;

  c. Providing interested DBEs with adequate information about the plans, specifications, and requirements of the Contract in a timely manner, which will assist the DBEs in responding to a solicitation;

  d. Negotiating for participation in good faith with interested DBEs;

  (1) Evidence of such negotiation shall include the names, addresses, and telephone numbers of DBEs that were considered; dates DBEs were contacted; a description of the information provided regarding the plans, specifications, and requirements of the Contract for the work selected for subcontracting; and, if insufficient DBE participation seems likely, evidence as to why additional agreements could not be reached for DBEs to perform the work;

  (2) A bidder using good business judgment should consider a number of factors in negotiating with subcontractors, including DBE subcontractors, and should take a firm’s price, qualifications, and capabilities, as well as contract goals, into consideration. However, the fact that there may be some additional costs involved in finding and using DBEs is not sufficient reason for a bidder’s failure to meet the Contract goal for DBE participation, as long as such costs are reasonable and comparable to costs customarily appropriate to the type of work under consideration. Also, the ability or desire of a bidder to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make diligent good faith efforts. Bidders are not, however, required to accept higher quotes from DBEs if the price difference can be shown by the bidder to be excessive, unreasonable, or greater than would normally be expected by industry standards;

  e. A bidder cannot reject a DBE as being unqualified without sound reasons based on a thorough investigation of the DBE’s capabilities. The DBE’s standing within its industry, membership in specific groups, organizations, associations, and political or social affiliations, and union vs. non-union employee status are not legitimate causes for the rejection or non-solicitation of bids in the bidder’s efforts to meet the project goal for DBE participation;

  f. Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as required by VDOT or by the bidder/Contractor;

  g. Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, or related assistance or services subject to the restrictions contained in these provisions;

  h. Effectively using the services of appropriate personnel from VDOT and from DMBE; available minority/women community or minority organizations; contractors’ groups; local, state, and Federal minority/ women business assistance offices; and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and utilization of qualified DBEs.

• Davis-Bacon and Related Act Provisions - Continued —

  4. Apprentices and trainees(29 CFR 5.5)

  a. Apprentices (programs of the USDOL).

  Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice.

  The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed.

  Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination.

  In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

  b. Trainees (programs of the USDOL).

  Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration.

  The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration.

  Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed.

  In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

  c. 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.

  d. Apprentices and Trainees (programs of the U.S. DOT).

  Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in connection with Federal-aid highway construction programs are not subject to the requirements of paragraph 4 of this Section IV. 23 CFR 230.111(e)(2). The straight time hourly wage rates for apprentices and trainees under such programs will be established by the particular programs. The ratio of apprentices and trainees to journeymen shall not be greater than permitted by the terms of the particular program.

  5. Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract as provided in 29 CFR 5.5.

  6. Subcontracts. The contractor or subcontractor shall insert Form FHWA-1273 in any subcontracts and also require the subcontractors to include Form FHWA-1273 in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5.

  7. Contract termination: debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12.

  8. Compliance with Davis-Bacon and Related Act requirements. All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract as provided in 29 CFR 5.5.

  9. Disputes concerning labor standards. As provided in 29 CFR 5.5, disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives.

  10. Certification of eligibility (29 CFR 5.5)

  a. By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).

  b. No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).

  c. The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.

• EXTRA WORK —

  The term “Extra Work” as used herein, refers to and includes Work required by the Owner, which, in the judgment of the Owner and Architect/Engineer (A/E), involves changes in or additions to that required by the drawings, specifications and addenda in their present form.

• Failure to Comply with Progress Schedule Submission Requirements —

  The Engineer may delay approval of the monthly progress estimate for failure to submit an acceptable Progress Schedule on time and as required.  Payments withheld for violation of the schedule requirements will be included in the next progress estimate following the Contractor’s submission of an acceptable Progress Schedule. Any delays resulting from payment withholding due to the Contractor’s failure to provide an acceptable Progress Schedule will not be considered just cause for extension of the Contract time limit or for additional compensation.

• LIQUIDATED DAMAGES —

  The Successful Bidder, upon his failure or refusal to execute the Contract within fifteen (15) days after he has received notice of the acceptance of his bid, shall forfeit to the Town the security deposited with his bid, as liquidated damages for such failure or refusal.

• CORRECTION OR WITHDRAWAL OF BIDS AND CANCELLATION OF AWARDS UNDER COMPETITIVE SEALED BIDDING —

  Correction or withdrawal of inadvertently erroneous bids before or after award, or cancellation of awards or contracts based on such bid mistakes, shall be permitted. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the Town or fair competition shall be permitted. Except as otherwise provided by regulation, all decisions to permit the correction or withdrawal of bids, or to cancel awards or contracts based on bid mistakes, shall be supported by a written determination made by the Procurement Officer. No bid may be withdrawn when the result would be to award the contract on another bid of the same bidder or of another bidder in which the ownership of the withdrawing bidder is more than five percent (5%). If a bid is withdrawn, the lowest remaining bid shall be deemed to be the low bid. If the Procurement Officer, the Using Department, or a designee of such, denies the withdrawal of a bid, he shall notify the bidder in writing stating his decision.

• Contract Work Hours and Safety Standards Act —

  Pursuant to 29 CFR 5.5(b), the following clauses apply to any Federal-aid construction contract in an amount in excess of $100,000 and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall be inserted in addition to the clauses required by 29 CFR 5.5(a) or 29 CFR 4.6. As used in this paragraph, the terms laborers and mechanics include watchmen and guards.

  1. Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. 29 CFR 5.5.

  2. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph 1 of this section, the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph 1 of this section, in the sum currently provided in 29 CFR 5.5(b)(2)* for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph 1 of this section. 29 CFR 5.5.

  * $27 as of January 23, 2019 (See 84 FR 213-01, 218) as may be adjusted annually by the Department of Labor; pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990).

  3. Withholding for unpaid wages and liquidated damages. The FHWA or the contacting 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 any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph 2 of this section. 29 CFR 5.5.

  4. Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs 1 through 4 of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs 1 through 4 of this section. 29 CFR 5.5.

• TAXES —

  The Town of Vienna is exempt from the payment of federal excise or state sales taxes on all tangible, personal property for its use or consumption except taxes paid on materials that will be installed by the bidder and become a part of real property.

  If a bidder is bidding on materials that require installation by the bidder and become a part of real property, the applicable taxes shall be included in the lump sum bid price for the installation of the material and not as a separate charge for taxes. The taxes shall be an obligation of the successful bidder and not of the Town, and the Town shall be held harmless for same by the successful bidder.

  The Purchasing Office will furnish a Tax Exemption Certificate (Form ST-12) upon request and if applicable to this contract.

  When a bidder lists a separate tax charge on the Bid Form and the tax is not applicable to the purchase by the Town, the bidder will be allowed to delete the tax from its bid.

• Delays and Schedule Impact Analysis (SIA) —

  The Contractor shall promptly notify the Engineer when it discovers or encounters any changes to the Work or conditions that are expected to impact the Project Schedule. In the event of an excusable delay that extends the completion date of the Project or a Contract milestone, as applicable, beyond the Contract specified date, for which the Contractor is seeking an extension of time, the Contractor shall promptly submit a request for an adjustment to the Contract in accordance with Section 108.04
  of the Specifications. Unless directed otherwise in writing by the Engineer, the Contractor shall submit along with its request for an adjustment to the Contract, a Schedule Impact Analysis (SIA) in accordance with the following:

  1.  Prospective SIA for Anticipated Impacts Due to Directed or Authorized Changes

  The Engineer may issue a written request to the Contractor for proposed additions, deletions, or other changes to the Work in accordance with Section 104 of the Specifications. If this occurs and the Contractor is seeking an extension of time, the Contractor shall submit a Prospective SIA within seven (7) days after receipt of the Engineer’s request and prior to proceeding with the changed work, unless directed otherwise in writing by the Engineer. The Prospective SIA submission shall consist of the following:

  A.  Prospective SIA Schedule – The Prospective SIA Schedule shall reflect all known information at the time of analysis and shall be prepared and submitted as follows.

  (1)  A Pre-impact SIA Schedule shall be prepared by updating a copy of the latest accepted Project Schedule in place prior to the proposed change with progress only through the date of the proposed change. 

  (2)  An Impacted SIA Schedule shall be prepared by inserting a fragment (fragmentary network) of the detail activities representing the added or changed Work into a copy of the Pre-impact SIA Schedule. The added activities shall be linked to other related and affected activities accordingly.

  (3)  The Prospective SIA Schedule submission shall include a bar-chart schedule layout showing the added activities, related and affected activities, critical path activities, and any affected Contract milestones. It shall also show a graphical comparison between the Impacted SIA Schedule and Pre-impact SIA Schedule and variances in activity duration, start dates, and finish dates.

  (4)  The Prospective SIA Schedule submission shall include “.pdf” copies and electronic backup copies of the Pre-impact and Impacted SIA Schedules in the same file format as Update Schedule.

  B.  Prospective SIA Narrative – The Prospective SIA Narrative shall describe:

  (1)  The proposed changes to the Work and timeline of events associated with the changes.

  (2)  Any changes made to the Project Schedule and current status of the Project prior to the proposed change as reflected on the Pre-impact SIA Schedule.

  (3)  The changes made to the Pre-impact SIA Schedule including, added or deleted activities, affected activities and how the activities are expected to be affected.

  (4)  Any shifts to the Critical Path and overall impact to related Contract milestones or the Project Completion Date as reflected on the Impacted SIA Schedule.

  (5)  Any actions taken or proposed to mitigate or avoid the potential impact.

  2.  Retrospective SIA for Impacts Due to Unforeseen Changes and Delays

  In the event of an excusable delay resulting from unforeseen changes to the Work or conditions, for which the Contractor is seeking a time extension, the Contractor shall submit along with its request for time extension, a Retrospective SIA within fourteen (14) days after the end date of the delay event, unless directed otherwise in writing by the Engineer. The Retrospective SIA submission shall consist of the following:

  A.  Retrospective SIA Schedules – The Retrospective SIA Schedules shall include all accepted monthly Update Schedules immediately before, during, and after the delay event and shall consider all known information as of the time of analysis. If there are update periods with missing Update Schedules or Update Schedules returned with a notice of “Rejected, As Noted”, the Contractor shall prepare acceptable Update Schedules with progress only for the missing periods using the previous accepted Update Schedule accordingly. If there are Update Schedules returned with a notice of “Accepted As Noted”, the Contractor shall modify the Update Schedules accordingly to address the Engineer’s comments. The Retrospective SIA shall be prepared and submitted as follows:

  (1)  Each accepted monthly Update Schedule submitted during the period of occurrence of the delay event shall be compared against the accepted Update Schedule for the previous update period, to identify any variances between actual and planned performance for the work performed during each update period.

  (2)  Each SIA Schedule shall show the activities performed during last update period, including any activities added to the SIA Schedule to identify delay events; as well as the Project Critical Path activities. The SIA Schedule layout shall show:

  (a)  For each activity, Original Duration, Start, Finish, Criticality, and Total Float. It shall also show the previous Update Schedule Start, Finish; and the Start, Finish, and Duration variances relative to the previous Update Schedule.

  (b)  A bar-chart plot showing a graphical comparison between the SIA Schedule and previous Update Schedule.

  (3)  If there are Update Schedules with schedule changes that negatively impacts the
  schedule, the analysis shall be split to determine the impact due to the changes and impact due to progress separately by updating a copy of the previous Update Schedule with progress alone.

  (4)  Any related impact resulting from projected delays due to calendar restrictions such winter weather or TOYR shall be deferred until after the delays have actually occurred.

  (5)  The Retrospective SIA Schedule submission shall include “.pdf” copies and electronic backup copies of the SIA Schedules in the same file format as the Update Schedule.

  B.  Retrospective SIA Narrative – The Retrospective SIA Narrative shall describe:

  (1)  The changes to the Work or conditions or delay events, including explanation of who is responsible and why the delay is excusable.

  (2)  Timeline of events associated with the delay, including all actions and waiting times.

  (3)  For each update period, identify the SIA Schedule and previous Update Schedule and:

  (a)  Any changes made to the SIA Schedule, including activities added to identify delay events, deleted activities, affected activities and how the activities were affected.

  (b)  The controlling critical path activity and any causal link to the delay event.

  (c)  Any shifts to the Critical Path, Milestone, or the Project Completion Date.

  (4)  Any actions taken or proposed to mitigate the impact.

  (5)  A summary of any incremental time gains or losses in the Milestones, or the Project Completion Date for each update period.

  The Engineer will review the Contractor’s request and SIA and will respond within 14 days of submittal. The Contractor must adhere to the notice of a change, request for time extension, and SIA submission requirements; as well Section 105.19 of the Specifications to preserve their rights to file a claim. The Contractor’s notice of a change, a subsequent meeting with the Engineer, or submittal of a request for modification of the Contract as defined herein, shall not constitute a notice of intent to file 
  a claim as required by Section 105.19. No part of this provision is intended to alter, replace, or supersede Section 105.19 of the Specifications.

• SITE CONDITIONS AND CONDITIONS OF WORK —

  A. Each Bidder must acquaint himself thoroughly as to the character and nature of the Work to be done. Each Bidder furthermore must make a careful examination of the site of the Work and inform himself fully as to the difficulties to be encountered in the performance of the Work, the facilities for delivering, storing and placing materials and equipment, and other conditions relating to construction and labor.

  B. Except where subsurface and/or latent conditions at the site are determined in accordance with paragraph 11.9 of the General Conditions to be materially different than those shown on the drawings or indicated in the contract documents, the Successful Bidder, assumes all risk as to the nature and behavior of the soil or subsurface conditions which underlie the Work or is adjacent thereto, or difficulties that may be due to any unfavorable conditions that may be encountered in the Work, whether apparent on surface inspection or disclosed after construction begins.

  C. No plea of ignorance of conditions that exist prior to submission of bids, or may hereafter exist on the site of the Work subsequent to the Notice to Proceed, or difficulties that may be encountered in the execution of the Work, as a result of failure to make necessary investigations and examinations, will be accepted as an excuse for any failure or omission on the part of the successful Bidder to fulfill in every detail all the requirements of the Contract Documents and to complete the Work for the consideration set forth therein, or as a basis for any claim whatsoever.

  D. Insofar as possible, the Successful Bidder, in carrying out his Work, must employ such methods or means as will not cause interruption of or interference with the Work of the Town or any separate contractor.

• Contract Work Hours and Safety Standards Act —

  Pursuant to 29 CFR 5.5(b), the following clauses apply to any Federal-aid construction contract in an amount in excess of $100,000 and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall be inserted in addition to the clauses required by 29 CFR 5.5(a) or 29 CFR 4.6. As used in this paragraph, the terms laborers and mechanics include watchpersons and guards.

  1.  Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. 29 CFR 5.5.

  2.  Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph 1. of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages and interest from the date of the underpayment. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchpersons and guards, employed in violation of the clause set forth in paragraph 1. of this section, in the sum currently provided in 29 CFR 5.5(b)(2)* for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph 1. of this section.

  * $31 as of January 15, 2023 (See 88 FR 88 FR 2210) as may be adjusted annually by the Department of Labor, pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990.

  3. Withholding for unpaid wages and liquidated damages. 

       a. Withholding process. The FHWA or the contracting agency may, upon its own action, or must, upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor so much of the accrued payments or advances as may be considered necessary to satisfy the liabilities of the prime contractor or any subcontractor for any unpaid wages; monetary relief, including interest; and liquidated damages required by the clauses set forth in this section on this contract, any other Federal contract with the same prime contractor, or any other federally assisted contract subject to the Contract Work Hours and Safety Standards Act that is held by the same prime contractor (as defined in § 5.2). The necessary funds may be withheld from the contractor under this contract, any other Federal contract with the same prime contractor, or any other federally assisted contract that is subject to the Contract Work Hours and Safety Standards Act and is held by the same prime contractor, regardless of whether the other contract was awarded or assisted by the same agency, and such funds may be used to satisfy the contractor liability for which the funds were withheld.

       b. Priority to withheld funds. The Department has priority to funds withheld or to be withheld in accordance with Section IV paragraph 2.a. or paragraph 3.a. of this section, or both, over claims to those funds by:

         (1) A contractor's surety(ies), including without limitation performance bond sureties and payment bond sureties;

         (2) A contracting agency for its reprocurement costs;

         (3) A trustee(s) (either a court-appointed trustee or a U.S. trustee, or both) in bankruptcy of a contractor, or a contractor's bankruptcy estate;

         (4) A contractor's assignee(s);

         (5) A contractor's successor(s); or

         (6) A claim asserted under the Prompt Payment Act, 31U.S.C. 3901–3907.

  4.  Subcontracts. The contractor or subcontractor must insert in any subcontracts the clauses set forth in paragraphs 1. through 5. of this section and a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor is responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs 1. through 5. In the event of any violations of these clauses, the prime contractor and any subcontractor(s) responsible will be liable for any unpaid wages and monetary relief, including interest from the date of the underpayment or loss, due to any workers of lower- tier subcontractors, and associated liquidated damages and may be subject to debarment, as appropriate.

  5.  Anti-retaliation. It is unlawful for any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, or to cause any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, any worker or job applicant for:

       a. Notifying any contractor of any conduct which the worker reasonably believes constitutes a violation of the Contract Work Hours and Safety Standards Act (CWHSSA) or its implementing regulations in this part;

       b. Filing any complaint, initiating or causing to be initiated any proceeding, or otherwise asserting or seeking to assert on behalf of themselves or others any right or protection under CWHSSA or this part;

       c. Cooperating in any investigation or other compliance action, or testifying in any proceeding under CWHSSA or this part; or

       d. Informing any other person about their rights under CWHSSA or this part.

• NOTICE OF AWARD —

  Notice of Award is defined as the written notice of the acceptance of the FORM OF BID from the Owner to the Successful Bidder.

• Documentation and Administrative Reconsideration of Good Faith Efforts —

  During Bidding: As described in the Contract Goal, Good Faith Efforts Specified section of this Special Provision, the bidder must provide Form C-49, DBE Good Faith Efforts Documentation, of its efforts made to meet the DBE contract goal as proposed by VDOT within the time frame specified in this provision. The means of transmittal and the risk for timely receipt of this information shall be the responsibility of the bidder. The bidder shall attach additional pages to the certification, if necessary, in order to fully detail specific good faith efforts made to obtain the DBE firms participation in the proposed contract work.

  However, regardless of the DBE contract goal participation level proposed by the bidder or the extent of good faith efforts shown, all bidders shall timely and separately file their completed and executed forms C-111, C-112, C-48, and C-49, as aforementioned, or face potential bid rejection.

  If a bidder does not submit its completed and executed forms C-111, or C-112, when required by this Special Provision, the bidder’s bid will be considered non-responsive and may be rejected.

  Where the Department upon initial review of the bid results determines the apparent low bidder has failed or appears to have failed to meet the requirements of the Contract Goal, Good Faith Efforts Specifiedsection of this Special Provision and has failed to adequately document that it made a good faith effort to achieve sufficient DBE participation as specified in the bid proposal, that firm upon notification of the Department’s initial determination will be offered the opportunity for administrative reconsideration before VDOT rejects that bid as non-responsive. The bidder shall address such request for reconsideration in writing to the Contract Engineer within five (5) business days of receipt of notification by the Department and shall be given the opportunity to discuss the issue and present its evidence in person to the Administrative Reconsideration Panel. The Administrative Reconsideration Panel will be made up of VDOT Division Administrators or their designees, none of who took part in the initial determination that the bidder failed to make the goal or make adequate good faith efforts to do so. After reconsideration, VDOT shall notify the bidder in writing of its decision and explain the basis for finding that the bidder did or did not meet the goal or make adequate good faith efforts to do so.

  If, after reconsideration, the Department determines the bidder has failed to meet the requirements of the Contract goal and has failed to make adequate good faith efforts to achieve the level of DBE participation as specified in the bid proposal, the bidder’s bid will be rejected.

  If sufficient documented evidence is presented to demonstrate that the apparent low bidder made reasonable good faith efforts, the Department will award the Contract and reduce the DBE requirement to the actual commitment identified by the lowest successful bidder at the time of its bid. The Contractor is still encouraged to seek additional DBE participation during the life of the Contract.

  However, such action will not relieve the Contractor of its responsibility for complying with the reduced DBE requirement during the life of the Contract or any administrative sanctions as may be appropriate.

  During the Contract: If a DBE, through no fault of the Contractor, is unable or unwilling to fulfill his agreement with the Contractor, the Contractor shall immediately notify the Department and provide all relevant facts. If a Contractor relieves a DBE subcontractor of the responsibility to perform work under their subcontract, the Contractor is encouraged to take the appropriate steps to obtain a DBE to perform an equal dollar value of the remaining subcontracted work. In such instances, the Contractor is expected to seek DBE participation towards meeting the goal during the performance of the Contract.

  If the Contractor fails to conform to the schedule of DBE participation as shown on the progress schedule, or at any point at which it is clearly evident that the remaining dollar value of allowable credit for performing work is insufficient to obtain the scheduled participation, and the Contractor has not taken the preceding actions, the Contractor and any aforementioned affiliates may be subject to disallowance of DBE credit until such time as conformance with the schedule of DBE participation is achieved.

  Project Completion:If the Contractor fails upon completion of the project to meet the required participation, the Contractor and any prime contractual affiliates, as in the case of a joint venture, may be enjoined from bidding as a prime Contractor, or participating as a subcontractor on VDOT projects for a period of 90 days.

  Prior to enjoinment from bidding or denial to participate as a subcontractor for failure to comply with participation requirements, as provided hereinbefore, the Contractor may submit documentation to the State Construction Engineer to substantiate that failure was due solely to quantitative underrun(s), elimination of items subcontracted to DBEs, or to circumstances beyond their control, and that all feasible means have been used to obtain the required participation. The State Construction Engineer upon verification of such documentation shall make a determination whether or not the Contractor has met the requirements of the Contract.

  If it is determined that the aforementioned documentation is insufficient or the failure to meet required participation is due to other reasons, the Contractor may request an appearance before the Administrative Reconsideration Panel to establish that all feasible means were used to meet such participation requirements. The decision of the Administrative Reconsideration Panel shall be administratively final. If the decision is made to enjoin the Contractor from bidding on other VDOT work as described herein, the enjoinment period will begin upon the Contractor’s failure to request a hearing within the designated time frame or upon the Administrative Reconsideration Panel’s decision to enjoin, as applicable.

• USE OF BRAND NAME OR EQUAL —

  a) Unless otherwise provided in the solicitation, the name of a certain brand, make or manufacturer does not restrict bidders/offerors to the specific brand, make or manufacturer named, but conveys the general style, type, character, and quality of the article desired.

  Any article which the Town of Vienna, in its sole discretion, determines to be equal to that specified, considering quality, workmanship, economy of operation, and suitability for the purpose intended, shall be accepted.

  b) The bidder/offeror is responsible to clearly and specifically indicate the product being offered and to provide sufficient descriptive literature, catalogs and technical details to enable the Town of Vienna to determine if the product offered meets the requirements of the solicitation. This is required even if offering the exact brand, make or manufacturer specified. Normally in competitive sealed bidding only the information furnished with the bid will be considered in the evaluation. Failure to furnish adequate data for evaluation purposes may result in declaring a bid non-responsive. Unless the bidder/offeror clearly indicates in its bid/proposal that the product offered is an "EQUAL" product, such bid/proposal will be considered to offer the brand name product referenced in the solicitation.

  c) It shall be understood that the burden of proof for an “equal” product shall be and remain the sole responsibility of the bidder. The Town’s decision of approval or disapproval of a proposed alternate shall be final. Nothing herein is intended to exclude any responsible bidder, its product or service or in any way restrain or restrict competition.

• Monitoring the Work and Assessing Progress —

  The Engineer will monitor and assess progress of the Work regularly relative to the SOR to identify deviations from the Contractor’s scheduled performance and to determine if progress is satisfactory according to the following:

  1.  Progress and Coordination Meetings

  Once the Work is underway and until the Project is completed, the Contractor shall keep the Engineer up-to-date on the short-term work plan on a regular basis, including any changes in the work plan or issues that may impact the schedule, as follows:

  A.  Weekly Look-Ahead Schedule – Unless directed otherwise by the Engineer, the Contractor shall furnish in Bar Chart format, a detailed Two-Week Look-Ahead (TWLA) Schedule to the Engineer every week on a day as mutually agreed upon. The TWLA Schedule shall depict in
  a greater level of detail, the daily operations, showing actual dates for work performed since the last TWLA Schedule submission and planned dates for work to be performed in the upcoming two (2) weeks. The daily operations included in the TWLA Schedule shall specifically reference the applicable Activity IDs in the Project Schedule. The TWLA Schedule may be prepared using a computer software or by hand.

  B.  Monthly Progress Meetings – Unless directed otherwise by the Engineer, the Contractor shall attend a monthly progress meeting with the Engineer on a day as agreed upon. At the progress meeting the Contractor shall furnish a 30-day Look-ahead Schedule Report and shall be prepared to discuss the current status of the Project, work performed during the last period, on-going work, and work planned for the following thirty (30) days; as well as any issues that are currently impacting the schedule or anticipated to impact the schedule. The 30-day Look-ahead Schedule shall be based on the Contractor’s current Update Schedule, showing actual dates for work performed during the last update period and planned dates for work to be performed in the upcoming thirty (30) days.

  2.  Progress Evaluation and Unsatisfactory Performance

  A.  Progress Deficiency and Schedule Slippage – The Engineer will assess the current status of the Work each month, based on the monthly Update Progress Schedule submission, and relative to the SOR. The Contractor’s actual progress may be considered unsatisfactory, as determined by the Engineer, if any of the following conditions occur:

  (1)  The Actual Progress Percent Complete for Work completed to date, based on the current estimate, falls behind the Baseline Cumulative Progress Percent Complete by more than ten (10) percent, relative to the SOR.

  (2)  A Contract milestone or the Project Completion Date is currently projected to occur more than fourteen (14) days after the date specified in the Contract, as applicable.

  B.  Notice of Unsatisfactory Performance – When the Engineer determines that actual progress of the Work is unsatisfactory, the Engineer will issue a written notice of unsatisfactory performance to the Contractor.  The Engineer will also advise the Contractor that five (5) percent retainage of the monthly progress estimate is being withheld and will continue to be withheld as described in Section 109.08(c), for each month the Contractor’s actual progress is remains unsatisfactory. Within fourteen (14) days from the date of receipt of the Engineer’s notice, the Contractor shall respond by submitting a written statement describing any actions taken or proposed by the Contractor to correct the progress deficiency. If the Contractor’s response includes a proposed recovery plan, the current Project Schedule shall be modified accordingly to reflect the Contractor’s proposed recovery plan. The Contractor may submit to the Engineer a written explanation along with supporting documentation to establish that such delinquency is attributable to conditions beyond its control. If the Engineer accepts the Contractor’s recovery plan, the modified Project Schedule showing the recovery plan will be considered the current Update Schedule and will not replace the SOR.

  If the Contractor fails to respond within the time required, or the response is unacceptable, its prequalification status may be changed as provided in Section 102.01 of the Specifications, and the Contractor may be temporarily disqualified from bidding on contracts with the Department as provided in Section 102.08, if progress remains unsatisfactory at the time of preparation of the next monthly progress estimate. The Engineer may delay these actions when a Contract time extension is under consideration.

• Subletting or Assigning the Contract —

  This provision is applicable to all Federal-aid construction contracts on the National Highway System pursuant to 23 CFR 635.116.

  1.  The contractor shall perform with its own organization contract work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the contracting agency. Specialty items may be performed by subcontract and the amount of any such specialty items performed may be deducted from the total original contract price before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635.116).

       a. The term “perform work with its own organization” in paragraph 1 of Section VI refers to workers employed or leased by the prime contractor, and equipment owned or rented by the prime contractor, with or without operators. Such term does not include employees or equipment of a subcontractor or lower tier subcontractor, agents of the prime contractor, or any other assignees. The term may include payments for the costs of hiring leased employees from an employee leasing firm meeting all relevant Federal and State regulatory requirements. Leased employees may only be included in this term if the prime contractor meets all of the following conditions: (based on longstanding interpretation)

           (1) the prime contractor maintains control over the supervision of the day-to-day activities of the leased employees;

           (2) the prime contractor remains responsible for the quality of the work of the leased employees;

           (3) the prime contractor retains all power to accept or exclude individual employees from work on the project; and

           (4) the prime contractor remains ultimately responsible for the payment of predetermined minimum wages, the submission of payrolls, statements of compliance and all other Federal regulatory requirements.

       b. "Specialty Items" shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid or propose on the contract as a whole and in general are to be limited to minor components of the overall contract. 23 CFR 635.102.

  2.  Pursuant to 23 CFR 635.116(a), the contract amount upon which the requirements set forth in paragraph (1) of Section VI is computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions.

  3.  Pursuant to 23 CFR 635.116(c), the contractor shall furnish

       (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance of the work in accordance with the contract requirements, and is in charge of all construction operations (regardless of who performs the work) and

       (b) such other of its own organizational resources (supervision, management, and engineering services) as the contracting officer determines is necessary to assure the performance of the contract.

  4.  No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent of the contracting officer, or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the contracting agency has assured that each subcontract is evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract. (based on long- standing interpretation of 23 CFR 635.116).

  5.  The 30-percent self-performance requirement of paragraph (1) is not applicable to design-build contracts; however, contracting agencies may establish their own self-performance requirements. 23 CFR 635.116(d).

• DBE Participation for Contract Goal Credit —

  1. Cost-plus subcontracts will not be considered to be in accordance with normal industry practice and will not normally be allowed for credit.

  2. The applicable percentage of the total dollar value of the Contract or Subcontract awarded to the DBE will be counted toward meeting the Contract goal for DBE participation in accordance with the DBE Program-Related Certifications Made by Bidders\Contractors section of this Special Provision for the value of the work, goods, or services that are actually performed or provided by the DBE firm itself or subcontracted by the DBE to other DBE firms.

  3. When a DBE performs work as a participant in a joint venture with a non-DBE firm, the Contractor may count toward the DBE goal only that portion of the total dollar value of the Contract equal to the distinctly defined portion of the Contract work that the DBE has performed with the DBE’s own forces or in accordance with the provisions of this Section. The Department shall be contacted in advance regarding any joint venture involving both a DBE firm and a non-DBE firm to coordinate Department review and approval of the joint venture’s organizational structure and proposed operation where the Contractor seeks to claim the DBE’s credit toward the DBE contract goal.

  4. When a DBE subcontracts part of the work of the Contract to another firm, the value of that subcontracted work may be counted toward the DBE contract goal only if the DBE's subcontractor at a lower tier is a certified DBE. Work that a DBE subcontracts to either a non-DBE firm or to a non-certified DBE firm will not count toward the DBE contract goal. The cost of supplies and equipment a DBE subcontractor purchases or leases from the prime Contractor or the prime’s affiliated firms will not count toward the Contract goal for DBE participation.

  5. The Contractor may count expenditures to a DBE subcontractor toward the DBE contract goal only if the DBE performs a Commercially Useful Function (CUF) on that contract.

  6. A Contractor may not count the participation of a DBE subcontractor toward the Contractor's final compliance with the DBE contract goal obligations until the amount being counted has actually been paid to the DBE. A Contractor may count sixty (60) percent of its expenditures actually paid for materials and supplies obtained from a DBE certified as a regular dealer, and one hundred (100) percent of such expenditures actually paid for materials and supplies obtained from a certified DBE manufacturer.

  a. For the purposes of this Special Provision, a regular dealer is defined as a firm that owns, operates, or maintains a store, warehouse, or other establishment in which the materials, supplies, articles, or equipment required and used under the Contract are bought, kept in stock, and regularly sold or leased to the public in the usual course of business. To be a regular dealer, the DBE firm shall be an established business that regularly engages, as its principal business and under its own name, in the purchase and sale or lease of the products or equipment in question. Packagers, brokers, manufacturers' representatives, or other persons who arrange or expedite transactions will not be considered regular dealers.

  b. A DBE 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 where it keeps such items in stock if the DBE both owns and operates distribution equipment for the products it sells and provides for the Contract work. Any supplementation of a regular dealer's own distribution equipment shall be by a long-term lease agreement and not on an ad hoc or contract-by-contract basis to be eligible for credit to meet the DBE contract goal.

  c. If a DBE regular dealer is used for DBE contract goal credit, no additional credit will be given for hauling or delivery to the project site goods or materials sold by that DBE regular dealer. Those delivery costs shall be deemed included in the price charged for the goods or materials by the DBE regular dealer, who shall be responsible for their distribution.

  d. For the purposes of this Special Provision, a manufacturer will be defined as 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 project specifications. A manufacturer shall include firms that produce finished goods or products from raw or unfinished material, or purchase and substantially alter goods and materials to make them suitable for construction use before reselling them.

  e. A Contractor may count toward the DBE contract goal the following expenditures to DBE firms that are not regular dealers or manufacturers for DBE program purposes:

  (1) The entire amount of fees or commissions charged by a DBE firm for providing a bona fide service, such as professional, technical, consultant or managerial services, or for providing bonds or insurance specifically required for the performance of the federal-aid contract, if the fee is reasonable and not excessive or greater than would normally be expected by industry standards for the same or similar services.

