Section

[Code of Federal Regulations]
[Title 23, Volume 1]
[Revised as of April 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 23CFR633.211]

[Page 156-166]

TITLE 23--HIGHWAYS

CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION

PART 633--REQUIRED CONTRACT PROVISIONS--Table of Contents

Subpart B--Federal-Aid Contracts (Appalachian Contracts)

Sec. 633.211 Implementation of the Clean Air Act and the Federal Water Pollution Control Act.

Pursuant to regulations of the Environmental Protection Agency (40
CFR part 15) implementing requirements with respect to the Clean Air Act
and the Federal Water Pollution Control Act are included in appendix B
to this part.

[40 FR 49084, Oct. 21, 1975]

Appendix A to Subpart B of Part 633--Types of Contracts to Which the
Civil Rights Act of 1964 Is Applicable

Section 324 of title 23 U.S.C., the Civil Rights Act of 1964, and
the implementing regulations of the Department of Transportation (49 CFR
part 21), including the provisions of paragraphs (2)(iii) and (2)(v) of
appendix C thereof relative to employment practices, are applicable to
the following types of contracts awarded by State highway departments,
contractors, and first tier subcontractors, including those who supply
materials and lease equipment:
1. Construction.
2. Planning.
3. Research.
4. Highway Safety.
5. Engineering.
6. Property Management.
7. Fee contracts and other commitments with persons for services
incidental to the acquisition of right-of-way including, but not limited
to:
a. Advertising contracts.
b. Agreements for economic studies.
c. Contracts for surveys and plats.
d. Contracts for abstracts of title certificates and title
insurance.
e. Contracts for appraisal services and expert witness fees.
f. Contracts to negotiate for the acquisition of right-of-way.
g. Contracts for disposal of improvements and property management
services.
h. Contracts for employment of fee attorneys for right-of-way
procurement, or preparation and trial of condemnation cases.
i. Contracts for escrow and closing services.

[40 FR 49084, Oct. 21, 1975]

Appendix B to Subpart B of Part 633--Required Contract Provisions,
Appalachian Development Highway System and Local Access Roads
Construction Contracts

I. Application.
II. Employment Preference.
III. Equal Opportunity: Employment Practices.
IV. Equal Opportunity: Selection of Subcontractors, Procurement of
Materials, and Leasing of Equipment.
V. Nonsegregated Facilities.
VI. Payment of Predetermined Minimum Wages.
VII. Statements and Payrolls.
VIII. Record of Materials, Supplies and Labor.
IX. Subletting or Assigning the Contract.
X. Safety: Accident Prevention.
XI. False Statements Concerning Highway Projects.

[[Page 157]]

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

I. Application.
1. These contract provisions shall apply to all work performed on
the contract by the contractor with his own organization and with the
assistance of workmen under his immediate superintendence and to all
work performed on the contract by piecework, station work, or by
subcontract.
2. Except as otherwise provided in sections II, III, and IV hereof,
the contractor shall insert in each of his subcontracts all of the
stipulations contained in these Required Contract Provisions and also a
clause requiring his subcontractors to include these Required Contract
Provisions in any lower tier subcontracts which they may enter into,
together with a clause requiring the inclusion of these provisions in
any further subcontracts that may in turn be made. The Required Contract
Provisions shall in no instance be incorporated by reference.
3. A breach of any of the stipulations contained in these Required
Contract Provisions may be grounds for termination of the contract.
4. A breach of the following clauses may also be grounds for
debarment as provided in 29 CFR 5.6(b):
Section 1, paragraph 2.
Section VI, paragraphs 1, 2, 3, 5 and 8a.
Section VII, paragraphs 1, 5a, 5b and 5d.

II. Employment preference.
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 United States Department of Labor
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 laborers, mechanics and
other employees he anticipates will be required to perform the contract
work, (b) the number of employees required in each classification, (c)
the date on which he 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, he 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 the positions covered by the
certificate, notwithstanding the provisions of subparagraph 1c above.
5. The contractor shall include the provisions of section II-1
through II-4 in every subcontract for work which is, or reasonably may
be, done as on-site work.

III. Equal opportunity: employment practices.

During the performance of this contract, the contractor agrees as
follows:
a. The contractor will not discriminate against any employee or
applicant for employment because of race, color, religion, sex, or
national origin. The contractor will take affirmative action to ensure
that applicants are employed, and that employees are treated during
employment without regard to their race, color, religion, sex, or
national origin. Such action shall include, but not be limited to the
following: Employment, upgrading, demotion or transfer; recruitment or
recruitment advertising; layoffs or termination; rates of pay or other
forms of compensation; and selection of training, including
apprenticeship. The contractor agrees to post in conspicuous places,
available to employees and applicants for employment, notices to be
provided by the State highway department setting forth the provisions of
this nondiscrimination clause.
b. The contractor will, in all solicitations or advertisements for
employees placed by or on behalf of the contractor, state that all

