Local Government Programs

Local Government Programs
Randy Lane, Local Programs Manager Jeff Peyton, Local Projects Coordinator ODOT Office of Systems Planning and Program Manager

ODOT LET & ADMINISTERED LPA PARTICIPATION REQUIREMENTS
ODOT Let vs. Local Let LPA PROJECT ODOT $ ODOT LET & ADMINISTERED LPA PARTICIPATION REQUIREMENTS LPA LET & ADMINISTERED Contingent upon acceptance of LPA Participation Requirements, review of LPA processes as they pertain to each process. ODOT always involved from a monitoring and oversight perspective – majority of time review and concur. Plans according to ODOT L&D Manual State Estimated LPA matching/overage funds deposited with ODOT prior to Award Minimum 12 week letting process from point of PS&E file Plans according to LPA format LPA/Consultant Estimated LPA matching/overage funds paid directly to the Contractor Minimum 4-5 week letting process from point of PS&E file

Local-Let Program History

LPA Administered Projects
Supervision and Staffing - 23 CFR Supervising agency… (c) ……the STD, while not relieved of overall project responsibility, may arrange for the local public agency having jurisdiction over such street or highway to perform the work with its own forces or by contract; provided the following…….. Compliance with all applicable Federal and State requirements. The local public agency is adequately staffed and suitably equipped to undertake and satisfactorily complete the work. Local public agency shall provide a full-time employee of the agency to be in responsible charge of the project.

Locally Administered Projects
“Person in Responsible charge” means: Aware of day-to-day operations on the project Aware of and involved in decisions about changed conditions that require change orders Aware of qualifications, assignments, performance of consultant staff at all stages of the project Visiting the project on a frequency that is commensurate with the magnitude & complexity of the project FROM CACC Pages Supervision of construction engineering consultants The STD’s responsibility for contract administration and construction inspection are not terminated when construction engineering and inspection (CE&I) services are provided by a consultant. In 1985, FHWA recognized that the use of consultants for CE&I is a well-recognized method of carrying out the STD’s responsibilities without having to maintain a permanent full-time staff based on the peak workload period. While a consultant may provide daily CE&I for a project, the STD must assign a full-time engineer to be in responsible charge of the project at all times although the engineer need not be assigned solely to that project. “Responsible charge” means the publicly employed engineer is: aware of the day-to-day operations on the project, aware of, and involved in decisions about changed conditions which require change orders or supplemental agreements, aware of the qualifications, assignments, on-the-job performance, etc., of the consultant staff at all stages of the project, and visiting the project on a frequency that is commensurate with the magnitude and complexity of the project.

Delegation of “Activities” not “Responsibilities” 23 CFR Supervising agency… (a) The STD has responsibility for the construction of all Federal-aid projects, and is not relieved of such responsibility by authorizing performance of the work by a local public agency or other Federal agency. The STD shall be responsible for insuring that such projects receive adequate supervision and inspection to insure that projects are completed in conformance with approved plans and specs. ODOT shall assume the responsibility and representation of FHWA ODOT provides oversight for each activity to ensure conformance to plans and specifications and Federal requirements.

Possible Delegated Activities: Environmental Studies Selection of Consultant Services Design Right of Way Acquisition Preparation of Plans, Specifications and Estimate Preparation of Bid Proposal Advertisement and Award Construction Contract Administration and Inspection Contingent upon acceptance of LPA Participation Requirements, review of LPA processes as they pertain to each process. ODOT always involved from a monitoring and oversight perspective – majority of time review and concur.

Non-Delegated Activities: NEPA Review and Approval Design Exception Approval Right of Way Certification DBE Goals and Waivers Final Inspection and Acceptance Sole Source and Proprietary Justification Approval Labor Compliance Enforcement Concurrence in Rejection of Bids ODOT / FHWA retain approval and acceptance responsibilities associated with Environmental, ROW and Construction. Oversight and monitoring of the LPA through process to ensure compliance. ODOT certifying to FHWA prior to “Federal Action,” i.e. Federal Authorization

GAO 2009

Oversight Highlights: ODOT Stewardship and Oversight Agreement for locally administered projects. Dedicated Staffing – FHWA Ohio Division Local Programs Engineer, ODOT Local Projects Section, and District LPA Coordinator and Construction Monitors Locally Administered Transportation Projects Manual of Procedures (LATP Manual) Qualification Program for Local Agencies – LPA Participation Requirements Chapter of LATP Manual ODOT Contractor and Consultant Prequalification

Process Requirements : ODOT Oversight in the Procurement of Consultant Services Advertisement of available contracts ODOT Prequalified Consultant Fee Analysis and Negotiation Preparation of LPA / Consultant agreement ODOT Review and Concurrence / Approval Plans, Specs and Estimates Package Award to Lowest and Best Bidder / Bid Rejections Change Orders Materials Certification Invoice Reimbursement Final Acceptance

ODOT Process Requirements: Locally Administered Transportation Projects Manual of Procedures ODOT and LPA Project Responsibilities – Inception through Project Closeout FHWA Ohio Division Involved in Development and Revision LPA Federal Project Agreement Roles and Responsibilities in adherence to Federal and State requirements ODOT 2010 LPA Bid Proposal Template Incorporated into LPA Bid Proposal and Contracts Developed with FHWA to ensure incorporation of Federal requirements.