  (2) The entire amount of that portion of the construction contract that is performed by the DBE's own forces and equipment under the DBE's supervision. This includes the cost of supplies and materials ordered and paid for by the DBE for contract work, including supplies purchased or equipment leased by the DBE, except supplies and equipment a DBE subcontractor purchases or leases from the prime Contractor or its affiliates.

  f. A Contractor may count toward the DBE contract goal one hundred (100) percent of the fees paid to a DBE trucker or hauler for the delivery of material and supplies required on the project job site, but not for the cost of those materials or supplies themselves, provided that the trucking or hauling fee is determined by VDOT to be reasonable, as compared with fees customarily charged by non-DBE firms for similar services. A Contractor shall not count costs for the removal or relocation of excess material from or on the job site when the DBE trucking company is not the manufacturer of or a regular dealer in those materials and supplies. The DBE trucking firm shall also perform a Commercially Useful Function (CUF) on the project and not operate merely as a pass through for the purposes of gaining credit toward the DBE contract goal. Prior to submitting a bid, the Contractor shall determine, or contact the VDOT Civil Rights Division or its district Offices for assistance in determining, whether a DBE trucking firm will meet the criteria for performing a CUF on the project. See section on Miscellaneous DBE Program Requirements; Factors used to Determine if a DBE Trucking Firm is Performing a CUF.

  g. The Contractor will receive DBE contract goal credit for the fees or commissions charged by and paid to a DBE broker who arranges or expedites sales, leases, or other project work or service arrangements provided that those fees are determined by VDOT to be reasonable and not excessive as compared with fees customarily charged by non-DBE firms for similar services. For the purposes of this Special Provision, a broker is defined as a person or firm that regularly engages in arranging for delivery of material, supplies, and equipment, or regularly arranges for the providing of project services as a course of routine business but does not own or operate the delivery equipment necessary to transport materials, supplies, or equipment to or from a job site.

• Subletting or Assigning the Contract —

  This provision is applicable to all Federal-aid construction contracts on the National Highway System pursuant to 23 CFR 635.116.

  1. The contractor shall perform with its own organization contract work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the contracting agency. Specialty items may be performed by subcontract and the amount of any such specialty items performed may be deducted from the total original contract price before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635.116).

  a. The term “perform work with its own organization” in paragraph 1 of Section VI refers to workers employed or leased by the prime contractor, and equipment owned or rented by the prime contractor, with or without operators. Such term does not include employees or equipment of a subcontractor or lower tier subcontractor, agents of the prime contractor, or any other assignees. The term may include payments for the costs of hiring leased employees from an employee leasing firm meeting all relevant Federal and State regulatory requirements. Leased employees may only be included in this term if the prime contractor meets all of the following conditions: (based on longstanding interpretation)

  (1) the prime contractor maintains control over the supervision of the day-to-day activities of the leased employees;

  (2) the prime contractor remains responsible for the quality of the work of the leased employees;

  (3) the prime contractor retains all power to accept or exclude individual employees from work on the project; and

  (4) the prime contractor remains ultimately responsible for the payment of predetermined minimum wages, the submission of payrolls, statements of compliance and all other Federal regulatory requirements.

  b. "Specialty Items" shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid or propose on the contract as a whole and in general are to be limited to minor components of the overall contract. 23 CFR 635.102.

  2. Pursuant to 23 CFR 635.116(a), the contract amount upon which the requirements set forth in paragraph (1) of Section VI is computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions.

  3. Pursuant to 23 CFR 635.116(c), the contractor shall furnish (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance of the work in accordance with the contract requirements, and is in charge of all construction operations (regardless of who performs the work) and (b) such other of its own organizational resources (supervision, management, and engineering services) as the contracting officer determines is necessary to assure the performance of the contract.

  4. No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent of the contracting officer, or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the contracting agency has assured that each subcontract is evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract. (based on longstanding interpretation of 23 CFR 635.116).

  5. The 30-percent self-performance requirement of paragraph (1) is not applicable to design-build contracts; however, contracting agencies may establish their own self-performance requirements. 23 CFR 635.116(d).

• BIDDER’S QUESTIONS, ADDENDA AND INTERPRETATIONS —

  A. Bidders and Sub-bidders shall promptly notify the Town of any ambiguity, inconsistency or error which they may discover upon examination of the Bidding and Contract Documents or of the site and local conditions. No interpretation of the meaning of the drawings, specifications or other contract documents will be made to any Bidder orally.

  B. Every request for such interpretation should be in writing addressed to the Procurement Officer, Vienna, Virginia, and to be given consideration must be received at least ten (10) days prior to the date fixed for the opening of the bids.

  C. Any and all such interpretations and any supplemental instructions will be in the form of written addenda to the Bidding Documents which, if issued, will be mailed to all prospective Bidders (at the respective addresses furnished for such purposes) not later than ten (10) calendar days prior to the date fixed for the opening of bids. The Town will not be responsible for any other explanations or interpretations of the proposed documents. Failure of any Bidder to receive any such addendum or interpretation shall not relieve any Bidder from any obligation under his bid as submitted. All addenda so issued shall become part of the Contract Documents.

  D. If the Bidder (or any person bidding to Bidder and/or subsequently in contract with the Bidder, relating to the subject project) knows, or should have known, that an ambiguity, discrepancy, error, omission or conflicting statement exists in the Bidding or Contract Documents, said Bidder (or sub-bidder) has an obligation to seek a clarification thereof from the Town prior to bid. The Town will welcome such a clarification request, and, if deemed necessary by the Town, the Town will issue a written addendum clarifying the matter in question. Should the Bidder fail to seek such a clarification prior to bid, Bidder thereby assumes the risk of loss related to such ambiguity, discrepancy, error, omission or conflicting statement which the Bidder (and any person bidding to Bidder and/or subsequently in contract with Bidder, relating to the subject project) knew or should have known existed at the time of bid.

  E. Each Bidder shall ascertain prior to submitting his bid that he has received all Addenda issued, and he shall acknowledge receipt and inclusion in his proposal of all Addenda.

• NOTICE —

  The term “Notice” as used herein shall mean and include written notice. Written notice shall be deemed to have been duly served when delivered to or at the last known business address of the person, firm or corporation for whom intended, or to his, their or its duly authorized agent, representative or officer; or when enclosed in a postage prepaid wrapper or envelope addressed to such person, firm or corporation at his, their or its last known business address and deposited in a United States mailbox.

• Safety: Accident Prevention —

  This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.

  1. In the performance of this contract the contractor shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR Part 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract. 23 CFR 635.108.

  2. It is a condition of this contract, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safety, as determined under construction safety and health standards (29 CFR Part 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704). 29 CFR 1926.10.

  3. Pursuant to 29 CFR 1926.3, it is a condition of this contract that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704).

• Performing a Commercially Useful Function (CUF) —

  No credit toward the DBE contract goal will be allowed for contract payments or expenditures to a DBE firm if that DBE firm does not perform a CUF on that contract. A DBE performs a CUF when the DBE is solely responsible for execution of a distinct element of the Contract work and the DBE actually performs, manages, and supervises the work involved with the firm’s own forces or in accordance with the provisions of the DBE Participation for Contract Goal Credit section of this Special Provision. To perform a CUF the DBE alone shall be responsible and bear the risk for the material and supplies used on the Contract, selecting a supplier or dealer from those available, negotiating price, determining quality and quantity, ordering the material and supplies, installing those materials with the DBE’s own forces and equipment, and paying for those materials and supplies. The amount the DBE firm is to be paid under the Contract shall be commensurate with the work the DBE actually performs and the DBE credit claimed for the DBE’s performance.

  Monitoring CUF Performance: It shall be the Contractor's responsibility to ensure that all DBE firms selected for subcontract work on the Contract, for which he seeks to claim credit toward the Contract goal, perform a CUF. Further, the Contractor is responsible for and shall ensure that each DBE firm fully performs the DBE’s designated tasks with the DBE’s own forces and equipment under the DBE’s own direct supervision and management or in accordance with the provisions of the DBE Participation for Contract Goal Creditsection of this Special Provision. For the purposes of this provision the DBE‘s equipment will mean either equipment directly owned by the DBE as evidenced by title, bill of sale or other such documentation, or leased by the DBE, and over which the DBE has control as evidenced by the leasing agreement from a firm not owned in whole or part by the prime Contractor or an affiliate of the Contractor under this contract.

  VDOT will monitor the Contractor’s DBE involvement during the performance of the Contract. However, VDOT is under no obligation to warn the Contractor that a DBE's participation will not count toward the goal.

  DBEs Must Perform a Useful and Necessary Role in Contract Completion: A DBE does not perform a commercially useful function if the DBE’s 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.

  DBEs Must Perform The Contract Work With Their Own Workforces: If a DBE does not perform and exercise responsibility for at least thirty (30) percent of the total cost of the DBE’s contract with the DBE’s 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 involve, VDOT will presume that the DBE is not performing a CUF and such participation will not be counted toward the Contract goal.

  VDOT Makes Final Determination On Whether a CUF Is Performed:VDOT has the final authority to determine whether a DBE firm has performed a CUF on a federal-aid contract. To determine whether a DBE is performing or has performed a CUF, VDOT will evaluate the amount of work subcontracted by that DBE firm or performed by other firms and the extent of the involvement of other firms’ forces and equipment. Any DBE work performed by the Contractor or by employees or equipment of the Contractor shall be subject to disallowance under the DBE Program, unless the independent validity and need for such an arrangement and work is demonstrated.

• Safety: Accident Prevention —

  This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.

  1.  In the performance of this contract the contractor shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR Part 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract. 23 CFR 635.108.

  2.  It is a condition of this contract, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safety, as determined under construction safety and health standards (29 CFR Part 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704). 29 CFR 1926.10.

  3.  Pursuant to 29 CFR 1926.3, it is a condition of this contract that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704).

• SAMPLES —

  Samples, if required, must be furnished free of expense to the Town of Vienna on or before date specified; if not destroyed in examination, they will be returned to bidder, if requested, at his expense. Each sample must be marked with the bidder's name and address, Town's request number and opening date. DO NOT ENCLOSE IN OR ATTACH BID TO SAMPLE.

• MISCELLANEOUS WORDS OR TERMS —

  Whenever they refer to the Work or its performance, “Directed”, “Required”, “Permitted”, “Ordered”, “Designated”, “Prescribed”, and words of like import shall imply the direction, requirements, permission, order, designation or prescription of the Owner or A/E, and “Approved”, “Acceptable”, “Satisfactory”, “in the judgment of” and words of like import shall mean approved by or acceptable to or satisfactory to or in the judgment of the Owner or A/E.

• Measurement and Payment —

  There will be no separate payments for Progress Schedule, TWLA Schedule, or SIA submissions, or for attending scheduling meetings. All costs associated with the preparation and submission of the Baseline Progress Schedule, Update Progress Schedule, Revised Baseline Progress Schedule, TWLA Schedule, and SIA; or attendance of schedule meetings shall be considered incidental.

• PERFORMANCE AND PAYMENT BOND —

  The following bonds or surety shall be delivered to the Procurement Officer within ten (10) days of notification of award and PRIOR to the commencement of any work and shall become binding on the parties upon the execution of the Contract:

  A performance bond satisfactory to the Town, executed by a surety company authorized to do business in Virginia or otherwise secured in a manner satisfactory to the Town, for the faithful performance of the Contract in strict conformity with the plans, specifications and conditions of the Contract Documents. The bond shall be in an amount equal to 100% of the price specified in the contract; and a payments bond satisfactory to the Town, executed by a surety company authorized to do business in Virginia or otherwise secured in a manner satisfactory to the Town, for the protection of all persons supplying labor and material to the contractor or its subcontractors for the performance of the work provided for in the Contract Documents. Labor and materials shall include public utility services and reasonable rentals of equipment, but only for the periods when the equipment rented is actually used at the site. The bond shall be in an amount equal to 100% of the price specified in the contract.

  A prime contractor shall not be precluded from requiring each subcontractor to furnish a payment bond with surety thereon in an amount equal to 100% of the contract with such subcontractor.

• EXECUTION CORRELATION AND INTENT —

  The Owner-Contractor Agreement shall be signed in not less than the number of copies specified in the said Agreement.

  The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work. The Contract Documents are complementary, and what is required by any one shall be as binding as if required by all. Words and abbreviations which have well-known technical, or trade meanings are used in the Contract Documents in accordance with such recognized meanings.

  Anything shown on the drawings and not mentioned in the specifications or mentioned in the specifications and not shown on the drawings shall have the same effect as if shown or mentioned respectively in both. Technical specifications take priority over general specifications and detail drawings take precedence over general drawings. Any conflict or inconsistency in the drawings shall be submitted by the Contractor to the A/E, with a copy to the Owner, whose decision thereon shall be conclusive. In case of conflict or inconsistency between the drawings and the specifications, the specifications shall govern.

  Should any Work or material be required which is not denoted in the drawings and specifications either directly or indirectly, but which is, nevertheless, necessary for the proper carrying out of the intent thereof, it is understood and agreed that the same is implied and required and that the Contractor shall perform such Work and provide such materials as fully as if they were completely delineated and prescribed.

  The Contractor may be furnished additional instructions and detail drawings to carry out the Work included in the Contract. The additional drawings and instructions thus supplied to the Contractor will coordinate with the Contract Documents and will be so prepared such that they can be reasonably interpreted as a part thereof. The Contractor shall carry out the Work in accordance with the additional detail drawings and instructions.

  The drawings and specifications are divided into sections for convenience and clarity only. The Contractor shall not construe this as a division of the Work into various subcontractor units. The Contractor may subcontract the Work in such divisions as he sees fit, but he is ultimately responsible for providing all Work shown on the drawings and in the specifications.

  The provisions of this Contract cannot be amended, modified, varied or waived in any respect except by a Modification. The Contractor is hereby given notice that no person has authority to orally waive, or to release the Contractor from any of the Contractor’s duties or obligations under or arising out of this Contract. Any waiver, approval or consent granted by Modification to the Contractor shall be limited to those matters specifically and expressly stated thereby to be waived, approved or consented to and shall not relieve the Contractor of the obligation to obtain any future waiver, approval or consent.

• CONTRACT PERIOD —

  The period of this contract shall be from the date of Notice to Proceed (NTP) and shall be in effect until the work is completed and accepted by the Town. The Contractor shall complete all work within 250 calendar days. The duration of this contract is 250 days.

• Verification of DBE Participation and Imposed Damages —

  Within fourteen days after contract execution, the Contractor shall submit to the Responsible Engineer, with a copy to the District Civil Rights Office (DCRO), a fully executed subcontract agreement for each DBE used to claim credit in accordance with the requirements stated on Form C-112. The subcontract agreement shall be executed by both parties stating the work to be performed, the details or specifics concerning such work, and the price which will be paid to the DBE subcontractor. Because of the commercial damage that the Contractor and its DBE subcontractor could suffer if their subcontract pricing, terms, and conditions were known to competitors, the Department staff will treat subcontract agreements as proprietary Contractor trade secrets with regard to Freedom of Information Act requests. In lieu of subcontract agreements, purchase orders may be submitted for haulers, suppliers, and manufacturers. These too, will be treated confidentially and protected. Such purchase orders must contain, as a minimum, the following information: authorized signatures of both parties; description of the scope of work to include contract item numbers, quantities, and prices; and required federal contract provisions.

  The Contractor shall also furnish, and shall require each subcontractor to furnish, information relative to all DBE involvement on the project for each quarter during the life of the Contract in which participation occurs and verification is available. The information shall be indicated on Form C-63, DBE and SWAM Payment Compliance Report. The department reserves the right to request proof of payment via copies of cancelled checks with appropriate identifying notations. Failure to provide Form C-63 to the District Civil Rights Office (DCRO) within five (5) business days after the reporting period may result in delay of approval of the Contractor’s monthly progress estimate for payment. The names and certification numbers of DBE firms provided by the Contractor on the various forms indicated in this Special Provision shall be exactly as shown on the DMBE’s or MWAA’s latest list of certified DBEs. Signatures on all forms indicated herein shall be those of authorized representatives of the Contractor as shown on the Prequalification Application, Form C-32 or the Prequalification/Certification Renewal Application, Form C-32A, or authorized by letter from the Contractor. If DBE firms are used which have not been previously documented with the Contractor’s bid and for which the Contractor now desires to claim credit toward the project goal, the Contractor shall be responsible for submitting necessary documentation in accordance with the procedures stipulated in this Special Provision to cover such work prior to the DBE beginning work.

  Form C-63 can be obtained from the VDOT website at: http://vdotforms.vdot.virginia.gov/

  The Contractor shall submit to the Responsible Engineer its progress schedule with a copy to the DCRO, as required by Section 108.03 of the Specifications or other such specific contract scheduling specification that may include contractual milestones, i.e., monthly or VDOT requested updates. The Contractor shall include a narrative of applicable DBE activities relative to work activities of the Contractor’s progress schedule, including the approximate start times and durations of all DBE participation to be claimed for credit that shall result in full achievement of the DBE goal required in the Contract.

  On contracts awarded on the basis of good faith efforts, narratives or other agreeable format of schedule information requirements and subsequent progress determination shall be based on the commitment information shown on the latest Form C-111 as compared with the appropriate Form C-63.

  Prior to beginning any major component or quarter of the work, as applicable, in which DBE work is to be performed, the Contractor shall furnish a revised Form C-111 showing the name(s) and certification number(s) of any current DBEs not previously submitted who will perform the work during that major component or quarter for which the Contractor seeks to claim credit toward the Contract DBE goal. The Contractor shall obtain the prior approval of the Department for any assistance it may provide to the DBE beyond its existing resources in executing its commitment to the work in accordance with the requirements listed in the Good Faith Efforts Describedsection of this Special Provision. If the Contractor is aware of any assistance beyond a DBE’s existing resources that the Contractor, or another subcontractor, may be contemplating or may deem necessary and that have not been previously approved, the Contractor shall submit a new or revised narrative statement for VDOT’s approval prior to assistance being rendered.

  If the Contractor fails to comply with correctly completing and submitting any of the required documentation requested by this provision within the specified time frames, the Department will withhold payment of the monthly progress estimate until such time as the required submissions are received VDOT. Where such failures to provide required submittals or documentation are repeated the Department will move to enjoin the Contractor and any prime contractual affiliates, as in the case of a joint venture, from bidding as a prime Contractor, or participating as a subcontractor on VDOT projects until such submissions are received.

• False Statements Concerning Highway Projects —

  This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.

  In order to assure high quality and durable construction in conformity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppliers, and workers on Federal-aid highway projects, it is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts, Form FHWA-1022 shall be posted on each Federal-aid highway project (23 CFR Part 635) in one or more places where it is readily available to all persons concerned with the project:

  18 U.S.C. 1020 reads as follows:

  "Whoever, being an officer, agent, or employee of the United States, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any false statement, false representation, or false report as to the character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or

  Whoever knowingly makes any false statement, false representation, false report or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; or

  Whoever knowingly makes any false statement or false representation as to material fact in any statement, certificate, or report submitted pursuant to provisions of the Federal-aid Roads Act approved July 11, 1916, (39 Stat. 355), as amended and supplemented;

  Shall be fined under this title or imprisoned not more than 5 years or both."

• False Statements Concerning Highway Projects —

  This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.

  In order to assure high quality and durable construction in conformity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppliers, and workers on Federal- aid highway projects, it is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts, Form FHWA-1022 shall be posted on each Federal-aid highway project (23 CFR Part 635) in one or more places where it is readily available to all persons concerned with the project:

  18 U.S.C. 1020 reads as follows:

  "Whoever, being an officer, agent, or employee of the United States, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any false statement, false representation, or false report as to the character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or

  Whoever knowingly makes any false statement, false representation, false report or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; or

  Whoever knowingly makes any false statement or false representation as to material fact in any statement, certificate, or report submitted pursuant to provisions of the Federal-aid Roads Act approved July 11, 1916, (39 Stat. 355), as amended and supplemented;

  Shall be fined under this title or imprisoned not more than 5 years or both."

• TRADE SECRETS/PROPRIETARY INFORMATION —

  Trade secrets or proprietary information submitted by an Offeror in response to this Request for Proposal shall not be subject to public disclosure under the Virginia Freedom of Information Act (FOIA); however, the Offeror must invoke the protection of this section prior to or upon submission of data or materials to be protected and state the reasons why protection is necessary (Section 2.2-4342F of the Code of Virginia).

• Documentation Required for Semi-final Payment —

  On those projects nearing completion, the Contractor must submit Form C-63 marked “Semi-Final” within twenty (20) days after the submission of the last regular monthly progress estimate to the DCRO. The form must include each DBE used on the Contract work and the work performed by each DBE. The form shall include the actual dollar amount paid to each DBE for the accepted creditable work on the Contract. The form shall be certified under penalty of perjury, or other applicable law, to be accurate and complete. VDOT will use this certification and other information available to determine applicable DBE credit allowed to date by VDOT and the extent to which the DBEs were fully paid for that work. The Contractor shall acknowledge by the act of filing the form that the information is supplied to obtain payment regarding a federal participation contract. A letter of certification, signed by both the prime Contractor and appropriate DBEs, will accompany the form, indicating the amount, including any retainage, if present, that remains to be paid to the DBE(s).

• Implementation of Clean Air Act and Federal Water Pollution Control Act (42 U.S.C. 7606; 2CFR 200.88; EO 11738) —

   This provision is applicable to all Federal-aid construction contracts in excess of $150,000 and to all related subcontracts. 48 CFR 2.101; 2 CFR 200.327.

  By submission of this bid/proposal or the execution of this contract or subcontract, as appropriate, the bidder, proposer, Federal-aid construction contractor, subcontractor, supplier, or vendor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal Highway Administration and the Regional Office of the Environmental Protection Agency. 2 CFR Part 200, Appendix II.

  The contractor agrees to include or cause to be included the requirements of this Section in every subcontract, and further agrees to take such action as the contracting agency may direct as a means of enforcing such requirements. 2 CFR 200.327.

• DELIVERY —

  Bids must show number of days required to place material in using agency's receiving area under normal conditions. Proposal must show the number of days required to provide the services/reports as specified.

  Failure to state delivery time obligates bidder/offeror to complete delivery in fourteen (14) calendar days or as specified. A five (5) day difference in delivery promise may break a tie bid. An unrealistically short or long delivery promise may cause a bid/offer to be disregarded. Consistent failure to meet delivery promise without valid reason may cause removal from bid list. Delivery shall be made during normal working hours, 8:00 am to 4:30 pm Monday through Friday, unless prior approval for another time period has been obtained from Consignee.

• OWNERSHIP AND USE OF DOCUMENTS —

  All Drawings, Specifications, and memoranda relating to the Work are the property of the Owner and are to be used only for the Project.

  The Contractor shall be provided the number of sets of drawings and specifications, as set forth in the Owner-Contractor Agreement, free of charge by the Owner for use in construction. Additional sets of drawings and specifications may be obtained by paying printing, mailing, and handling charges.

• Implementation of Clean Air Act and Federal Water Pollution Control Act —

  (42 U.S.C. 7606; 2 CFR 200.88; EO 11738)

  This provision is applicable to all Federal-aid construction contracts in excess of $150,000 and to all related subcontracts. 48 CFR 2.101; 2 CFR 200.326.

  By submission of this bid/proposal or the execution of this contract or subcontract, as appropriate, the bidder, proposer, Federal-aid construction contractor, subcontractor, supplier, or vendor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal Highway Administration and the Regional Office of the Environmental Protection Agency. 2 CFR Part 200, Appendix II.

  The contractor agrees to include or cause to be included the requirements of this Section in every subcontract, and further agrees to take such action as the contracting agency may direct as a means of enforcing such requirements. 2 CFR 200.326.

• TIME FOR COMPLETION AND LIQUIDATED DAMAGES FOR NON-COMPLETION —

  The time for completion of this Contract and liquidated damages for non-completion within the stipulated time shall be as fixed in the Town-Contractor Agreement.

• DEFAULT —

  In case of failure to deliver goods/services in accordance with the contractual terms and conditions, the Town of Vienna, Virginia, after due oral or written notice, may procure them from other sources and hold the defaulting Contractor responsible for any resulting additional purchase and administrative costs. This remedy shall be in addition to any other remedies which the Town of Vienna may have.

• Selection of Subcontractors, Procurement of Materials and Leasing of Equipment —

  The contractor shall not discriminate on the grounds of race, color, religion, sex, national origin, age or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The contractor shall take all necessary and reasonable steps to ensure nondiscrimination in the administration of this contract.

  a. The contractor shall notify all potential subcontractors and suppliers and lessors of their EEO obligations under this contract.

  b. The contractor will use good faith efforts to ensure subcontractor compliance with their EEO obligations.

• Article 2 —

  ARCHITECT/ENGINEER

• LOCATION OF WORK —

  Kingsly Road SW between Cottage Street SW and Desale Street SW within the Town of Vienna.

• Documentation Required for Final Payment —

  On those projects that are complete, the Contractor shall submit a final Form C-63 marked “Final” to the DCRO, within thirty (30) days of the final estimate. The form must include each DBE used on the Contract and the work performed by each DBE. The form shall include the actual dollar amount paid to each DBE for the creditable work on the Contract. VDOT will use this form and other information available to determine if the Contractor and DBEs have satisfied the DBE contract goal percentage specified in the Contract and the extent to which credit was allowed. The Contractor shall acknowledge by the act of signing and filing the form that the information is supplied to obtain payment regarding a federal participation contract.

• DEFINITIONS —

  The term Architect/Engineer, hereinafter “A/E” or “Architect” or “Engineer”, shall mean the Town of Vienna, a department of the Town, or their duly authorized representative(s) responsible for designing or engineering the Work and performing the activities specified herein. Such department, firm or individual and its representatives shall act severally within the scope of particular duties entrusted to them, unless otherwise provided for in the Contract Documents.

  The A/E is identified in the Owner-Contractor Agreement and is referred to throughout the Contract Documents as if singular in number and masculine in gender. The A/E is further described as one of the following:

  ARCHITECT, a person or other legal entity lawfully licensed to practice architecture in Virginia.

  ENGINEER, a person or other legal entity lawfully licensed to practice engineering in Virginia.

  The Director of Public Works, Town of Vienna, Virginia, or his designee.

• LIABILITY INSURANCE AND WORKMEN’S COMPENSATION —

  The Successful Bidder will be required to carry public liability and workmen’s compensation and other insurance in the amounts and under the terms stipulated under Article II of the General Conditions.

• Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion —

  This provision is applicable to all Federal-aid construction contracts, design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements, consultant contracts or any other covered transaction requiring FHWA approval or that is estimated to cost $25,000 or more – as defined in 2 CFR Parts 180 and 1200. 2 CFR 180.220 and 1200.220.

  1. Instructions for Certification – First Tier Participants: 

       a. By signing and submitting this proposal, the prospective first tier participant is providing the certification set out below.

       b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective first tier participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective first tier participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction. 2 CFR 180.320.

       c. The certification in this clause is a material representation of fact upon which reliance was placed when the contracting agency determined to enter into this transaction. If it is later determined that the prospective participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the contracting agency may terminate this transaction for cause of default. 2 CFR 180.325.

       d. The prospective first tier participant shall provide immediate written notice to the contracting agency to whom this proposal is submitted if any time the prospective first tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. 2 CFR 180.345 and 180.350.

       e. The terms "covered transaction," "debarred," suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180, Subpart I, 180.900-180.1020, and 1200. “First Tier Covered Transactions” refers to any covered transaction between a recipient or subrecipient of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a recipient or subrecipient of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).

       f. The prospective first tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction. 2 CFR 180.330.

       g. The prospective first tier participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transactions," provided by the department or contracting agency, entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. 2 CFR 180.220 and 180.300.

       h. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. 2 CFR 180.300; 180.320, and 180.325. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. 2 CFR 180.335. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the System for Award Management website (https://www.sam.gov/). 2 CFR 180.300, 180.320, and 180.325.

       i. Nothing contained in the foregoing shall be construed to require the establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of the prospective participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

       j. Except for transactions authorized under paragraph (f) of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. 2 CFR 180.325.

  2.  Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion – First Tier Participants: 

       a. The prospective first tier participant certifies to the best of its knowledge and belief, that it and its principals:

           (1) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency, 2 CFR 180.335;

           (2) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property, 2 CFR 180.800;

           (3) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (a)(2) of this certification, 2 CFR 180.700 and 180.800; and

           (4) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default. 2 CFR 180.335(d).

           (5) Are not a corporation that has been convicted of a felony violation under any Federal law within the two-year period preceding this proposal (USDOT Order 4200.6 implementing appropriations act requirements); and

           (6) Are not a corporation with any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted, or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability (USDOT Order 4200.6 implementing appropriations act requirements).

       b. Where the prospective participant is unable to certify to any of the statements in this certification, such prospective participant should attach an explanation to this proposal. 2 CFR 180.335 and 180.340.

  3. Instructions for Certification - Lower Tier Participants:

   (Applicable to all subcontracts, purchase orders, and other lower tier transactions requiring prior FHWA approval or estimated to cost $25,000 or more - 2 CFR Parts 180 and 1200). 2 CFR 180.220 and 1200.220.

       a. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out below.

       b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.

       c. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. 2 CFR 180.365.

       d. The terms "covered transaction," "debarred," "suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180, Subpart I, 180.900 – 180.1020, and 1200. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. “First Tier Covered Transactions” refers to any covered transaction between a recipient or subrecipient of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a recipient or subrecipient of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).

       e. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. 2 CFR 1200.220 and 1200.332.

       f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. 2 CFR 180.220 and 1200.220.

       g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the System for Award Management website (https://www.sam.gov/), which is compiled by the General Services Administration. 2 CFR 180.300, 180.320, 180.330, and 180.335.

       h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

       i. Except for transactions authorized under paragraph e of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. 2 CFR 180.325.

  4.  Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Participants:

       a. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals:

           (1) is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency, 2 CFR 180.355;

           (2) is a corporation that has been convicted of a felony violation under any Federal law within the two-year period preceding this proposal (USDOT Order 4200.6 implementing appropriations act requirements); and

           (3) is a corporation with any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted, or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability. (USDOT Order 4200.6 implementing appropriations act requirements)

       b. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant should attach an explanation to this proposal.

• TOWN’S RIGHT TO TERMINATE THE CONTRACT —

  a) If the successful bidder should be adjudged bankrupt, or make a general assignment for the benefit of its creditors, or if a receiver should be appointed on account of the successful bidder’s insolvency, or if the successful bidder should persistently or repeatedly refuse or should fail, except in cases for which extension of time is provided, to deliver the goods or services within the time specified, or if the bidder otherwise defaults, then the Town may without prejudice to any other right or remedy, and after giving the successful bidder seven (7) calendar days written notice, terminate the employment of the successful bidder and procure such goods or services from other sources. In such event, the successful bidder shall be liable to the Town for any additional cost occasioned by such failure or other default.

  b) In such cases, the successful bidder shall not be entitled to receive any further payment if the expense of finishing the contract requirements, including compensation for additional; managerial and administrative services shall exceed the unpaid balance of the contract price, the successful bidder shall pay the difference to the Town.

  c) If the successful bidder should fail to make prompt payment to Subcontractor(s) for material or labor, persistently disregards laws, ordinances or the instruction of the Town, or otherwise be in substantial violation of any provisions of the Contract;

  d) Failure of the Contractor to promptly make good any defects in materials or work or any defects of any other nature, the correction of which has been directed in writing by the Town;

  e) Substantial evidence of collusion for the purpose of illegally procuring a contract or perpetrating fraud on the Town in the construction of work under contract.

  f) Prior to termination of the Contract, the successful bidder and his Surety shall be notified in writing by the Town of the condition which makes termination of contract imminent. Ten (10) days after this notice is given, if a satisfactory effort has not been made by the successful bidder or his Surety to correct the conditions, the Town may declare the Contract terminated and notify the successful bidder and his Surety accordingly.

  g) Upon receipt of notice of contract termination, the successful bidder shall immediately discontinue all operations. The Town may then proceed with the work in any lawful manner that they may elect until the project is final and complete.

  h) The Town reserves the right to take possession of the premises and of all materials, tools and appliances thereon and finish the work by whatever method is deemed expedient. In such case, the successful bidder shall not be entitled to receive any further payment. If the expense of finishing the work, including compensation for additional managerial and administrative services, shall exceed the unpaid balance of the contract price, the successful bidder shall pay the difference to the Town. The expense incurred by the Town as herein provided, and the damaged incurred through the Contractor’s default, shall be certified by the Town.

  i) Termination of the contract under this section is without prejudice to any rights or remedies of the Town.

  j) The Town reserves the right to cancel and terminate any resulting contract, in whole or in part, without penalty, upon 60 days written notice to the Contractor/ Consultant. Any contract cancellation notice shall not relieve the Contractor/Consultant of the obligation to delivery and/or perform on all outstanding services performed prior to the effective date of cancellation.

  k) Notwithstanding anything to the contrary contained in the contract between the Town and the successful bidder, the Town may, without prejudice to any other rights it may have, terminate the contract for convenience and with cause, by giving thirty (30) days written notice to the successful bidder.

  1) In the event the Contract is terminated for cause related to the Contractor/Consultant’s (or its Subcontractor’s) hiring of unauthorized aliens, Contractor/Consultant,

  Contractor/Consultant hereby waives any claim to lost profits and the Town will proceed in accordance with subsections f) et seq. above.