[[Page 158]]

qualified applicants will receive consideration for employment without
regard to race, color, religion, sex, or national origin.
c. The contractor will send to each labor union or representative of
workers with which he has a collective bargaining agreement or other
contract or understanding, a notice to be provided by the State highway
department advising the said labor union or workers' representative of
the contractor's commitments under this section III and shall post
copies of the notice in conspicuous places available to employees and
applicants for employment.
d. The contractor will comply with all provisions of Executive Order
11246 of September 24, 1965, and of the rules, regulations and relevant
orders of the Secretary of Labor.
e. The contractor will furnish all information and reports required
by Executive Order 11246 of September 24, 1965, and by rules,
regulations and orders of the Secretary of Labor or pursuant thereto,
and will permit access to his books, records and accounts by the Federal
Highway Administration and the Secretary of Labor for purposes of
investigation to ascertain compliance with such rules, regulations and
orders.
f. In the event of the contractor's noncompliance with the
nondiscrimination clauses of this contract or with any of the said
rules, regulations or orders, this contract may be canceled, terminated
or suspended in whole or in part and the contractor may be declared
ineligible for further Government contracts or federally-assisted
construction contracts in accordance with procedures authorized in
Executive Order 11246 of September 24, 1965, and such other sanctions
may be imposed and remedies invoked as provided in Executive Order 11246
of September 24, 1965, or by rule, regulation or order of the Secretary
of Labor, or as otherwise provided by law.
g. The contractor will include the provisions of this section III in
every subcontract or purchase order unless exempted by rules,
regulations or orders of the Secretary of Labor issued pursuant to
section 204 of Executive Order 11246 of September 24, 1965, so that such
provisions will be binding upon each subcontractor or vendor. The
contractor will take such action with respect to any subcontract or
purchase order as the State Highway Department or the Federal Highway
Administration may direct as a means of enforcing such provisions
including sanctions for noncompliance: Provided, however, That in the
event a contractor becomes involved in, or is threatened with litigation
with a subcontractor or vendor as a result of such direction by the
Federal Highway Administration, the contractor may request the United
States to enter into such litigation to protect the interests of the
United States.

IV. Equal opportunity selection of subcontractors, procurement of
materials, and leasing of equipment.

During the performance of this contract, the contractor, for itself,
its assignees and successors in interest (hereinafter referred to as the
contractor), agrees as follows:
1. Compliance with regulations. The contractor shall comply with the
provisions of 23 U.S.C. 324 and with the regulations relative to
nondiscrimination in Federally-assisted programs of the Department of
Transportation (hereinafter, ``DOT'') title 49, Code of Federal
Regulations, part 21, as they may be amended from time to time
(hereinafter referred to as the Regulations), which are herein
incorporated by reference and made a part of this contract.
2. Nondiscrimination. The contractor, with regard to the work
performed by it during the contract, shall not discriminate on the
grounds of race, color, sex, or national origin in the selection and
retention of subcontractors, including procurements of materials and
leases of equipments. The contractor shall not participate either
directly or indirectly in the discrimination prohibited by section 21.5
of the Regulations, including employment practices.
3. Solicitations for subcontracts including procurement of materials
and equipment. In all solicitations either by competitive bidding or
negotiation made by the contractor for work to be performed under a
subcontract, including procurements of materials or leases of equipment,
each potential subcontractor or supplier, shall be notified by the
contractor of the contractor's obligations under this contract and the
Regulations relative to nondiscrimination on the grounds of race, color,
sex, or national origin.
4. Information and reports. The contractor shall provide all
information and reports required by the Regulations, or directives
issued pursuant thereto, and shall permit access to its books, records,
accounts, other sources of information, and its facilities as may be
determined by the State highway department or the Federal Highway
Administration to be pertinent to ascertain compliance with such
Regulations, orders and instructions. Where any information required of
a contractor is in the exclusive possession of another who fails or
refuses to furnish this information, the contractor shall so certify to
the State highway department, or the Federal Highway Administration, as
appropriate, and shall set forth what efforts it has made to obtain the
information.
5. Sanctions for noncompliance. In the event of the contractor's
noncompliance with the nondiscrimination provisions of this contract,
the State highway department shall impose such contract sanctions as it
or the

[[Page 159]]

Federal Highway Administration may determine to be appropriate,
including, but not limited to:
a. Withholding of payments to the contractor under the contract
until the contractor complies, and/or
b. Cancellation, termination or suspension of the contract, in whole
or in part.
6. Incorporation of provisions. The contractor will include the
provisions of paragraphs (1) through (6) in every subcontract, including
procurements of materials and leases of equipment, unless exempt by the
Regulations, or directives issued pursuant thereto. The contractor shall
take such action with respect to any subcontract or procurement, as the
State highway department or the Federal Highway Administration may
direct as a means of enforcing such provisions including sanctions for
noncompliance: Provided, however, That, in the event a contractor
becomes involved in, or is threatened with, litigation with a
subcontractor or supplier, as a result of such direction, the contractor
may request the State to enter into such litigation to protect the
interests of the State, and, in addition, the contractor may request the
United States to enter into such litigation to protect the interests of
the United States.