ODOT Process Requirements: Locally Administered Transportation Projects Manual of Procedures LPA Participation Requirements Project Development and Design Consultant Contract Administration Environmental Real Estate Utilities Railroad Coordination Advertising, Sale and Award Construction Contract Administration………

LATP Manual Construction Contract Administration Chapter Roles & Responsibility of ODOT and LPA personnel Guidance for: preconstruction meetings; progress meetings; monitoring project progress; monitoring for EEO, DBE & prevailing wage; documentation of payments; material quality control; change order processing; claims; billing; and project closeout. Appendices contain many useful checklists and required forms

ODOT Process Requirements: LPA Federal Project Agreement Sets forth the State and Federal Requirements and Responsibilities Establishes funding commitment through ODOT Project Development Responsibilities - Environmental - Advertising / Sale / Award - Real Estate / Utility - Consultant / Construction Contract Administration Certification and Recapture of Funds Nondiscrimination Termination / Default / Breach of Contract Record Retention and Audit Requirements Ohio Ethics Laws

ODOT Process Requirements: ODOT 2010 LPA Bid Proposal Template Mandatory incorporation into LPA Bid Documents and Contracts Ensure compliance with State &Federal requirements.

Consultant Contract Administration
Jeff Peyton ODOT Local Projects

LPA Consultant Contract Management
In accordance with Locally Administered Transportation projects Manual of Procedures and ODOT Consultant Contract Administration Manual. Applicable to those projects utilizing Federal funds to acquire consultant services for any phase of the project.

Revised Consultant Contract Administration Chapter for LATP Manual of Procedures February 2008 Consultant Services oversight in all contracts over the $50,000 small purchase threshold Announcement of available contract on ODOT’s website Review LPA selection documentation (QBS) Performance of pre-Award evaluation Fee analysis, negotiation, and acceptance Preparation of Consultant / LPA Agreement Encumber funds Authorize agreement

Contracts not involving Federal funds must be selected in accordance with State law (ORC ) ODOT Prequalified Consultant

ODOT Policies Person in Responsible Charge in accordance with Participation Requirements – LATP Manual ODOT prequalified for services defined in ODOT’s Consultant Prequalification Requirements and Procedures Manual ODOT Prequalification not required for services not defined however LPA still responsible to select based on QBS and applicable Federal requirements Highlight some policies that are common

ODOT Policies Separation of Interests – Consultant or sub consultant retained by an LPA may act as design engineer or perform construction contract administration / inspection but can not perform both. Design consultant may be retained to provide on-going construction phase services as an extension of design, Assist in pre-bid questions Attendance at pre-bid and construction progress meetings Visit job site to monitor critical areas of work Review shop drawings and evaluate change orders or claims. Waiver process available through ODOT Local Projects in consultation with Consultant Services

ODOT Policies Federal Authorization to Proceed prior to the performance of any work for which Federal reimbursement is requested Separate Federal Authorization for Environmental Engineering and Final Engineering. Environmental Clearance required prior to Final Engineering. Executing the Consultant / LPA Agreement prior to Federal Authorization will prohibit reimbursement

ODOT Responsibilities
23 CFR 172 charges ODOT with oversight responsibilities for: Selection Procedures Negotiation of Fair and Reasonable Fee Administration of Agreement

Federal Rules 23 CFR FHWA rules governing consultant selection and contract administration - invokes the Brooks Act; directs the contracting agency to give consideration to Disadvantaged Business Enterprises (DBEs) in the selection process United States Code Title 40, Chapter 11 - Brooks Act - Requires qualifications based selection of consultants 48 CFR Part 31, Contract Cost Principles and Procedures (Federal Acquisition Regulations)

Federal Rules – Q &A When must qualification based procedures (Brooks Act) be used for procuring design related services? In general, when procuring design related services using Federal-aid highway funds and those services are directly related to a construction project. See Title 23 U.S.C. 112 for additional information. ODOT policy also requires that right-of-way acquisition and construction inspection/administration be treated as professional services subject to QBS rules.

Federal Rules – Q & A If there are no Federal-aid funds in the design services contract, are the federal qualifications based procurement procedures still applicable? No. If a State, county or city decides to fully fund the design contract; such entity may use its procedures under State law (ORC ).

Federal Rules – Q &A If a State, county or city does not use Federal-aid funds for the design contract and uses its own procurement procedures, is the related construction project(s) still eligible for Federal-aid funding? Yes. The rules for procuring engineering and architectural services are specific to the design contract that uses Federal- aid funds and not the total project.

Federal Rules – Q &A Do engineering services contracts have to be advertised under competitive negotiation procedures? Yes. The contracting agency must, by public advertisement, assure that in-state and out-of-state consultants are given a fair opportunity to be considered for award of the contract. The advertisement must include the criteria that will be used to rate the firms for their competency and qualifications to perform the type of work requested. ODOT policy also requires that right-of-way acquisition and construction inspection/administration follow the same procedures.

Federal Rules – Q &A Can price be a selection criterion under the competitive negotiation procedures? No. The cost cannot be a criterion during the evaluation phase of the selection process, unless specifically provided for in State statutes enacted and grandfathered into law prior to June 9, 1998.

Federal Rules – Q &A Can an in-state preference be used in the advertisement and selection phase? No. The intent of the Brooks Act is to develop a wide pool of potential service providers to select from. Therefore, the use of in-state preference as a criterion cannot be used. Local preferences are also prohibited by this rule, including selection factors that refer to “past experience with the local government”.