• Prompt Payment Requirements —

  The Contractor shall make prompt and full payment to the subcontractor(s) of any retainage held by the prime Contractor after the subcontractor’s work is satisfactorily completed.

  For purposes of this Special Provision, a subcontractor’s work is satisfactorily completed when all the tasks called for in the subcontract have been accomplished, documented, and accepted as required by the contract documents by VDOT. When VDOT has made partial acceptance of a portion of the prime contract, the Department will consider the work of any subcontractor covered by that partial acceptance to be satisfactorily completed. Payment will be made in accordance with the requirements of Section 107.01, Section 109.08, and Section 109.09 of the Specifications.

  Upon VDOT’s payment of the subcontractor’s portion of the work as shown on the monthly progress estimate and the receipt of payment by the Contractor for such work, the Contractor shall make compensation in full to the subcontractor for that portion of the work satisfactorily completed and accepted by the Department. For the purposes of this Special Provision, payment of the subcontractor’s portion of the work shall mean the Contractor has issued payment in full, less agreed upon retainage, if any, to the subcontractor for that portion of the subcontractor’s work that VDOT paid to the Contractor on the monthly progress estimate.

  The Contractor shall make payment of the subcontractor’s portion of the work within seven (7) days of the receipt of payment from VDOT in accordance with the requirements of Section 107.01, Section 109.08, and Section 109.09 of the Specifications.

  If the Contractor fails to make payment for the subcontractor’s portion of the work within the time frame specified herein, the subcontractor shall contact the Responsible Engineer and the Contractor’s bonding company in writing. The bonding company and VDOT will investigate the cause for non-payment and, barring mitigating circumstances that would make the subcontractor ineligible for payment, ensure payment in accordance with the requirements of Section 107.01, Section 109.08, and Section 109.09 of the Specifications.

  By bidding on this contract, and by accepting and executing this contract, the Contractor agrees to assume these contractual obligations, and to bind the Contractor’s subcontractors contractually to those prompt payment requirements.

  Nothing contained herein shall preclude the Contractor from withholding payment to the subcontractor in accordance with the terms of the subcontract in order to protect the Contractor from loss or cost of damage due to a breach of agreement by the subcontractor.

• Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion —

  This provision is applicable to all Federal-aid construction contracts, design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements, consultant contracts or any other covered transaction requiring FHWA approval or that is estimated to cost $25,000 or more – as defined in 2 CFR Parts 180 and 1200. 2 CFR 180.220 and 1200.220.

  1. Instructions for Certification – First Tier Participants:

  a. By signing and submitting this proposal, the prospective first tier participant is providing the certification set out below.

  b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective first tier participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective first tier participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction. 2 CFR 180.320.

  c. The certification in this clause is a material representation of fact upon which reliance was placed when the contracting agency determined to enter into this transaction. If it is later determined that the prospective participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the contracting agency may terminate this transaction for cause of default. 2 CFR 180.325.

  d. The prospective first tier participant shall provide immediate written notice to the contracting agency to whom this proposal is submitted if any time the prospective first tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. 2 CFR 180.345 and 180.350.

  e. The terms "covered transaction," "debarred," "suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180, Subpart I, 180.900-180.1020, and 1200. “First Tier Covered Transactions” refers to any covered transaction between a recipient or subrecipient of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a recipient or subrecipient of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).

  f. The prospective first tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction. 2 CFR 180.330.

  g. The prospective first tier participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transactions," provided by the department or contracting agency, entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. 2 CFR 180.220 and 180.300.

  h. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. 2 CFR 180.300; 180.320, and 180.325. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. 2 CFR 180.335. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the System for Award Management website (https://www.sam.gov/). 2 CFR 180.300, 180.320, and 180.325.

  i. Nothing contained in the foregoing shall be construed to require the establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of the prospective participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

  j. Except for transactions authorized under paragraph (f) of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. 2 CFR 180.325.

  2. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion – First Tier Participants:

  a. The prospective first tier participant certifies to the best of its knowledge and belief, that it and its principals:

  (1) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency, 2 CFR 180.335;

  (2) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property, 2 CFR 180.800;

  (3) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (a)(2) of this certification, 2 CFR 180.700 and 180.800; and

  (4) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default. 2 CFR 180.335(d).

  (5) Are not a corporation that has been convicted of a felony violation under any Federal law within the two-year period preceding this proposal (USDOT Order 4200.6 implementing appropriations act requirements); and

  (6) Are not a corporation with any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted, or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability (USDOT Order 4200.6 implementing appropriations act requirements).

  b. Where the prospective participant is unable to certify to any of the statements in this certification, such prospective participant should attach an explanation to this proposal. 2 CFR 180.335 and 180.340.

  3. Instructions for Certification - Lower Tier Participants:

  (Applicable to all subcontracts, purchase orders, and other lower tier transactions requiring prior FHWA approval or estimated to cost $25,000 or more - 2 CFR Parts 180 and 1200). 2 CFR 180.220 and 1200.220.

  a. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out below.

  b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.

  c. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. 2 CFR 180.365.

  d. The terms "covered transaction," "debarred," "suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180, Subpart I, 180.900 – 180.1020, and 1200.

  You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. “First Tier Covered Transactions” refers to any covered transaction between a recipient or subrecipient of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a recipient or subrecipient of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).

  e. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. 2 CFR 1200.220 and 1200.332.

  f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. 2 CFR 180.220 and 1200.220.

  g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the System for Award Management website (https://www.sam.gov/), which is compiled by the General Services Administration. 2 CFR 180.300, 180.320, 180.330, and 180.335.

  h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

  i. Except for transactions authorized under paragraph e of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. 2 CFR 180.325.

  Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Participants:

  1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals: (a) is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency, 2 CFR 180.355;

  (b) is a corporation that has been convicted of a felony violation under any Federal law within the two-year period preceding this proposal (USDOT Order 4200.6 implementing appropriations act requirements); and

  (c) is a corporation with any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted, or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability. (USDOT Order 4200.6 implementing appropriations act requirements)

  2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant should attach an explanation to this proposal.

• Certification Regarding Use of Contract Funds for Lobbying —

  This provision is applicable to all Federal-aid construction contracts and to all related subcontracts which exceed $100,000. 49 CFR Part 20, App. A.

  1. The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:

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

  b. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.

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

  3. The prospective participant also agrees by submitting its bid or proposal that the participant shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such recipients shall certify and disclose accordingly.

• Miscellaneous DBE Program Requirements —

  1. Loss of DBE Eligibility: When a DBE firm has been removed from eligibility as a certified DBE firm, the following actions will be taken:

  a. When a Bidder/Contractor has made a commitment to use a DBE firm that is not currently certified, thereby making the Contractor ineligible to receive DBE participation credit for work performed, and a subcontract has not been executed, the ineligible DBE firm does not count toward either the Contract goal or overall goal. The Contractor shall meet the Contract goal with a DBE firm that is eligible to receive DBE credit for work performed, or must demonstrate to the Contract Engineer that it has made good faith efforts to do so.

  b. When a Bidder/Contractor has executed a subcontract with a certified DBE firm prior to official notification of the DBE firm’s loss of eligibility, the Contractor may continue to use the firm on the Contract and shall continue to receive DBE credit toward its DBE goal for the subcontractor’s work.

  c. When VDOT has executed a prime contract with a DBE firm that is certified at the time of contract execution but that is later ruled ineligible, the portion of the ineligible firm’s performance on the Contract before VDOT has issued the notice of its ineligibility shall count toward the Contract goal.

  2. Termination of DBE:If a certified DBE subcontractor is terminated, or fails, refuses, or is unable to complete the work on the Contract for any reason, the Contractor must promptly request approval to substitute or replace that firm in accordance with this section of this Special Provision.

  The Contractor, as aforementioned in DBE Program-Related Certifications Made by Bidders/Contractors, shall notify VDOT in writing before terminating and/or replacing the DBE that was committed as a condition of contract award or that is otherwise being used or represented to fulfill DBE contract obligations during the Contract performance period. Written consent from the Department for terminating the performance of any DBE shall be granted only when the Contractor can demonstrate that the DBE is unable, unwilling, or ineligible to perform its obligations for which the Contractor sought credit toward the Contract DBE goal. Such written consent by the Department to terminate any DBE shall concurrently constitute written consent to substitute or replace the terminated DBE with another DBE. Consent to terminate a DBE shall not be based on the Contractor’s ability to negotiate a more advantageous contract with another subcontractor whether that subcontractor is, or is not, a certified DBE.

  a. All Contractor requests to terminate, substitute, or replace a certified DBE shall be in writing, and shall include the following information:

  (1) The date the Contractor determined the DBE to be unwilling, unable, or ineligible to perform.

  (2) The projected date that the Contractor shall require a substitution or replacement DBE to commence work if consent is granted to the request.

  (3) A brief statement of facts describing and citing specific actions or inaction by the DBE giving rise to the Contractor’s assertion that the DBE is unwilling, unable, or ineligible to perform;

  (4) A brief statement of the affected DBE’s capacity and ability to perform the work as determined by the Contractor;

  (5) A brief statement of facts regarding actions taken by the Contractor which are believed to constitute good faith efforts toward enabling the DBE to perform;

  (6) The current percentage of work completed on each bid item by the DBE;

  (7) The total dollar amount currently paid per bid item for work performed by the DBE;

  (8) The total dollar amount per bid item remaining to be paid to the DBE for work completed, but for which the DBE has not received payment, and with which the Contractor has no dispute;

  (9) The total dollar amount per bid item remaining to be paid to the DBE for work completed, but for which the DBE has not received payment, and over which the Contractor and/or the DBE have a dispute.

  b. Contractor’s Written Notice to DBE of Pending Request to Terminate and Substitute with another DBE.

  The Contractor shall send a copy of the “request to terminate and substitute” letter to the affected committed DBE firm, in conjunction with submitting the request to the DCRO. The affected DBE firm may submit a response letter to the Department within two (2) business days of receiving the notice to terminate from the Contractor. The affected DBE firm shall explain its position concerning performance on the committed work. The Department will consider both the Contractor’s request and the DBE’s response and explanation before approving the Contractor’s termination and substitution request, or determining if any action should be taken against the Contractor.

  If, after making its best efforts to deliver a copy of the “request to terminate and substitute” letter, the Contractor is unsuccessful in notifying the affected DBE firm, the Department will verify that the affected, committed DBE firm is unable or unwilling to continue the Contract. The Department will immediately approve the Contractor’s request for a substitution.

  c. Proposed Substitution of Another Certified DBE

  Upon termination of a DBE, the Contractor shall use reasonable good faith efforts to replace the terminated DBE. The termination of such DBE shall not relieve the Contractor of its obligations pursuant to this section, and the unpaid portion of the terminated DBE’s contract will not be counted toward the Contract goal.

  When a DBE substitution is necessary, the Contractor shall submit an amended Form C-111 with the name of another DBE firm, the proposed work to be performed by that firm, and the dollar amount of the work to replace the unfulfilled portion of the work of the originally committed DBE firm. The Contractor shall furnish all pertinent information including the Contract I.D. number, project number, bid item, item description, bid unit and bid quantity, unit price, and total price. In addition, the Contractor shall submit documentation for the requested substitute DBE as described in this section of this Special Provision.

  Should the Contractor be unable to commit the remaining required dollar value to the substitute DBE, the Contractor shall provide written evidence of good faith efforts made to obtain the substitute value requirement. The Department will review the quality, thoroughness, and intensity of those efforts. Efforts that are viewed by VDOT as merely superficial or pro-forma will not be considered good faith efforts to meet the Contract goal for DBE participation. The Contractor must document the steps taken that demonstrated its good faith efforts to obtain participation as set forth in the Good Faith Efforts Described section of this Special Provision.

  3. Factors Used to determine if a DBE Trucking Firm is performing a CUF:

  The following factors will be used to determine whether a DBE trucking company is performing a CUF:

  a. To perform a CUF the DBE trucking firm shall be completely responsible for the management and supervision of the entire trucking operation for which the DBE is responsible by subcontract on a particular contract. There shall not be a contrived arrangement, including, but not limited to, any arrangement that would not customarily and legally exist under regular construction project subcontracting practices for the purpose of meeting the DBE contract goal;

  b. The DBE must own and operate at least one fully licensed, insured, and operational truck used in the performance of the Contract work. This does not include a supervisor’s pickup truck or a similar vehicle that is not suitable for and customarily used in hauling the necessary materials or supplies;

  c. The DBE receives full contract goal credit for the total reasonable amount the DBE is paid for the transportation services provided on the Contract using trucks the DBE owns, insures, and operates using drivers that the DBE employs and manages;

  d. The DBE may lease trucks from another certified DBE firm, including from an owner-operator who is certified as a DBE. The DBE firm that leases trucks from another DBE will receive credit for the total fair market value actually paid for transportation services the lessee DBE firm provides on the Contract;

  e. The DBE may also lease trucks from a non-DBE firm, including 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 non-DBE lessees, not to exceed the value of transportation services provided by DBE-owned trucks on the Contract. For additional participation by non-DBE lessees, the DBE will only receive credit for the fee or commission it receives as a result of the lease arrangement.

  EXAMPLE

  DBE Firm X uses two (2) of its own trucks on a contract. The firm leases two (2) trucks from DBE Firm Y and six (6) trucks from non-DBE Firm Z.

  Firm X Value of Trans. Serv.

  (For Illustrative Purposes Only)

  Truck 1 Owned by DBE $100 per day

  Truck 2 Owned by DBE $100 per day

  Firm Y

  Truck 1 Leased from DBE $110 per day

  Truck 2 Leased from DBE $110 per day

  Firm Z

  Truck 1 Leased from Non DBE $125 per day

  Truck 2 Leased from Non DBE $125 per day

  Truck 3 Leased from Non DBE $125 per day

  Truck 4 Leased from Non DBE $125 per day

  Truck 5 Leased from Non DBE* $125 per day

  Truck 6 Leased from Non DBE* $125 per day

  DBE credit would be awarded for the total transportation services provided by DBE Firm X and DBE Firm Y, and may also be awarded for the total value of transportation services by four (4) of the six (6) trucks provided by non-DBE Firm Z (not to exceed the value of transportation services provided by DBE-owned trucks).

  Credit = 8 Trucks

  Total Value of Transportation Services = $820

  In all, full DBE credit would be allowed for the participation of eight (8) trucks (twice the number of DBE trucks owned and leased) and the dollar value attributable to the Value of Transportation Services provided by the 8 trucks.

  * With respect to the other two trucks provided by non-DBE Firm Z, DBE credit could be awarded only for the fees or commissions pertaining to those trucks that DBE Firm X receives as a result of the lease with non-DBE Firm Z.

  f. For purposes of this section, the lease must indicate that the DBE firm leasing the truck has exclusive use of and control over the truck. This will not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, provided the lease gives the DBE absolute priority for and control over the use of the leased truck. Leased trucks must display the name and identification number of the DBE firm that has leased the truck at all times during the life of the lease.

  4. Data Collection: In accordance with 49CFR Section 26.11, all firms bidding on prime contracts and bidding or quoting subcontracts on federal-aid projects shall provide the following information to the Contract Engineer annually.

  • Firm name
  • Firm address
  • Firm’s status as a DBE or non-DBE
  • The age of the firm and
  • The annual gross receipts of the firm

  The means of transmittal and the risk for timely receipt of this information shall be the responsibility of the bidder. However, the above information can be submitted by means of the Annual Gross Receipts Survey as required in the Prequalification/Certification application.

  All bidders, including DBE prime Contractor bidders, shall complete and submit to the Contract Engineer the Subcontractor/Supplier Solicitation and Utilization Form C-48 for each bid submitted; to be received within ten (10) business days after the bid opening. Failure of bidders to submit this form in the time frame specified may be cause for disqualification of the bidder and rejection of their bid in accordance with the requirements of this Special Provision, the Contract specifications, and VDOT Road and Bridge specifications.

• BIDDERS REFERRED TO LAWS —

  A. The attention of Bidders is called to the provisions of all Municipal, County and State laws, regulations, ordinances and resolutions, including but not limited to, the Virginia Human Rights Act; the Equal Opportunity, Small and Minority Business Enterprises and the Construction Safety Resolutions; as well as laws, regulations, ordinances, resolutions and permits relating to obstructing streets, maintaining signals, storing and handling of explosives, or affecting the Bidder, or his employees or his Work hereunder in his relation to the Town or any other person. The Bidder shall obey all such laws, regulations, ordinances, permits or resolutions controlling or limiting Contractors while engaged in the prosecution of Work under this Contract.

  B. The provisions of this Contract shall be interpreted in accordance with the laws of Virginia and in accordance with the laws, ordinances, regulations, permits and resolutions of the Town of Vienna.

• CONDITION OF ITEMS —

  All items bid/proposed shall be new and in first class condition, including containers suitable for shipments and storage, unless otherwise indicated in bid invitation/proposal request. Verbal agreements to the contrary will not be recognized.

• ADMINISTRATION OF THE CONTRACT —

  The A/E will provide services as hereinafter generally described.

  The A/E will be an Owner’s representative during construction and until the end of the one-year guarantee period. The A/E will advise and consult with the Owner. The Owner’s instructions to the Contractor may be forwarded through the A/E. The A/E will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents, unless otherwise changed by Modification.

  The A/E will visit the site at intervals appropriate to the stage of construction to familiarize himself generally with the progress and quality of the Work and to determine in general if the Work is proceeding in accordance with the Contract Documents. However, the A/E will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. On the basis of his on-site observations as an Architect or Engineer, the A/E will keep the Owner informed of the progress of the Work and will endeavor to guard the Owner against defects and deficiencies in the Work of the Contractor.

  The A/E will not be responsible for and will not have control or charge of construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work. The A/E will not be responsible for the Contractor’s failure to carry out the Work in accordance with the Contract Documents. The A/E will not be responsible for or have control over the acts or omissions of the Contractor, Subcontractors, or any of their agents or employees, or any other persons performing any of the Work.

  The A/E will immediately inform the Owner and Contractor whenever in the opinion of the A/E any of the Work is proceeding contrary to the requirements of the Contract Documents and will be unacceptable. Failure of the Contractor to take corrective action to make the Work conform to the Contract Documents will subject the Contractor to any and all remedies available to the Owner, including, without limitation, termination pursuant to Article 13 hereof. Such notification by the A/E will not be a cause for the Contractor to claim either delay of the Work or any increase in the Contract Sum.

  The A/E, the Owner and other governmental representatives, shall at all times, have access to the Work wherever it is in preparation and progress. The Contractor shall provide facilities for such access such that the A/E, the Owner and other governmental representatives may perform their functions under the Contract Documents in a safe and reasonable manner.

  Where applicable, based on the A/E’s observations and an evaluation of the Contractor’s Applications for Payment, the A/E will recommend the amounts owing to the Contractor and will issue Certificates for Payment in such amounts, as provided in Article 9.

  The A/E will be an interpreter of the requirements of the Contract Documents. The A/E will render interpretations necessary for the proper execution and progress of the Work, with reasonable promptness and in accordance with any time limit agreed upon with the Owner. Either party to the Contract may make written request to the A/E for such interpretations. All interpretations of the A/E shall be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing and/or in the form of drawings.

  The A/E will have authority to reject Work which does not conform to the Contract Documents. Whenever, in his opinion, he considers it necessary or advisable for the implementation of the intent of the Contract Documents, the A/E will have authority to require special inspection or testing of the Work in accordance with Subparagraph 7.7.2 whether or not such Work be then fabricated, installed or completed.

  The A/E will review and approve or take other appropriate action upon Contractor’s submittals such as Shop Drawings, Product Data, Samples and Manuals, but only for conformance with the design concept of the Work and with the information given in the Contract Documents. Such action shall be taken with reasonable promptness so as to cause no delay in the Work. The A/E approval of a specific item shall not indicate approval of an assembly of which the item is a component.

  The A/E’s acceptance of materials or products on behalf of the Owner shall not bar future rejection of such items if they are subsequently found to be defective or inferior in quality, compatibility or uniformity to the materials or products specified by the Contract Documents, or if such items are not as represented by the Contractor.

  The A/E has authority to prepare Change Orders authorized by the owner and will have authority to order minor changes in the Work as provided in Article 11.

  Inspections will be conducted by the A/E to assist the Owner in determining the dates of Substantial Completion and Final Completion as required. The A/E will receive and forward to the Owner for review, written warranties and related documents required by the Contract and assembled by the Contractor and will recommend final Certificate for Payment upon compliance with the requirements of Article 9.

  All claims, disputes, or other matters or questions between the Contractor and Owner arising out of or relating to the A/E’s interpretation of the Contract Documents or any other decisions, communications, or actions of the A/E arising out of or relating to the performance of the Work shall be resolved as set forth in Article 7. Prior to submitting any claim to the Director of Parks and Recreation regarding an interpretation of the A/E, the matter shall first be submitted to the Project Engineer who shall review the matter and render a written interpretation, evaluation or decision, as appropriate, within 30 days of his receipt of the claim, dispute or other matter. If the Project Engineer agrees with the Contractor, the matter shall be resolved in accordance with their agreement. If the Project Engineer disagrees with the Contractor, the Contractor may then present the matter to the Director of Parks and Recreation as set forth in Article 7.

  In case of the termination of the employment of the A/E, the Owner shall appoint a new A/E, who shall have the same status under the Contract Documents as the former A/E.

• Certification Regarding Use of Contract Funds for Lobbying —

  This provision is applicable to all Federal-aid construction contracts and to all related subcontracts which exceed $100,000. 49 CFR Part 20, App. A.

  1.  The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:

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

       b. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.

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

  3.  The prospective participant also agrees by submitting its bid or proposal that the participant shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such recipients shall certify and disclose accordingly.

• ARTICLE 3 —

  OWNER

  DEFINITIONS

• Suspect Evidence of Criminal Behavior —

  Failure of a bidder, Contractor, or subcontractor to comply with the Virginia Department of Transportation Road and Bridge Specifications and these Special Provisions wherein there appears to be evidence of criminal conduct shall be referred to the Attorney General for the Commonwealth of Virginia and/or the FHWA Inspector General for criminal investigation and, if warranted, prosecution.

  Suspected DBE Fraud

  In appropriate cases, VDOT will bring to the attention of the U. S. Department of Transportation (USDOT) any appearance of false, fraudulent, or dishonest conduct in connection with the DBE program, so that USDOT can take the steps, e.g., referral to the Department of Justice for criminal prosecution, referral to the USDOT Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules provided in 49CFR Part 31.

• Use of United States-Flag Vessels —

  This provision is applicable to all Federal-aid construction contracts, design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements, or any other covered transaction. 46 CFR Part 381.

  This requirement applies to material or equipment that is acquired for a specific Federal-aid highway project. 46 CFR 381.7. It is not applicable to goods or materials that come into inventories independent of an FHWA funded-contract.

  When oceanic shipments (or shipments across the Great Lakes) are necessary for materials or equipment acquired for a specific Federal-aid construction project, the bidder, proposer, contractor, subcontractor, or vendor agrees:

       1. To utilize privately owned United States-flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to this contract, to the extent such vessels are available at fair and reasonable rates for United States-flag commercial vessels. 46 CFR 381.7.

       2. To furnish within 20 days following the date of loading for shipments originating within the United States or within 30 working days following the date of loading for shipments originating outside the United States, a legible copy of a rated, ‘on-board’ commercial ocean bill-of-lading in English for each shipment of cargo described in paragraph (b)(1) of this section to both the Contracting Officer (through the prime contractor in the case of subcontractor bills-of-lading) and to the Office of Cargo and Commercial Sealift (MAR-620), Maritime Administration, Washington, DC 20590. (MARAD requires copies of the ocean carrier's (master) bills of lading, certified onboard, dated, with rates and charges. These bills of lading may contain business sensitive information and therefore may be submitted directly to MARAD by the Ocean Transportation Intermediary on behalf of the contractor). 46 CFR 381.7.

   

• SUBSTITUTIONS —

  No substitutions or cancellations permitted without prior written approval by the Procurement Officer.

• TAXES —

  All applicable Federal, State and Local Taxes shall be included in the Bidder’s proposal.

• Use of United States-Flag Vessels —

  This provision is applicable to all Federal-aid construction contracts, design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements, or any other covered transaction. 46 CFR Part 381.

  This requirement applies to material or equipment that is acquired for a specific Federal-aid highway project. 46 CFR 381.7. It is not applicable to goods or materials that come into inventories independent of an FHWA funded-contract.

  When oceanic shipments (or shipments across the Great Lakes) are necessary for materials or equipment acquired for a specific Federal-aid construction project, the bidder, proposer, contractor, subcontractor, or vendor agrees:

  1. To utilize privately owned United States-flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to this contract, to the extent such vessels are available at fair and reasonable rates for United States-flag commercial vessels. 46 CFR 381.7.

  2. To furnish within 20 days following the date of loading for shipments originating within the United States or within 30 working days following the date of loading for shipments originating outside the United States, a legible copy of a rated, ‘on-board’ commercial ocean bill-of-lading in English for each shipment of cargo described in paragraph (b)(1) of this section to both the Contracting Officer (through the prime contractor in the case of subcontractor bills-of-lading) and to the Office of Cargo and Commercial Sealift (MAR-620), Maritime Administration, Washington, DC 20590. (MARAD requires copies of the ocean carrier's (master) bills of lading, certified onboard, dated, with rates and charges. These bills of lading may contain business sensitive information and therefore may be submitted directly to MARAD by the Ocean Transportation Intermediary on behalf of the contractor). 46 CFR 381.7.

• OWNER —

  The Owner is the Town of Vienna, Virginia and is referred to throughout the Contract Documents as if singular in number and masculine in gender. The term Owner means the Owner or its authorized representative. The Director of Public Works is the authorized representative of the Town of Vienna for this contract.

  The term “Owner” or “Owner’s representative” specifically excludes any and all inspectors having building code, Town ordinance responsibilities or jurisdiction under the requirements of the Building Permit.

• Summary of Remedies for Non-Compliance with DBE Program Requirements —

  Failure of any bidder\Contractor to comply with the requirements of this Special Provision for Section 107.15 of the Virginia Road and Bridge Specifications, which is deemed to be a condition of bidding, or where a contract exists, is deemed to constitute a breach of contract shall be remedied in accordance with the following:

  1. Disadvantaged Business Enterprise (DBE) Program Requirements

  The Contractor shall carry out applicable requirements of 49 CFR Part 26 in the award, administration, and performance of this contract. Failure by the Contractor to carry out these requirements is a material breach of this contract, which will result in the termination of this contract or other such remedy, as VDOT deems appropriate.

  All administrative remedies noted in this provision are automatic unless the Contractor exercises the right of appeal within the required timeframe(s) specified herein.

  2. DBE Program-Related Certifications Made by Bidders\Contractors

  Once awarded the contract, the Contractor shall comply fully with all regulatory and contractual requirements of the USDOT DBE Program, and that each certified DBE firm participating in the Contract shall fully perform the designated work items with the DBE’s own forces and equipment under the DBE’s direct supervision, control, and management. Where a contract exists and where the Contractor, DBE firm, or any other firm retained by the Contractor has failed to comply with federal or VDOT DBE Program regulations and/or their requirements on that contract, VDOT has the authority and discretion to determine the extent to which the DBE contract requirements have not been met, and will assess against the Contractor any remedies available at law or provided in the Contract in the event of such a contract breach.

  3. Disqualification of Bidder

  Bidders may be disqualified from bidding for failure to comply with the requirements of this Special Provision, the Contract specifications, and VDOT Road and Bridge Specifications.

  4. Bidding Procedures

  The failure of a bidder to submit the required documentation within the timeframes specified in the Contract Goal, Good Faith Efforts Specified section of this Special Provision may be cause for rejection of that bidder’s bid. If the lowest bidder is rejected for failure to submit required documentation in the specified time frames, the Department may either award the work to the next lowest bidder, or re-advertise and construct the work under contract or otherwise as determined by the Commonwealth.

  In order to award a contract to a bidder that has failed to meet DBE contract goal requirements, VDOT will determine if the bidder’s efforts were adequate good faith efforts, and if given all relevant circumstances, those efforts were to the extent a bidder actively and aggressively seeking to meet the requirements would make. Regardless of the DBE contract goal participation level proposed by the bidder or the extent of good faith efforts shown, all bidders shall timely and separately file their completed and executed Forms C-111, C-112, C-48, and Form C-49, as aforementioned, or face potential bid rejection. If a bidder does not submit it’s completed and executed C-111, or C-112, when required by this Special Provision, the bidder’s bid will be considered non-responsive and may be rejected. If, after reconsideration, the Department determines the bidder has failed to meet the requirements of the Contract goal and has failed to make adequate good faith efforts to achieve the level of DBE participation as specified in the bid proposal, the bidder’s bid will be rejected. If sufficient documented evidence is presented to demonstrate that the apparent low bidder made reasonable good faith efforts, the Department will award the Contract and reduce the DBE requirement to the actual commitment identified by the lowest successful bidder at the time of its bid. The Contractor is encouraged to seek additional participation during the life of the Contract.

  If the Contractor fails to conform to the schedule of DBE participation as shown on the progress schedule, or at any point at which it is clearly evident that the remaining dollar value of allowable credit for performing work is insufficient to obtain the scheduled participation, the Contractor and any aforementioned affiliates may be enjoined from bidding for 60 days or until such time as conformance with the schedule of DBE participation is achieved. In such instances, the Contractor is expected to seek DBE participation towards meeting the goal during the prosecution of the Contract.

  If the Contractor fails upon completion of the project to meet the required participation, the Contractor and any prime contractual affiliates, as in the case of a joint venture, may be enjoined from bidding as a prime Contractor, or participating as a subcontractor on VDOT projects for a period of 90 days.

  Prior to enjoinment from bidding or denial to participate as a subcontractor for failure to comply with participation requirements, as provided hereinbefore, the Contractor may submit documentation to the State Construction Engineer to substantiate that failure was due solely to quantitative underrun(s) or elimination of items subcontracted to DBEs, and that all feasible means have been used to obtain the required participation. The State Construction Engineer upon verification of such documentation shall make a determination whether or not the Contractor has met the requirements of the Contract.

  If it is determined that the aforementioned documentation is insufficient or the failure to meet required participation is due to other reasons, the Contractor may request an appearance before the Administrative Reconsideration Panel to establish that all feasible means were used to meet such participation requirements. The decision of the Administrative Reconsideration Panel shall be administratively final. The enjoinment period will begin upon the Contractor’s failure to request a hearing within the designated time frame or upon the Administrative Reconsideration Panel’s decision to enjoin, as applicable.

  5. Verification of DBE Participation and Imposed Damages

  If the Contractor fails to comply with correctly completing and submitting any of the required documentation requested by this provision within the specified time frames, the Department will withhold payment of the monthly progress estimate until such time as the required submissions are received by VDOT. Where such failures to provide required submittals or documentation are repeated the Department will move to enjoin the Contractor and any prime contractual affiliates, as in the case of a joint venture, from bidding as a prime Contractor, or participating as a subcontractor on VDOT projects until such submissions are received.

• RIGHTS OF THE TOWN OF VIENNA —

  The Town reserves the right to accept or reject all or any part of bids/proposals, waive minor technicalities/informalities and award the contract to the lowest responsive and responsible bidder or most qualified and best suited offeror to best serve the interest of the Town.

• Attachment A - Employment and Materials Preference for Appalachian Development Highway System or Appalachian Local Access Road Contracts (23 CFR 633, Subpart B, Appendix B) —

  This provision is applicable to all Federal-aid projects funded under the Appalachian Regional Development Act of 1965.

  1.  During the performance of this contract, the contractor undertaking to do work which is, or reasonably may be, done as on-site work, shall give preference to qualified persons who regularly reside in the labor area as designated by the DOL wherein the contract work is situated, or the subregion, or the Appalachian counties of the State wherein the contract work is situated, except:

       a. To the extent that qualified persons regularly residing in the area are not available.

       b. For the reasonable needs of the contractor to employ supervisory or specially experienced personnel necessary to assure an efficient execution of the contract work.

       c. For the obligation of the contractor to offer employment to present or former employees as the result of a lawful collective bargaining contract, provided that the number of nonresident persons employed under this subparagraph (1c) shall not exceed 20 percent of the total number of employees employed by the contractor on the contract work, except as provided in subparagraph (4) below.

  2.  The contractor shall place a job order with the State Employment Service indicating (a) the classifications of the laborers, mechanics and other employees required to perform the contract work, (b) the number of employees required in each classification, (c) the date on which the participant estimates such employees will be required, and (d) any other pertinent information required by the State Employment Service to complete the job order form. The job order may be placed with the State Employment Service in writing or by telephone. If during the course of the contract work, the information submitted by the contractor in the original job order is substantially modified, the participant shall promptly notify the State Employment Service.

  3.  The contractor shall give full consideration to all qualified job applicants referred to him by the State Employment Service. The contractor is not required to grant employment to any job applicants who, in his opinion, are not qualified to perform the classification of work required.

  4.  If, within one week following the placing of a job order by the contractor with the State Employment Service, the State Employment Service is unable to refer any qualified job applicants to the contractor, or less than the number requested, the State Employment Service will forward a certificate to the contractor indicating the unavailability of applicants. Such certificate shall be made a part of the contractor's permanent project records. Upon receipt of this certificate, the contractor may employ persons who do not normally reside in the labor area to fill positions covered by the certificate, notwithstanding the provisions of subparagraph (1c) above.