V. Nonsegregated facilities.

(Applicable to Federal-aid construction contracts and related
subcontracts exceeding $10,000 which are not exempt from the Equal
Opportunity clause.)
By submission of this bid, the execution of this contract or
subcontract, or the consummation of this material supply agreement, as
appropriate, the bidder, Federal-aid construction contractor,
subcontractor, or material supplier, as appropriate, certifies that he
does not maintain or provide for his employees any segregated facilities
at any of his establishments, and that he does not permit his employees
to perform their services at any location, under his control, where
segregated facilities are maintained. He certifies further that he will
not maintain or provide for his employees any segregated facilities at
any of his establishments, and that he will not permit his employees to
perform their services at any location, under his control, where
segregated facilities are maintained. He agrees that a breach of this
certification is a violation of the Equal Opportunity clause in this
contract. As used in this certification, the term segregated facilities
means any waiting rooms, work areas, restrooms and washrooms,
restaurants and other eating areas, timeclocks, locker rooms and other
storage or dressing areas, parking lots, drinking fountains, recreation
or entertainment areas, transportation, and housing facilities provided
for employees which are segregated by explicit directive or are in fact
segregated on the basis of race, creed, color, or national origin,
because of habit, local custom, or otherwise. He agrees that (except
where he has obtained identical certifications from proposed
subcontractors and material suppliers for specific time periods), he
will obtain identical certifications from proposed subcontractors or
material suppliers prior to the award of subcontracts or the
consummation of material supply agreements, exceeding $10,000 which are
not exempt from the provisions of the Equal Opportunity clause, and that
he will retain such certification in his files.

VI. Payment of predetermined minimum wages.

1. General. All mechanics and laborers employed or working upon the
site of the work will be paid unconditionally and not less 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
amounts due at time of payment computed at wage rates not less than
those contained in the wage determination decision of the Secretary of
Labor which is attached hereto and made a part thereof, regardless of
any contractual relationship which may be alleged to exist between the
contractor and such laborers and mechanics; and the wage determination
decision shall be posted by the contractor at the site of the work in a
prominent place where it can be easily seen by the workers. For the
purpose of this clause, contributions made or costs reasonably
anticipated 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 section VI, paragraph 3b,
hereof. Also for the purpose of this clause, regular contributions made
or costs incurred for more than a weekly period under plans, funds, or
programs, but covering the particular weekly period, are deemed to be
constructively made or incurred during such weekly period.
2. Classifications--a. The State highway department contracting
officer shall require that any class of laborers or mechanics which is
not listed in the wage determination and which is to be employed under
the contract, shall be classified or reclassified conformably to the
wage determination, and a report of the action taken shall be sent by
the State highway department contracting officer to the Secretary of
Labor.
b. In the event the interested parties cannot agree on the proper
classification or reclassification of a particular class of laborers and
mechanics to be used, the question accompanied by the recommendation of
the State highway department contracting officer shall be referred to
the Secretary for final determination.

[[Page 160]]