Federal Rules – Q &A Can a locality preference be used during the selection phase? Yes. Although a locality factor is not directly a qualification factor, a small locality preference criterion of 5, but no more that 10 percent, may be used. This criterion cannot be based on political boundaries and should be used on a project-by- project base for projects where a need has been established. Further, if a firm currently outside the locality criteria indicates as part of its proposal that it will satisfy that criteria in some manner, such as establishing a local project office, it should considered to have meet the locality criteria.

Federal Rules – Q &A Can a contract be modified to add work that was not included in the qualification based selection criteria used to evaluate proposals? No. Any modification of the contract to add work beyond the scope of work the contractor was qualified for would in effect circumvent the Brooks Act qualification based evaluation and selection procedures Example: If a firm was selected for an environmental EIS and the selection criteria related to environmental work only, the contract could not be modified to include design tasks. However, if the selection criteria also included design elements for rating of the contract, then it would be permissible to modify the contract to include some design.

ODOT LPA Procedures ODOT’s Website Includes:
Sample RFPs – meet Federal requirements Website posting of LPA RFPs Policies for the Use of Consultants on Local Traditional Projects (When Federal Funds are Used in Consultant Contracts)

Selection Procedures Advertisement - Use ODOT’s Website
See “Policy” for RFP content Use ODOT sample RFP documents Document selection decision per “Policy”

Fee Negotiation Negotiation must be “Fair and Reasonable”
Contact ODOT to confirm indirect (overhead) rates Owner’s estimate must be based on sound methods: similar previous contract; internal cost of producing similar work

Consultant Contracts Form of Agreement
Determining the most appropriate form of agreement at the outset of a project will contribute greatly to the overall success of the contract. Lump sum type agreements are most easily administered but are relatively inflexible in accommodating changes in the work. Actual cost agreements (costs plus a net fee) provide more flexibility but require relatively more administrative effort.

Contract Administration
Follow ODOT’s “Consultant Contract Administration Manual” Available on ODOT’s Website

Assign a Project Manager Single Point of Contact for Consultant Owner of job Expediter Problems Solver Watchdog

Project Manager’s Responsibilities Compliance with Scope of Services Schedule Cost Quality Record Keeping

ODOT / FHWA Required Contract Provisions

ODOT LPA Bid Document Template
Why - Increased Federal oversight of the LPA Program LPA Contracts Quality Improvement review performed by FHWA - Compliance with required clauses and conditions - Consistency for LPA / ODOT benefit Where - Word document – 2010 LPA Bid Document Template (Local-let Procedures and Documents) Not attorneys Call/fax me (Linda) and I will review for you

LPA Template Item 1 Properly incorporated
In most cases it has been just attached. Designed to work with LPA proposal documents. Incorporated by reference in Proposal “The required contract provisions for federal-aid construction contracts (contained in ODOT’s 2005 LPA template) are hereby incorporated by reference.” Incorporated into Contract “By signing the specified contract proposal, of which the ODOT LPA Template has been incorporated, the bidder agrees to all of the below provisions” Template set up for use with C&MS Table includes excluded 100 specs exclusive to ODOT.

LPA Template Item 1 - Specifications
Local Specifications Acknowledge LPA specifications with LPA Participation Requirements and LPA Scope of Services document. Modify the first note from the template Cannot modify specific provisions that relate to Federal / State requirements Refer to color-coded C&MS document on Local Projects website Required (green) Strongly encouraged (blue) Optional (yellow)

LPA Template Item 2 - Buy America
ODOT C&MS Contains both (a.) 23 CFR & (b.) ORC 23 CFR – All steel and iron products incorporated permanently into the Work all manufacturing processes must take place domestically includes coatings on these materials Minimal use = 0.1% (contract value) or $2500 (whichever is greater) Covers all contract items including 100% locally funded Waivers have to be given by FHWA Headquarters STAA of 1982 Section 165 ISTEA Section 1041(a) and 1048(a) Reference fact sheets which is a handout H-7 Nationwide Waivers – by FHWA rule making Specific Ferryboat parts in February 1994 Pig iron, scrap, raw alloy materials, pelletized or reduced iron ore in August 1994 Project Waivers Must comply with 23 CFR ( c)(1) – (public interest / unavailable domestically) Consider re-design with domestic HQ concurrence necessary if over $50,000 (must provide: project number, description, project cost, waiver item description, item cost, country of origin, reason for the waiver. Informal concurrence under $50k. If domestically produced steel or iron ingots are shipped overseas for any manufacturing process and then returned to U.S. , the resulting product does not conform with the Buy America requirement. Enforcement of Buy America is State responsibility. NAFTA does not apply NAFTA exempts grants, loans & other forms of Federal Financial Assistance Buy America is NOT the same as Buy AmericaN..see handout

LPA Template Item 3 – Debarment and Suspension
FHWA 1273 49 CFR 29 By signing the contract, the bidder certifies that they, or any described party, are not under suspension, debarment, voluntary exclusion or determination of ineligibility by any Federal agency; have not been within past 3 years; or currently pending proposed debarment.