  5.  The provisions of 23 CFR 633.207(e) allow the contracting agency to provide a contractual preference for the use of mineral resource materials native to the Appalachian region.

  6.  The contractor shall include the provisions of Sections 1 through 4 of this Attachment A in every subcontract for work which is, or reasonably may be, done as on-site work.

• RIGHT TO REJECT BIDS —

  Intentionally omitted.

• PROJECT MANAGER —

  The Department of Public Works, Town of Vienna will designate a single Owner’s representative designated with the title of Project Manager, who will have the power to act, within the scope of his delegated authority, for and on behalf of the Owner, in accordance with the terms of the Contract.

• NEGOTIATION WITH THE LOWEST BIDDER —

  Intentionally Omitted.

• EQUAL PRODUCTS AND SUBSTITUTIONS —

  A. Unless otherwise provided in the Contract Documents, the naming of a certain brand, make, manufacturer or article, device, product, material, fixture, form or type construction by name, make or catalog number, shall convey the general style, type, character and standard of quality of the article desired and shall not be construed as limiting competition. Any Bidder, in such cases, may, with Town approval, use any article, device, product, material, fixture, form or type of construction which in the judgment of the Town is equal to that specified considering quality, workmanship, economy of operation, suitability for the purpose intended, and acceptability for use on the project. Approval by the Town prior to bid opening will be in the form of an Addendum to the Specifications issued to all prospective Bidders indicating that the additional makes or brands are equivalent to those specified.

  B. Equal Products and Substitutions Prior to Bid Opening

  1. To obtain such approval on makes or brands of material other than those specified in Contract Documents, the Bidder shall submit his requests with adequate supporting technical data, as required below, to the Town not less than ten (10) days before the bid opening;

  2. The Bidder’s request for approval of any equal product or substitution shall include:

  a. Itemized comparison of proposed equal product or substitution with product or method specified;

  b. Product identification, including manufacturer’s name, street address, email address if applicable and phone number;

  c. Manufacturer’s literature showing complete product description, performance and test data, and all reference standards;

  d. Samples and colors in the case of articles or products;

  e. Name and address of similar projects on which the product was used and date of installation;

  f. For construction methods, include a detailed description for proposed method and drawings illustrating same, and

  g. A certification form, notarized prior to bid, entitled “Bidder’s Request for Equal Product or Substitution and Bidder’s Representations”, contained in the Form of Bid. If approved by an Addendum, said form shall be resubmitted by the Bidder and all other Bidders that desire to use the same product or substitution in their Bid packages, at the time of bid.

  C. The decision of the Town regarding the approval of items as equal products or substitutions will be final.

  D. No change in brand or make from the originally specified item or approved equal product or approved substitution will be permitted unless satisfactory written evidence is presented to and approved by the Town.

  E. The Bidder may request approval for equal products or substitutions after award of the Contract in accordance with the provisions of Article 4 of the General Conditions.

  F. Equal products or substitutions will not be considered for approval by the Town prior to or after award of the Contract if acceptance of the proposed equal product or substitution will require substantial design revisions to the Contract Documents or is otherwise not acceptable to the Town.

  G. Equal products or substitutions will not be considered for approval by the Town after award of the Contract if the proposed item is indicated or implied on shop drawings or product data submittals and has not been formally submitted for approval by the Bidder in accordance with the above-stated requirements.

  H. Bidders, other than the bidder who requested a particular equal product or substitution, that choose to utilize that equal product or substitution, as approved by addendum, shall comply with the submittal requirements of Article A-17 subparagraph B.2.g herein. All provisions herein and in the General Conditions regarding the use of said equal product or substitution shall apply to all Bidders who choose to utilize said equal product or substitution.

• Suspect Evidence of Criminal Behavior —

  In addition to the remedies described heretofore in this provision VDOT also exercises its rights with respect to the following remedies:

  • Failure of a bidder, Contractor, or subcontractor to comply with the Virginia Department of Transportation Road and Bridge Specifications and these Special Provisions wherein there appears to be evidence of criminal conduct shall be referred to the Attorney General for the Commonwealth of Virginia and/or the FHWA Inspector General for criminal investigation and, if warranted prosecution.
  • In appropriate cases, VDOT will bring to the attention of the U. S. Department of Transportation (USDOT) any appearance of false, fraudulent, or dishonest conduct in connection with the DBE program, so that USDOT can take the steps, e.g., referral to the Department of Justice for criminal prosecution, referral to the USDOT Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules provided in 49CFR Part 31.
• CONTRACTOR’S PERFORMANCE —

  a) Goods and services must be delivered and rendered strictly in accordance with this bid and shall not deviate in any way from the terms, conditions, prices, quality, quantity, delivery instructions, and specifications of this bid.

  b) All goods and/or services delivered and/or rendered shall comply with all applicable federal, state, and local laws, and shall not infringe any valid patent or trademark. The successful bidder shall indemnify, keep, save, and hold the Town, its officers and employees, harmless from any liability for infringement and from any and all claims or allegations of infringement by the bidder or the Town, its officers and employees, arising from, growing out of, or in any way involved with the goods delivered or services rendered pursuant to this purchase.

  c) In the event that suit is brought against the Town, its officers and/or its employees, either independently or jointly with the bidder, the bidder shall defend the Town, its officers and employees, in any such suit at no cost to them. In the event that final judgment is obtained against the Town, its officers, and/or its employees, either independently or jointly with the bidder, then the bidder shall pay such judgment, including costs and attorney’s fees, if any, and hold the Town, its officers and employees, harmless there from.

  d) The successful bidder shall ensure that its employees shall observe and exercise all necessary caution and discretion so as to avoid injury to person or damage to property of any and all kinds.

  e) The successful bidder shall not, in its product literature or advertising, refer to this purchase or the use of the bidder’s goods or services by the Town of Vienna, Virginia.

  f) The successful bidder shall cooperate with Town officials in performing the specified work so that interference with the Town’s activities will be held to a minimum.

• PREPARATION AND SUBMITTAL OF BID FORM —

  A. Bids shall be submitted via the Town's eProcurement Portal, and shall be complete in every respect. The total bid amount shall be entered in words and figures in the appropriate spaces provided. Where applicable, the unit price or lump sum items, and their extensions, shall be entered in figures in the respective columns provided for each bid item. All entries shall be made in the Pricing Proposal section of the eProcurement Portal. A failure to comply with this requirement may be cause for disqualification of the bid.

  B. For Unit Price bids, in the event of any discrepancies between the unit prices and the extensions thereof or the total bid amount, the unit prices shall govern. For Lump Sum bids, in the event of a discrepancy between the bid amount in writing and that in figures, the written value shall govern. Quantities listed in the Bid Form are an estimation of work only and not a guarantee. Quantities may be greater or less than stated in any given year.

  C. Bids shall not contain any restatement or qualifications of Work to be done. Alternate bids will not be considered unless specifically called for. No oral, telegraphic or telephonic bids, or modifications will be considered.

  D. Bidder shall complete the Vendor Questionnaire in its entirety.

  E. The Bidder will complete the Bid Form in the following manner:

  1. Section G, page 1

  a. At “From”: Enter name and legal address of firm submitting bid,

  b. Enter the total amount of the bid in words and figures,

  2. Section G, page 3

  a. Item H.1: Enter full legal name of the firm. Indicate type of business entity in subparagraph a, b or c,

  b. Item H.3: Fill in signature, name (typewritten or legibly printed), title or position of principal signing the bid, and date of signature and affix Corporate Seal along the right hand margin,

  c. Item I: Fill in all names and addresses of individuals interested as principals in this bid,

  4. Section G, page 5

  The enclosed Bid Bond Form is to be filled in completely, signed, sealed and notarized by both the Principal and the Surety and the appropriate Power(s) of Attorney attached,

  5. Section G, page 7

  a. Enter the name and address of the Bidding Firm,

  b. List all safety violations, as described in Article A-23 herein,

  c. The Principal shall sign the Certification and affix the Corporate Seal,

  d. The signature of the Principal shall be attested by an appropriate Notary,

  6. Section G, page 9

  The appropriate Acknowledgment of Principal of Bidder, must be fully completed and notarized with the notarial seal affixed,

  7. Section G, page 11

  The Small and Minority Business Data information form must be completed,

  8. Section G, page 13

  The Contract Bond Certification shall be filled out and signed by the Bidder’s Surety,

  9. Section G, page 14 (if applicable)

  All Bidders that desire to utilize an equal product or other substitution which has been approved in an Addendum shall submit this form for each separate substitution, notarized, at the time of bid submittal,

  10. Section G, page 16 (if applicable)

  If applicable the form(s) attached for Alternate Bids and/or Unit Prices must be completed in full.

• INFORMATION POSSESSED BY OWNER —

  The Owner will make available for the Contractor’s reasonable review, at the Owner’s offices or together with the Contract Documents, certain boring logs, geotechnical, soils and other reports, surveys and analyses pertaining to the Contract site of which the Owner is aware and has in its possession. Any boring logs that are provided to the Contractor, are only intended to reflect conditions at the precise locations of the borings and do not necessarily reflect site conditions at other nearby locations. The Owner does not provide any warrants as to the accuracy of the boring logs. Reports, surveys and analyses provided by the Owner are for the Contractor’s information only, and their accuracy and completeness are not guaranteed or warranted by the Owner or the A/E, and such reports are not adopted by reference into, nor are they part of the Contract Documents.

  Notwithstanding any factual statement, conclusion, or any language or recommendations contained in such reports, the Contractor assumes full responsibility for inspection of the site and for the means and methods of construction that he employs when performing the Work. The Owner shall not be liable for any additional Work or costs arising as a result of any conclusions reached or assumptions derived by the Contractor from or based upon any such geotechnical, soils and other reports, surveys and analyses which the Owner makes available for the Contractor’s information and review.

• OWNER-PAID PERMITS AND FEES —

  The Owner will not secure nor pay for any permits. Contractor will be required to apply for and obtain all necessary VDOT, County, and Town of Vienna permits prior to the start of any site work.

  The Contractor’s attention is directed to Article 4 describing other permits to be obtained and fees to be paid by the Contractor.

  The foregoing are in addition to other duties and responsibilities of the Owner enumerated herein including, but not limited to, Articles 6 and 9.

• DRUG-FREE WORKPLACE TO BE MAINTAINED BY THE CONTRACTOR —

  (Code of Virginia Section 2.2-4312): During the performance of this contract, the contractor agrees to (i) provide a drug-free workplace for the contractor’s employees; (ii) post in conspicuous places, available to employees and applicants for employment, a statement notifying employees that the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in the contractor’s workplace and specifying the actions that will be taken against employees for violations of such prohibitions, (iii) state in all solicitations or advertisements for employees placed by or on behalf of the contractor that the contractor maintains a drug-free workplace; and (iv) include the provisions of the foregoing clauses in every subcontract or purchase order of over $10,000, so that the provisions will be binding upon each subcontractor or vendor.

  For the purposes of this section, “drug-free workplace” means a site for the performance of work done in connection with a specific contract awarded to a contractor in accordance with the Virginia Public Procurement Act, the employees of whom are prohibited from engaging in the unlawful manufacture, sale, distribution, dispensation, possession, or use of any controlled substance or marijuana during the performance of the contract.

• MODIFICATION OR WITHDRAWAL OF BID —

  A. A Bidder may withdraw his bid from consideration if the price bid was substantially lower than the other bids due solely to a mistake therein, provided the bid was submitted in good faith, and the mistake was a clerical mistake as opposed to a judgment mistake, and was actually due to an unintentional arithmetic error or an unintentional omission of a quantity of Work, labor or material made directly in the compilation of a bid, which unintentional arithmetic error or unintentional omission can be clearly shown by objective evidence drawn from inspection of original Work papers, documents and materials used in the preparation of the bid sought to be withdrawn. The Bidder shall give notice in writing of his claim of right to withdraw his bid within two (2) business days after the conclusion of the bid opening procedure and shall submit original Work papers with such notice.

  Work papers, documents, and materials submitted in support of a withdrawal of bids may be considered as trade secrets or proprietary information.

  B. Prior to the time and date designated for receipt of bids, any bid submitted may be modified or withdrawn by notice to the party receiving bids at the place designated for receipt of bids. Such notice shall be in writing over the signature of the Bidder.

  C. Withdrawn bids may be resubmitted up to the time designated for the receipt of Bids provided that they are then fully in conformance with this Information for Bidders.

  D. Bid security, if any is required, shall be in an amount sufficient for the bid as modified or resubmitted.

  E. A decision denying withdrawal of bid pursuant to Article A-19A herein shall be final and conclusive unless the Bidder institutes legal court action within ten (10) days after receipt of the decision.

  F. If it is determined by the Courts that the decision refusing withdrawal of the bid was arbitrary or capricious, the sole relief shall be withdrawal of the bid and return of his bid security.

• NO DISCRIMINATION AGAINST FAITH-BASED ORGANIZATIONS —

  The Town of Vienna does not discriminate against faith-based organizations as that term is defined in Virginia Code Section 2.2-4343.1.

• NONCONFORMING TERMS AND CONDITIONS —

  If the bidder submits alternate terms and conditions with the bid that do not conform to the terms and conditions in this solicitation, the bid is subject to rejection as non-responsive. The Town reserves the right to permit the bidder to withdraw nonconforming terms and conditions from its bid prior to a determination by the Town of non-responsiveness as a result of the submission of nonconforming terms and conditions.

• OWNER’S RIGHT TO STOP WORK —

  If the Contractor fails to correct defective Work as required herein or persistently fails to carry out the Work in accordance with the Contract Documents, the Owner, by a written order, may order the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated However, this right of the Owner to stop the Work shall not give rise to any duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity.

• ANTI-TRUST —

  By entering into a contract, the bidder/offeror conveys, sells, assigns, and transfers to the Town of Vienna all rights, title and interest in and to all causes of the action it may now have or hereafter acquire under the antitrust laws of the United States and the Commonwealth of Virginia, relating to the particular goods or services purchased or acquired by the Town of Vienna under said contract. Consistent and continued tie bidding could cause rejection of bids by the Procurement Officer and/or investigation for Anti-Trust violations.

• EXCEPTIONS —

  Bidders taking exception to any part or section of this solicitation, including, by way of illustration and limitation, the Specifications, General Terms and Conditions, the Mandatory Terms and Conditions, and any attachments or references hereto, shall indicate such exceptions on the Bid Forms. Failure to indicate any exceptions shall be interpreted as the bidder’s intent to fully comply with the solicitation as written. However, conditional or qualified bids with such exceptions, unless specifically allowed in the solicitation, are subject to rejection in whole or in part as non-responsive.

• OWNER’S RIGHT TO CARRY OUT THE WORK —

  If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within seven (7) days after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may make good such deficiencies using any method of his choosing. In such case, an appropriate Change Order shall be issued deducting from the payments then or thereafter due the Contractor, under the original Contract Documents, the cost of correcting such deficiencies, including compensation for the A/E’s additional services made necessary by such default, neglect or failure. If the payments then or thereafter due the Contractor are not sufficient to cover such amount, the Contractor shall pay the difference to the Owner.

  Neither the Owner nor the A/E nor their officers, agents, assigns or employees are in any way liable or accountable to the Contractor or his surety for the method by which Work performed by the Owner, or at the Owner’s direction, or any portion thereof, is accomplished or for price paid, therefore. Notwithstanding the Owner’s right to carry out a portion of the Work, maintenance and protection of the Work remains the Contractor’s and Surety’s responsibility as provided for in the Performance Bond and Guarantee of Contractor, pursuant, but not limited, to Articles 4 and 12.

• CONSTRUCTION SAFETY —

  A. It shall be required that each bid submitted to the Town for a contract for construction, alteration, and/or repairs, including painting or decorating of a building, highway, street, bridge, sidewalk, culvert, sewer, excavation, grading, or any other construction, include a list of all the following actions which have become final in the three years prior to the bid submission:

  1. Willful violations, violations for failure to abate, or repeated violations, for which the bidder was cited by

  (a) the United States Occupational Safety and Health Administration;

  (b) the Virginia Department of Labor and Industry; or

  (c) the occupational safety and health plan for any other state; or

  2. Three (3) or more serious construction safety violations for which the bidder was cited by the (a) United States Occupational Safety and Health Administration; or (b) the Virginia Occupational Safety and Health Administration; or (c) the occupational safety and health plan from any other state.

  3. Termination of a contract between the Contractor and the Town by the Procurement Officer or his designee for safety violations.

  If the bidder has not received or been the subject of any such violations in the three (3) years prior to the bid submission, then the bidder shall so indicate by certification on the bid form entitled Certification of Safety Violations. The bidder will also indicate on this form each state in which Work was performed in the three (3) years prior to the bid submission.

  B. No Town construction contract, as discussed above, may be bid on by any bidder or contractor who has been the subject of any citations for the type and number of violations listed in aforementioned paragraph A, which have become final within the three (3) years prior to the bid submission.

  1. Notwithstanding the language of paragraph B, above, any bidder or contractor who has been the subject of a violation, as described heretofore in paragraph A, which has become final in the three (3) years prior to the bid submission, may bid, after a mandatory twelve (12) months from the date the violation became final, if the bidder or contractor meets the eligibility criteria set forth in paragraph D, below.

  2. Notwithstanding the language of paragraph B, above, any bidder or contractor who has been the subject of the type and number of violations as described in paragraph A(2), which have become final within three (3) years prior to bid submission, may bid, after a mandatory waiting period of twelve (12) months from the date the last such violation became final, if the bidder or contractor meets the eligibility criteria in paragraph D, below.

  3. Notwithstanding the language of paragraph B, above, any bidder or contractor who has previously been terminated from a Town contract, as described in paragraph A(3), within three (3) years prior to the bid submission, may bid, after a mandatory waiting period of twelve (12) months from the date of termination, if the bidder or contractor meets the eligibility criteria in paragraph D, below.

  C. Prior to bidding on a project, under the provisions of paragraph B, above, a Contractor may request that a determination be made by the Town, regarding its eligibility to submit a bid on a contract under the terms of this resolution. However, this request for determination and any subsequent adjudication process must be completed prior to submitting a bid on any project and the request for determination must be received no later than twenty-one (21) days before bids are due unless otherwise stated in the Advertisement for Bid.

  D. The criteria used by the Town in reviewing the corrective action taken by a bidder or Contractor to prevent the recurrence of safety violations shall include but not be limited to the following:

  • Does the firm have an established safety program? If so, how long has it been in existence?
  • Does the firm incorporate safety and health related issues into their new employee orientation programs?
  • Does the firm include work safety as a part of an employee’s performance evaluation?
  • To what degree does senior/corporate management support safety related matters? Does the firm have a safety policy statement signed by a member of senior/corporate management?
  • Does the firm have a full time Safety Manager? Does this person report to a high level, authoritative position within the Company?
  • Are safety inspections conducted at work sites? If so, how often & by whom?
  • Are safety training programs conducted for employees? If so, how often and by whom?
  • Are safety meetings conducted on site by the firm? If so, how frequently?
  • Does the firm have a visibly active safety committee? If so, how often does it meet? Who serves on the committee?
  • Is the firm an active member of a recognized construction safety organization in the Washington Metropolitan area, or in the state of contractor’s domicile?
  • What is the firm’s Workers Compensation Experience Modification Factor? Are there any evident trends?

  The determination rendered by the Town shall be final unless it is appealed in accordance with the provisions of the solicitation.

  E. It shall be a condition of each Town construction contract, as discussed above, that no Contractor or Subcontractor contracting for any part of the contract Work shall require any laborer, mechanic, or other person employed in the performance of the contract to work in surroundings or under working conditions which are hazardous or unnecessarily dangerous to his safety as determined under construction safety standards promulgated by the U.S. Department of Labor or the Virginia Department of Labor and Industry.

  F. No contractor awarded a Town construction contract shall knowingly employ or contract with any person, company, or corporation for services pursuant to that contract if such person, company or corporation could not have been awarded such contract due to the restrictions in paragraph B, above.

• INDEMNIFICATION —

  The Contractor agrees to indemnify, defend and hold harmless the Town of Vienna, Virginia, its officers, agents, and employees from any claim, damages and actions of any kind or nature, whether at law or in equity, arising from or caused by the use of any materials, goods, or equipment of any kind or nature furnished by the contractor or any services of any kind or nature furnished by the contractor, provided that such liability is not attributable to the sole negligence of the using department or to failure of the using department to use the materials, goods or equipment in the manner already and permanently described by the contractor on the materials, goods or equipment delivered. The vendor agrees to protect the Town from claims involving infringement of patent or copyrights.

• SUSPENSION OF WORK —

  The Owner shall have the authority to suspend the Work, in whole or in part, for such periods and reasons as the Owner may deem necessary or desirable, in its sole discretion, including without limitation:

  1. Unsuitable weather;

  2. Other conditions considered by the Owner to be unfavorable or unsafe for the suitable prosecution of the Work;

  3. Other conditions considered by the Owner to be adverse toward his best interests.

  Any such suspension shall be in writing to the Contractor. The Contractor shall obey immediately such orders of the Owner and shall not resume the Work until so ordered in writing by the Owner. No such suspension of the Work shall be the basis of a claim by the Contractor for any increase in the Contract Sum or for any other damages, losses, costs or expenses whatsoever. Whenever the suspension is for a reasonable time under the circumstances then existing and the cause thereof is beyond the control and is without the fault or negligence of the Contractor, the Contractor shall be entitled to an extension of the Contract Time subject to the provisions of Article 8 herein.

  In the event of suspension of Work, the Contractor will cause his employees including subcontractors to protect carefully his and their materials and Work against damage or injury from the natural and man-made origin such as weather, corrosion, other environmental conditions, theft and vandalism. Such protection shall maintain completed and uncompleted portions of the Work as required by the Contract Documents. If, in the opinion of the, A/E, any Work or material shall have been damaged or injured by reason of failure on the part of the Contractor or any of his subcontractors to so protect same, such Work and materials shall be removed from the work site and replaced at the expense of the Contractor.

• TIE BIDS —

  If there is a tie for low bid and all other considerations are equal, and if the public interest will not permit the delay of re-advertising for bids, the award shall be determined by drawing lots in public.

• AWARD OF CONTRACT —

  The Town will make an award on a unit price basis to the lowest responsive and responsible Bidder.

  A. If separate bids are received for the same total amount or unit price (including authorized discounts and delivery times) and if the public interest will not permit the delay of re-advertisement for bids, a best and final offer will be requested.

  B. The Lowest Bidder is determined by the aggregate amount of the prices set forth in the Bid Form.

  C. A Responsive Bidder shall mean a Bidder who has submitted a Bid which conforms, in all material respects, to the Bidding Documents.

  D. The ability of the low Bidder to provide the required bonds will not of itself demonstrate responsibility of the Bidder.

  E. The Town reserves the right to defer award of this contract for a period of sixty (60) days after the due date of bids. During this period of time, the Bidder shall guarantee the prices quoted in his bid.

• USE AND OCCUPANCY PRIOR TO FINAL ACCEPTANCE BY OWNER —

  The Owner has the right to take possession of and use any completed or partially completed portions of the Work, notwithstanding that the time for completing the entire Work or any portions thereof may, or may not, have expired. The taking of possession and use by the Owner shall be in accordance with the provisions regarding Substantial Completion in Article 9. If such prior use delays the Work, the Contractor may submit a request for a time extension in accordance with the requirements of Article 8. By submitting a request for time extension, the Contractor thereby waives any claims for additional costs, expenses or damages associated with the Owner’s prior use and occupancy.

• RIGHT TO AUDIT AND PRESERVATION OF RECORDS —

  The Contractor shall maintain accurate books, records and accounts of all costs in accordance with generally accepted accounting principles and practices. The Owner or its authorized representative shall have the right to audit the books, records and accounts of the Contractor under any of the following conditions:

  1. If the Contract is terminated for any reason in accordance with the provisions of these Contract Documents in order to arrive at equitable termination costs.

  2. Disagreement(s) between the Contractor and the Owner occurs regarding the amount due the Contractor under the terms of this Contract.

  3. To check or substantiate any amounts invoiced or paid which are required to reflect the costs of the Contractor, or the Contractor’s efficiency or effectiveness under this Contract or in connection with extras, changes, claims, additions, back charges, or other, as may be provided for in this Contract.

  4. If it becomes necessary to determine the Owner’s rights and the Contractor’s obligations under the Contract or to ascertain facts relative to any claim against the Contractor which may result in a charge against the Owner.

  These provisions for an audit shall give the Owner unlimited access during normal working hours to the Contractor’s books, records and accounts under the conditions stated above.

  Unless otherwise provided by applicable statute, the Contractor, from the effective date of final payment or termination hereunder, shall preserve and make available to the Owner for a period of three (3) years thereafter, at all reasonable times at the office of the Contractor and without direct charge to the Owner, all his books, records, documents, and other evidence bearing on the costs and expenses of the Contractor under this Contract and relating to the Work hereunder. Records shall include without limitation photographs, micro-photographs, design and as-built drawings or other authentic reproductions thereof.

  The Owner will make all payments required of it under this Contract subject to audit, under circumstances stated above. Audit may be performed at the Owner’s option, either during the Contract time period or during the above record retention time period. Regardless of authorization, approval or acceptance, signatures or letters which are given by the Owner and are part of the Owner’s control systems or are requested by the Contractor, the payments made under this Contract shall not constitute a waiver of the Owner’s right to audit, nor shall payments constitute a waiver or agreement by the Owner that it accepts as correct the billings, invoices or other charges on which the payments are based. If the Owner’s audit produces a claim against the Contractor, the Owner may pursue all available legal remedies even though it has made all or part of the payments required by this Contract.

  If any audit by the Owner or the Owner’s representative discloses an underpayment by the Owner, the Owner shall have the duty to pay any amounts found by the audit to be owed to the Contractor. If such audit discloses an overpayment, the Contractor shall have the obligation to reimburse the Owner for the amount of the overpayment. The Owner’s right to reimbursement from the Contractor of the overpayment and the duty of the Owner and the Contractor to make reimbursements or payments as described in this Article shall not be terminated or waived until the Owner has completed its audit.

  The Owner’s right to audit and the preservation of records shall terminate at the end of three (3) years as stated hereinabove. The Contractor shall include this “Right to Audit and Preservation of Records” clause in all subcontracts issued by him and he shall require same to be inserted by all lower tier Subcontractors in their subcontracts, for any portion of the Work. Should Contractor fail to include this clause in any such Contract or lower tier Contract, or otherwise fail to ensure the Owner’s rights hereunder, Contractor shall be liable to Owner for all costs, expenses and attorney’s fees which Owner may have to incur in order to obtain an audit or inspection of or the restoration of records which would have otherwise been available to Owner from said persons under this clause. Such audit may be conducted by the Owner or its authorized representative.

• PROHIBITION AS SUBCONTRACTORS UNDER COMPETITIVE SEALED BIDDING —

  No bidder who is permitted to withdraw a bid shall, for compensation, supply any material or labor to or perform any subcontract or other work agreement for the person or firm to whom the contract is awarded or otherwise benefit, directly or indirectly, from the performance of the project for which the withdrawn bid was submitted.

• APPEAL OF DETERMINATION OF NONRESPONSIBILITY —

  A. Any Bidder who, despite being the apparent low bidder, is determined not to be a responsible Bidder for a particular Town contract shall be notified in writing by the Procurement Officer. Such notice shall state the basis for the determination, which shall be final unless the Bidder institutes legal court action within ten (10) days of receipt of the notice.

  B. If it is determined by the Courts that the decision of the Procurement Officer, was arbitrary or capricious, or otherwise in error and the award for the particular Town contract in question has not been made, the sole relief available to the Bidder shall be a finding that the Bidder is a responsive or responsible Bidder for the Town contract in question. Where the award has been made and performance has begun, the Town may declare the contract void upon a finding that this action is in its’ best interest. Where a contract is declared void, the performing contractor shall be compensated for the cost of performance up to the time of such declaration. In no event shall the performing contractor be entitled to lost profits.

• RIGHT TO REVIEW DOCUMENTS AND OTHER MATERIALS —

  In addition to the rights granted to the Owner under Article 3.8, the Owner shall have the right to review and copy any and all of the Contractor’s records pertaining to or relating in any way to this project. Contractor’s records include, but are not limited to, correspondence, memoranda, minutes, reports, intra- office and inter-office communications, work papers, estimating sheets, progress reports, forecasts, audio or video recordings, computer disks and drives, all digital and analog storage devices, films, or any other materials, regardless of physical form or characteristics, which were prepared or obtained in the course of the Work by the Contractor. The Contractor shall make all such documents and records available to the Owner upon ten (10) days written notice to the Contractor of the Owner’s intent to review such documents. The Contractor shall include this “Right to Review Documents and Other Materials” clause in all subcontracts issued by him and he shall require same to be inserted by all lower-tier subcontractors in their subcontracts for any portion of the Work. The Contractor hereby waives any right he may have to additional compensation or time extensions in the event he fails or refuses to produce records pertaining to any such claim as requested by the Owner pursuant to this paragraph. In addition, the Owner may withhold all or any portion of any progress payments which may be otherwise due the event Contractor refuses to comply with is obligations under this paragraph. The review of documents and other records under this clause may be conducted by the Owner or its authorized representatives.

• PROTEST OF AWARD OR DECISION TO AWARD —

  A. Any Bidder or offeror may protest the award or decision to award a contract by submitting a protest in writing to the Procurement Officer or his designee, or other official designated by the Town of Vienna, no later than ten (10) days after the award or the announcement of the decision to award, whichever occurs first; provided, however, that no protest shall lie for a claim that the selected Bidder or offeror is not a responsible Bidder or offeror. The written protest shall include the basis for the protest and the relief sought. The Procurement Officer shall issue a decision in writing within ten (10) days of the receipt of the protest stating the reasons for the action taken. This decision shall be final unless the Bidder or offeror institutes legal court action in the Town of Vienna within ten (10) days of receipt of the written decision.

  B. If prior to award it is determined that the decision to award is arbitrary or capricious, then the sole relief shall be a finding to that effect. The Procurement Officer or her designee, shall cancel the proposed award or revise it to comply with the law. If, after an award, it is determined that an award of a contract was arbitrary or capricious, then the sole relief shall be as hereinafter provided. Where the award has been made but performance has not begun, the performance of the contract may be declared void by the Town. Where the award has been made and performance has begun, the Procurement Officer or his designee may declare the contract void upon a finding that this action is in the best interest of the Town. Where a contract is declared void, the performing contractor shall be compensated for the cost of performance at the rate specified in the contract up to the time of such declaration. In no event shall the performing contractor be entitled to lost profits.

  C. Pending final determination of a protest, the validity of a contract awarded and accepted in good faith in accordance with this article shall not be affected by the fact that a protest or appeal has been filed.

  D. An award need not be delayed for the period allowed a Bidder or offeror to protest, but in the event of a timely protest, no further action to award the contract will be taken unless there is a written determination that proceeding without delay is necessary to protect the public interest or unless the bid or offer would expire.

• ASSIGNMENT OF CONTRACT —

  A contract shall not be assignable by the Contractor, in whole or in part, without the prior written consent of the Town of Vienna, Virginia.

• CONTRACT DOCUMENTS —

  The contract entered into by the parties shall consist of the Invitation For Bid/Request For Proposal, the signed bid/proposal submitted by the Contractor, the Town of Vienna's standard Purchase Order, the Mandatory/Special Specifications, Terms and Conditions, and the General Terms and Conditions, all of which shall be referred to collectively as the Contract Documents.

  If the contractor has a standard contract form, this form shall be submitted with the bid/proposal submittal for the Town's review of its terms and conditions.

• ARTICLE 4 —

  CONTRACTOR

• NEGOTIATION WITH LOWEST RESPONSIBLE —

  INTENTIONALLY OMITTED

• LICENSE REQUIREMENT —

  All firms doing business in the Town of Vienna are required to be organized or authorized to transact business in the Commonwealth of Virginia or include in its bid or proposal a statement describing why the bidder or offeror is not required to be so authorized. Additionally all firms doing business in the Town of Vienna are required to be licensed in accordance with the Town's "Business, Professional and Occupational Licensing (BPOL) Tax" Ordinance. Wholesale and retail merchants without a business location in the Town are exempt from this requirement. Questions concerning the BPOL Tax should be directed to the Finance Department, Business License Office, Telephone number (703) 255-6321. The BPOL License number must be indicated on the submitted bid form.

• SUBCONTRACTING —

  If one or more subcontractors are required, the Contractor is encouraged to utilize small, minority- owned, and women-owned business enterprises. Upon contract award, the prime contractor agrees to make maximum effort to provide the names and addresses of each subcontractor, that subcontractor’s status as defined by the Town of Vienna as a small, minority-owned and/or woman- owned business, and the type and dollar value of the subcontracted goods/services provided.

• DEFINITIONS —

  The Contractor is the person or entity identified in the Owner-Contractor Agreement and is referred to throughout the Contract Documents as if singular in number and masculine in gender. The term Contractor means the Contractor or his authorized representative.

  This entire Contract is not one of agency by the Contractor for Owner but one in which the Contractor is engaged independently in the business of providing the services and performing the Work herein described as an independent Contractor.

• AWARD —

  The contract shall be awarded to the lowest responsive and responsible bidder.