3. Payment of fringe benefits--a. The State highway department
contracting officer shall require, whenever the minimum wage rate
prescribed in the contract for a class of laborers or mechanics includes
a fringe benefit which is not expressed as an hourly wage rate and the
contractor is obligated to pay a cash equivalent of such a fringe
benefit, an hourly cash equivalent thereof to be established. In the
event the interested parties cannot agree upon a cash equivalent of the
fringe benefits, the question, accompanied by the recommendation of the
contracting officer, shall be referred to the Secretary of Labor for
determination.
b. If the contractor does not make payments to a trustee or other
third person, he may consider as part of the wage of any laborer or
mechanic the amount of any costs reasonably anticipated in providing
benefits under a plan or program of a type expressly listed in the wage
determination decision of the Secretary of Labor which is part of this
contract: Provided, however, The Secretary of Labor has found, upon the
written request of the contractor, that the applicable standards of the
Davis-Bacon Act have been met. The Secretary of Labor may require the
contractor to set aside in a separate account assets for the meeting of
obligations under the plan or program.
4. Payment of excess wages. While the wage rates shown are the
minimum rates required by the contract to be paid during its life, this
is not a representation that labor can be obtained at these rates. No
increase in the contract price shall be allowed or authorized on account
of the payment of wage rates in excess of those listed herein.
5. Apprentices and trainees (Programs of Department of Labor). a.
Apprentices will be permitted to work at less than the predetermined
rate for the work they performed when they are employed and individually
registered in a bona fide apprenticeship program registered with the
U.S. Department of Labor, Manpower Administration, Bureau of
Apprenticeship and Training, or with a State Apprenticeship Agency
recognized by the Bureau, or if a person is employed in his first 90
days of probationary employment as an apprentice in such an
apprenticeship program, who is not individually registered in the
program, but who has been certified by the Bureau of Apprenticeship and
Training or a State Apprenticeship Agency (where appropriate) to be
eligible for probationary employment as an apprentice. The allowable
ratio of apprentices to journeymen in any craft classification shall not
be greater than the ratio permitted to the contractor as to his entire
work force under the registered program. Any employee listed on a
payroll at an apprentice wage rate, who is not a trainee as defined in
29 CFR 5.2(c)(2) or is not registered or otherwise employed as stated
above, shall be paid the wage rate determined by the Secretary of Labor
for the classification of work he actually performed. The contractor or
subcontractor will be required to furnish to the State highway
department or to a representative of the Wage-Hour Division of the U.S.
Department of Labor written evidence of the registration of his program
and apprentices as well as the appropriate ratios and wage rates
(expressed in percentages of the journeyman hourly rates), for the area
of construction prior to using any apprentices on the contract work. The
wage rate paid apprentices shall be not less than the appropriate
percentage of the journeyman's rate contained in the applicable wage
determination.
b. Trainees, except as provided in 29 CFR 5.15, will not be
permitted to work at less than the predetermined rate for the work
performed unless they are employed pursuant to and individually
registered in a program which has received prior approval, evidenced by
formal certification, by the U.S. Department of Labor, Manpower
Administration, Bureau of Apprenticeship and Training. The ratio of
trainees to journeymen shall not be greater than permitted under the
plan approved by the Bureau of Apprenticeship and Training. Every
trainee must be paid at not less than the rate specified in the approved
program for his level of progress. Any employee listed on the payroll at
a trainee rate who is not registered and participating in a training
plan approved by the Bureau of Apprenticeship and Training shall be paid
not less than the wage rate determined by the Secretary of Labor for the
classification of work he actually performed. The contractor or
subcontractor will be required to furnish the State highway department
or a representative of the Wage-Hour Division of the U.S. Department of
Labor written evidence of the certification of his program, the
registration of the trainees, and the ratios and wage rates prescribed
in that program. In the event the Bureau of Apprenticeship and Training
withdraws approval of a training program, the contractor will no longer
be permitted to utilize trainees at less than the applicable
predetermined rate for the work performed until an acceptable program is
approved.
c. The utilization of apprentices, trainees and journeymen shall be
in conformity with the equal employment opportunity requirements of
Executive Order 11246, as amended, and 29 CFR part 30.
6. Apprentices and trainees (Programs of Department of
Transportation). Apprentices and trainees working under apprenticeship
and skill training programs which have been certified by the Secretary
of Transportation as promoting equal opportunity in connection with
Federal-aid highway construction programs are not subject to the
requirements of section VI, paragraph 5 above. The straight time hourly
wage rates for apprentices and

[[Page 161]]

trainees under such programs will be established by the particular
programs.
7. Withholding for unpaid wages. The State highway department
contracting officer may withhold or cause to be withheld from the
contractor so much of the accrued payments or advances as may be
considered necessary to pay laborers, mechanics, (including apprentices
and trainees) watchmen, or guards employed by the contractor or any
subcontractor on the work the full amount of wages required by the
contract. In the event of failure to pay any laborer, mechanic,
(including apprentices and trainees) watchman or guard employed or
working on the site of the work, all or part of the wages required by
the contract, the State highway department contracting officer 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.
8. Overtime requirements. a. No contractor or subcontractor
contracting for any part of the contract work which may require or
involve the employment of laborers, mechanics, watchmen or guards
(including apprentices and trainees described in paragraphs 5 and 6
above) shall require or permit any laborer, mechanic, watchman or guard
in any workweek in which he is employed on such work, to work in excess
of eight hours in any calendar day or in excess of forty hours in such
workweek unless such laborer, mechanic, watchman or guard receives
compensation at a rate not less than one and one-half times his basic
rate of pay for all hours worked in excess of eight hours in any
calendar day or in excess of forty hours in such workweek, as the case
may be.
b. In the event of any violation of paragraph 8a, the contractor and
any subcontractor responsible therefor shall be liable to any affected
employee for his unpaid wages. In addition, such contractor and
subcontractor shall be liable to the United States for liquidated
damages. Such liquidated damages shall be computed with respect to each
individual laborer, mechanic, watchman or guard employed in violation of
paragraph 8a, in the sum of $10 for each calendar day on which such
employee was required or permitted to work in excess of eight hours or
in excess of the standard workweek of forty hours without payment of the
overtime wages required by paragraph 8a.
c. The State highway department contracting officer may withhold or
cause to be withheld, from any moneys payable on account of work
performed by the contractor or subcontractor, such sums as may
administratively be determined to be necessary to satisfy any
liabilities of such contractor or subcontractor for liquidated damages
as provided in paragraph 8b.