LPA Template Item 4 – Prequalification
Only ODOT Prequalified contractors eligible to submit for bids Prequalification must be in force at time of bidding, at the time of Award, and throughout the life of the contract Prime Contractor must perform no less than 30% of the total contract price (FHWA CFR 635) Encourage incorporating prequalification for specific ODOT work types LPA Option to enforce ODOT Prequalification for Subcontractors

LPA Template Item 17 – Non-Collusion
ODOT PN 045 23 USC 112 and ORC 1331, and Contractor has not entered either directly or indirectly into any agreement , participated in any collusion, or otherwise taken action in the restraint of free competitive bidding in connection with the proposal. Requires signature of Non-Collusion Affidavit as permitted by 28 USC No separate form needed with proper inclusion of LPA Bid Document Template. Bid Rigging hotline information

LPA Template Item 21 – Unresolved Findings for Recovery
ODOT PN 038 OAC 9.24 Contractor represents to LPA that it is not subject to a finding for recovery under OAC 9.24. If this representation is deemed false, the contract shall be void and any funds paid by the state hereunder shall be repaid to the LPA.

LPA Template Item 24, 25 & 26 – Asphalt Binder, Steel and Fuel Price Adjustments
ODOT PNs for price adjustments for Asphalt Binder, Steel and Fuel. Encouraged not required. Steel Price Adjustment ODOT PN 525 Fuel Price Adjustment ODOT PN 520 Asphalt Binder Price Adjustment PN 530 – Single year projects PN 535 – Multiple year projects

LPA Template Item 31 – DMA / Nonassistance to Terrorists
ORC Serves as a declaration of the provision of material assistance to a terrorist organization or organization that supports terrorism as identified by the U.S. Department of State Terrorist Exclusion List. Must be completed and returned prior to entering into a contract with any political subdivision of the state of Ohio Failure to submit this form prior to entering into contract will result in the bid being deemed non-responsive and ineligible for award.

LPA Template Item – 33 FHWA Form 1273 - Required Provisions
Form FHWA 1273 (Required Contract Provisions) Failure to include the FHWA-1273 could result in the loss of federal-aid funding Standardized Changed Conditions Contract Clauses 23 CFR – ODOT C&MS Establishes pay factors for significant changes in character of the work Electronic version is available on the “o” drive. Not permitted to modify the provisions Section I.2 must be physically incorporated into each subcontract-may not be incorporated by reference Section I.3 Failure to comply is grounds for debarment Section I.5 Incorporates PW requirements

Geographical Preference
23 CFR § (b) Prohibits ODOT and local governments from enacting preferences Examples Local encourage or mandate the use of local employment Local considers location of contractor in award process Hometown plans (Cincinnati & Toledo) “All contractors and subcontractors involved with the project will, to the extent practicable, use Ohio Products, materials, services, and labor in the implementation of their project.” Anti-apartheid ordinances are anti-competitive Northern Ireland clause (MacBride Principles)

Review Restrictions to Competition
Local mandates Project Experience Statements Local workforce requirement Restrictive Best Bid Criteria

Proposal Other requirements: Dispute / Claims Management process
Termination process (Compliance with LPA Agreement) Clear method of Award / Best bid criteria (non-restrictive) Bid rejection process ODOT and FHWA must concur in the rejection of bids Confliction between specified provisions and specifications (Public Works or HUD language)

Project Labor Agreements
04/29/2005 Project Labor Agreements A definition: A project specific, “pre-hire” collective bargaining agreement between contractors, or project owners, and all the labor unions representing the crafts that are needed for a construction project. All PLAs must still conform to FHWA Contract Regulations (i.e. no geographical preference, hiring credits/goals) All proposed PLAs must be reviewed by FHWA Ohio Division and HQ prior to incorporation into the contract

Alternates Two acceptable methods
Additive Alternate Bidding (takes advantage of project’s available funding) Proprietary – 100% Local funds Both methods must be coordinated and approved by ODOT District

Proprietary Options If not done through alternate bidding:
Two acceptable methods: Synchronization Approval (ODOT & FHWA approval) – FHWA Can participate in item. Aesthetics Logistics Functionality Public Interest Finding – Used when there are suitable alternatives available Both methods must be coordinated and approved by ODOT District

Advertising, Sale and Award

Advertising NO advertisement without receipt of Federal Authorization
Project funding will be lost Project advertised publicly for a minimum of 21 days Enhancement / off-system project can be advertised two weeks in accordance with Local / State requirements ODOT District Office must be copied on ALL addenda for concurrence – modifies approved PS&E Bids must be read openly in a public forum

Award 23 CFR (a) requires Federal-aid contracts to be awarded only on the basis of the lowest responsive bid Bids analyzed by LPA in accordance with LATP Manual / LPA Award Packet & Bid Analysis Checklist ODOT “concurs” thru encumbrance process ODOT CO must be notified of all rejections ORC 10% by only All others need supporting documentation

Prevailing Wage Compliance Principles

LPA Template Item 14 – Wage Scale on All Federal-aid Projects
ODOT PN 061 US DOL, Title 29, Subtitle A, Part 5 & FHWA 1273 Contractor shall use only the classifications and wage rates set forth in US DOL Davis Bacon wage decisions. Latest decision at time of advertisement. Rates locked in for life of construction contract.