  The Town Council will award all contracts in the amount of seventy-five thousand dollars ($75,000.00) or more.

  The Procurement Officer will award all contracts less than seventy-five thousand dollars ($75,000.00).

  The Procurement Officer shall sign all contract documents, with the exception of "Construction" contracts, and issue a purchase order to the successful bidder/offeror.

• INTEREST IN MORE THAN ONE BID AND COLLUSION —

  Multiple bids received in response to a single solicitation from an individual, firm, partnership, corporation, affiliate, or association under the same or different names will be rejected. Reasonable grounds for believing that a bidder is interested in more than one bid for a solicitation both as a bidder and as a subcontractor for another bidder, will result in rejection of all bids in which the bidder is interested. However, a firm acting only as a subcontractor may be included as a subcontractor for two or more bidders submitting a bid for the work. Any or all bids may be rejected if reasonable grounds exist for believing that collusion exists among any bidders. Bidders rejected under the above provisions shall be disqualified if they respond to a re-solicitation for the same work.

• REVIEW OF CONTRACT DOCUMENTS —

  The Contractor and his Subcontractors shall keep at the site of the Work at least one (1) copy of the drawings and specifications in new condition and shall at all times give the A/E, inspectors, as well as representatives of the Owner access thereto. Further, said drawings shall be the approved sets issued to the Contractor by the appropriate permit agencies. The Contractor shall perform no portion of the Work at any time without the Contract Documents and, when required, approved Shop Drawings, Product Data, Samples or Manuals for such portion of the Work at the site.

• EXPENSES INCURRED IN PREPARING PROPOSAL —

  The Town accepts no responsibility for any expense incurred by the bidder in the preparation and presentation of a bid, such expenses to be borne exclusively by the bidder.

• CONTRACTOR’S REPRESENTATIONS —

  By entering into this Contract with the Owner, the Contractor represents and warrants the following, together with all other representations and warranties in the Contract Documents:

  1. That he is experienced in and competent to perform the type of Work required and to provide the plant, materials, supplies or equipment to be so performed or provided by him.

  2. That he is financially solvent, able to pay his debts as they mature, and possessed of sufficient Working capital to initiate and complete the Work required under the Contract

  3. That he is familiar with all Federal, State, County, Town, municipal and department laws, ordinances, permits, regulations and resolutions which may in any way affect the Work or those employed therein, including but not limited to any special acts relating to the Work or any part thereof.

  4. That such temporary and permanent Work required by the Contract Documents which is to be done by him will be satisfactorily constructed and fit for use for its intended purpose and that such construction will not injure any person or damage any property.

  5. That he has carefully examined the Contract Documents and the site of the Work and that from his own investigations, he has satisfied himself and made himself familiar with: (1) the nature and location of the Work, (2) the character, quality and quantity of materials likely to be encountered, including, but not limited to, all structures and obstructions on or at the project site, both natural and man-made; (3) the character of equipment and other facilities needed for the performance of the Work, (4) the general and local conditions including without limitation its climatic conditions, the availability and cost of labor and the availability and cost of materials, tools and equipment; (5) the quality and quantity of all materials, supplies, tools, equipment, labor and professional services necessary to complete the Work in the manner required by the Contract Documents; and (6) all other matters or things which could in any manner affect the performance and time scale of the Work.

  6. That he will fully comply with all requirements of the Contract Documents.

  7. That he will perform the Work consistent with good workmanship, sound business practice, and in the most expeditious and economical manner consistent with the best interests of the Owner;

  8. That he will furnish efficient business administration and experienced superintendent(s) and an adequate supply of workmen, equipment, tools and materials at all times.

  9. That he will complete the Work within the Contract Time and meet Contract Milestones.

  10. That his Contract price is based upon the materials, systems and equipment required by the Contract Documents, without exception; and

  11. That he has satisfied himself as to the feasibility and correctness of the Contract Documents for the construction of the Work.

• COMPENSATION —

  a) It is the Town’s policy not to pay for any goods or services until the same have been actually received.

  b) Individual contractors shall provide the Purchasing Office their social security numbers and proprietorships, partnerships and corporations shall provide the federal employer identification numbers (Code of Virginia, Section 2.2-4354.2). This information shall be provided in the space indicated on the Bid Form.

  c) The successful bidder shall submit a complete itemized invoice on each item or service, which is delivered under the contract. The successful bidder shall indicate the purchase order number on the front of each invoice and on the outside of each package or shipping container.

  d) Cash discounts shall be deducted in accordance with the terms of the bid.

  e) Payment shall be rendered to the successful bidder for satisfactory compliance with the general terms, conditions and specifications of this bid. The required payment date shall be either:

  (i) the date on which payment is due under the terms of the contract for the provision of such goods or services; or

  (ii) if such date is not established by contract, not more than forty-five (45) days after goods or services are received or not more than forty- five (45) days after the invoice is rendered, whichever is later (Code of Virginia, Section 2.2-4352).

  f) Unless otherwise provided under the terms of the contract for the provisions of goods and services, if the Town fails to pay by the payment date, the Town agrees to pay the financial charge assessed by the successful bidder, which does not exceed one percent per month (Code of Virginia, Section 2.2- 4354.4).

• SUPERVISION AND CONSTRUCTION PROCEDURES —

  The Contractor shall supervise and direct the Work, using his best skill and attention. He shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract; subject, however, to the Owner’s right to reject means and methods proposed by the Contractor which are unsafe or otherwise not in compliance with the Contract Documents.

  The Contractor shall be responsible to the Owner for the acts and omissions of his employees, Subcontractors and Sub-subcontractor’s, suppliers, their agents and employees, and of other persons performing any of the Work and for their compliance with each and every requirement of the Contract Documents, in the same manner as if they were directly employed by the Contractor.

  The Contractor understands and agrees that he shall not be relieved of his obligations to perform the Work in accordance with the Contract Documents either by the activities or duties of the Owner or the A/E in their administration of the Contract or by inspections, tests, or approvals required or performed under Article 7 by persons other than the Contractor.

  Before starting a section of Work, the Contractor shall carefully examine all preparatory Work that has been executed to receive his Work to see that it has been completed. He shall check carefully, by whatever means are required, to ensure that his Work and adjacent related Work will finish to proper quality, contours, planes, and levels.

  The Contractor understands and agrees that the Owner and A/E will not be responsible for and will not have control or charge of construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and they will not be responsible for the Contractor’s failure to carry out the Work in accordance with the Contract Documents. The Owner and the A/E will not be responsible for or have control or charge over the acts or omissions of the Contractor, Subcontractors, or any of their agents or employees, or any other persons performing any of the Work.

  The Contractor shall employ no plant, equipment, materials, methods or persons to which the Owner objects.

  The Contractor shall not remove any portion of the Work or stored materials from the site of the Work except in the case of rejected work or when directed by the A/E.

• NONAPPROPRIATION —

  All funds for payments by the Town under this Contract are subject to the availability of an annual appropriation for this purpose by the Town Council. In the event of nonappropriation of funds by the Town Council for the goods or services provided under this Contract or substitutes for such goods or services which are as advanced or more advanced in their technology, the Town will terminate the Contract, without termination charge or other liability to the Town, on the last day of the then current fiscal year or when the appropriation made for the then current year for the services covered by this Contract is spent, whichever event occurs first. If funds are not appropriated at any time for the continuation of this Contract, cancellation will be accepted by the Contractor on thirty (30) days prior written notice, but failure to give such notice shall be of no effect and the Town shall not be obligated under this Contract beyond the date of termination.

• METHOD OF PAYMENT —

  Upon satisfactory delivery of the merchandise and/or satisfactory completion of the services, all invoices and statements shall reference the purchase order number and be submitted to:

  Town of Vienna

  ATTN: ACCOUNTS PAYABLE

  127 Center St., S. Vienna, VA 22180.

  or email to: ap@viennava.gov

  The prices and payments shall be full compensation for the labor, tools, equipment, transportation and all other incidentals necessary to complete the specified terms and conditions.

• SUCCESSFUL BIDDER’S OBLIGATION TO PAY SUBCONTRACTOR —

  a) The successful bidder awarded the contract for this project shall take one of the two following actions within seven (7) days after the receipt of amounts paid to the successful bidder by the Town for work performed by the successful bidder’s subcontractor(s) under the contract (Code of Virginia, Section 2.2- 4354):

  1. Pay the subcontractor(s) for the proportionate share of the total payment received from the Town attributable to the work performed by the subcontractor(s) under the contract; or

  2. Notify the Town and subcontractor(s), in writing, of their intention to withhold all or a part of the subcontractor’s payment with the reason for nonpayment.

  b) The successful bidder shall pay interest to the subcontractor(s) on all amounts owed by the successful bidder that remain unpaid after seven (7) days following receipt by the successful bidder of payment from the Town for work performed by the subcontractor(s) under the contract, except for amounts withheld as allowed in subparagraph a (2) of this section. Unless otherwise provided under the terms of this contract, interest shall accrue at the rate of one percent (1%) per month.

  c) The successful bidder shall include in each of its subcontractors a provision requiring each subcontractor to include or otherwise be subject to the same payment and interest requirements with respect to each lower-tier subcontractor(s).

  d) The successful bidder’s obligation to pay an interest charge to a subcontractor(s) pursuant to the payment clause in this section may not be construed to be an obligation of the Town. A contract modification may not be made for the purpose of providing reimbursement for such interest charge and a cost reimbursement claim may not include any amount for reimbursement for such interest charge.

• CONTRACT RENEWAL WITH PRICE ADJUSTMENTS NEGOTIATED UP TO CPI-U —

  N/A

• LABOR. MATERIALS AND EQUIPMENT —

  The Contractor will provide all plant property, labor, materials, supplies, equipment and other facilities and things necessary or proper for or incidental to the Work contemplated by this Contract, as required by and in strict accordance with the applicable Contract Documents and required by and in strict accordance with such changes as are ordered and approved pursuant to the Contract and will perform all other obligations imposed on him by this Contract. Final payment will not be made until the Work is so completed.

  Unless otherwise stated in the Contract Documents, the Contractor shall provide and pay for all labor, materials, equipment, tools, construction equipment and machinery, mobilization, water, heat, utilities, transportation, and other facilities and services necessary for the proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work.

  Work and materials which are necessary in the construction, but which are not specifically referred to in the specifications or shown in the drawings but implied by the Contract shall be furnished by the Contractor at his own cost and expense. Such Work and materials shall correspond with the general character of the Work as may be determined by the A/E subject to review as provided in Article 2.2.11.

  The Contractor shall perform at least that percentage of the Work specified in Article 7 of the Owner- Contractor Agreement, with forces that are in the direct employment of the Contractor’s organization. The Contractor shall submit to the Owner within thirty (30) calendar days after award of the Contract for the Work, a designation of the Work to be performed by the Contractor with his own forces. The percentage of the Work to be performed under subcontract shall be calculated by adding the amounts of all subcontracts and dividing this sum by the total amount of the Contract. No portion of the Contract shall be subcontracted or otherwise performed by a party not the Contractor, except with the written consent of the Owner.

  The Contractor shall at all times enforce strict discipline, safety and good order among his employees and shall not employ on the Work any unfit person or anyone not skilled in the task assigned to him.

  If any person employed on the Work by the Contractor shall appear to the Owner to be incompetent or to act in a disorderly, unsafe or improper manner, such person shall be removed immediately at the request of the Owner and shall not be reemployed except on written consent of the Owner.

  No materials or supplies for the Work shall be purchased by the Contractor or by any subcontractor subject to any chattel mortgage, or under a conditional sale or other agreement by which an interest is retained by the seller. The Contractor warrants that he has good title to all materials and supplies used by him in the Work.

  The Contractor shall provide approved sanitary accommodations. All wastes shall be covered, disinfected, incinerated or otherwise disposed of legally.

  All equipment, apparatus and/or devices of any kind to be incorporated into the Work that are shown or indicated on the drawings or called for in the specifications or required for the completion of the Work shall be entirely satisfactory to the Owner as regards operations, capacity and/or performance. No approval, either written or verbal, of any drawings, descriptive data or samples of such equipment, apparatus, and/or device shall relieve the Contractor of his responsibility to turn over the same in good Working order for its intended purpose at the completion of the Work in complete accordance with the Contract Documents. Any equipment, apparatus and/or device not fulfilling these requirements shall be removed from the site and replaced by proper and acceptable equipment, etc., or put in good Working order satisfactory to the Owner without additional cost to the Owner.

• COOPERATIVE PROCUREMENT —

  N/A

• WARRANTY —

  The Contractor warrants to the Owner and the A/E that all materials and equipment furnished under this Contract will be new unless otherwise specified, and that all Workmanship will be of first-class quality, free from faults and defects and in conformance with the Contract Documents and all other warranties and guaranties specified therein including those of the manufacturer. Where no standard is specified for such Workmanship or materials, they shall be the best of their respective kinds. All Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. If required by the Owner, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty is not limited by the provisions of Article 12.

  The Work included in this Contract is heretofore specified. The Contractor will be required to complete the Work specified and to provide all items needed for construction of the project, complete and in good order.

• ANTI-DISCRIMINATION —

  By submitting their bids/proposals all bidders/offerors certify to the Town of Vienna that they will conform to the provisions of the Federal Civil Rights Act of 1964, as amended, where applicable, and Section 2.2-4311 of the Virginia Public Procurement Act which provides:

  In every contract over $10,000.00 the provisions in A and B below apply:

  a) During the performance of this contract, the contractor agrees as follows:

  The Contractor will not discriminate against any employee or applicant for employment because of race, religion, color, sex or national origin except where religion, sex or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the contractor. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause.

  The Contractor, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, will state that such Contractor, is an equal opportunity employer.

  Notices, advertisements and solicitations placed in accordance with federal law, rule or regulation shall be deemed sufficient for the purpose of meeting the requirements of this section.

  b) The Contractor will include the provisions of the foregoing paragraphs in every subcontract or purchase order of over $10,000.00, so that the provisions will be binding upon each subcontractor or vendor.

• ETHICS IN PUBLIC CONTRACTING —

  The provisions contained in Sections 2.2-4367 through 2.2-4377 of the Virginia Public Procurement Act as set forth in the Code of Virginia (1950), as amended, shall be applicable to all contracts solicited or entered into by the Town of Vienna. A copy of these provisions may be obtained from the Procurement Officer upon written request.

  By submitting their bids/proposals, all bidders/offerors certify that their bids/proposals are made without collusion or fraud and that they have not offered or received any kickbacks or inducements from any other bidder/offeror, supplier, manufacturer or subcontractor in connection with their bid/proposal, and that they have not conferred on any public employee having official responsibility for this procurement transaction any payment, loan, subscription, advance, deposit of money, services or anything of more than nominal value, present or promised unless consideration of substantially equal or greater value was exchanged.

• MODIFICATION OF CONTRACT —

  The Town may, upon mutual agreement with the contractor, issue written modifications to the scope of work of this contract, and within the general scope thereof, except that no modifications can be made which will result in an increase of the original contract price by a cumulative amount of more than $50,000.00 or 25% whichever is greater, without the advance written approval of the Mayor and Council. (Section 2.2-4309 of Virginia Public Procurement Act).

  Should it become necessary for the best interest of the Town to make modifications, the same shall be covered by change order. The Contractor shall not begin work on any alteration requiring a change order until the written agreement, setting forth the changes/modifications, has been executed by the Town and the Contractor.

  If a satisfactory agreement cannot be mutually agreed to for any item requiring a change order, the Town reserves the right to terminate the contract as it applies to the items in question and make such arrangements as may be deemed necessary to complete the work.

  The Town may, in writing, omit from the work any item, other than major items, found unnecessary to the project and such omission shall not be a waiver of any condition of the contract nor invalidate any of the provisions thereof. Major items may be omitted by change order.

  The Contractor shall be paid for all work done toward the completion of the item prior to such cancellation, alteration or suspension of the work by the Town.

  A major item shall be construed to be any item, the total cost of which is equal to or greater than ten percent (10%) of the total; contract amount for each separate alternate, computed on the basis of the proposed quantity and the contract unit price.

• CONTRACTOR-PAID TAXES, PERMITS, FEES AND NOTICES —

  The Contractor shall pay all sales, consumer, use and other similar taxes for the Work or portions thereof provided by the Contractor which are legally enacted at the time bids are received, whether or not yet effective. Taxes to be paid by the Construction Contractor shall include, but shall not be limited to, the Town of Vienna Business, Professional and Occupational License Tax (a gross receipts tax).

  Except as provided in Article 3, the Contractor will be responsible for obtaining and paying for all other fees, permits and licenses necessary for the proper execution of the Work, including but not limited to:

  1. Plumbing, Electrical, Mechanical Permits and inspections;

  2. Temporary water meter, temporary electrical and telephone line installations and temporary utility usage;

  3. Temporary security lighting and fencing;

  4. All other permits necessary in order to perform the Work shall be secured by the Contractor and fees necessary in order to perform the Work shall be paid by him as part of this Contract at no additional cost to the Owner.

  The Contractor shall give all notices and comply with all laws, ordinances, rules, regulations, permits, resolutions and lawful orders of any public authority bearing on the performance of the Work; including but not limited to OSHA, Title 40.1 Chapter 3 of the Code of Virginia, and Title VII of the Civil Rights Act of 1964, as amended. All safety violations shall be corrected immediately upon receipt of notice of violation.

• COMPLIANCE —

  All demolition and excavation shall comply with the rules and regulations for the prevention of accidents as issued by the Department of Labor and Industry of the Commonwealth of Virginia and the Town of Vienna.

  To the extent of the Work indicated in the Contract Documents, the Contractor shall comply, and the construction shall conform to all applicable and current editions or revisions of the following codes, specifications and standards.

  1. Contract Documents;

  2. The Virginia Uniform Statewide Building Code, as amended (BOCA and NEC);

  3. The Virginia Department of Transportation Road and Bridge Specifications; Road and Bridge Standards; Roadway Design Manual; Informational and Instructional Memoranda; Virginia Work Area Protection Manual; and other applicable documents (current editions).

  4. Town of Vienna standards and regulations

  If the Contractor (or any person in contract with the Contractor relating to the subject project) knew, or should have known, using a normal, professional standard of care, that an error, inconsistency, omission, ambiguity, discrepancy, conflict or variance exists in the Contract Documents, or between the Contract Documents and any of the codes, specifications and standards set forth in 4.8.2 herein, the Contractor has the obligation to seek a clarification thereof from the Owner prior to the time the Work is performed which is affected by such error, inconsistency, omission, ambiguity, discrepancy, conflict or variance. The Contractor shall not be liable for damages relating thereto, if he has met this obligation. The Owner will welcome such a clarification request and, if deemed necessary by the Owner, the Owner will issue a written instruction clarifying the matter in question. Should the Contractor fail to seek such a clarification thereof immediately upon the discovery of the need therefore, prior to the time the said Work is performed, the Contractor thereby assumes all risk of loss related to such error, inconsistency, ambiguity, discrepancy, conflict or variance which the Contractor (and any person in contract with Contractor relating to the subject project) knew or should have known existed prior to the time the Work was performed.

  Any material or operation specified by reference to publications, published specifications of a Manufacturer, a Society, an Association, a Code, or other published Standard, shall comply with the requirements of the referenced document which is current on the date of receipt of bids. If the Contractor observes that any of the Contract Documents are at variance therewith in any respect, he shall promptly notify the A/E in writing, with a copy to the Owner. The A/E will make such judgments as are necessary and notify the Contractor prior to the performance of the Work.

  If the Contractor performs any Work to be contrary to such laws, ordinances, permits, rules, regulations and resolutions, he shall assume full responsibility therefore and shall bear all costs attributable thereto.

  The Contractor/Consultant shall comply with all laws and regulations of the Commonwealth of Virginia and the United States with respect to the employment of unauthorized aliens. Contractor/Consultant shall not hire or subcontract any portion of the work under this Contract to any individual the Contractor knows or reasonably should know to be an unauthorized alien as defined by 8 U.S.C. §1324a(h)(3). A violation of this provision shall constitute a material breach of the Contract and the Town may, in its sole discretion, terminate the contract. In the event the Contract is terminated for a cause by the Contractor or its Subcontractor’s hiring of unauthorized aliens, Contractor hereby waives any claim to lost profits and the Town may proceed in accordance with the termination and default provision of section 4.11.12.

  The Contractor will be held responsible for locating all underground structures such as water, oil and gas mains, water and gas services, storm and sanitary sewers and telephone and electric conduits which may be encountered during the construction operation. He shall dig test holes to determine the position of the underground structures. The Contractor shall pay the cost of digging test holes and likewise he shall pay the cost of the services of the representatives of the owners of such utilities for locating the said utilities. The cost of determining the location of any and all utilities is to be included in the bid price. The Owner shall pay the owners of such utilities for fees or charges for relocation of gas, electric, telephone, cable or other lines and/or services indicated to be relocated by others.

  The Contractor shall have Miss Utility locate all utilities on the site which are within the area of the Work. If utilities are marked which are not shown on the plans, the Contractor shall immediately notify the Owner and the A/E of such findings. The Owner and A/E shall provide direction to the Contractor within a reasonable period of time if additional Work is required as a result of the utility findings. Any costs or expenses associated with locating such utilities may be the basis of a Change Order as provided in Article 11.

• CRIMINAL SANCTIONS —

  The provisions referenced in Item 27 supplement, but do not supersede, other provisions of law including, but not limited to, the State and Local Government Conflict of Interests Act (§§ 2.2-3100 et seq.), the Virginia Governmental Frauds Act (§§ 18.2-498.1 et seq.), and Articles 2 (§§ 18.2-438 et seq.) and 3 (§§

  18.2-446 et seq.) of Chapter 10 of Title 18.2. The provisions apply notwithstanding the fact that the conduct described may not constitute a violation of the State and Local Government Conflict of Interests Act.

• INSURANCE —

  The Contractor shall provide the Procurement Officer with a Certificate of Insurance PRIOR to the start of any work under the contract and agrees to maintain such insurance until the completion of the contract. The minimum limits of liability shall be:

  Workers' Compensation -- Standard Virginia Workers' Compensation Policy Broad Form Comprehensive General Liability--$2,000,000.00.

  Combined Single Limit coverage to include:

  Premises - Operations; Products/Completed Operations; Contractual; Independent Contractors; Towns and Contractors

  Protective; Personal Injury (Libel, Slander, Defamation of Character, etc.) Automobile Liability--$500,000.00 Combined Single Limit.

  The Town of Vienna, Virginia is to be named as an additional insured and this is to be so noted on Certificate of Insurance.

  The policy shall be delivered to the Town of Vienna PRIOR to the commencement of any work.

  A thirty (30) day written notice of cancellation or non-renewal shall be furnished by certified mail to the Procurement Officer at the address indicated on the solicitation.

  My signature on this solicitation constitutes certification that, if I am awarded the contract, I shall obtain the required coverage as specified herein within ten (10) days of notification of award.

• HOLD HARMLESS CLAUSE —

  Bids shall provide for the contractor holding harmless the Town of Vienna and representatives thereof from all suits, actions, or claims of any kind brought on account of any injuries or damages sustained by any person or property in consequence of any neglect in safeguarding contact work, or on account of any act or omission by the contractor or its employees, or from any claim or amounts arising or recovered under any law, bylaw, ordinance, regulation or decree.

• ALLOWANCES —

  The Special Conditions will contain provisions for allowances; if such is applicable to this Contract.

• APPLICABLE LAW AND COURTS —

  Any contract resulting from this solicitation shall be governed in all respects by the laws of the Commonwealth of Virginia and any litigation with respect thereto shall be brought in the courts of the Commonwealth. The Contractor shall comply with applicable federal, state and local laws and regulations.

• SUPERINTENDENT —

  The Contractor shall employ a competent Superintendent and necessary assistants who shall be in attendance at the Project site during the progress of the Work. The Superintendent shall have full authority to represent the Contractor and all communications provided or furnished to the Superintendent shall be as binding as if given to the Contractor.

  It is understood that such Superintendent shall be acceptable to the Owner and shall be one who will be continued in that capacity for duration of this project, unless he ceases to be on the Contractor’s payroll. The Superintendent shall not be employed on any other project during the performance of this Contract.

• LAWS AND REGULATIONS —

  The Contractor shall give all notices and comply with all laws, ordinances, rules, regulations and lawful orders of any public authority bearing on the performance of the work.

  The Contractors and Subcontractors shall comply with the Virginia Contractor's Registration Law, Title 54.1, Chapter 11, Code of Virginia (1950), as amended.

  All non-resident Contractors and Subcontractors submitting bids on the work described herein shall register with the Department of Labor and Industry under the provisions of Subsection 40.1-30 of the Code of Virginia (1950), as amended.

  This contract and all other contracts and subcontracts are subject to the provisions of Articles 3 and 5, Chapter 4, Title 40.1, Code of Virginia (1950), as amended, relating to labor unions and the "right to work", and all Contractors and Subcontractors, whether residents or non-residents of the Commonwealth, who perform work related to the project shall comply with all of said provisions.

  The Contractor shall furnish the Town copies of affidavits upon request giving original dates, renewal dates and expiration dates of all labor contracts related to any phase of the work to be performed on the job site under this contract.

  The provisions of all rules and regulations governing safety as adopted by the Safety Codes Commission of the Commonwealth of Virginia, issued by the Department of Labor and Industry under Title 40.1 of the Code of Virginia (1950), as amended, shall apply to all work under this contract.

  When there as conflict between state or local contract language and federal rules, the federal-aid or most conservative rule prevail.

• LAWS AND REGULATIONS —

  The Contractor shall give all notices and comply with all laws, ordinances, rules, regulations and lawful orders of any public authority bearing on the performance of the work.

  The Contractors and Subcontractors shall comply with the Virginia Contractor's Registration Law, Title 54.1, Chapter 11, Code of Virginia (1950), as amended.

  All non-resident Contractors and Subcontractors submitting bids on the work described herein shall register with the Department of Labor and Industry under the provisions of Subsection 40.1-30 of the Code of Virginia (1950), as amended.

  This contract and all other contracts and subcontracts are subject to the provisions of Articles 3 and 5, Chapter 4, Title 40.1, Code of Virginia (1950), as amended, relating to labor unions and the "right to work", and all Contractors and Subcontractors, whether residents or non-residents of the Commonwealth, who perform work related to the project shall comply with all of said provisions.

  The Contractor shall furnish the Owner copies of affidavits upon request giving original dates, renewal dates and expiration dates of all labor contracts related to any phase of the work to be performed on the job site under this contract.

  The provisions of all rules and regulations governing safety as adopted by the Safety Codes Commission of the Commonwealth of Virginia, issued by the Department of Labor and Industry under Title 40.1 of the Code of Virginia (1950), as amended, shall apply to all work under this contract.

  The Contractor/Consultant shall comply with all laws and regulations of the Commonwealth of Virginia and the United States with respect to the employment of unauthorized aliens. Contractor/Consultant shall not hire or subcontract any portion of the work under this Contract to any individual the Contractor knows or reasonably should know to be an unauthorized alien as defined by 8 U.S.C. §1324a(h)(3). A violation of this provision shall constitute a material breach of the Contract and the Town may, in its sole discretion, terminate the contract.

• CONTRACT RATES —

  N/A

• CONSTRUCTION SCHEDULE —

  The Contractor shall complete all work within 180 days from Notice to Proceed.

  It is the sole responsibility of the Contractor to prepare, maintain, update, revise and utilize the Construction Schedule as outlined in this document. The schedule shall be the sole overall Construction Schedule utilized by the Contractor in managing this project, provided, however, that Contractor may at its option employ and utilize other schedules based upon and consistent with the Construction Schedule. In general, it is the intent of this Paragraph to allow the Contractor to choose its own means, methods and construction procedures consistent with good practice and the Contract Documents.

  If the Contractor should submit a schedule or express an intention to complete the Work earlier than any required Milestone or Completion date, the Owner shall not be liable to the Contractor for any costs or delay should the Contractor be unable to complete the Work before such Milestone or Completion date. The duties, obligations and warranties of the Owner to the Contractor shall be consistent with and applicable only to the completion of the Work on the Milestone and completion dates required in the Owner-Contractor Agreement.

  Approval by the Owner of the Construction Schedule is advisory only and shall not relieve the Contractor of the responsibility for accomplishing the Work within each and every required Milestone and Completion date. Omissions and errors in the approved Construction Schedule shall not excuse performance which is not in compliance with the Contract. Approval by the Owner in no way makes the Owner an insurer of the Construction Schedule’s success or liable for time or cost overruns flowing from its shortcomings. The Owner hereby disclaims any obligation or liability by reason of Owner approval of the Construction Schedule.

  Contractor shall consult with and obtain information from principal Subcontractors necessary in preparation of the schedules, updates and revisions required herein. Contractor shall provide each principal Subcontractor with copies of the Construction Schedule and any revisions or updates affecting a Subcontractor’s Work. Contractor shall hold appropriate progress meetings with Subcontractors and shall direct and coordinate the Work of Subcontractors consistent with and as required herein. Owner shall have the right to attend Subcontractor progress meetings but shall not be required to participate in such meetings or provide information to Subcontractors, except through the Contractor. Contractor shall keep up-to-date minutes of Subcontractor progress meetings and shall provide same to Owner in a timely fashion. The Contractor shall ensure that each Subcontractor, Sub-subcontractor, supplier and manufacturer acknowledges and accepts the requirements of the Construction Schedule relating to their part of the Work.

  If Contractor’s Construction Schedule indicates that Owner or a separate Contractor is to perform an activity by a specific date or within a certain time duration, Owner or any separate Contractor shall not be bound to said date or duration unless Owner expressly and specifically agrees in writing to same. The Owner’s overall review and approval or acceptance of the schedule does not constitute an agreement to specific dates or durations for activities of the Owner or any separate contractor.

  The Contractor’s Superintendent shall maintain at the job site, an up to date, approved Construction Schedule, indicating actual monthly progress for those portions of the project on which Work has been or is being performed.

  If an extension or contraction of any Milestone or Completion Date is authorized by any Change Order, the Contractor shall revise his Construction Schedule, Milestone and Completion Dates accordingly.

  If, in the opinion of the Owner, the Construction Schedule does not accurately reflect the actual progress and sequence of the Contractor’s performance of the Work, the Contractor shall revise the Construction Schedule, upon the Owner’s written request. The Contractor shall submit, within seven (7) days following a request for schedule revision, a revised Construction Schedule that accurately represents the progress and sequence of the Contractor’s performance of the Work.

  Owner shall have the right to approve or reject any scheduling consultant that may be selected or retained by Contractor.

  Contractor covenants and guarantees that Contractor will not:

  1. Misrepresent to Owner its’ planning and scheduling of the Work;

  2. Utilize schedules materially different from those made available to the Owner or any Subcontractors for the direction, execution and coordination of the Work, or which are not feasible or realistic;

  3. Prepare schedules, updates, revisions or reports which do not accurately reflect Contractor’s actual intent or Contractor’s reasonable and actual expectations as to:

  (a) The sequences of activities,

  (b) The duration of activities,

  (c) The responsibility for activities,

  (d) Resource availability,

  (e) Labor availability or efficiency,

  (f) Expected weather conditions,

  (g) The value associated with the activity,

  (h) The percentage complete of any activity,

  (i) Completion of any item of Work or activity,

  (j) Project completion,

  (k) Delays, slippages, or problems encountered or expected,

  (I) Subcontractor requests for time extension, or delay claims of subcontractors,

  (m) Float time available.

  4. Hire or subcontract any portion of the work under this Contract to any individual the Contractor knows or reasonably should know to be an unauthorized alien as defined by 8 U.S.C. §1324a(h)(3).

  Contractor’s failure to substantially comply with the foregoing covenant and guarantee of Paragraph 4.11.11 shall be a substantial and material breach of contract which will permit Owner to terminate Contractor for default, or withhold payments under the Contract Documents, and shall entitle Owner to the damages afforded for misrepresentation or fraud by these Contract Documents or applicable law.

  Should Contractor fail to substantially comply with the provisions of the Contract Documents relating to scheduling and execution of the Work by the overall project schedule, Owner shall have the right, at its option, to retain the services of scheduling consultants or experts, including attorneys whenever necessary in the opinion of the Owner, to prepare schedules, reports, updates and revisions of the schedule in accordance with the Contract Documents and to review and analyze same in order to allow Owner and A/E to evaluate the program of the Work by Contractor, to determine whether Contractor is substantially complying with the Contract Documents and to direct such action of the part of the Contractor, as required to ensure, under the Owner’s schedule prepared hereunder, that Contractor will complete the Work within the Contract Time. All costs and expenses and fees incurred by Owner in preparing the schedule hereunder shall be charged to Contractor’s account. If Contractor fails to substantially comply with the scheduling and execution of the Work requirements of the Contract Documents, Contractor hereby agrees, in such instance, to comply with such Owner-prepared schedules, directions and activity sequences and durations as Owner may reasonably require without additional cost to the Owner. Cost adjustments may be allowed for such changes that add additional tasks to the Work as the Owner may direct, to ensure completion within the Contract Time.

  The Construction Schedule shall be utilized by Owner, A/E and Contractor for submission, review and approval of monthly Payment Requests. The schedule must be updated by Contractor monthly with each progress payment application and submitted to the Owner and A/E for review with the progress payment application. Owner shall not be required to process and review Contractor’s Application for Payment if Contractor has failed or refused to provide the scheduling update information required herein.