VII. Statements and payrolls.

1. Compliance with Copeland Regulations (29 CFR part 3). The
contractor shall comply with the Copeland Regulations (29 CFR part 3) of
the Secretary of Labor which are herein incorporated by reference.
2. Weekly statement. Each contractor or subcontractor shall furnish
each week a statement to the State highway department resident engineer
with respect to the wages paid each of its employees, including
apprentices and trainees described in section VI, paragraphs 5 and 6,
and watchmen and guards on work covered by the Copeland Regulations
during the preceding weekly payroll period. The statement shall be
executed by the contractor or subcontractor or by an authorized officer
or employee of the contractor or subcontractor who supervises the
payment of wages. Contractors and subcontractors must use the
certification set forth on U.S. Department of Labor Form WH-348, or the
same certification appearing on the reverse of Optional U.S. Department
of Labor Form WH-347, or on any form with identical wording.
3. Final labor summary. The contractor and each subcontractor shall
furnish, upon the completion of the contract, a summary of all
employment, indicating for the completed project the total hours worked
and the total amount earned. This data shall be submitted to the State
highway department resident engineer on Form PR-47 together with the
data required in section VIII, hereof, relative to materials and
supplies.
4. Final certificate. Upon completion of the contract, the
contractor shall submit to the State highway department contracting
officer, for transmission to the Federal Highway Administration with the
voucher for final payment for any work performed under the contract, a
certificate concerning wages and classifications for laborers,
mechanics, watchmen and guards employed on the project, in the following
form:

* * * * *

The undersigned, contractor on

(Project No.)

hereby certifies that all laborers, mechanics, apprentices, trainees,
watchmen and guards employed by him or by any subcontractor performing
work under the contract on the project have been paid wages at rates not
less than those required by the contract provisions, and that the work
performed by each such laborer, mechanic, apprentice or trainee
conformed to the classifications set forth in the contract or training
program provisions applicable to the wage rate paid.

Signature and title_____________________________________________________

* * * * *

[[Page 162]]

5. Payrolls and payroll records--a. Payrolls and basic records
relating thereto will be maintained during the course of the work and
preserved for a period of three years thereafter for all laborers,
mechanics, apprentices, trainees, watchmen and guards working at the
site of the work.
b. The payroll records shall contain the name, social security
number and address of each such employee, his correct classification,
rates of pay (including rates of contributions or costs anticipated of
the types described in section 1(b)(2) of the Davis-Bacon Act), daily
and weekly number of hours worked, deductions made and actual wages
paid. Whenever the Secretary of Labor, pursuant to section VI, paragraph
3.b., has found 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 I(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.
c. The payrolls shall contain the following information:
1. The employee's full name, address and social security number and
a notation indicating whether the employee does, or does not, normally
reside in the labor area as defined in section II, paragraph 1.a. (The
employee's full name and social security number need only appear on the
first payroll on which his name appears. The employee's address need
only be shown on the first submitted payroll on which the employee's
name appears, unless a change of address necessitates a submittal to
reflect the new address.)
2. The employee's classification.
3. Entries indicating the employee's basic hourly wage rate and,
where applicable, the overtime hourly wage rate. The payroll should
indicate separately the amounts of employee and employer contributions
to fringe benefits funds and/or programs. Any fringe benefits paid to
the employee in cash must be indicated. There is no prescribed or
mandatory form for showing the above information on payrolls.
4. The employee's daily and weekly hours worked in each
classification, including actual overtime hours worked (not adjusted).
5. The itemized deductions made and
6. The net wages paid.
d. The contractor will submit weekly a copy of all payrolls to the
State highway department resident engineer. The copy shall be
accompanied by a statement signed by the employer or his agent
indicating that the payrolls are correct and complete, that the wage
rates contained therein are not less than those determined by the
Secretary of Labor and the classifications set forth for each laborer or
mechanic conform with the work he performed. Submission of a weekly
statement which is required under this contract by section VII,
paragraph 2, and the Copeland Regulations of the Secretary of Labor (29
CFR part 3) and the filing with the initial payroll or any subsequent
payroll of a copy of any findings by the Secretary of Labor pursuant to
section VI, paragraph 3b, shall satisfy this requirement. The prime
contractor shall be responsible for the submission of copies of payrolls
of all subcontractors. The contractor will make the records required
under the labor standards clauses of the contract available for
inspection by authorized representatives of the State highway
department, the Federal Highway Administration and the Department of
Labor, and will permit such representatives to interview employees
during working hours on the job.
e. The wages of labor shall be paid in legal tender of the United
States, except that this condition will be considered satisfied if
payment is made by negotiable check, on a solvent bank, which may be
cashed readily by the employee in the local community for the full
amount, without discount or collection charges of any kind. Where checks
are used for payment, the contractor shall make all necessary
arrangements for them to be cashed and shall given information regarding
such arrangements.
f. No fee of any kind shall be asked or accepted by the contractor
or any of his agents from any person as a condition of employment on the
project.
g. No laborers shall be charged for any tools used in performing
their respective duties except for reasonably avoidable loss or damage
thereto.
h. Every employee on the work covered by this contract shall be
permitted to lodge, board and trade where and with whom he elects and
neither the contractor nor his agents, nor his employees shall, directly
or indirectly, require as a condition of employment that an employee
shall lodge, board or trade at a particular place or with a particular
person.
i. No charge shall be made for any transportation furnished by the
contractor, or his agents, to any person employed on the work.
j. No individual shall be employed as a laborer or mechanic on this
contract except on a wage basis, but this shall not be construed to
prohibit the rental of teams, trucks, or other equipment from
individuals.