Prevailing Wage Compliance
Who needs to be paid prevailing wages? Site of Work Trucking Review of the Certified Payrolls Project Site Visits Reporting Requirements

Who needs to be paid Prevailing Wages?
Prevailing Wage laws apply to all laborers and mechanics performing work on the “Site of Work” Must be paid not less often than weekly Correct wage determination must be posted at the job site, and readily accessible

Laborers and Mechanics
Are defined as: Workers whose duties are manual or physical in nature - Includes apprentices Does not include: Executive, administrative, and professional employees (i.e. timekeepers, inspectors, architects, engineers) Non-working foremen

Apprentices 2 Key Points……….
Must be registered in a bona fide apprenticeship program registered with DOL or a DOL approved State apprenticeship agency Must not exceed the allowable ratio of apprentices to journeymen specified in the Wage Determination or approved plan

Site of the Work Two prong test to determine the “Site of Work”
Proximity Must be located “adjacent or virtually adjacent” to the project limits This has been established to be 1 mile “as the crow flies” Exclusive Must be dedicated exclusively to or nearly so, to the performance of the contract or project.

Truck Drivers Employee Truck drivers are covered by Davis-Bacon for time: Spent moving material directly on the project Hauling material on or off the project from a dedicated source or location considered to be within the “Site of Work” Time spent loading or unloading materials or supplies on the “site of the work,” if such time is equal to or greater than 20% of the drivers total work week

Owner /Operator Requirements
Must demonstrate a significant and real financial commitment Lease must be long term (1 year +) Can not be subject to cancellation at any time. Must maintain full control over the use and operation of the truck. Must assume responsibility for all aspects of operating that truck. Fuel Repair costs Vehicle insurance / Permits Fees

Certified Payrolls Must be submitted weekly
Rates of pay must meet or exceed the rate listed in the wage determination Project owner / LPA must perform a review of not less than 30% of the payrolls received.

Fringe Benefit Example
BHR $20.00 FB $10.00 Total prevailing wage $30.00 The contractor may comply by paying…….. $30.00 in cash wages $20.00 in cash wages plus $10.00 for FB $19.00 in cash wages plus $11.00 for FB

Project Site Visits Regular project site visits should be conducted to interview employees to ensure Prevailing Wage compliance. Project Bulletin Board must also be reviewed to ensure that all of the required posters are in place

Prevailing Wage Reference Sources
Federally Funded Projects Davis-Bacon and Related Acts 29 CFR Parts 1, 3, 5, 6, and 7 100% State Funded Projects ORC 4115, Wages and Hours on Public Works

Jeff Peyton ODOT Local Projects
Disadvantaged Business Enterprises (DBE), Commercially Useful Function & Fraud Awareness Jeff Peyton ODOT Local Projects

DBE Contract Compliance
ODOT PN 013 49 CFR Part 26 ODOT assigned DBE Goal obtained for all projects > $500K Based on availability of DBE firms to perform associated work types. LPA place goal on cover of the Bid Proposal Document and identified within ‘instructions to bidders’ Outlines process to request partial waiver of DBE goal Sanctions to be issued by the LPA if goal not met and waiver not presented

Goal setting Must have DBE commitments before contract is executed Ohio UCP certified DBE subcontractors How DBE participation is counted toward the DBE goal Materials and supplies DBE manufacturer-100% DBE regular dealer-60% Brokers and packagers-fees or commissions Drop shipping

Install-100% Obtains goods and fixes in place (must spend 20% or more time on project per day) Stockpiling-60% (unless DBE manufacturer) Delivers materials, goods or supplies to project site Tailgating-100% Delivers and installs (must spend 20% or more time on project per day)

LPA – DBE Requirements Request to sublet form (ODOT C-92) and all executed subcontractor / P.O. agreements submitted to the ODOT District EEO Coordinator for review and approval - Verify that the firm is certified as a DBE (ww.OhioUCP.org) Verify proper NAICS code assigned for the work detailed in subcontractor For material suppliers, compare type of material being supplied to NAICS code assigned

LPA – DBE Requirements Cont’d
Request information on proposed drop shipped items No drop shipment can occur without prior approval from ODOT If DBE is a regular dealer only 60% of expenditures may be counted toward goal, providing CUF Entire expenditure may be counted if DBE supplier is a manufacturer that produces the goods from raw materials or substantially alters them before resale

DBE Contract Compliance continued
Waivers of Goal Contractor makes request to LPA LPA reviews documentation, makes recommendation and sends to ODOT District office ODOT District office reviews all documentation, makes recommendation and sends entire packet to C.O. for final determination C.O. sends determination to Contractor and copies all parties

DBE Contract Compliance continued
Sanctions Show cause meeting; Immediate suspension of work; Cessation or withholding project payments; Require appropriate reimbursements to the DBE firm for work performed by the prime or another non-DBE subcontractor; Investigation by the U.S. DOT Office of the Inspector General and/or the U.S. Attorney; Revoke DBE certification; and/or Pursue debarment of the DBE firm, prime contractor and/or subcontractor;

LPA must perform DBE On-site review For contracts of $500,000 up to $1 million, the LPA must perform a Commercially Useful Function (CUF) review once/season/DBE goal subcontractor/project; From $1 million up to $2 million, the LPA must perform a CUF review at least twice per season/DBE goal subcontractor/project; Greater than $2 million, perform a CUF review at least monthly; and Track CUF review results, negative findings and DBE goal subcontractor payments for ODOT’s process reviews.