  The type of schedule to be utilized on this project, along with its particular elements, shall be as specified in Section F, Supplemental/Special Conditions.

• LABELING OF HAZARDOUS SUBSTANCES —

  If the items or products requested by this solicitation are "Hazardous Substances" as defined by 3.1-250 of the Code of Virginia (1950), as amended, 42

  U.S.C. § 11001 et seq., or 42 U.S.C. § 9601 et seq., then the bidder/offeror, by submitting his bid/proposal, certifies and warrants that the items or products to be delivered under this contract shall be properly labeled as required by the foregoing sections and that by delivering the items or products that the bidder/offer does not violate any of the prohibitions of Sec. 3.1-252 or the Code of Virginia or Title 15 U.S.C. Sec. 1263.

• RESPONSIBILITY FOR COMPLETION —

  The Contractor shall furnish such manpower, materials, facilities and equipment and shall Work such hours, including night shifts, overtime operations, Sundays and holidays, as may be necessary to ensure the performance of the Work within the Milestone and Completion dates specified in the Owner- Contractor Agreement. If it becomes apparent to the Owner that the Work will not be Completed within required Milestone or Completion dates, the Contractor agrees that it will assume full responsibility to take some or all of the following actions, at no additional cost to the Owner, in order to ensure, in the opinion of the Owner, that the Contractor will comply with all Milestone and Completion date requirements:

  1. Increase manpower, materials, crafts, equipment and facilities;

  2. Increase the number of Working hours per shift, shifts per Working day, Working days per week, or any combination of the foregoing;

  3. Reschedule activities to achieve maximum practical concurrency of accomplishment of activities.

  If the actions taken by the Contractor are not satisfactory, the Owner may direct the Contractor to take any and all actions necessary to ensure completion within the required Milestone and Completion dates, without additional cost to the Owner. In such event, the Contractor shall continue to assume responsibility for his performance and for completion within the required dates.

  If, in the opinion of the Owner, the actions taken by the Contractor pursuant to this or the progress or sequence of Work are not accurately reflected on the Construction Schedule, the Contractor shall revise such schedule to accurately reflect the actual progress and sequence of Work.

  Failure of the Contractor to substantially comply with the requirements of this Article may be considered grounds for a determination by the Owner, pursuant to Article 14, that the Contractor is failing to prosecute the Work with such diligence as will ensure its completion within the time specified.

  The Owner may, at its sole discretion and for any reason, including when it is apparent to the A/E or Owner that the Work will be completed within the required Milestone or Completion dates, require the Contractor to accelerate the Schedule of Performance by providing overtime, Saturday, Sunday and/or holiday Work and/or by having all or any Subcontractors designated by the Owner provide overtime, Saturday, Sunday, and/or holiday Work. In the event that the Owner requires overtime, Saturday, Sunday or holiday Work by the Contractor’s or his Subcontractors own forces, and such requirement is not related in any way to the Contractor’s apparent inability to comply with Milestone and Completion date requirements, the Owner shall reimburse the Contractor for the direct costs to the Contractor of the premium time for all labor utilized by the Contractor in such overtime, Saturday, Sunday or holiday Work (but not for the straight time costs of such labor), together with any Social Security and State or Federal unemployment insurance taxes in connection with such premium time. However, no overhead supervision costs, commissions, profit or other costs and expenses shall be payable in connection therewith.

  This provision does not eliminate the Contractor’s responsibility to comply with the Town noise ordinances, all VDOT permit requirements and all other applicable state and local laws, regulations, rules, ordinances, resolutions, and permit requirements.

• MATERIAL SAFETY DATA SHEETS —

  Material Safety Data Sheets (MSDS) and descriptive literature shall be provided with the bid/proposal or delivered materials for each chemical and/or compound offered. Failure of the bidder/offeror to submit such data sheets may be cause for declaring the bid/proposal as non-responsive.

• DEBARMENT STATUS —

  By submitting their bids, Bidders certify that they are not currently debarred by the Commonwealth of Virginia or any Political Subdivision from submitting bids on contracts for the type of services covered by this solicitation, nor are they an agent of any person or entity that is currently so debarred.

• DOCUMENTS AND SAMPLES AT THE SITE —

  The Contractor shall, at the Owner’s direction, maintain at the site for the Owner one record copy of all Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and marked currently to record all changes made during construction, and approved Shop Drawings, Product Data, Samples and Manuals. These items shall be available to the A/E. These items shall be delivered to the Owner upon completion of the Work.

  The Owner shall provide one complete set of sealed contract drawings, from the latest revision, designated for as-built revision, at the beginning of the Contract to the Contractor. This set of drawings is to be returned to the A/E prior to final payment with all as-built information drawn to scale onto the sealed drawings. During the course of the construction, these drawings may be used by the Contractor for general reproduction purposes.

• COOPERATIVE PROCUREMENT —

  Intentionally omitted.

• SHOP DRAWINGS, PRODUCT DATA, SAMPLES AND MANUALS —

  SHOP DRAWINGS are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or any Subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work.

  PRODUCT DATA are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Contractor to illustrate a material, product or system for some portion of the Work.

  SAMPLES are physical examples which illustrate materials, equipment or Workmanship and establish standards by which the Work will be judged.

  MANUALS are manufacturer’s installation, start-up, operating, maintenance and repair instructions, together with parts lists, pictures, sketches and diagrams which set forth the manufacturer’s requirements, for the benefit of the Contractor and the Owner.

  The Contractor shall review, approve and submit, with reasonable promptness and in such sequence as to cause no delay in the Work or in the Work of the Owner or any separate contractor, all Shop Drawings, Product Data, Samples and Manuals required by the Contract Documents.

  Unless otherwise directed in writing, the Contractor shall submit not less than eight (8) copies of each Shop Drawing or Product Data to the A/E and one (1) copy to the Owner. The Owner will return four (4) copies of each approved submittal directly to the Contractor.

  Where the Contract calls for the submittal of manufacturer’s data to the A/E for information only, such submittals shall be made before the commencement of any portion of the Work requiring such submission.

  By approving and submitting Shop Drawings, Product Data, Samples and Manuals, the Contractor represents that he has determined and verified all materials, field measurements, and field construction criteria related thereto, or will do so, and that he has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents.

  Parts and details not fully indicated on the contract drawings shall be detailed by the Contractor in accordance with standard engineering practice. Dimensions on the contract drawings, as well as detailed drawings themselves are subject in every case to measurements of existing, adjacent, incorporated and completed Work, which shall be taken by the Contractor before undertaking any Work dependent on such data.

  The Contractor shall not be relieved of responsibility for any deviation from the requirements of the Contract Documents by the Owner or A/E’s approval of Shop Drawings, Product Data, Samples or Manuals under Article 2 unless the Contractor has specifically informed the Owner and A/E in writing of such deviation at the time of submission and the Owner has given written approval for the specific deviation. The Contractor shall not be relieved from responsibility for errors or omissions in the Shop Drawings, Product Data, Samples or Manuals by the A/E’s approval thereof.

  The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data or Samples, to revisions other than those requested by the Owner or A/E on previous submittals.

  No portion of the Work requiring submission of Shop Drawings, Product Data or Samples shall commence until the submittal has been approved by the Owner and A/E as provided in Article 2. All such portions of the Work shall be in accordance with approved submittals.

  For substances that are proposed for use in the project that may be hazardous to human health, the Contractor shall submit to the A/E, for information only, information on precautions for safety using these substances, including certification of registration by the Contractor with authorities under the respective Virginia and Federal Toxic Substances Control Acts.

  Unless otherwise modified by the Owner in writing, the Contractor shall label or stamp and number all Shop Drawings, Product Data, Samples or Manuals as hereinafter prescribed.

  In order to indicate that the submittals have been Reviewed and Approved by the Contractor as to conformance to the Contract Documents, the Contractor shall have made and shall use labels and/or a rubber stamp which shall materially conform to the following sample:

  Submittal No. _____________________________________

  For Contract No. _____________________________________, Project No. ___________________________________

  Contractor: ____________________________________________________

  REVIEWED and APPROVED for Conformance with the Contract Documents

  By: __________________________________________________________________ Date:_________________________

  (Signature)

  References:

  Drawing Sheet No’s.: ________________________________________________

  Specification Section No’s.: ___________________________________________

  The Contractor shall utilize a ten (10) character submittal identification numbering system in the following manner:

  1. The first character shall be a D or S or M, which represents Shop/Working Drawing and other Product Data (D); Sample (S) or Operating/Maintenance Manual (M).

  2. The next five (5) digits shall be the applicable Specification Section Number.

  3. The next three (3) digits shall be the numbers 001-999 to sequentially number each separate item or drawing submitted under each specific Section number.

  4. The last character shall be a letter, A-Z, indicating the submission or resubmission of the same drawing, i.e., A=lst submission, B=2nd submission, C=3rd submission, etc. A typical submittal number would be as follows:

  D-03300-008-B

  D = Shop Drawing

  03300 = Specification Section for Concrete

  008 = The eighth different submittal under this specification.

  B = The second submission (1st resubmission) of that particular drawing.

  The Contractor shall submit a copy of each submittal transmittal sheet (for shop drawings, product data, samples or manuals) to the Owner simultaneously with the Contractor’s submission of said drawings, data, samples or manual packages to the A/E.

• EQUAL PRODUCTS —

  The term “Product” as used herein refers to materials, equipment, supplies, articles, fixtures, devices, types of constructions, fabrications, software, instruction manuals, methods of constructions or other items either produced, manufactured or purchased, related to the Work, as appropriate.

  All products provided shall, whenever specified and otherwise wherever practicable, be the standard products of recognized, reputable manufacturers. Unless otherwise provided in the Contract Documents, the naming of a certain product brand, make, manufacturer or article, device, product, material, fixture or type of construction shall convey the general style, type, character and standard of quality of the article desired and shall not be construed as limiting competition. The Contractor may request approval of the Owner to use another brand, make, manufacturer, article, device, product, material, fixture, form or type of construction which the Contractor judges to be equal to that specified. An item shall not be considered by the Owner for approval as equal to the item so named or described unless it (1) it is at least equal in quality, durability, appearance, strength, and design; (2) it will perform at least equally the specific function imposed by the general design for the Work being contracted for or the material being purchased; and (3) it conforms substantially, even with deviations, to the detailed requirements for the item in the specifications. Approval shall be at the sole discretion of the Owner and will be based upon considerations of quality, Workmanship, economy of operation, suitability for the purpose intended, and acceptability for use on the project. Any such approval must be in writing to be effective, and the decision of the Owner shall be final.

  If the Contractor elects to use an equal product previously approved by an Addendum during bidding, and the Contractor (as a Bidder) did not provide the “Contractor Request for Equal Product and Contractor’s Representations” form prior to the opening of bids, he shall comply with the requirements of paragraph 4.15.5. However, it is not necessary to submit the data required in 4.15.4.

  To obtain such approval of equal products other than those specified in Contract Documents, and not previously approved during the bidding, the Contractor’s request for approval of any equal product shall include the following:

  1. Complete data substantiating compliance of the proposed equal product with the Contract Documents;

  2. Accurate cost data on proposed equal product in comparison with product or method specified;

  3. Product identification including manufacturer’s name, address, internet site and phone number;

  4. Manufacturer’s literature showing complete product description, performance and test data, and all reference standards;

  5. Samples and colors in the case of articles or products;

  6. Names and address of similar projects on which the product was used and date of installation;

  7. For construction methods, include a detailed description for the proposed method and drawings illustrating same;

  8. All directions, specifications, and recommendations by manufacturers for installation, handling, storing, adjustment, and operation.

  The Contractor shall also submit with his request for approval a sworn and notarized statement which shall include all of the following representations by the Contractor, namely that:

  1. He has investigated the proposed equal product and determined that it is equal or better in all respects to that specified and that it fully complies with all requirements of the Contract Documents;

  2. He will meet all contract obligations with regard to this substitution;

  3. He will coordinate installation of accepted equal products into the Work, making all such changes and any required schedule adjustments, at no additional cost to the Owner, as may be required for the Work to be complete in all respects;

  4. He waives all claims for additional costs and additional time related to equal products. He also agrees to hold the Owner harmless from claims for extra costs and time incurred by Subcontractors and suppliers, or additional services which may have to be performed by the A/E, for changes or extra Work that may, at some later date, be determined to be necessary in order for the Work to function in the manner intended in the Contract Documents;

  5. He will provide the same warranty and guarantee, and perform any Work required in accordance therewith, for the equal product that is applicable to the specified item for which the equal product is requested;

  6. Material will be installed, handled, stored, adjusted, tested, and operated in accordance with the manufacturers’ recommendation and as specified in the Contract Documents;

  7. In all cases new materials will be used unless this provision is waived by notice from the Owner or unless otherwise specified in the Contract Documents;

  8. All material and Workmanship will be in every respect, in accordance with that which in the opinion of the Owner, is in conformity with approved modern practice;

  9. He has provided accurate cost data on the proposed equal product in comparison with the product or method specified, if applicable.

  The Owner may require tests of all products proposed as equal products so submitted to establish quality standards, at the Contractor’s expense. After approval of an equal product, if it is determined that the Contractor submitted defective information or data regarding the equal product upon which Owner’s approval was based, and that unexpected or uncontemplated redesign or rework of the project will be required in order to accommodate the equal product, or that the item will not perform or function as well as the specified item for which equal product was requested, the Contractor will be required to furnish the original specified item or request approval to use another equal product. The Contractor shall pay all costs, expenses or damages associated with or related to the unacceptability of such an equal product and the resultant utilization of another item and no time extension shall be granted for any delays associated with or related to such an equal product.

  If an equal product is approved, no change in brand or make will be permitted unless satisfactory, written evidence is presented to and approved by the Owner that the manufacturer cannot make scheduled delivery of the approved item. Equal products will not be considered for approval by the Owner if any of the following conditions exist:

  1. The proposed equal product is indicated or implied on the Contractor’s shop drawing or product data submittals and has not been formally submitted for approval by the Contractor in accordance with the above-stated requirements;

  2. Acceptance of the proposed equal product will require substantial design revisions to the Contract Documents or is otherwise not acceptable to the Owner.

  Except as otherwise provided for by the provisions of any applicable laws, the Contractor shall not have any right of appeal from the decision of the Owner disapproving any products submitted if the Contractor fails to obtain the approval for an equal product under this Article.

  If the Contractor proposes a product which the Owner determines is not equal to the product named in Contract Documents but which the Owner nevertheless is willing to accept, Contractor shall provide upon request by the Owner an itemized comparison of the proposed substitution with the product specified and the cost differential which shall be credited to the Owner in a Change Order issued in accordance with Article 11.

• RECORD RETENTION/TOWN AUDITS —

  a) The successful bidder shall retain, during the performance of the contract and for a period of five (5) years from the completion of the contract, all records pertaining to the successful bidder’s bid and any contract awarded pursuant to this Invitation for Bid. Such records shall include but not be limited to all paid vouchers including those for out-of- pocket expenses; other reimbursement supported by invoices, including successful bidder’s copies of periodic estimates for partial payments; ledgers; cancelled checks; deposit slips; bank statements; journals; contract amendments and change orders; insurance documents; payroll documents; timesheets; memoranda; and correspondence. Such records shall be available to the Town on demand and without advance notice during the successful bidder’s normal working hours.

  b) Town personnel may perform in-progress and post-audits of the successful bidder’s records as a result of a contract awarded pursuant to this Invitation for Bid. Files would be available on demand and without notice during normal working hours.

• USE OF SITE —

  4.16.1 The Contractor shall confine his operations at the site to areas permitted by law, ordinances, permits, easements, right-of-way agreements and the Contract Documents. The Contractor shall not unreasonably encumber the site, in the opinion of the Owner, with any materials, equipment or trailers nor shall he block the entrances or otherwise prevent reasonable access to the site, other Working and parking areas, completed portions of the Work and/or properties, storage areas, areas of other facilities that are adjacent to the Worksite. If the Contractor fails or refuses to move said material, equipment or trailers within 24 hours of notification by the Owner to so do, the Owner shall have the right, without further notice, to remove, at the Contractor’s expense, any material, equipment and/or trailers which the Owner deems are in violation of this paragraph.

• MODIFICATION OF CONTRACT —

  The Town may, upon mutual agreement with the Contractor, issue written modifications to the scope of work of this contract, and within the general scope thereof, except that no modifications can be made which will result in an increase of the original contract price by a cumulative amount of more than $50,000.00 or twenty-five percent (25%) of the amount of the original contract, whichever is greater, without the advance written approval of the Mayor and the Town Council. (Section 2.2-4309 of Virginia Public Procurement Act).

  Should it become necessary, for the best interest of the Town, to make modifications, the same shall be covered by change order. The Contractor shall not begin work on any alteration requiring a change order until the agreement, setting forth the changes/modifications, has been executed in writing by the Town and the Contractor.

  If a satisfactory agreement cannot be mutually agreed to for any item requiring a change order, the Town reserves the right to terminate the contract as it applies to the items in question and make such arrangements as may be deemed necessary to complete the work.

  The Town may, in writing, omit from the work any item, other than major items, found unnecessary to the project and such omission shall not be a waiver of any condition of the contract nor invalidate any of the provisions thereof. Major items may be omitted by change order.

  The Contractor shall be paid for all work done toward the completion of the item prior to such cancellation, alteration or suspension of the work by the Town.

  A major item shall be construed to be any item, the total cost of which is equal to or greater than ten percent (10%) of the total; contract amount for each separate alternate, computed on the basis of the proposed quantity and the contract unit price.

• CUTTING AND PATCHING OF WORK —

  The Contractor shall be responsible for all cutting, fitting or patching that may be required to complete the Work and to make its several parts fit properly and in accordance with the Contract Documents.

  The Contractor shall not damage or endanger any portion of the Work or the Work of the Owner or any separate contractors by cutting, patching or otherwise altering any Work, or by excavation. The Contractor shall not cut or otherwise alter the Work of the Owner or any separate contractor except with the written consent of the Owner and of such separate contractor. The Contractor shall not unreasonably withhold from the Owner or any separate contractor his consent to cutting or otherwise altering the Work. The Owner shall not be required to accept Work with a cut, splice, or patch when such cut, patch or splice is not generally accepted practice for the particular Work involved or is otherwise unworkmanlike in the opinion of the Owner.

• SPECIFICATION FAMILIARITY —

  a) It is the Bidder’s responsibility to examine this entire IFB carefully. If a question arises as to the meaning or intent of these documents, inquiry must be made in writing to the Procurement Officer.

  b) The submission of a bid shall indicate that the Bidder thoroughly understands the terms and conditions of the IFB.

• RIGHT TO PUBLISH —

  The Contractor agrees that he will not publish, cause to be published, or otherwise disseminate any information of whatever nature relating to the Work being performed under this Contract, except as may be approved by the Owner in writing.

• CONTRACT AND FORMS —

  a) Bidders are advised that the Town does not sign standard contract forms that may be used by the bidder. The selected Bidder will be expected to enter into a contract with the Town for the commodities outlined in this IFB. The form of contract will be the Town’s Purchase Order and/or Agreement.

  b) The bid form contains a signature line for the bidder that must be signed when submitting a bid. The signature certifies the bidder is an agent of officer authorized to bind the Contractor to the terms and conditions of the IFB.

• SITE CLEAN UP —

  The Contractor at all times shall keep the Project site free from accumulation of waste materials or rubbish caused by his operations. Before final payment is made, the Contractor shall remove all of his waste materials, rubbish, scrap materials, debris, tools, construction equipment, machinery, surplus materials, false Work, temporary structures, including foundations thereof and plant of any description, from the Project site and put the site in a neat, orderly condition.

  If the Contractor fails to clean up, as required herein, at any time during the performance of the Work or at the completion of the Work, the Owner may do so as provided herein, and the cost thereof shall be charged to the Contractor.

• ADDENDA AND INTERPRETATIONS —

  No interpretation of the meaning of these documents will be made to any bidder orally. Any request for an interpretation must be in writing addressed to Town of Vienna, 127 Center Street, South, Vienna, VA 22180, Attention: Procurement Officer or emailed to jerry.amacker@viennava.gov. To be given consideration, requests must be received at least five days prior to the date fixed for the submission of Bids. Any and all such interpretations and any supplemental instructions will be returned in writing to the prospective bidder requesting such interpretations, or will be in the form of written addenda which, if issued, will be sent to all prospective bidders, at the respective addresses furnished for such purpose, not later than three days prior to the date fixed for the submission of Bids. Failure of any bidder to receive any such addenda or interpretations shall not relieve said bidder from any obligation under his Bid as submitted. All addenda so issued shall become part of the Contract Documents.

• INSURANCE —

  The Contractor shall provide the Procurement Officer with a Certificate of Insurance PRIOR to the start of any work under the contract and agrees to maintain such insurance until the completion of the contract. The minimum limits of liability shall be:

  Workers' Compensation -- Standard Virginia Workers' Compensation Policy

  Broad Form Comprehensive General Liability--$1,000,000.00.

  Combined Single Limit coverage to include:

  Premises - Operations;

  Products/Completed Operations;

  Contractual; Independent Contractors;

  Owners and Contractors

  Protective; Personal Injury (Libel, Slander, Defamation of Character, etc.)

  Automobile Liability--$500,000.00 Combined Single Limit.

  The Town of Vienna, Virginia is to be named as an additional insured and this is to be so noted on Certificate of Insurance.

  The policy shall be delivered to the Town of Vienna PRIOR to the commencement of any work.

  A thirty (30) day written notice of cancellation or non- renewal shall be furnished by certified mail to the purchasing office at the address indicated on the solicitation.

  Contractor’s signature on this solicitation constitutes certification that, if awarded the contract, Contractor shall obtain the required coverage as specified herein within ten (10) days of notification of award.

• PATENTS, ROYALTIES, ETC —

  The Contractor guarantees to save harmless the Owner, its officers, agents, servants and employees from liability of any kind or nature, including cost, expense and attorney’s fees on account of suits and claims of any kind for violation or infringement of any letters patent or patent rights by the Contractor, or by anyone directly or indirectly employed by him, or by reason of the use of any art, process, method, machine, manufacture, or composition of matter patented or unpatented in the performance of this Contract in violation or infringement of any letter or rights. The Contractor agrees to pay all royalties, fees, licenses, etc. required in respect of the Work or any part thereof as part of his obligations hereunder without any additional compensation.

• ANTI-DISCRIMINATION IN EMPLOYMENT —

  By submitting their bids/proposals all bidders/offerors certify to the Town of Vienna that they will conform to the provisions of the Federal Civil Rights Act of 1964, as amended, where applicable, and Section 2.2-4311 of the Virginia Public Procurement Act which provides:

  In every contract over $10,000.00 the provisions in A and B below apply:

  a) During the performance of this contract, the contractor agrees as follows:

  The Contractor will not discriminate against any employee or applicant for employment because of race, religion, color, sex or national origin except where religion, sex or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the contractor. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause.

  The Contractor, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, will state that such Contractor, is an equal opportunity employer.

  Notices, advertisements and solicitations placed in accordance with federal law, rule or regulation shall be deemed sufficient for the purpose of meeting the requirements of this section.

  b) The Contractor will include the provisions of the foregoing paragraphs in every subcontract or

  purchase order of over $10,000.00, so that the provisions will be binding upon each subcontractor or vendor.

• WORKER’S COMPENSATION AND EMPLOYER’S LIABILITY —

  a) The successful Bidder’s/Offeror’s insurance shall cover the bidder/offeror and its subcontractors of every tier of those sources of liability which would be covered by the latest edition of the standard Worker’s Compensation Policy, as filed for use in the Commonwealth of Virginia by the National Council on Compensation Insurance, without restrictive endorsements, but including Broad Form All States Endorsement. In addition to coverage for the Virginia Worker’s Compensation Act, where appropriate, coverage is to be included for the United States Longshore and Harbor Worker’s Compensation Act, Maritime including Jones Act, Federal Liability Act and any other applicable federal or state law.

  b) Subject to the restrictions of coverage found in the standard Worker’s Compensation Policy, there shall be no maximum limit on the amount of coverage for liability imposed by the Virginia Worker’s Compensation Act, the United States Longshore and Harbor Worker’s Compensation Act, or any other coverage customarily insured under Part One of the standard Worker’s Compensation Policy. The minimum amount of coverage for those coverages customarily insured under Part Two of the standards Worker’s Compensation (inclusive of any amounts provided by an umbrella or excess policy) shall be $1,000,000 bodily injury by accident each accident, $1,000,000 bodily injury by disease each employee, and $1,000,000 bodily injury by disease policy limit or aggregate where such aggregate is applicable under the terms of the standard Worker’s Compensation Policy.

• PROFESSIONAL LIABILITY —

  a) The successful bidder/offeror shall provide the Town of Vienna with an Errors and Omissions Liability Policy (E&O Policy). The policy shall cover the Town of Vienna for all sources of liability which would be covered by the latest edition of the standard Errors and Omissions Liability Coverage Form, as filed for use in the Commonwealth of Virginia by the Insurance Services Office without the attachment of restrictive endorsements.

  b) The policy shall be endorsed to include the Town of Vienna’s officials, officers, agents and employees as insured. The E&O Policy shall include the successful Offeror and the offeror’s subcontractors of every tier as the designated in the declarations.

  c) The minimum E&O Policy limits to be provided by the successful Offeror (inclusive of any amounts provided by an umbrella or excess policy) shall be $1,000,000 per occurrence combined single limit for bodily injury liability and property damage liability. The limits afforded by the E&O Policy (or umbrella or excess policy with respect to it) shall apply only to the Town of Vienna officials, officers, agents and employees and only to claims arising out of or in connection with the work under this contract.

  The insurance provided by the successful Offeror pursuant to the resulting contract shall apply on a primary basis and any other insurance or self-insurance maintained by the Town of Vienna or the Town of Vienna official, officer, agent or employee shall be excess of and not contributing with the insurance provided by or on behalf of the Offeror.

  The coverages other than Worker’s Compensation may be either on an occurrence or a claims-made basis. Provided, however, that claims-made coverage for other than the Products/Completed Operations shall respond to claims arising out of accidents, occurrences, incidents and offenses happening after the commencement of the resulting contract but before the end of the contract completion date provided that the claim is made within five years after the contract completion date.

  Prior to commencing work under a resulting contract, the successful Offeror shall furnish the Town of Vienna with a Certificate(s) of Insurance naming the Town of Vienna, its officers, employees and agents, as additional insureds, giving a forty-five (45) day notice of cancellation, non-renewal, or change in the insurance coverage, and/or restrictions.

• CONTRACT SECURITY —

  The Successful Bidder shall deliver to the Owner five (5) copies of a Performance Bond and a separate Labor and Material Payment Bond in a form acceptable to the Owner and each in an amount required by the Contract Documents in Section A, Information to Bidders, Paragraph A-I0 as security for the faithful performance of the Contract, and the payment of all persons performing labor and furnishing materials in connection with this Contract. The amount of the Performance and Payment Bonds shall be increased to the same extent the Contract Sum is increased due to modifications. The form of bonds shall be acceptable to the Owner and the surety shall be such surety company or companies as are acceptable to the Owner and as are authorized to transact business in the Commonwealth of Virginia. The cost of such bonds shall be included in the Contractor’s proposal amount.

  If the amount of all Work subcontracted to any one Subcontractor is in excess of $10,000, the Contractor may at his option require such Subcontractor to furnish a Labor and Material Payment Bond with surety thereon, in the amount of fifty percent (50%) of the amount of the Subcontract. If such bonds are provided, the Contractor shall ensure that the surety corporation providing the bond for the Subcontractor, is licensed to do business in Virginia.

  The Contractor shall ensure that all sureties providing bonds for the Project will give written notice to the Owner, at least thirty (30) days prior to the expiration or termination of the bond(s).

  If, at any time, any surety or sureties becomes insolvent or is determined by the Owner to be unable to adequately secure the interest of the Owner, the Contractor shall within (30) days after notice from the Owner to do so, substitute an acceptable bond(s) in such form and sum and signed by such other sureties as may be satisfactory to the Owner. The premiums on such bond(s) shall be paid by the Contractor.

• ARTICLE 5 —

  SUBCONTRACTORS

• SAFETY —

  All contractors and subcontractors performing services for the Town of Vienna are required to comply with OSHA standards and accepted safety rules and regulations.

• DEFINITIONS —

  A Subcontractor is a person or entity who has a direct contract with the Contractor to perform or supply any of the Work at the site. The term Subcontractor is referred to throughout the Contract Documents as if singular in number and masculine in gender and means a Subcontractor or his authorized representative. The term Subcontractor does not include any separate contractor or his Subcontractors.

  A Sub-subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform or supply any of the Work at the site. The term Sub-subcontractor is referred to throughout the Contractor Documents as if singular in number and masculine in gender and means a Sub-subcontractor or an authorized representative thereof.

  The A/E will not deal directly with any Subcontractor or Sub-subcontractor or materials supplier. Unless otherwise authorized, communication by the A/E will be made only through the Owner to the Contractor. Subcontractor, Sub-subcontractors or material suppliers shall route requests for information or clarification through the Contractor to the NE, with a copy to the Owner.

• OWNERSHIP OF PRODUCTS/SERVICES —

  All control work, compilation of notes, work sheets, and any and all interim and final products and materials shall be the sole property of the Town of Vienna.

• COLLUSION —

  By submitting a bid/proposal in response to this solicitation, the Bidder/Offeror represents that in the preparation and submission of this bid/proposal, said Bidder/Offeror did not, either directly or indirectly, enter into any combination or arrangement with any person, Bidder/Offeror or corporation or enter into any agreement, participate in any collusion, or otherwise take any action in the restraint of free, competitive bidding in violation of the Sherman Act (15 U.S.C. Section 1) or Sections 59.1-9.1 through 59.1-9.17 or Sections 59.1-68.6 through 59.1-68.8 of the Code of Virginia.

• AWARD OF SUBCONTRACT AND OTHER CONTRACTS FOR PORTIONS OF THE WORK —

  Subcontractors shall be subject to the approval of the Owner. The Contractor shall submit to the Owner and A/E prior to the award of any subcontract for Work under this contract and thirty (30) calendar days after the award of this contract, the proprietary names and the suppliers of principal items or systems of materials and equipment proposed for the Work, the names and addresses, internet sites, business and emergency phone numbers of the Subcontractors which he proposes to employ under this contract, as well as such other information as may be requested by the Owner, including the Subcontractor(s) Notification Form. The Owner will approve or disapprove each Subcontractor and supplier based upon his apparent financial soundness and responsibility, his known or reported performance on previous similar Work, and his available plant, equipment and personnel to perform the Work. The Contractor shall not employ a Subcontractor or supplier which has been disapproved by the Owner and shall resubmit names of proposed Subcontractors or suppliers until approvals are granted by the Owner. Disapproval of a proposed Subcontractor or supplier shall not affect the contract price.

  The Contractor shall make no substitution for any Subcontractor, person or entity previously selected without the specific written approval by the Owner of such substitution.

• SUBCONTRACTUAL RELATIONS —

  By an appropriate written agreement, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by the terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities which the Contractor, by these Documents assumes toward the Owner and the A/E. Said agreement shall preserve and protect the rights of the Owner and the A/E under the Contract Documents with respect to the Work to be performed by the Subcontractor so that the subcontracting thereof will not prejudice such rights, and shall allow to the Subcontractor, unless specifically provided otherwise in the Contractor- Subcontractor agreement, the benefit of all rights, remedies and redress against the Contractor that the Contractor, by these Documents, has against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with his Sub-subcontractor’s. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract, copies of all of the Contract Documents, and identify to the Subcontractor any terms and conditions of the proposed subcontract which may be at variance with the Contract Documents. Each Subcontractor shall similarly make copies of such Documents available to his Sub-subcontractor’s. Each subcontract agreement shall ensure that the Subcontractor is in compliance with all appropriate provisions of the Contract Documents.

  The provisions herein regarding Subcontractor approvals shall in no way affect the liability of the Contractor to Owner regarding performance of all obligations by or payment of Subcontractors. Approval to subcontract and of any given Subcontractor shall not to any degree relieve the Contractor of his obligation to perform or have performed to the full satisfaction of the Owner all of the Work required by this Contract.

• ARTICLE 6 —

  Article Removed. Continue to Article 7

• ARTICLE 7 —

  MISCELLANEOUS PROVISIONS

• GOVERNING LAW —

  The provisions of this contract shall be interpreted in accordance with the laws of Virginia, in accordance with the laws, ordinances, regulations, permits, zoning and resolutions of the Town of Vienna, Virginia. When there as conflict between state or local contract language and federal rules, the federal-aid or most conservative rule prevail.

• PROVISIONS REQUIRED BY LAW DEEMED INSERTED —

  Each and every provision of law and clause required by law to be inserted in this Contract shall be deemed to be inserted herein and the Contract shall be read and enforced as though it were included herein and if through mistake or otherwise, any such provision is not inserted or is not correctly inserted, then upon the application of either party, the Contract shall forthwith be physically amended to make such insertion.

• SUCCESSORS AND ASSIGNS —

  The Owner and the Contractor each binds himself/herself, their partners, successors, assigns and legal representatives to the other party hereto and to the partners, successors, assigns and legal representatives of such other party in respect to all covenants, agreements and obligations contained in the Contract Documents. Neither party to the Contract shall assign the Contract or sublet it as a whole without the written consent of the other, nor shall the Contractor assign any monies due or to become due to him hereunder, without the previous written consent of the Owner and the Contractor’s Surety.