VIII. Record of materials, supplies and labor.

1. The contractor shall maintain a record of the total cost of all
materials and supplies purchased for and incorporated in the work,

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and also of the quantities of those specific materials and supplies
listed on Form PR-47 and in the units shown. Upon completion of the
contract, this record, together with the final labor summary required in
section VII, paragraph 3, hereof, shall be transmitted to the State
highway department resident engineer for the project on Form PR-47 in
accordance with instructions attached thereto, which will be furnished
for this purpose upon request. The quantities for the listed items shall
be reported separately for roadway and for structures over 20 feet long
as measured along the centerline of the roadway.
2. The contractor shall become familiar with the list of specific
materials and supplies contained in Form PR-47 prior to the commencement
of work under this contract. Any additional materials information
required will be solicited through revisions of Form PR-47 with
attendant explanations.
3. Where subcontracts are involved the contractor shall submit
either a single report covering work both by himself and all his
subcontractors, or he may submit separate reports for himself and for
each of his subcontractors.

IX. Subletting or assigning the contract.

1. The contractor shall perform with his own organization contract
work amounting to not less than 50 percent of the original total
contract price, except that any items designated by the State as
Specialty Items may be performed by subcontract and the amount of any
such Specialty Items so performed may be deducted from the original
total contract price before computing the amount of work required to be
performed by the contractor with his own organization.
a. His own organization shall be construed to include only workmen
employed and paid directly by the prime contractor and equipment owned
or rented by him, with or without operators.
b. Specialty items shall be construed to be limited to work that
requires highly specialized knowledge, craftsmanship or equipment not
ordinarily available in contracting organizations qualified to bid on
the contract as a whole and in general are to be limited to minor
components of the overall contract.
2. In addition to the 50 percent requirements set forth in paragraph
1 above, the contractor shall furnish (a) a competent superintendent or
foreman who is employed by him, who has full authority to direct
performance of the work in accordance with the contract requirements,
and who is in charge of all construction operations (regardless of who
performs the work), and (b) such other of his own organizational
capability and responsibility (supervision, management, and engineering
services) as the State highway department contracting officer determines
is necessary to assure the performance of the contract.
3. The contract amount upon which the 50 percent requirement set
forth in paragraph 1 is computed includes the cost of materials and
manufactured products which are to be purchased or produced by the
contractor under the contract provisions.
4. Any items that have been selected as Specialty Items for the
contract are listed as such in the Special Provisions, bid schedule, or
elsewhere in the contract documents.
5. No portion of the contract shall be sublet, assigned or otherwise
disposed of except with the written consent of the State highway
department contracting officer, or his authorized representative, and
such consent when given shall not be construed to relieve the contractor
of any responsibility for the fulfillment of the contract. Request for
permission to sublet, assign or otherwise dispose of any portion of the
contract shall be in writing and accompanied by (a) a showing that the
organization which will perform the work is particularly experienced and
equipped for such work, and (b) an assurance by the contractor that the
labor standards provisions set forth in thiscontract shall apply to
labor performed on all work encompassed by the request.

X. Safety: Accident prevention.

In the performance of this contract, the contractor shall comply
with all applicable Federal, State and local laws governing safety,
health and sanitation. The contractor shall provide all safeguards,
safety devices and protective equipment and take any other needed
actions, on his own responsibility, or as the State highway department
contracting officer may determine, 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.
It is a condition of this contract, and shall be made a condition of
each subcontract entered into pursuant to this contract, that the
contractor and any subcontractor shall not require any laborer or
mechanic employed in performance of the contract to work in surroundings
or under working conditions which are unsanitary, hazardous, or
dangerous to his health or safety, as determined under construction
safety and health standards (title 29, Code of Federal Regulations, part
1926, formerly part 1518, as revised from time to time), promulgated by
the United States Secretary of Labor, in accordance with section 107 of
the Contract Work Hours and Safety Standards Act (83 Stat. 96).

