All Federal assisted construction contracts must include the
provisions of Form FHWA-1273 which must be physically incorporated
into all contracts as well as appropriate subcontracts and purchase orders.
These required contract provisions contain requirements
that prohibit
discrimination; provide for Equal Employment Opportunity;
require payment of predetermined minimum wages; stipulate subcontracting
requirements
and limitations; mandate compliance with health and safety
standards at the work place and require compliance with all appropriate
environmental
regulations among the noted provisions. Form FHWA-1273 contains
a number of certification/provision requirements including non-collusion,
lobbying
and suspension/debarment. Refer to the “Nondiscrimination
Agreement” in the Assurances/Agreements appendix to review the form.
A project may only be advertised for bid for prospective contractors
after Plan Specifications and Estimates (PS&E)
approval and project authorization to proceed to the construction
phase are obtained. The authorization is documented and is based on the
following:
1. All Right of Way clearances, utility and rail roadwork either
have been completed or arrangements have been made for coordination during
construction.
2. All matters involving the relocation of individuals and
families have been properly addressed when such circumstances exist.
3. All requirements pertaining to the public involvement/hearing
process and the location and design approval process have been satisfactorily
addressed.
4. Where applicable, area-wide agency compliance review requirements
and issues (i.e., clearinghouses) have been accomplished appropriately,
completed and/or resolved.
All advertising policies and practices must assure free and
open competition.
This also applies to:
1. Licensing, bonding, prequalification and bidding.
2. Title VI, nondiscrimination, assurances with regard to race,
color, national origin, sex, disability and age.
Contracts are normally advertised in newspapers, trade journals
or other appropriate media to reach a wide audience, attract greater attention
and enhance competition. The minimum advertisement period is 3 weeks. There
are exceptions when circumstances warrant shorter periods. The period can
also be longer for complex projects. When an addendum is issued to change
plans or bid items, the bid opening date may be changed to allow bidders
time to incorporate the revisions into the bid.
Potential Title VI Issues
1. Whether appropriate contract provisions are incorporated
into contracts funded by Federal financial assistance.
2. When awarding a contract, whether the contractor has any
unresolved Title VI violations.
Recommended Good Practices and Mitigation Measures
1. Prior to contract award, contact DCIU to verify that the
vendor does not have an active Title VI violation.
2. Review all contracts to ensure nondiscrimination clauses
are incorporated.
3. Periodically review and analyze processes to ensure nondiscrimination
– what can appear as neutral on its face can have discriminatory effects.
4. Periodically review outreach activities to ensure small
disadvantaged minority, women, disabled and disabled veteran businesses
are invited to participate.
5. Document actions taken to ensure Title VI compliance.
Possible Compliance Review Questions
1. How are contract opportunities advertised? Describe the
process.
2. Describe the requirements for submitting a bid?
3. Describe the sub-contracting opportunities?
4. Describe the process used to promote the participation of
Disadvantaged Business Enterprise (DBE) firms?
5. Who monitors the contractor’s adherence with the Title VI
requirements?
6. Describe the award process.
7. Describe the process used to ensure there are no unresolved
Title VI violations.
8. Are locations accessible (geographically and structurally),
appropriate times and translation services planned for and provided?
9. Staffing Composition
a. Provide a staffing composition listing by position, race
and gender. Include an organizational chart.
b. Policy and Advisory Committees – Provide a listing of committees
and their respective members by position, race and gender.
c. Provide a listing of persons who are designated to provide
alternative language assistance and identify what languages they translate.
10. Complaints
a. Provide a copy of your Title VI complaint procedure. How
is the community, your customers, made aware of this process?
b. How many Title VI related complaints have you received in
the past two years?
c. What was the outcome of those complaints?
11. Training
a. Has staff received formal or informal training regarding
Title VI of the Civil Rights Act of 1964, related statutes and Environmental
Justice Executive Orders?
b. What is your schedule for Title VI training this year and
who will attend?
Self Monitoring
1. How does your program ensure that its bidding and contract
award procedures are consistent with the nondiscrimination and affirmative
action requirements of Title VI?
2. What has your program done to identify any requirements
or procedures that may present barriers or obstacles to DBE firms attempting
to seek contract opportunities including the following:
· Bonding requirements
○ Bid Bond
○ Payment Bond
○ Performance Bond
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