DBE Monitoring Requirements

LPA Template Item 29 – Affidavit of Subcontractor Payment (if DBE)
ODOT PN 031 49 CFR Part 26.37 Required before project finalization Verifies that work committed to the DBE at Award is actually performed by the DBE. Verifies actual payments made to DBE.

DOT’s Top Management Challenges
The USDOT OIG has identified DBE fraud as one of their top priorities. Increased oversight of the DBE Program by numerous Federal agencies to reduce fraud and ensure the DBE Program benefits truly disadvantaged businesses.

Commercially Useful Function
DBE participation towards the established project goal is counted only if the DBE is performing a “Commercially Useful Function.” The DBE must carry out its contract responsibilities by actually performing, managing, and supervising the work they have been hired to perform. If the role of a DBE is Limited to that of an extra participant in a transaction (contract) which funds are passed through in order to obtain the appearance of DBE participation this would raise the allegation of fraud and is punishable if convicted.

Red Flags Management Equipment Workforce Materials Performance

Management Requirements
Scheduling work operations Receive quotes and ordering of all materials Preparing and submitting certified payrolls Hiring and firing employees Make all operational and managerial decisions Supervision of daily operations

Management Red Flags DBE employees supervised by another contractor
DBE provides little or no supervision of work DBE’s superintendent is not a regular employee

Equipment Requirements
Equipment lease agreements are required to be long term (1 year +) and at competitive rates A DBE firm may lease specialized equipment on an ad hoc basis from another contractor, excluding the prime contractor or subsidiary Operation of the equipment must be subject to the full control of the DBE, and they are expected to provide the operator for that equipment (unless specialized)

Equipment Red Flags Trucks and/or equipment used by DBE firm belong to the prime contractor Equipment used by the DBE belongs to a another contractor with no formal lease agreement Equipment signs and markings cover another owner's identity, usually through the use of magnetic signs

Workforce Requirements
DBE firms must keep a regular workforce DBE contractors cannot "share" employees with non-DBE contractors, especially the prime contractor or a subsidiary of the prime DBE firm must be responsible for all payroll and labor compliance requirements for all employees within the control of the company

Workforce Red Flags Movement of employees between contractors
Employee paid by both DBE and prime Employee working for prime in morning and DBE in afternoon

Materials Requirements
The DBE must be responsible for: The ordering of all materials and negotiating cost Arranging delivery and taking possession of, and Paying for all materials and supplies provided Materials may not be drop shipped to the project by the manufacturer unless it is standard industry practice, and written prior approval is given to do so.

Materials Red Flags Materials for the DBE are ordered and/or paid for, by the prime contractor Materials for the DBE are delivered to, billed to, or paid for by another contractor. Standard materials are “drop shipped” to the project by the manufacturer. DBE never takes possession of the materials.

Performance Expectations
The DBE must be responsible for the performance, management and supervision of all work identified in their subcontract agreement (C92)

Performance Red Flags Work being done jointly by DBE firm and another contractor. The work to be performed outside of the DBE's known experience or capability DBE works for only one prime contractor or a large portion of the firm’s contracts are with one contractor

DBE Commercially Useful Function Project Checklist

Ohio Department of Transportation
EEO Compliance Ohio Department of Transportation

LPA Template Item 6 – EEO Certification
Executive Orders 10925, 11114, and 41 CFR (b) Bidder must certify compliance by circling appropriate ‘has’ or has not’ Requirement also contained within ODOT PN017 FEDERALLY REQUIRED EEO CERTIFICATION FORM The bidder hereby certifies that he has ...., has not ...., participated in a previous contract or subcontract subject to the equal opportunity clause, as required by Executive Orders , 11114, or 11246, and that he has ...., has not ...., filed with the Joint Reporting Committee, the Director of the Office of Federal Contract Compliance, a Federal Government Contract Compliance, a Federal Government contracting or administering agency, or the former President's Committee on Equal Employment Opportunity, all reports due under the applicable filing requirements. The Bidder must circle the appropriate “has or has not” above.

LPA Template Item 8 – Non-Segregated Facilities
ODOT PN 026 23 CFR 633A By signing proposal Contractor agrees to provisions of the “Certification of Nonsegregated Facilities,” providing that the bidder does not maintain or provide for employees facilities which are segregated on a basis of race, creed, color, or national origin. Provides “Notice to Perspective Subcontractors and Material Suppliers of Requirement for Certification of Nonsegregated Facilities”.

LPA Template Item 9 – EEO Special Provisions (Nondiscrimination)
ODOT PN 035 FHWA Form 1273 (II) Requires designation of EEO Officer and EEO Dissemination of Policy requirements EEO responsibilities associated with – Recruitment / Personnel Actions / Training & Promotion Unions Selection of Subcontractors, Materials and Equipment Leasing. Requires retention of records and reports to support number of minority and non-minority in each work classification, progress and efforts in securing , training and promoting minority and female employees and DBE contractors.

LPA Template Item 10 – Title VI Nondiscrimination
ODOT PN 003 Title VI of Civil Rights Act, and related statutes. No person shall, on grounds of race, color, national origin, sex, disability or age be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity.