XI. False statements concerning highway projects.

In order to assure high quality and durable construction in
conformity with approved plans and specifications and a high degree of

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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. Willfull
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, the following notice shall be posted on each Federal-aid highway
project in one or more places where it is readily available to all
personnel concerned with the project:

* * * * *

Notice to All Personnel Engaged on Federal-Aid Highway Projects

Title 18 U.S.C., section 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 costs thereof in
connection with the submission of plans, maps, specifications,
contracts, or costs of construction of 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 a material fact in any statement, certificate, or
report submitted pursuant to provisions of the Federal-Aid Road Act
approved July 1, 1916 (39 Stat. 355), as amended and supplemented;
``Shall be fined not more than $10,000 or imprisoned not more than
five years, or both.''

XII. Implementation of Clean Air Act and Federal Water Pollution Control
Act (applicable to contracts and subcontracts which exceed
$100,000).

1. The contractor stipulates that any facility to be utilized in the
performance of this contract, unless such contract is exempt under the
Clean Air Act, as amended (42 U.S.C. 1857 et seq., as amended by Pub. L.
91-604), and under the Federal Water Pollution Control Act, as amended
(33 U.S.C. 1251 et seq., as amended by Pub. L. 92-500), Executive Order
11738, and regulations in implementation thereof (40 CFR part 15), is
listed not on the date of contract award, on the U.S. Environmental
Protection Agency (EPA) List of Violating Facilities Pursuant to 40 CFR
part 15.20.
2. The contractor agrees to comply with all the requirements of
section 114 of the Clean Air Act and section 308 of the Federal Water
Pollution Control Act and all regulations and guidelines listed
thereunder.
3. The contractor shall promptly notify the State highway department
of the receipt of any communication from the Director, Office of Federal
Activities, EPA, indicating that a facility to be utilized for the
contract is under consideration to be listed on the EPA List of
Violating Facilities.
4. The contractor agrees to include or cause to be included the
requirements of subparagraphs 1 through 4 of this paragraph XII in every
subcontract which exceeds $100,000, and further agrees to take such
action as Government may direct as a means of enforcing such
requirements.

[40 FR 49084, Oct. 21, 1975]

Appendix C to Subpart B of Part 633--Additional Required Contract
Provisions, Appalachian Development Highway System and Local Access
Roads Contracts Other Than Construction Contracts

Equal Opportunity: Employment Practices and Selection of Subcontractors,
Suppliers of Materials, and Lessors of Equipment

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

1. Compliance with regulations.
The contractor will comply with the provisions of 23 U.S.C. 324 and
with the Regulations of the Department of Transportation relative to
nondiscrimination in Federally-assisted programs of the Department of
Transportation (Title 49, Code of Federal Regulations, part 21,
hereinafter referred to as the regulations), which are herein
incorporated by reference and made a part of this contract.

2. Employment practices
a. The contractor will not discriminate against any employee or
applicant for employment because of race, color, sex, or national
origin. The contractor will take affirmative action to ensure that
applicants are employed, and that employees are treated during
employment without regard to their race, color, sex, or national origin.

[[Page 165]]

Such action shall include, but not be limited to the following:
recruitment or recruitment advertising, hiring, firing, upgrading,
promotion, demotion, transfer, layoff, termination, rates of pay or
other forms of compensation or benefits, selection for training or
apprenticeship, use of facilities and treatment of employees. The
contractor agrees to post in conspicuous places, available to employees
and applicants for employment, notices setting forth the provisions of
this employment practices clause.
b. The contractor will, in all solicitations or advertisements for
employees placed by or on behalf of the contractor, state that all
qualified applicants will receive consideration for employment without
regard to race, color, sex, or national origin.
c. The contractor will send to each labor union or representative of
workers with which he has a collective bargaining agreement or other
contract or understanding, a notice advising the said labor union or
workers representative of the contractor's commitments under the
employment practices provision, and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.

3. Selection of subcontractors, procurement of materials and leasing of
equipment.
a. The contractor, with regard to the work performed by him after
award and prior to completion of the contract work, will not
discriminate on the ground of race, color, sex, or national origin in
the selection and retention of subcontractors, including procurements of
materials and leases of equipment. The contractor will not participate
either directly or indirectly in the discrimination prohibited by
Section 21.5 of the Regulations.
b. In all solicitations either by competitive bidding or negotiation
made by the contractor for work to be performed under a subcontract,
including procurements of materials or leases of equipment, each
potential subcontractor, supplier, or lessor shall be notified by the
contractor of the contractor's obligations under this contract and the
Regulations relative to nondiscrimination on the ground of race, color,
sex, or national origin.

4. Information and reports.
The contractor will provide all information and reports required by
the Regulations, or orders and instructions issued pursuant thereto, and
will permit access to its books, records, accounts, other sources of
information, and its facilities as may be determined by the State
highway department or the Federal Highway Administration to be pertinent
to ascertain compliance with such Regulations, orders and instructions.
Where any information required of a contractor is in the exclusive
possession of another who fails or refuses to furnish this information,
the contractor shall so certify to the State highway department, or the
Federal Highway Administration as appropriate, and shall set forth what
efforts it has made to obtain the information.