  In the event the Contractor desires to make an assignment of all or part of the Contract or any monies due or to become due hereunder, the Contractor shall file a copy of consent of surety, together with a copy of the assignment to the Owner and A/E. In the event the Contractor assigns all or any part of the monies due or to become due under this Contract, the instrument of assignment shall state that the right of assignees in and to any monies due to or to become due to Contractor shall be subject to prior liens and claims of all persons, firms and corporations that provided labor services or furnished material and equipment during the performance of the Work. The rights of assignees shall further be subject to the payment of any liens, claims, or amounts due to Federal or State governments.

• CONTRACT CLAIMS AND DISPUTES —

  Subsequent to a final decision rendered in writing by the Project Engineer as described in Article 2.2.14, all claims, disputes or other matters or questions between the Contractor and the Owner or A/E arising out of or relating to the performance of the Work or any termination hereunder shall be decided by the Director of Public Works or his designated representative. The Director of Public Works and/or his designated representative shall issue his decision within thirty (30) days of his receipt of the claim, dispute or other matter. This decision shall be final unless the Contractor files a claim with the Town of Vienna pursuant to VA Code 15.2 – 1245-1249 (1950 as amended). Following the decision of the Town on the claim, the Contractor may institute legal action in the Circuit Court of Fairfax County.

• ATTORNEYS’ FEES AND OTHER EXPENSES —

  The Contractor hereby agrees that he will not submit, assert, litigate or otherwise pursue any claims that are without substantial justification. In the event that the Contractor’s claim, or any separate item of a claim, is without substantial justification, the Contractor shall be liable to the Owner and shall pay the Owner for the percentage of all costs and expenses incurred by the Owner in investigating, analyzing, negotiating, appealing, and litigating the claim. The reimbursement shall be proportional to the percentage of the Contractor’s total claim which is determined to be without substantial justification.

  If the Contractor breaches the obligation stated in 7.5.1 above or any other obligation under the Contract Documents, the Contractor shall reimburse the Owner for all costs and expenses incurred by the Owner relating to such breach, including but not limited to attorneys’ fees, audit costs, accountants’ fees, expert witness’ fees, additional A/E expenses and any other consultant costs.

  If the Owner prevails in a claim brought against the Contractor, including but not limited to, claims for fraud or misrepresentation, overpayment, defective Work, delay damages, and recovery of termination expenses, the Contractor shall reimburse the Owner for all costs and expenses incurred by the Owner relating to such claim, including but not limited to attorneys’ fees, audit costs, accountants’ fees, expert witness’ fees, additional A/E expenses and any other related consultant costs.

• RIGHTS AND REMEDIES —

  The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law, not inconsistent with the Contract Documents.

  No action or failure to act by the Owner, A/E or Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing.

  Contractor agrees that he can be adequately compensated by money damages for any breach of this Contract which may be committed by the Owner and hereby agrees that, no default, act, or omission of the Owner or the Architect, except for failure to make payments as required by the Contract Documents, shall constitute a material breach of the Contract entitling Contractor to cancel or rescind the provisions of this Contract or, unless the Owner shall so consent or direct in writing, to suspend or abandon performance of all or any part of the Work. Contractor hereby waives any and all rights and remedies to which he might otherwise be or become entitled, saving only its right to money damages.

• TESTS —

  If the Contract Documents, laws, ordinances, rules, regulations, permits, resolutions or orders of any public authority having jurisdiction require any portion of the Work to be inspected, tested or approved, the Contractor shall give the Owner timely notice of its readiness so that the Owner or the A/E or other representatives of the Owner may observe such inspection, testing or approval. The Contractor shall bear all costs normally chargeable to Contractor of such inspections, tests or approvals conducted by public authorities.

  All materials and Workmanship, if not otherwise designated by the specifications, shall be subject to inspection, examination or test by the Owner, A/E, and other representatives of the Owner, at any and all times during the manufacture and/or construction and at any and all places where such manufacture and/or construction are carried on. Special, full-sized and performance tests shall be as described in the specifications. Without additional charge, the Contractor shall furnish promptly all reasonable facilities, labor and materials necessary to make tests safe and convenient.

  The selection of bureaus, laboratories and/or agencies for the inspection and tests of supplies, materials or equipment shall be subject to the approval of the Owner. Satisfactory documentary evidence, including but not limited to certificates of inspection and certified test reports, that the material has passed the required inspection and tests must be furnished to the Owner by the Contractor prior to the incorporation of the materials in the Work or at such times as to allow for appropriate action by the Owner.

  Inspection or testing performed exclusively for the Contractor’s convenience shall be the sole responsibility of the Contractor. Tests required as a result of the Contractor’s or Subcontractor’s error, omission or non-compliance with the Contract Documents, shall be paid for by the Contractor.

  It is specifically understood and agreed that an inspection and approval of the materials by the Owner shall not in any way subject the Owner to pay for the said materials or any portion thereof, even though incorporated in the Work, if said materials are subsequently found out to be unfit to be used in the Work, nor shall such inspection be considered as any waiver of objection to the Work on account of the unsoundness or imperfection of the material used.

• ARTICLE 8 —

  CONTRACT TIME

• DEFINITIONS —

  Unless otherwise provided, the Contract Time is the period of time specified in the Owner-Contractor Agreement for Substantial Completion of the Work as defined herein, including authorized adjustments thereto. The Contractor shall complete his Work within the Contract Time.

  The date of commencement of the Work is the date established in a Notice to Proceed. If there is no Notice to Proceed, it shall be the date of the Owner-Contractor Agreement, or such other date as may be established therein.

  The Contractor shall not commence Work, deposit or store materials or equipment on site until written Notice to Proceed is issued or until the Contractor otherwise receives the Owner’s written consent. The contractor shall commence Work no later than ten (10) days after date of the Notice to Proceed.

  The date of Substantial Completion of the Work or designated portion thereof is the date determined by Owner when:

  (1) construction is sufficiently complete, in accordance with the Contract Documents, so the Owner can occupy or utilize the Work or designated portion thereof for the use for which it is intended; and

  (2) the Contractor has satisfied all other requirements for Substantial Completion which may be set forth in the Contract Documents.

  The date of Final Completion of the Work is the date determined by the Owner when the Work is totally complete, to include punch list Work, in accordance with the Contract Documents and the Owner may fully occupy and utilize the Work for the use for which it is intended.

  The term day as used in the Contract Documents shall mean calendar days unless otherwise specifically designated.

• PROGRESS AND COMPLETION —

  All time limits stated in the Contract Documents are of the essence of the Contract.

  The Contractor shall begin the Work on the date of commencement as defined herein. He shall carry the Work forward expeditiously with adequate forces and shall achieve Substantial and Final Completion as required by the Contract Documents.

• CLAIMS FOR TIME EXTENSIONS —

  The time during which the Contractor is delayed in the performance of the Work, by the acts or omissions of the Owner, the A/E or their employees or agents, acts of God, unusually severe and abnormal climatic conditions, fires, floods, epidemics, quarantine restrictions, strikes, riots, civil commotions or freight embargoes, or other conditions beyond the Contractor’s control and which the Contractor could not reasonably have foreseen and provided against, shall be added to the time for completion of the Work (i.e., the Contract Time) stated in the Agreement; provided that the Contractor submits a request for extension of time for delays in compliance with the requirements of this Article and other all other related provisions of the Contract Documents.

  The Owner shall not be obligated or liable to the Contractor for, and the Contractor hereby expressly waives any claims against the Owner on account of any indirect or direct damages, costs or expenses of any nature which the Contractor, its Subcontractors, or Sub-subcontractor’s or any other person may incur as a result of (1) any delays, reasonable or unreasonable, foreseeable or unforeseeable which are either not caused by the acts or omissions of the Owner, its agents or employees or which arise from or out of (or owing to) causes not within the control of the Owner, its agents or employees, or (2) any reasonable delay regardless of its cause, it being understood and agreed that the Contractor’s sole and exclusive remedy in any such events shall be an extension of the Contract Time, but only as determined in accordance with the provisions of the Contract Documents.

  The burden of proof to substantiate a claim for an extension of the Contract Time shall rest with the Contractor, including evidence that the cause was beyond his control. It shall be deemed that the Contractor has control over the supply of labor, materials, equipment, methods and techniques of construction and over the Subcontractors and suppliers, unless otherwise specified in the Contract Documents.

  In the event of authorized Changes in the Work, any consideration by the Owner for a time extension will be made no later than when the Change Order is prepared.

  No time extensions will be granted as a result of the Contractor’s improper or unreasonable scheduling or for the Contractor’s failure to have Shop Drawings, Product Data, Samples or Manuals submitted in ample time for review under a reasonable and agreed upon schedule.

  Delays by Subcontractors or suppliers will not be considered justification for a time extension, except for the same valid reasons and conditions enumerated herein.

  The Contractor acknowledges and agrees that actual delays due to changes, suspension of Work or excusable delays, in activities which according to the schedule do not affect the Contract Time will not be considered to have any effect upon the Contract Time and therefore will not be the basis for a time extension.

  The Contractor acknowledges and agrees that time extensions will be granted only to the extent that: (1) excusable delays exceed the available flexibility in the Contractor’s schedule; and (2) Contractor can demonstrate that such excusable delay actually caused, or will cause, delay to the Contractor’s schedule that will extend the Contract Time.

  With respect to Suspensions of Work under Paragraph 3.6 herein, the Contractor shall be entitled to an extension of the Contract Time not to exceed the length of time that the Work was suspended (unless as determined under this Article and the other requirements of the Contract Documents that a further extension is justified and warranted) if the claim is submitted in accordance with the requirements of this Article, and if the suspension is not due to any act or omission of the Contractor, any Subcontractor or Sub-subcontractor or any other person or organization for whose acts or omission the Contractor may be liable. The Contractor’s claim will be evaluated in accordance with the terms of this Article.

  The Contractor shall not be entitled to any extension of time for delays resulting from any conditions or other causes unless it shall have given written notice to the Owner, within seven (7) calendar days following the commencement of each such condition or cause, describing the occurrence, the activities impacted and the probable duration of the delay. The Contractor’s complete claim submittal for a time extension shall be submitted no later than twenty (20) calendar days after cessation of the delay or within such other longer period as the Owner may agree in writing to allow.

  No such extension of time shall be deemed a waiver by the Owner of his right to terminate the Contract for abandonment or delay by the Contractor as herein provided or to relieve the Contractor from full responsibility for performance of his obligations hereunder.

  The Contractor shall be liable to the Owner and shall pay it for a percentage of all costs incurred by the Owner in investigating, analyzing, negotiating, resolving any claim for costs or damages due to the alleged delaying of the Contractor in the performance of the Work, which percentage shall be equal to the percentage of the Contractor’s total delay claim which is determined to be false or to have no basis in law or in fact.

• CHANGE ORDER WORK —

  The Contractor shall make every reasonable effort to perform Change Order Work within the Contract Time and in such manner as to have minimum delaying effects on all remaining Work to be performed under the contract. If, however, the Change Order Work results in an unavoidable increase in the time required to complete the project, an extension of the Contract Time may be granted to the Contractor for the Change Order Work. The Contractor’s request therefore shall be determined in accordance with the provisions of Article 8.3 herein and as follows:

  1. If the time required for performance of the Change Order Work has an unavoidable direct delaying effect on the primary sequence of Work activities remaining after rescheduling (e.g., the critical path in CPM type scheduling), the overall contract time may be extended by the minimum number of days required for the Change Order Work as mutually agreed upon by the Owner and the Contractor;

  2. If the time required for performance of the Change Order Work does not have an unavoidable direct delaying effect on the primary sequence of Work activities but is ordered by the Owner at a time such that insufficient Contract Time remains for completion of the Change Order Work (and any limited number of contingent Work activities), the Contract Time may be extended by the minimum number of days required for the Change Order Work as mutually agreed upon by the Owner and the Contractor but only for the Change Order Work and contingent activities, all other unaffected Work shall be performed within the Contract Time;

  3. Failure of the Owner and the Contractor to agree on a Contract Time extension as specified in

  8.4.1.1 and 8.4.1.2 above shall not relieve the Contractor from proceeding with and performing the Change Order Work promptly, as well as in such manner as to have minimal delaying effects on all remaining Work to be performed under the Contract. Such disagreement shall be resolved as soon as practical by negotiation.

• LIQUIDATED DAMAGES FOR DELAY —

  The damages incurred by the Owner due to the Contractor’s failure to complete the Work within required Milestone dates and the Contract Time, including any extensions thereof, shall be in the amount set forth in the Owner-Contractor Agreement, for each consecutive day beyond the Milestone dates or the Contract Time (Sundays and all holidays included) for which the Contractor fails to complete the Work.

  The amount of liquidated damages provided in Article 4 of this Contract is neither a penalty nor a forfeiture and shall compensate the Owner solely for the Owner’s inability to use the Work for its fully intended purpose, and is not intended to, nor does said amount include: (1) any damages, additional or extended costs, incurred by the Owner for extended administration of this Contract, or by the Owner’s agents, consultants or independent contractors for extended administration of this Contract, or (2) any additional services, relating to or arising as a result of the delay in the completion of the Work. Owner shall be entitled to claim against Contractor for its actual damages and any amounts not specifically included within the liquidated damages as set forth herein. Such costs shall be computed separately and together with liquidated damages, either deducted from the Contract Sum or billed to the Contractor, at the option of the Owner.

  The following Schedule of Liquidated Damages, representing the cost of administration, engineering, supervision, inspection and other expenses, will be charged against the Contractor for each calendar day beyond the Contract time limit that the Contract remains in an incomplete state:

  Schedule of Liquidated Damages 

  Original Contract Amount in Dollards	Daily Charge in Dollars
  0.00 - 500,000.00	$350
  500,000.01 - 2,000,000.00	$600
  2,000,000.01 - 8,000,000.00	$1,350
  8,000,000.01 - 15,000,000.00	$2,500
  15,000,000.01 or more	$3,100

   

• TIME EXTENSIONS FOR WEATHER —

  The Contract Time will not be extended due to inclement weather conditions which are normal to the general locality of Work site.

  The Contractor, in his planning and scheduling of the Work as required by the Contract Documents, shall allow for the normal inclement weather for the locality of the Work site. If the Contractor believes that the Progress of the Work has been adversely affected and that it will directly result in a failure to meet a Contract Milestone date or Completion within the Contract Time, by weather conditions above and beyond the amount normally expected, he shall submit a written request to the Owner with a copy to the A/E for an Extension of Time, pursuant to Paragraph 8.3.

  Such request shall be evaluated by the Owner in accordance with the provisions of the Contract Documents and shall include a comparison of actual weather statistics compiled by the Departments of Public Works, Town of Vienna, for the time of year, locality of the particular Work site with the days claimed by the Contractor and the anticipated normal inclement weather as stated in subparagraph 8.6.1. The normal inclement weather expected has been included in the designated Contract time for completion. The decision of the Owner shall be final.

  The Contractor shall not be entitled to any money damages whatsoever for any delays resulting from inclement weather, whether normal or abnormal, foreseeable or unforeseeable. The Contractor and Owner stipulate and agree that for delays due to weather as determined in 8.6.3, the Contractor’s sole relief is a time extension granted in accordance with this Article 8.6.

• ARTICLE 9 —

  PAYMENTS AND COMPLETION

• CONTRACT SUM —

  The Contract Sum is stated in the Owner-Contractor Agreement and, including authorized adjustments thereto, is the total amount payable by the Owner to the Contractor for the performance of the Work under the Contract Documents. The Contract Sum includes, but is not limited to, the Contractor’s profit and general overhead and all costs and expenses of any nature whatsoever (including without limitation taxes, labor and materials), foreseen or unforeseen, and any increases in said costs and expenses, foreseen or unforeseen, incurred by the Contractor in connection with the performance of the Work, all of which costs and expenses shall be borne solely by the Contractor. The Contractor agrees to assume all increases in costs of any nature whatsoever that may develop during the performance of the Work.

• SCHEDULE OF VALUES —

  For Lump Sum type contracts, the Contractor shall utilize the payment request form furnished by the Owner. The Contractor shall provide a more detailed cost breakdown when so requested by the Owner.

• APPLICATION FOR PAYMENT —

  The Contractor shall submit to the A/E four (4) originally executed, itemized Application for Payment and one (1) copy to the Owner on or before the day of each month designated in Article 6 of the Owner- Contractor Agreement. The Application for Payment shall be notarized, indicate in complete detail all labor and material incorporated in the Work during the month prior to submission, and supported by such data substantiating the Contractor’s payment request as the Owner may require. The Contractor shall also certify that due and payable amounts and bills have been paid by the Contractor for Work for which previous Certificates of Payment were issued and payments received from the Owner.

  Unless otherwise provided for in the Special Conditions, Section F, no payment will be made for any materials stored off or away from the Work site.

  The Contractor warrants that title to all Work, materials and equipment covered by an Application for Payment will pass to the Owner either by incorporation in the construction or upon the receipt of payment by the Contractor, whichever occurs first, free and clear of all liens, claims, security interests or encumbrances, hereinafter referred to as “liens”; and that no Work, materials or equipment covered by an Application for Payment will have been acquired by the Contractor or by any other person performing Work at the site or furnishing materials and equipment for the Project, subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the Contractor or such other person.

  The Contractor’s Application for Payment shall provide that the payment request attests that all Work for which the request is made has been completed in full according to the drawings, specifications and other terms of the Contract Documents. By submitting his Application for Payment, the Contractor also represents that he has no knowledge that any Subcontractor or suppliers have not been fully and timely paid and that, insofar as he knows, the only outstanding items for payment with respect to the Contract are those to be paid from the funds for which Application is being made.

• CERTIFICATES FOR PAYMENT —

  The A/E will, within seven (7) calendar days after the receipt of the Contractor’s Application for Payment, recommend a Certificate for Payment to the Owner. This recommendation shall be for such amount as the A/E determines is properly due, with his reasons for withholding or adjusting a Certificate as provided in Paragraph 9.6, if any.

  After the Certificate for Payment is recommended by the A/E, the Owner will review it and make any changes deemed necessary by the Owner’s Representative. The recommendation of the Certificate for Payment by the A/E does not waive or limit the Owners right to reduce the amount of the payment due to the Contractor as determined to be appropriate by the Owner.

  The recommendation of a Certificate for Payment will constitute a representation by the A/E to the Owner, based on his observations at the site as provided in Article 2 hereof and the data comprising the Application for Payment, that the Work has progressed to the point indicated; that, to the best of his knowledge, information and belief: (1) the quality of the Work is in accordance with the Contract Documents (subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial or Final Completion, to the results of any subsequent tests required by or performed under the Contract Documents, to minor deviations from the Contract Documents correctable prior to completion, and to any specific qualifications stated in his Certificate); and that (2) the Contractor is entitled to payment in the amount certified. However, by recommending a Certificate for Payment, the A/E shall not thereby be deemed to represent that he has made exhaustive or continuous on-site inspections to check the quality or quantity of the Work or that he has reviewed the construction means, methods, techniques, sequences or procedures, or that he has made any examination to ascertain how or for what purpose the Contractor has used the moneys previously paid on account of the Contract Sum.

• PROGRESS PAYMENTS —

  Retainage will be allowed if the contractor’s progress or performance has been identified as unsatisfactory as described in VDOT’s Specifications or the LPA contract, 12.6.4.2 and 49 CFR 26.29 (b)

  In the event the Contractor is allowed by law to use the escrow account procedure, and the Owner includes the “Escrow Agreement” form in the contract documents, six copies with original signatures and seals of the “Escrow Agreement” form included in the Bid Documents, shall be executed and submitted to the Owner, within fifteen (15) calendar days after receipt by the Contractor of Notice of Award. If the “Escrow Agreement” form is not submitted as noted herein, the Contractor shall forfeit such rights to the use of the escrow account procedure.

  In order to have retained funds paid to an escrow agent, the Contractor, the escrow agent and the surety shall execute an “Escrow Agreement” form and submit same to the Owner for approval. The Contractor’s escrow agent shall be a trust company, bank or savings and loan institution and shall be a qualified Public Depository as defined in Section 2.2-4401 of the Code of Virginia, with its principal office located in the Commonwealth of Virginia. The “Escrow Agreement” form shall contain the complete address of the escrow agent and surety, and the executed “Escrow Agreement” will be authority for the Town of Vienna to make payment of retained funds to the escrow agent. The Contractor shall provide notice in any subcontract for this project which provides for similar progress payments that the subcontract is subject to the provisions of Section 2.2-4354 of the Code of Virginia. After approving the Agreement, the Owner will pay to the escrow agent the funds retained as provided herein. Funds retained for lack of progress or other deficiencies on the part of the Contractor will not be paid to the escrow agent. The escrow agent may, in accordance with the stipulations contained in the “Escrow Agreement”, invest the funds paid into the escrow account and pay earnings on such investments to the Contractor or release the funds to the Contractor provided such funds are fully secured by approved securities as listed in the Escrow Agreement Form.

  In relation to punch list or other uncompleted Work and in lieu of a portion of the above specified five percent 5% retainage, the Owner may, at his sole discretion, elect to retain fixed amounts directly relating to the various items of uncompleted Work. All amounts withheld shall be included in the Final Payment.

  The Contractor shall, within seven (7) days after receiving payment from the Owner, do one of the following:

  1. Pay all Subcontractors for the proportionate share of the total payment received from the Owner for Work performed by each Subcontractor under the contract;

  2. Notify the Owner and Subcontractor(s), in writing, of his intention to withhold all or part of the Subcontractor’s payment with the reason for nonpayment.

  The Contractor shall make payment to Subcontractors as heretofore specified. Each payment shall reflect the percentage actually retained, if any, from payments to the Contractor on account of such Subcontractor’s Work.

  The Contractor shall provide the Owner with his social security number, if an individual and their federal identification number if a corporation, partnership, or proprietorship.

  The Contractor shall be obligated to pay unpaid Subcontractors interest on payments which are not made in accordance with this Article 9.5. The rate of interest shall be the legal prevailing rate at the time of nonpayment. The Contractor shall, by an appropriate agreement with each Subcontractor require each Subcontractor to make payments to his sub-subcontractors according to all the same requirements as provided in this Article 9.5.

  The Owner may, upon written request, furnish to any Subcontractor, if practicable, information regarding the percentages of completion or the amounts applied for by the Contractor and the action taken thereon by the Owner on account of Work done by such Subcontractor.

  Neither the Owner nor the A/E shall have any obligation to pay or ensure the payment of any monies to any Subcontractor except as may otherwise be required by law.

  No Certificate for a progress payment, nor any progress payment, nor any partial or entire use or occupancy of the Project by the Owner, shall constitute an acceptance of any Work not in accordance with the Contract Documents.

• PAYMENTS WITHHELD —

  The Owner may withhold the payment in whole or in part, if necessary to reasonably protect the Owner. If the A/E is unable to make representations as provided in subparagraph 9.4.3 and to recommend payment in the amount of the application, he will notify the Owner as provided in subparagraph 9.4.1. If the Contractor and the Owner cannot agree on a revised amount, the Owner will promptly issue a Certificate for Payment for the amount for which he is able to make representations with respect to payment due for Work performed. The Owner may also decline to certify or make payment or, because of subsequently discovered evidence or subsequent observations, they may nullify the whole or any part of any Certificate for Payment previously issued.

  The Owner may withhold from the Contractor so much of any approved payment due him as determined in the judgment of the Owner to be necessary:

  1. To protect the Owner from loss due to defective Work not remedied;

  2. To protect the Owner upon notice of the filing in court or in an arbitration proceeding as may be required in any third-party contract, of verified claims of any persons supplying labor or materials for the Work, or other verified third party claims;

  3. To protect the Owner upon reasonable evidence that the Work will not be completed for the unpaid balance of the Contract Sum;

  4. To protect the Owner upon reasonable evidence that the Work will not be completed within the Contract Time, or any Contract Milestones as established by this Contract;

  5. To protect the Owner upon the Contractor’s failure to properly schedule and coordinate the Work in accordance with or as required by the Contract Documents, or failure to provide progress charts, revisions, updates or other up-to-date scheduling data as required by the Contract Documents, or upon the Contractor’s failure to provide as-built drawings as required herein, or upon Contractor’s failure to otherwise substantially or materially comply with the Contract Documents.

  The Contractor shall, concurrent with his submission of the Construction Schedule, submit a practicable and realistic payment schedule showing the dates on which the Contractor will submit each and every Application for Payment and the amount he expects to receive for each and every monthly progress payment. If during the performance of the Work, the Contractor expects to receive an amount for a monthly progress payment larger than that indicated on the payment schedule; the Contractor shall notify the Owner at least thirty (30) days in advance of that payment such that the necessary allocation of funds can be processed. In the event the Contractor fails to submit a practicable and realistic payment schedule, the Contractor’s Application for Payment shall be honored only to the extent that the Work is actually performed and that the proportion of payments made to the Contract Sum does not exceed the proportion of the Contract Time expired as of the time of the request.

• PROMPT PAYMENT —

  Pursuant to provisions of Section 2.2-4352 of the Code of Virginia, the Town shall make payment not more than forty-five days after goods or services are received or not more than forty-five days (45) after the invoice is rendered, whichever is later. The Town shall pay interest in the event that payment against "proper" invoices is not made as prescribed in accordance with said section.

• FINAL COMPLETION AND FINAL PAYMENT —

  For all highway utility projects, and any other projects that may be so designated by the Owner, a Certificate of Final Completion shall be issued by the A/E prior to final payment. At the Owner’s sole option, this Final Completion Certificate may operate in lieu of a Certificate of Substantial Completion. The Contractor, prior to application for Final Payment and within the time specified for completion of the Work, shall complete all Work, to include punch list items and provide operating manuals and as-built data including updated technical drawings discussed in paragraph 4.13, for the Work, as completed and in place. Said Certificate of Final Completion shall be issued, even if a Certificate of Substantial Completion has been issued previously and temporary authority to operate the Work has been granted.

  The Certificate of Final Completion shall certify that all Work has been completed substantially in accordance with Contract Documents and is ready for use by the Owner.

  For all projects where Substantial Completion Certificates have been issued for various portions of the Work at differing times, the Contractor shall request and the Owner shall, prior to final payment, issue a Certificate of Final Completion which certifies that all required Work, including punch list items, has been completed in accordance with the Contract Documents.

  Neither the final payment nor any remaining retainage shall become due until the Contractor submits to the A/E all of the following the following:

  1. An Application for Payment for all remaining monies due under the Contract;

  2. Consent of surety, if any, to final payment, unless otherwise waived by the Owner;

  3. If required by the Owner, other data establishing payment or satisfaction of all such obligations, such as receipts, releases and waivers of claims arising out of the Contract, to the extent and in such form as may be designated by the Owner. If any Subcontractor refuses to furnish waiver of claims satisfactory to the Owner, the Contractor may furnish a bond satisfactory to the Owner to indemnify him against any such claim. If any such claim remains unsatisfied after all payments are made, the Contractor shall refund to the Owner all monies that the latter may be compelled to pay in discharging such claim, including all costs and reasonable attorneys’ fees;

  4. As-built drawings, operation and maintenance manuals and other project close-out submittals, as required by the Contract Documents;

  5. Construction releases as required by the Contract Documents from each property owner on whose property an easement for construction of this project has been obtained by the Owner, such release to be in the forms to be provided by the Owner. This release is for the purpose of releasing the Owner and the Contractor from liability, claims, and damages arising from construction operations on or adjacent to the easement and includes proper restoration of the property after construction. It shall be the Contractor’s sole responsibility to obtain all such releases and furnish them to the Owner; and

  6. A written certification that:

  1. The Contractor has reviewed the requirements of the Contract Documents,
  2. The Work has been inspected by the Contractor for compliance with all requirements of the Contract Documents,
  3. Pursuant to this inspection, the Contractor certifies and represents that the Work complies in all respects with the requirements of the Contract Documents,
  4. The Contractor further certifies and represents that all equipment and systems have been installed in accordance with the Contract Documents and have been tested in accordance with specification requirements and are operational,
  5. The Contractor hereby certifies and represents that the Work is complete in all respects and ready for final inspection.

  Upon receipt of the documents required in subparagraph 9.9.3 and upon receipt of a final Application for Payment, the Owner will promptly make such final inspection and, when he finds the Work acceptable under the Contract Documents and the Contract fully performed, he will promptly issue a final Certificate for Payment and, if required, a Final Certificate of Completion stating that to the best of his knowledge, information and belief, and on the basis of his observations and inspections, the Work has been completed in accordance with the terms and conditions of the Contract Documents and that the entire balance designated in the final certificate for payment is due and payable. The Owner’s final Certificate for Payment will constitute a further representation that the conditions precedent to the Contractor’s being entitled to final payment as set forth in Subparagraph 9.9.4 have been fulfilled. Payment shall be made in full to the Contractor within thirty (30) calendar days of the date of the A/E’s final Certificate of Payment provided that the requirements of Article 9 have been fulfilled, except for an amount mutually agreed upon for any Work remaining uncompleted for which the Owner is entitled a credit under the Contract Documents. All prior estimates and payments, including those relating to change order Work shall be subject to correction by this final payment.

  If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor or by the issuance of Change Orders affecting final completion, and the A/E so confirms, the Owner shall, upon application by the Contractor and certification by the A/E, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than the retainage stipulated in the Contract Documents, and if bonds have been furnished in accordance with the Contract Documents, the written consent of the surety to the payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the A/E prior to certification of such payment. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims.

  The making of Final Payment shall constitute a waiver of all claims by the Owner, except those arising from any of the following:

  1. Unsettled claims;

  2. Faulty, defective, or non-conforming Work discovered or appearing after Substantial or Final Completion;

  3. Failure of the Work to comply with the requirements of the Contract Documents;

  4. Terms of any warranties or guarantees required by the Contract Documents;

  5. Fraud or bad faith committed by the Contractor or any subcontractor or supplier during performance of Work discovered by Owner after Final Payment.

  The acceptance of Final Payment shall constitute a waiver of all claims by the Contractor, except those previously made in writing and so identified by the Contractor, as unsettled at the time of the final Application for Payment. No payment, final or otherwise, shall operate to release the Contractor or his sureties from any obligations under this Contract or the Performance or the Guarantee Bonds.

• ARTICLE 10 —

  PROTECTION OF PERSONS AND PROPERTY

• SAFETY PRECAUTIONS AND PROGRAMS —

  The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. This requirement applies continuously throughout the Contract performance until Final Payment is made and is not limited to regular Working hours.

• SAFETY OF PERSONS AND PROPERTY —

  The Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to:

  1. All employees on the Work and all other persons who may be affected thereby;

  2. All Work, materials and equipment to be incorporated therein, whether in storage on or off the site, under the care, custody or control of the Contractor or any of his Subcontractors or Sub- subcontractor’s. Machinery, equipment and all hazards shall be guarded or eliminated in accordance with the safety provisions of the Manual of Accident Prevention in Construction published by the Associated General Contractors of America, to the extent that such provisions are not in contravention of applicable law;

  3. Other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities currently in use or not designated for removal, relocation or replacement in the course of construction.

  The Contractor shall give all notices and comply with all applicable laws, ordinances, rules, regulations, permits, resolutions and lawful orders of any public authority bearing on the safety of persons or property or their protection from damage, injury or loss.

  The Contractor shall at all times safely guard the Owner’s property from injury or losses in connection with the Contract. He shall at all times safely guard and protect his own Work and adjacent property as provided by law and the Contract Documents, from damage. All passageways, guard fences, lights and other facilities required for protection by local authorities or local conditions must be provided and maintained.

  The Contractor shall erect and maintain, as required by existing conditions and progress of the Work, all reasonable safeguards for safety and protection, including posting danger signs, traffic control measures and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent utilities.

  When the use or storage of explosives or other hazardous materials or equipment is necessary for the execution of the Work, the Contractor shall exercise the utmost care and shall carry on such activities under the supervision of properly qualified personnel.

  The Contractor is responsible for the proper packing, shipping, handling and storage, including but not limited to shipment or storage at the proper temperature and humidity, of materials to be incorporated in the Work, so as to ensure the preservation of the quality and fitness of the material for proper installation and incorporation in the Work, as required by the Contract Documents. For example, but not by way of limitation, Contractor shall, when necessary, place material on wooden platforms or other hard and clean surfaces and not on the ground and/or place material under cover or in any appropriate shelter or facility. Stored materials or equipment shall be located so as to facilitate proper inspection. Material and equipment which is delivered crated shall remain crated until ready for installation. Lawns, grass plots or other private property shall not be used for storage purposes without the written permission of the owner or lessee unless otherwise within the terms of the easements obtained by the Owner.

  In the event of any indirect or direct damage to public or private property referred to in Paragraphs 10.2.1.2 and 10.2.1.3, caused in whole or in part by an act, omission or negligence on the part of the Contractor, any Subcontractor, any Sub-subcontractor, or anyone directly or indirectly employed by any of them or by anyone for whose acts any of them may be liable, the Contractor shall at his own expense and cost promptly remedy and restore such property to a condition equal or better to than existing before such damage was done. The Contractor shall perform such restoration by underpinning, repairing, rebuilding, replanting, or otherwise restoring as may be required or directed by the Owner or shall make good such damage in a satisfactory and acceptable manner. In case of failure on the part of the Contractor to promptly restore such property or make good such damage, the Owner may, upon two (2) calendar days written notice, proceed to repair, rebuild or otherwise restore such property as may be necessary and the cost thereof, or a sum sufficient in the judgment of the Owner to reimburse the owners of property so damaged, will be deducted from any monies due or to become due the Contractor under the Contract.