LPA Template Item 11 – Affirmative Action
ODOT PN 020 – Sufficient for the sale of projects through ODOT to meet FHWA / ODOT EEO requirements Obligated under 23 CFR Part 230, 41 CFR Part 60, EO 11246, and VEVRAA (Vietnam Vet Assistance) of 1974 Provides for minority and female utilization obligations by craft. Census driven Defines New Hire

Preconstruction Conference
Required participants Required reports Prevailing wage requirements EEO responsibilities DBE requirements Required bulletin board information Publication 1321 Publication 1088 Minor Labor Laws Poster FHWA 1495A FHWA 1495 FHWA 1022

EEO / Preconstruction Conference
Required bulletin board information

Construction Contract Administration

Preconstruction Conference
Discuss the details of project construction – Project Staffing / Contacts Materials Management / List of Material Suppliers /PBOM Plan and Proposal Notes / As Per Plan Items Progress Schedule / Completion Method of Payment Change Order Review / Claims Process Status of Utility Relocations / Railroad Coordination Prevailing Wage / EEO / DBE Responsibilities NEPA Commitments Maintenance of Traffic Erosion Control / Post BMPs Invitation to ODOT CM, DEC, PW/EEO, and LPA Managers

Progress Meetings Attendance at progress meetings is required for the Contractor’s Superintendent, CPE and others including Subcontractor representatives, suppliers, utilities, and railroads. The CPE must record minutes and provide them to attendees, and ODOT should the Department not be in attendance. Agenda should include – Outstanding Issues Safety Work in Progress – Look Ahead Progress Schedule – Critical Path Activities / Completion Date Critical / Non-Critical Delays / Time Extensions RW / Utilities / Environmental Commitments Testing / Materials Project Submittals Dispute Resolution / Claims EEO / PW / DBE

Project Documentation
Procedures for inspection & documentation Construction Manual & other guidelines Electronic record keeping Regular review of records Major areas of documentation Daily diaries or Inspector’s daily reports Method of Measurement & Basis of Payment Materials submittals (certificates of compliance, test reports, etc) Shop drawings NPDES/environmental compliance Work Zone safety & traffic control Change Orders, Extensions of Time Claims

Project Diaries Complete, concise, accurate Factual (no hearsay)
Signed & dated Major items to include: Items of work Weather Contractors & Equipment Traffic control – MOT NPDES Testing Compliance issues Measurements Pay quantities Decisions made on-site Force account work WHY??? Disputes, claims, FOIA Report on construction activities, weather, traffic incidents, etc.

Documentation Best Practices
State facts, not opinions (include digital photos) Maintain supporting documents Job Progress Meeting Minutes Utility Meeting Minutes Referenced Memos or Reports by Others Referenced Specifications Materials Inspection Reports Inspector’s reports

Project Administration Files
Contract Addenda, proposal and special provisions, plans, supplemental specifications, standard drawings, standard specifications Contractor Prime Sub - Request to Sublet forms needed for all subcontractors Street sweepers, cranes, pumps commonly forgotten - DBE firms Need to be ODOT certified, LPA to monitor the goal

Project Administration Files
Schedules Correspondence Change Orders Invoices Property Owner Agreements Complaint Log Finalization Plan Revisions Right-of-Way Railroad Utilities Other Materials Daily Diaries Certified Payrolls

Reference / Pay Files Recommend individual folder for each pay item of work Field Documentation Inspection Forms Seven identifiers Project Number, Item Number, Plan Reference Number, Work Description, Location, Date, Signature Plan quantity, field measurements, calculations, pay quantity Summarized final quantity Funding splits Non-performed items require documentation

Field Measurements Ensure they concur with the plan
2010 Construction & Materials Specification Measurement of Quantities. The Department will measure the quantities of Work and calculate payments based on the method of measurement and basis of payment provisions provided in these Specifications. When the following units of measure are specified, the Department will measure quantities as described below unless otherwise specified in the Contract Documents. The accuracy of individual pay item estimate payments will be one decimal more accurate than the unit of measure denoted for the pay item. (emphasis added)

Change Orders The intent is to build the plan you bid.
Change Orders can be written for the following reasons: To finish the intent of the plan, when necessary Changes in site conditions To include work that was missed or overlooked and is required to finish the intent of the plan To address plan errors

Change Orders Request the Construction Monitor’s concurrence for all “significant” change orders. “Significant” change orders are as follows: $25,000 for projects <$500,000 Lesser of 5% of total bid contract or $100,000 for projects >$500,000 Changes that impact project limits, scope, environmental, or structural design

Change Orders CMS 109.05.B Negotiated Prices
Original Contract prices adjusted for increases or decreases in material costs, labor costs, or equipment costs. State-wide average unit prices. Average price awarded on three different projects of similar work and quantity. Prices computed by Office of Estimating. Cost analysis of labor, material, equipment, and allowed mark-ups. Cost analysis of compensable delays. CMS C Force Account

Materials Acceptance Any and all materials incorporated into the Work need documentation. Use C&MS Section 700 for documentation guidance Temporary materials are to be documented in this manner as well.

Materials Acceptance Systematic approach to managing materials
ODOT’s Office of Materials Management (OMM) Project Bill of Materials (PBOM) Appendix J OMM inspection of precast/pre-stressed concrete beams OMM inspection of structural steel Appendix J, prior to bid Encourage coordinating with ODOT District asphalt plant monitoring

Materials Acceptance Non-conformance Policy for Materials
Specification Policy (P) Acceptance of Non-specification Material on Construction Projects Standard Procedures: (SP) Acceptance of Nonspecification Material on Construction Projects

Materials Acceptance Make sure the Contractor provides a list of materials to you at the preconstruction meeting per C&MS Make sure the Contractor also provides a list of materials to be used by all of the subcontractors, too.