5. Incorporation of provisions.
The contractor will include these additional required contract
provisions in every subcontract, including procurements of materials and
leases of equipment, unless exempt by the Regulations or orders, or
instructions issued pursuant thereto. The contractor will take such
action with respect to any subcontract, procurement, or lease as the
State highway department or the Federal Highway Administration may
direct as a means of enforcing such provisions including sanctions for
non-compliance: Provided, however, That, in the event a contractor
becomes involved in, or is threatened with, litigation with a
subcontractor, supplier, or lessor as a result of such directed action,
the contractor may request the State to enter into such litigation to
protect the interest of the State, and, in addition, the contractor may
request the United States to enter into such litigation to protect the
interest of the United States.

6. Sanctions for noncompliance.
In the event of the contractor's noncompliance with sections 1
through 5 above, the State highway department shall impose such contract
sanctions as it or the Federal Highway Administration may determine to
be appropriate, including but not limited to.
a. Withholding of payments to the contractor under the contract
until the contractor complies, and/or
b. Cancellation, termination or suspension of the contract in whole
or in part.

[40 FR 49088, Oct. 21, 1975]

Appendix D to Subpart B of Part 633--Federal-Aid Proposal Notices

Notices to Prospective Federal-Aid Construction Contractors

I. Certification of nonsegregated facilities.
(a) A Certification of Nonsegregated Facilities, as required by the
May 9, 1967, Order of the Secretary of Labor (32 FR 7439, May 19, 1967)
on Elimination of Segregated Facilities (is included in the proposal and
must be submitted prior to the award of a Federal-aid highway
construction contract exceeding $10,000 which is not exempt from the
provisions of the Equal Opportunity clause).
(b) Bidders are cautioned as follows: By signing this bid, the
bidder will be deemed to have signed and agreed to the provisions of the
``Certification of Nonsegregated Facilities'' in this proposal. This
certification provides that the bidder does not maintain or provide for
his employees facilities which are

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segregated on a basis of race, creed, color, or national origin, whether
such facilities are segregated by directive or on a de facto basis. The
certification also provides that the bidder will not maintain such
segregated facilities.
(c) Bidders receiving Federal-aid highway construction contract
awards exceeding $10,000 which are not exempt from the provisions of the
Equal Opportunity clause, will be required to provide for the forwarding
of the following notice to prospective subcontractors for construction
contracts and material suppliers where the subcontracts or material
supply agreements exceed $10,000 and are not exempt from the provisions
of the Equal Opportunity clause.

Notice to Prospective Subcontractors and Material Suppliers of
Requirement for Certification of Nonsegregated Facilities

(a) A Certification of Nonsegregated Facilities is required by the
May 9, 1967, Order of the Secretary of Labor (32 FR 7431, May 19, 1967)
on Elimination of Segregated Facilities, which is included in the
proposal, or attached hereto, must be submitted by each subcontractor
and material supplier prior to the award of the subcontract or
consummation of a material supply agreement if such subcontract or
agreement exceeds $10,000 and is not exempt from the provisions of the
Equal Opportunity clause.
(b) Subcontractors and material suppliers are cautioned as follows:
By signing the subcontract or entering into a material supply agreement,
the subcontractor or material supplier will be deemed to have signed and
agreed to the provisions of the ``Certification of Nonsegregated
Facilities'' in the subcontract or material supply agreement. This
certification provides that the subcontractor or material supplier does
not maintain or provide for his employees facilities which are
segregated on the basis of race, creed, color, or national origin,
whether such facilities are segregated by directive or on a de facto
basis. The certification also provides that the subcontractor or
material supplier will not maintain such segregated facilities.
(c) Subcontractors or material suppliers receiving subcontract
awards or material supply agreements exceeding $10,000 which are not
exempt from the provisions of the Equal Opportunity clause will be
required to provide for the forwarding of this notice to prospective
subcontractors for construction contracts and material suppliers where
the subcontracts or material supply agreements exceed $10,000 and are
not exempt from the provisions of the Equal Opportunity clause.

II. Implementation of Clean Air Act.
(a) By signing this bid, the bidder will be deemed to have
stipulated as follows:
(1) That any facility to be utilized in the performance of this
contract, unless such contract is exempt under the Clean Air Act, as
amended (42 U.S.C. 1857 et seq., as by Pub. L. 91-604), Executive order
11738, and regulations in implementation thereof (40 CFR part 15, is not
listed on the U.S. Environmental Protection Agency (EPA) List of
Violating Facilities pursuant to 40 CFR 15.20.
(2) That the State highway department shall be promptly notified
prior to contract award of the receipt by the bidder of any
communication from the Director, Office of Federal Activities, EPA,
indicating that a facility to be utilized for the contract is under
consideration to be listed on the EPA List of Violating Facilities.