  The Contractor shall designate a responsible member of his organization at the site whose duty shall be the prevention of accidents and the protection of material, equipment and other property. This person shall be the Contractor’s superintendent unless otherwise designated by the Contractor in writing to the Owner.

  The Contractor shall not load or permit any part of the Work to be loaded so as to endanger the safety of any portion of the Work.

  The Contractor shall give notice in writing at least forty-eight (48) hours before breaking ground, to all persons, Public Utility Companies, owners of property having structures or improvements in proximity to site of the Work, superintendents, inspectors, or those otherwise in charge of property, streets, water pipes, gas pipes, sewer pipes, telephone cables, electric cables, railroads or otherwise, who may be affected by the Contractor’s operation, in order that they may remove any obstruction for which they are responsible and have representation on site to see that their property is adequately protected. Such notice does not relieve the Contractor of responsibility for any damages, claims, or defense or indemnification of all actions against Owner and A/E resulting from performance of such Work in connection with or arising out of Contract.

  The Contractor shall protect all utilities and existing structures encountered while performing its Work, whether indicated on the Contract Drawings or not. The Contractor shall maintain utilities in service until moved or abandoned. The Contractor shall exercise due care when excavating around utilities and shall restore any damaged utilities to the same condition or better as existed prior to starting the Work, at no cost to the Owner or the utility company. The Contractor shall maintain operating utilities or other services, even if they are shown to be abandoned on the Contract Drawings, in service until new facilities are provided, tested and ready for use.

  The Contractor shall return all improvements on or about the site and adjacent property which are not shown to be altered, removed or otherwise changed to conditions which existed prior to starting Work.

  The Contractor shall protect the Work, including but not limited to, the site, stored materials and equipment, excavations, and excavated or stockpiled soil or other material, intended for use in the Work, and shall take all necessary precautions to prevent or minimize either damage to same or detrimental effect upon his performance or that of his subcontractors, caused by or owing to rain, snow, ice, run-off, floods, temperature, wind, dust, sand and flying debris. For example, but not by way of limitation, Contractor shall, when necessary, utilize temporary dikes, channels or pumping to carry-off divert or drain water, and shall as necessary tie down or otherwise secure the Work and employ appropriate covers and screens.

• OBLIGATION OF CONTRACTOR TO ACT IN AN EMERGENCY —

  In case of an emergency which threatens immediate loss or damage to property and/or safety of life, the Contractor shall act, at his discretion and risk, to prevent threatened loss, damage, injury or death. The Contractor shall notify the Owner of the situation and all actions taken immediately thereafter. If, in the opinion of the Contractor, immediate action is not required, the Contractor shall notify the Owner of the emergency situation and proceed in accordance with the Owner’s instructions. However, if any loss, damage, injury or death occurs that could have been prevented by the Contractor’s prompt and immediate action, the Contractor shall be fully liable for all costs, damages, claims, actions, suits, attorney’s fees and all other expenses arising therefrom or relating thereto.

  Prior to commencing his Work and at all times during the performance of the Work, the Contractor shall provide the Owner two, twenty-four-hour (24) emergency phone numbers where his representatives can be contacted.

• ARTICLE 11 —

  CHANGES AND MODIFICATIONS IN THE WORK

• CHANGES IN THE WORK —

  The Owner, without invalidating the Contract and without notice to the surety, may order a Change or Modification in the Work consisting of additions, deletions or other revisions to the general scope of the Contract, or changes in the sequence of the performance of the Work. The Contract Sum and the Contract Time shall be adjusted accordingly. All such Modifications in the Work shall be authorized by Change Order, and all Work involved in a Change shall be performed in accordance with the terms and conditions of this Contract. If the Contractor should proceed with a Change in the Work upon an oral order, by whomsoever given, it shall constitute a waiver by the Contractor of any claim for an increase in the Contract Sum and/or Contract Time, on account thereof.

  When the Owner and Contractor have agreed upon a Modification in the Work, but a written Change Order Document has not yet been executed, the Owner may, at its sole discretion and option, direct in writing the Contractor to proceed with the Change in the Work pending the execution of the formal Change Order. Contractor shall proceed in accordance with such direction.

• FIELD ORDER —

  A Field Order is a written order to the Contractor signed by the Owner or A/E interpreting or clarifying the Contract Documents or directing the Contractor to perform minor changes in the Work. Any Work relating to the issuance of a Field Order shall be performed promptly and expeditiously and without additional cost to the Owner and within the Contract Time, unless the Contractor submits a Proposed Change Order, defined below, which is approved by the Owner. Field Orders shall be numbered consecutively by date of issuance by the Owner or A/E.

• REQUEST FOR PROPOSAL —

  A Request for Proposal describes a proposed Change in the Work. The Contractor is required to submit a complete proposal for the total cost and additional time, if any, necessary to perform the proposed Change in the Work. Requests For Proposals shall be numbered consecutively by date of issuance by the Owner.

• PROPOSED CHANGE ORDER —

  A Proposed Change Order is a written request from the Contractor to the Owner requesting a change in the Contract Amount and/or Contract Time. A Proposed Change Order is submitted as a proposal in response to a Request for Proposal or as a claim for an increase in the Contract Sum or Contract Time pursuant to the issuance of a Field Order. A Proposed Change Order must be submitted within twenty (20) days of the issuance of a Request for Proposal or a Field Order. Proposed Change Orders shall be numbered consecutively by date of issuance by the Contractor. The Contractor shall also indicate on the Proposed Change Order the number of the Request for Proposal or the Field Order to which it responds.

  In the case of a unit price contract, it is understood and agreed by the Contractor that the estimates of the quantities in unit price items are approximate only and presented solely for the purpose of comparing bids and may not represent the actual amount of Work to be performed. The Contractor, therefore, understands and agrees that the Owner reserves the right to increase, decrease or eliminate entirely the quantity of Work to be done under any item. If called upon to do more Work under any unit price item named in the bidding quantity basis Bidding Documents, he will perform all such additional Work and accept as payment the unit price named in the proposal, subject to the 20% deviation limitations specified in subparagraph 11.4.2.2.

  The Contractor’s Proposed Change Order shall be determined by applicable unit prices, if any, as set forth in the Contract.

  However, if changes in quantities are greater or lesser than twenty percent (20%) of the original bid quantity the Owner or the Contractor shall have the right to review the unit price and negotiate a new unit price for the quantity greater than 120% or less than 80% of the original bid quantity.

  It shall be understood that such unit prices shall constitute full payment for the extra Work performed, including plant, materials, labor, equipment, overhead, profit, and safety requirements.

  If no such unit prices are set forth, and unless otherwise approved by the Owner, the Contractor’s proposal shall be on a lump sum basis and shall be itemized and segregated by labor, equipment, and materials for the various components of the Change in the Work (no aggregate labor total will be acceptable) and shall be accompanied by signed proposals of any Subcontractors who will perform any portion of the Change in the Work and of any persons who will provide materials or equipment for incorporation therein.

  The portion of the proposal relating to labor, whether by the Contractor’s forces or the forces of any of its Subcontractors, may include reasonably anticipated gross wages of Job Site labor, including foremen, who will be directly involved in the Change in the Work (for such time as they will be so involved), plus payroll costs (including premium costs of overtime labor, if overtime is authorized, Social Security, Federal or State unemployment insurance taxes and fringe benefits required by collective bargaining agreements entered into by the Contractor or any such Subcontractor in connection with such labor).

  The portion of the proposal relating to materials may include the reasonably anticipated direct costs to the Contractor or to any of its Subcontractors of materials to be purchased for incorporation in the Change in the Work, plus transportation and applicable sales or use taxes.

  The proposal may further include the Contractor’s and any of his Subcontractor’s reasonably anticipated equipment rental costs, except small hand tools, in connection with the Change in the Work. For rented equipment an hourly rental rate will be used which will be determined by using the monthly rental rates taken from the current edition of the Rental Rate Blue Book for Construction Equipment and dividing it by 176. An allowance will be made for operating costs for each and every hour the equipment is actually operating in accordance with the rates listed in the aforesaid Rental Book. The Contractor will be allowed only 65% of the rental rate on Contractor owned equipment.

  Base Cost is defined as the total of labor, material and equipment rentals as described in subparagraphs 11.4.3.1, 11.4.3.2 and 11.4.3.3. The actual net cost in money to the Owner for the Change in the Work shall be computed as follows:

  1. If the Contractor performs the Change in the Work, his compensation will be the Base Costs as described above, plus a mark-up of 20% or $2,000, whichever is greater for overhead and profit.

  2. If the Work is performed by a bona fide Subcontractor, his compensation will be the Base Costs as described above plus a mark-up as described in Paragraph 11.4.4.1 for overhead and profit. The Contractor’s compensation will be a mark-up of ten percent (10%) of the Subcontractors Base Costs for his overhead and profit.

  3. If the Work is performed by a bona fide Sub-subcontractor, his compensation will be the Base Costs as herein described plus a mark-up as described in Paragraph 11.4.4.1 for overhead and profit. The Subcontractors compensation will be a mark-up of ten percent (10%) of the Sub-subcontractor’s Base Costs for his overhead. The Subcontractor’s compensation will be a mark-up of ten percent (10%) of the Sub-subcontractor Base Costs for his overhead and profit.

  The mark-up on the cost of labor, materials, and equipment described in Paragraphs 11.4.4.1, 11.4.4.2, and 11.4.4.3 shall compensate the Contractor or Subcontractor and Sub-subcontractor for all indirect costs associated with or relating to the Change in the Work including, but not limited to, labor and/or equipment inefficiency, changes in sequence, delays, interferences, impact on unchanged Work, gross receipts tax, superintendent, small tools, reproduction, administration, document preparation, insurance, unrelated safety requirements, temporary structures and offices, all other general and administrative, home office and field office expenses.

  The mark-up on the cost of labor, materials, and equipment described in Paragraphs 11.4.4.2 and 11.4.4.3 shall compensate the Contractor or Subcontractor for all indirect costs associated with or relating to the change in the Work including but not limited to, gross receipt tax, superintendent, reproduction, administration, and insurance.

  In event of a contract completion date time extension of unreasonable duration, the Contractor, shall also be compensated for additional costs of Superintendent, field office, and safety requirements, without mark-up, as they are related to the cause of the time extension.

  In the event that it is necessary to increase the Contract Time in order to perform the Change in the Work, the Contractor shall provide an estimate of the increase in the Contract Time which shall be negotiated by the parties to the contract. The Contractor’s request for a time extension shall be evaluated in accordance with the criteria described in Article 8.3.

  If the Contractor’s Proposed Change Order is rejected by the Owner as being within the scope of the Work required by the Contract Documents the Owner may, at its sole option and discretion, direct the Contractor to perform the Work which is the subject of the said Proposed Change Order; the Contractor shall then promptly proceed with said Work. Nothing herein shall excuse the timely performance by the Contractor of the Work because any Proposed Change Order is pending.

• CHANGE ORDER —

  A Change Order is a written order to the Contractor signed by the Owner and the A/E, issued after execution of the Contract, authorizing a Change in the Work or an adjustment in the Contract Sum and/or the Contract Time. The Contract Sum and the Contract Time may be changed only by Change Order. A Change Order signed by the Contractor indicates his agreement therewith, including the adjustment in the Contract Sum and/or the Contract Time. Change Orders shall be numbered consecutively by date of issuance by the Owner and shall, if applicable, indicate the number of the Field Order(s), Request for Proposal(s) and/or Proposed Change Order(s) to which it relates.

  If the Owner determines that the Contractor’s Proposed Change Order, submitted pursuant to Article 11 for a change in the Contract Sum or Contract Time, is acceptable, the Owner shall prepare and issue, or cause to be prepared and issued, a Change Order which will authorize the Contractor to proceed with the Change in the Work for the cost and time stated in the Proposed Change Order, or as otherwise may be agreed upon by the parties. The amounts stated in the Change Order for the cost and time to perform the Change in the Work shall be binding on the parties upon acceptance.

  After issuance of the Change Order, the Contractor shall ensure that the amount of the Performance and Payment Bond coverage has been revised to reflect the increase in the Contract Sum due to the Change Order.

  If the Contractor’s Proposed Change Order is not acceptable to the Owner or if the parties are unable to otherwise agree as to the cost and time necessary to perform the Change in the Work, the Owner may, at its sole option and discretion, direct the Contractor to perform the Work on a time and material basis. The Contractor shall then promptly proceed with the Work.

  If the Owner elects to have the Change in the Work performed on a time and material basis, the same shall be performed, whether by the Contractor’s forces or the forces of any of its Subcontractors or Sub- subcontractor’s, at actual cost to the entity performing the Change in the Work (without any charge for administration, clerical expense, supervision or superintendent of any nature whatsoever. The percent mark-ups for the Contractor, Subcontractors and Sub-subcontractors shall be as described in subparagraphs 11.4.4 and 11.4.5.

  Prior to starting the Work on a time and material basis, the Contractor shall notify the Owner in writing as to what labor, materials, equipment or rentals are to be used for the Change in the Work. During the performance of the Change, the Contractor shall submit to the Owner daily time and material tickets, which shall list the categories and amounts of labor and equipment for which Change Order compensation is to be charged for the previous Workday. Such tickets shall specifically include the following information: location and description of the Change in the Work, the classification of labor employed, including names and social security numbers of laborers, labor trades used, manhours, wage rates, insurance, taxes and fringe benefits, equipment and materials suppliers’ quotations with detailed break- out and pricing, rental equipment hours and rates, and materials quantities and unit prices and such other evidence of cost as the Owner may require.

  The Contractor shall commence submission of daily time and material tickets immediately upon commencement of the Change Order Work and continue to submit them until completion of the Change Order Work. The Owner may require authentication of all time and material tickets and invoices by persons designated by the Owner for such purpose.

  The failure of the Contractor to provide any required authentication shall, if the Owner elects to treat it as such, constitute a waiver by the Contractor of any claim for the cost of that portion of the Change in the Work covered by a non-authenticated ticket or invoice; provided, however, that the authentication of any such ticket or invoice by the Owner shall not constitute an acknowledgment by the Owner that the items thereon were reasonably required for the Change in the Work.

  For any Work performed on a time and material basis, the Contractor shall submit its complete submission of the reasonable actual cost and time to perform the Change in the Work within twenty (20) days after such Work has been completed or within such other longer period as the Owner may agree in writing to allow. The Owner and the A/E shall review the costs and time submitted by the Contractor on the basis of reasonable expenditures and savings of those performing the Change in the Work. If such costs and time are acceptable to the Owner, or if the parties otherwise agree to the actual reasonable cost to perform the Change in the Work, a Change Order will be issued for the cost and time agreed upon. The amounts stated in the Change Order for the cost and time to perform the Change in the Work shall be binding upon the parties.

  The Contractor shall be entitled to costs as provided for in Article 11 which the Contractor, its Subcontractors, or Sub-subcontractors may incur as a result of delays, interferences, suspensions, changes in sequence or the like, which are unreasonable arising from the performance of any and all changes in the Work, caused by acts or omissions of the Owner, performed pursuant to this Article 11.

• UNILATERAL CHANGE ORDER —

  In the event that the parties are unable to agree as to the reasonable cost and time to perform the Change in the Work and the Owner does not elect to have the Change in the Work performed on a time and material basis, the Owner shall make a unilateral determination of the reasonable cost and time to perform the Change in the Work, based upon his own estimates, the Contractor’s submission or a combination thereof. A Change Order shall be issued for the amounts of cost and time determined by the Owner and shall become binding upon the Contractor unless the Contractor submits its protest in writing to the Owner within thirty (30) days of the issuance of the Change Order. The procedure for the resolution of the Contractor’s protest shall be as described in Article 11.10. Owner has the right to direct in writing the Contractor to perform the Change in the Work, which is the subject of such Unilateral Change Order. Failure of the parties to reach agreement regarding the cost and time of performing the Change in the Work, or any pending protest, shall not relieve the Contractor from performing the Change in the Work promptly and expeditiously.

• DECREASES AND WORK NOT PERFORMED —

  Should it be deemed expedient by the Owner at any time that, while works are in progress, to decrease the dimensions, quantity of material or Work or vary in any other way the Work herein contracted for, the Owner shall have the full power to do so, and shall order and direct, in writing, such decreases to be made or performed without, in any way, affecting the enforcement of said Contract. The Contractor shall, in pursuance of such written orders and directions from the said Owner, execute the Work thereby ordered and directed, and the difference in expense occasioned by such decrease or diminution so ordered shall be deducted from the amount payable under this Contract.

  If contracted Work is not performed, and such deletion of Work is not approved by the Owner, the Owner shall ascertain the amount of the credit due the Owner based on the reasonable value for completing the deleted Work as a separate project. Calculation of credit due may include without limitation, labor, materials, contractor mobilization and administration costs.

  If Work is deleted from the Contract by Change Order, the amounts to be credited to the Owner shall reflect the same current pricing as if the Work were being added to the Contract at the time the deletion is ordered, and documentation will be required for a credit as specified in Article 11.5.4. If such deleted materials and equipment shall have already been purchased and stored on site and cannot be used in other projects, returned for credit or cannot be returned for credit at the price paid by the Contractor at the time of purchase, the Contractor shall be entitled, upon proper documentation and certification, to an adjustment in the pricing of the credit to avoid hardship to the Contractor. If necessary, in order to establish such reasonable value, the Contractor may be required to submit a detailed breakdown of his original bid for the items or Work involved.

• CHANGES IN LINE AND GRADE —

  The Owner reserves the right to make such alterations in the line and grade of various structures or pipelines shown on the drawings, as may be necessitated by conditions found during construction or that in the judgment of the Owner or A/E appears advisable. The Contractor shall not claim forfeiture of Contract by reason of such changes by the Owner. In case of a unit price contract, if such changes increase the amount of the Work or materials, the Contractor will be paid according to the quantity of Work actually done at the prices established for such Work under the Contract.

  In case of a lump sum contract, the price for the Work shall be negotiated as herein provided. If such alterations or changes diminish the quantity of Work to be done, they shall not constitute a claim for damages or for loss of anticipated profits in the Work which may be dispensed with, and the Work as constructed shall be paid for in accordance with the Contract prices as established for such Work under this Contract, as stated in the proposal submitted by the Contractor.

• SUBSURFACE CONDITIONS FOUND DIFFERENT —

  Should the Contractor encounter subsurface and/or latent conditions at the site materially differing from those shown on the drawings or indicated in the specifications, he shall immediately give notice to the Owner of such conditions before they are disturbed. The Owner shall thereupon promptly investigate the conditions and if he finds that they materially differ from those shown on the drawings or indicated in the specifications, he shall at once make such changes in the drawings and/or specifications as he may find necessary. Any increase or decrease of cost resulting from such changes shall be adjusted in the manner provided herein for adjustments as to extra and/or additional Work and changes.

• CLAIMS FOR ADDITIONAL COST AND/OR TIME —

  If the Contractor wishes to make a claim for an increase in the Contract Sum and/or Contract Time, he shall give the Owner written notice thereof within seven (7) calendar days after the commencement of the event giving rise to such claim. This notice shall be given by the Contractor before proceeding to execute the Work, except in an emergency endangering life or property in which case the Contractor shall proceed as provided in Article 10. No claim shall be allowed, and no amounts paid for any and all costs incurred if notice is not given to the Owner as herein provided. Any change in the Contract Sum and/or Contract Time resulting from such claim shall be authorized by Change Order. The Contractor’s complete claim submittal, for an increase in the Contract Sum, shall be submitted no later than twenty (20) calendar days after the Work for which the claim is made has been completed or within such other longer period as the Owner may agree in writing to allow.

  If the Contractor claims that additional cost or time is involved because of, but not limited to, (1) any written interpretation pursuant to Article 2, (2) any order by the Owner to stop the Work pursuant to Article 3 where the Contractor was not at fault, (3) failure of payment by the Owner pursuant to Article 9, or (4) any written order for a minor change in the Work issued pursuant to Article 11.8.1; the Contractor shall make such claim as provided in Subparagraph 11.10.1.

• ARTICLE 12 —

  UNCOVERING AND CORRECTION OF WORK

• UNCOVERING OF WORK —

  If any portion of the Work should be covered contrary to: (1) the request of the A/E or Owner; (2) requirements specifically expressed in the Contract Documents; or (3) the requirements of applicable Construction Permits, it must, if required in writing by the Owner be uncovered for their observation and shall be replaced at the Contractor’s expense.

  If any other portion of the Work has been covered which the Owner has not specifically requested to observe prior to being covered, the A/E or Owner may request to see such Work and it shall be uncovered by the Contractor. If such Work be found in accordance with the Contract Documents, the cost of uncovering and replacement shall, by appropriate Change Order, be charged to the Owner. If such Work be found not in accordance with the Contract Documents, the Contractor shall pay such costs unless it be found that this condition was caused solely by the Owner, in which event the Owner shall be responsible for the payment of such costs. If such Work be found not in accordance with the Contract Documents and the condition was caused by a separate contractor, Contractor may proceed against said separate contractor as provided in Article 6.

• WARRANTY AND CORRECTION OF WORK —

  The Contractor guarantees and warrants to the Owner all Work as follows:

  1. That all materials and equipment furnished under this Contract will be new and the best of its respective kind unless otherwise specified;

  2. That all Work will be of first-class quality and free of omissions and faulty, poor quality, imperfect or defective material or Workmanship;

  3. That the Work shall be entirely watertight and leakproof in accordance with all applicable industry customs and practices, and shall be free of shrinkage and settlement which are attributable to defective materials or Workmanship;

  4. That the Work, including but not limited to, mechanical and electrical machines, devices and equipment shall be fit and fully usable for its intended and specified purpose and shall operate satisfactorily with ordinary care;

  5. That consistent with requirements of the Contract Documents the Work shall be installed and oriented in such a manner as to facilitate unrestricted access for the operation and maintenance of fixed equipment; and

  6. That the Work will be free of abnormal or unusual deterioration which occurs because of poor quality materials or Workmanship.

  All Work not conforming to guarantees and warranties specified in the Contract Documents, including substitutions not properly approved and authorized, may be considered defective. If required by the Owner, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment.

  The Contractor shall within five (5) Working days after receipt of written notice from the Owner during the performance of the Work, reconstruct, replace or correct all Work rejected by the A/E or Owner as defective, as failing to conform to the Contract Documents, or as not in accordance with the guarantees and warranties specified in the Contract Documents whether observed before or after Substantial Completion and whether or not fabricated, installed or completed. The Contractor shall bear all costs of reconstructing, replacing or correcting such rejected Work, including compensation for the AlE’s additional services made necessary thereby.

  If, within one (1) year after the Date of Substantial or Final Completion of the Work or designated portion thereof or within one (1) year after acceptance by the Owner of designated equipment or within such longer period of time as may be prescribed by law or by the terms of any applicable special warranty required by the Contract Documents, any of the Work is found to be defective, not in accordance with the Contract Documents, or not in accordance with the guarantees and warranties specified in the Contract Documents, the Contractor shall correct it within five (5) Working days after receipt of a written notice from the Owner to do so unless the Owner has previously given the Contractor a written acceptance of such condition. This obligation shall survive termination of the Contract. The Owner shall give such notice promptly after discovery of the condition.

  Subject to limitation as prescribed by law, if at any time deficiencies in the Work are discovered which are found to have resulted from fraud or misrepresentation, or an intent or attempt to defraud the Owner by the Contractor, any Subcontractor or Supplier, the Contractor will be liable for replacement or correction of such Work and any damages which Owner has incurred related thereto, regardless of the time limit of any guarantee or warranty.

  Any materials or other portions of the Work, installed, furnished or stored on site which are not of the character or quality required by the specifications, or are otherwise not acceptable to the Owner, shall be immediately removed and replaced by the Contractor to the satisfaction of the Owner, when notified to do so by the Owner.

  If the Contractor fails to correct defective or nonconforming Work as required by Articles 12.2.3 and 12.2.4, or if the Contractor fails to remove defective or nonconforming Work from the site, as required by Article 12.2.6, the Owner may elect to either correct such Work in accordance with Article 3.5 or remove and store materials and equipment at the expense of the Contractor. If the Contractor does not pay the cost of such removal and storage within ten (10) days thereafter, the Owner may upon ten additional days written notice sell such Work at auction or at private sale and shall account for the net proceeds thereof, after deducting all the costs that should have been borne by the Contractor, including compensation for the A/E’s additional services made necessary thereby. If such proceeds of sale do not cover all costs which the Contractor should have borne, the difference shall be charged to the Contractor and an appropriate Change Order shall be issued. If the payments then or thereafter due the Contractor are not sufficient to cover such amount, the Contractor shall pay the difference to the Owner.

  The Contractor shall bear the cost of making good all Work of the Owner, separate contractors or others, destroyed or damaged by such correction or removal required under this Article.

• ACCEPTANCE OF FAULTY, DEFECTIVE OR NON-CONFORMING WORK —

  If the Owner prefers to accept faulty, defective or nonconforming Work, he may do so instead of requiring its removal and correction, in which case a Change Order will be issued at Owner option, to reflect a reduction in the Contract Sum in an amount to be determined by the Owner.

• NO LIMITATION OF LIABILITY —

  Subject to limitation as prescribed by law, nothing contained in this Article shall be construed to establish a period of limitation with respect to any other obligation which the Contractor might have under the Contract Documents. The establishment of the time period of one (1) year after the Date of Substantial or Final Completion or such longer period of time as may be prescribed by law or by the terms of any warranty required by the Contract Documents relates only to the specific obligations of the Contractor to correct the Work, and has no relationship to the time within which his obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor’s liability with respect to his obligations other than specifically to correct the Work.

• ARTICLE 13 —

  TERMINATION OF THE CONTRACT

• CONTRACTOR’S RIGHT TO STOP WORK OR TERMINATE CONTRACT —

  If the Work shall be stopped by order of the Court or any other public authority for a period of three (3) consecutive months without act or fault of the Contractor or any of his agents, servants, employees or Subcontractors, the Contractor may, upon ten (10) days notice to the Owner, discontinue his performance of the Work and/or terminate the Contract. The Contractor may recover from the Owner payment for all Work executed and for any proven loss sustained upon any materials, equipment, tools, construction equipment and machinery, including reasonable profit and damages. The Contractor shall not be obligated to pay to the Owner any excess of the expense of completing the Work over the unpaid balance of the compensation to be paid the Contractor hereunder.

• OWNER’S RIGHT TO TERMINATE CONTRACT FOR CAUSE —

  The Owner, without prejudice to any other rights or remedy it may have, may by seven (7) days notice to the Contractor, terminate the employment of the Contractor and his right to proceed either as to the entire Work or, at the option of the Owner, as to any portion thereof and may take possession of the Work and complete the Work by contract or otherwise as the Owner may deem expedient if, in the opinion of the Owner:

  1. The insolvency, bankruptcy or financial condition of the Contractor will hinder or impede the Contractor’s fulfillment of all contractual obligations, including completion within the Contract Time; or

  2. The Contractor shall refuse or fail, after Notice from the Owner, to supply enough properly skilled Workmen or proper material; or

  3. The Contractor shall refuse or fail to prosecute the Work or any part thereof with such diligence as will ensure its completion within the period herein specified, or any duly authorized extension thereof, or shall fail to complete the Work within said period; or

  4. The Contractor shall fail to make prompt payment to persons supplying labor or materials for the Work; or

  5. The Contractor shall refuse or fail to properly schedule and plan the Work, as specified herein, so as to perform the Work within the specified Milestone and Completion dates, or to provide scheduling or related information, revisions and updates as required by the Contract Documents; or

  6. The Contractor shall fail or refuse to regard laws, permits, ordinances, resolutions, or the instructions of the Owner or A/E, or otherwise be guilty of a substantial violation of any provision of this contract.

  If the Owner so terminates the employment of the Contractor, the Contractor shall not be entitled to receive any further payment until the Work is finished. If the unpaid balance of the compensation to be paid to the Contractor hereunder shall exceed the expense of so completing the Work (including compensation for additional managerial, administrative and inspection services and any damages for delay) such excess shall be paid to the Contractor.

  If such expenses shall exceed the unpaid balance, the Contractor and his sureties shall be liable to the Owner for such excess. If the right of the Contractor to proceed with the Work is partially or fully terminated, the Owner may take possession of and utilize in completing the Work such materials, appliances, supplies, plant and equipment as may be on the site of the terminated portion of the Work and necessary for the completion of the Work. If the Owner does not fully terminate the right of the Contractor to proceed, the Contractor shall continue to perform the part of the Work that is not terminated.

• OWNER’S RIGHT TO TERMINATE CONTRACT FOR CONVENIENCE —

  The performance of Work under this contract may be terminated by the Owner in accordance with this article in whole, or from time to time in part, whenever the Owner shall determine that such termination is in the best interest of the Owner. Any such termination shall be affected by delivery to the Contractor of a Notice of Termination specifying the extent to which performance of Work under the contract is terminated, and the date upon which such termination becomes effective.

  After receipt of a Notice of Termination, the Contractor shall submit to the Owner his termination claim, in the form and with certification prescribed by the Owner. Such claim shall be submitted promptly but in no event later than three (3) months from the effective date of termination, unless one or more extensions in writing are granted by the Owner upon request of the Contractor made in writing within such three (3) month period or authorized extension thereof. However, if the Owner determines that the facts justify such action, he may receive and evaluate any such termination claim at any time after such three (3) month period or any extension thereof. Upon failure of the Contractor to submit his termination claim within the time allowed, the Owner may determine, on the basis of information available to him, the amount, if any, due to the Contractor by reason of the termination.

  Subject to the provisions of subparagraph 13.3.2, the Contractor and the Owner may agree upon the whole or any part of the amount or amounts to be paid to the Contractor by reason of the total or partial termination of Work pursuant to this article, which amount or amounts may include a reasonable allowance for profit on Work completed; provided that such agreed amount or amounts, exclusive of settlement costs, shall not exceed the total contract price as reduced by the amount of payments otherwise made and as further reduced by the contract price of Work not terminated. The contract shall be amended accordingly, and the Contractor shall be paid the agreed amount if satisfactory to the Owner. Nothing in subparagraph 13.3.4 of this article, prescribing the amount to be paid to the Contractor in the event of failure of the Contractor and the Owner to agree upon the whole amount to be paid to the Contractor by reason of the termination of Work pursuant to this article shall be deemed to limit, restrict, or otherwise determine or affect the amount or amounts which may be agreed upon to be paid to the Contractor pursuant to this subparagraph 13.3.3.

  In the event of the failure of the Contractor and the Owner to agree, as provided in subparagraph 13.3.3, upon the whole amount to be paid to the Contractor by reason of the termination of Work pursuant to this article, the Owner shall pay to the Contractor the amounts determined by the Owner as follows, but without duplication of any amounts agreed upon in accordance with subparagraph 13.3.3.

• CONTRACTOR’S RESPONSIBILITIES UPON TERMINATION —

  After receipt of a Notice of Termination pursuant to Article 13.2 or 13.3 and except as otherwise directed by the Owner, the Contractor shall:

  1. Stop Work under the contract on the date and to the extent specified in the Notice of Termination;

  2. Place no further orders or subcontracts for materials, services or facilities, except as may be necessary for completion of such portion of the Work under the Contract as is not terminated;

  3. Terminate all orders and subcontracts to the extent that they relate to the performance of Work terminated by the Notice of Termination;

  4. At the option of the Owner, assign to the Owner, in the manner, at the time, and to the extent directed by the Owner, all of the right, title, and interest of the Contractor under the orders and subcontracts so terminated, in which case the Owner shall have the right, in its discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts;

  5. Settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts, with the approval or ratification of the Owner, to the extent he may require, which approval or ratification shall be final for all the purposes of this article;

  6. Transfer title and deliver to the Owner in the manner, at the times, and to the extent, if any, directed by the Owner:

  A. The fabricated or unfabricated parts, Work in process, completed Work, supplies, and other material procured as a part of, or acquired in connection with the performance of, the Work terminated by the Notice of Termination, and

  B. The completed or partially completed drawings, releases, information, manuals and other property which, if the Contract had been completed, would have been required to be furnished to the Owner;

  7. Use his best efforts to sell, in the manner, at the times, to the extent, and at the price or prices directed or authorized by the Owner, any property of the types referred to in 14.4.6 above, provided, however, that the Contractor:

  A. Shall not be required to extend credit to any purchaser, and

  B. May acquire any such property under the conditions prescribed by and at a price or prices approved by the Owner and provided further that the process of any such transfer or disposition shall be applied in reduction of any payments to be made by the Owner to the Contractor under this Contract or shall otherwise be credited to the price or cost of the Work covered by this Contract or paid in such other manner as the Owner may direct;

  8. Complete performance of such part of the Work as shall not have been terminated by the Notice of Termination; and

  9. Take such action as may be necessary, or as the Owner may direct, for the protection and preservation of the property related to this Contract which is in the possession of the Contractor and in which the Owner has or may acquire an interest.

• DISPUTES UPON TERMINATION —

  The provisions of 7.4 shall be applicable to any claim, dispute or other matter arising because of termination under this Article 13.

Submission Requirements

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