Project Closeout Once the contractor has completes the project to the satisfaction of the CPE/Person in Responsible Charge a final inspection shall be completed within 10 days. Final Inspection Team should include – CPE / LPA Person in Responsible Charge ODOT CM / Others as Needed Contractor – Invited but not required If applicable, a punch list shall be included in the final inspection report. Once punch list is completed to the satisfaction of the CPE the CM will have the opportunity to verify The CM will then issue a follow-up report showing acceptance of the physical completion of the contract

Liquidated Damages The purpose is to recover agency costs for administering the contract after the completion date has passed The amounts in Table are determined by an analysis of ODOT CE costs every 2 years Any amount in excess of this table is considered a disincentive for purposes of federal participation

Liquidated Damages 3 different scenarios for reimbursement of LD’s
If there is federal participation in the CE the project is credited at the prorata share If the locals are funding CE they do not have to credit FHWA for LD’s unless #3 applies If the LD daily amount exceeds C&MS Table FHWA is credited for the amount above regardless of the CE funding source

Project Closeout Prepare and Audit Contract Quantities
Support Documentation for final quantities for each item List of approved final quantities sent to Contractor for concurrence Final Change Order for adjustments Final Material Acceptance Review project testing and acceptance records to support each final quantity

Project Closeout Final Payment and Release Final Report to ODOT -
LPA Final Program Report Final Invoice which reconciles individual pay items to final quantities District Construction Inspection Report Affidavit of DBE/EDGE Subcontractor Disposition of Materials, when applicable All Reimbursements Request submitted to ODOT within 6 Months of Completion date or risk loss of funding

LATP Manual Construction Appendices
Appendix A - Pre-construction Meeting Checklist Appendix B - Progress Meeting Agenda Checklist Appendix C – Project Documentation Checklist Appendix D - EEO-Prevailing Wage Employee Interview Form Appendix E - Superintendent-Supervisor Foreman Interview Form Appendix F - EEO Project On-Site Visit Report Appendix G - DBE Commercial Useful Function Site Review Appendix H – State / Federal PW Statement of Compliance Appendix I - LPA Prevailing Wage-EEO Monthly Report Appendix J - Materials Management Process Appendix K - LPA Change Order Process Guidance Appendix L - Change Order Notification Form Appendix M - Extension of Project Limits Form Appendix N - LPA Invoicing Procedures Appendix P - LPA Program Final Report Form Appendix Q - WH-347 Payroll Form Appendix R - Affidavit of DBE Subcontractor Payment Appendix S - Affidavit of EDGE Subcontractor Payment Appendix T - Disposition of Materials

Fringe and Overhead Costs Recovery
Ohio Department of Transportation

CE Cost Recovery Methods
Three ways to recover fringe and overhead costs associated with LPA labor for CE - 1.) Actual Cost Method 2.) Safe Harbor Method 3.) Cost Allocation Plan (CAP) Method

Actual Cost Method LPAs are reimbursed for the actual cost of fringe only benefits plus the actual labor cost The employer share of the fringe benefits can be found on the payroll reports. Note: Fringes do NOT increase for OT hours LPAs do NOT recover overhead costs

Safe Harbor Rate Method
LPAs are reimbursed for fringe benefits and overhead costs using set rates determined by the Auditor of State Fringe rate is 30% and applied to direct labor (excluding OT premium) Overhead rate is 38% and is applied to direct labor (excluding OT premium) plus the fringe cost Template is available on LPA Audit website

Safe Harbor Rates Calculation Invoice Form

Cost Allocation Plan Method
LPAs are reimbursed for fringe benefits and overhead costs using rates calculated in accordance with OMB Circular A-87 Rates are calculated based on the LPAs annual financial information Most complex method All CAP rates are inspected by ODOT All CAP rates are subject to audit by ODOT Template is available on LPA Audit website LocalPublicAgencies-LPA.aspx

Timekeeping Requirements
Labor rates billed on Federal projects must be based on payrolls The labor rate billed on the project must match the pay rate actually paid to the employee Supporting documentation is the payroll report Employees working on multiple activities must support their time for all activities on a timecard

Timekeeping Requirements
Timecards MUST: Reflect an after the fact distribution of actual activity of each employee Account for all hours worked plus any leave time used Be prepared at least monthly and must coincide with one or more pay periods Be signed and dated by the employee

Required for all 3 Methods
Must obtain approval from ODOT Office of External Audits – PRIOR to labor being incurred Include with your CE invoices: Timesheets to support number of hours worked Payroll summary report(s) to support pay rate and fringe rate for each employee Calculation Invoice Form executed by CPE/Person in Responsible Charge

Approval Process All methods must be approved by ODOT Office of External Audits Actual Cost and Safe Harbor approvals are valid through 12/31 CAP rates must be submitted to ODOT by 3/31 and are valid through the following 3/31 The approved rates can NOT be applied to labor incurred prior to receiving approval

Other Resources ODOT Website -
Locally Administered Transportation Projects Manual of Procedures LPA Bid Doc Template LPA Bid Doc Preparation Guidance and Checklist Color-coded ODOT C&MS Section 100 Construction Inspection Manual of Procedures 2010 Sampling and Testing Manual FHWA Contract Administration Core Curriculum Manual -

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