Presentation on theme: "Local Government Programs"— Presentation transcript:
1Local Government Programs Randy Lane, Local Programs ManagerJeff Peyton, Local Projects CoordinatorODOT Office of Systems Planning and Program Manager
2ODOT LET & ADMINISTERED LPA PARTICIPATION REQUIREMENTS ODOT Let vs. Local LetLPA PROJECTODOT$ODOT LET & ADMINISTEREDLPA PARTICIPATION REQUIREMENTSLPA LET & ADMINISTEREDContingent 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 ManualState EstimatedLPA matching/overage funds deposited with ODOT prior to AwardMinimum 12 week letting process from point of PS&E filePlans according to LPA formatLPA/Consultant EstimatedLPA matching/overage funds paid directly to the ContractorMinimum 4-5 week letting process from point of PS&E file
4LPA 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.
5Locally Administered Projects “Person in Responsible charge” means:Aware of day-to-day operations on the projectAware of and involved in decisions about changed conditions that require change ordersAware of qualifications, assignments, performance of consultant staff at all stages of the projectVisiting the project on a frequency that is commensurate with the magnitude & complexity of the projectFROM CACC PagesSupervision of construction engineering consultantsThe 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, andvisiting the project on a frequency that is commensurate with the magnitude and complexity of the project.
6Locally Administered Projects 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 FHWAODOT provides oversight for each activity to ensure conformance to plans and specifications and Federal requirements.
7Locally Administered Projects Possible Delegated Activities:Environmental StudiesSelection of Consultant ServicesDesignRight of Way AcquisitionPreparation of Plans, Specifications and EstimatePreparation of Bid ProposalAdvertisement and AwardConstruction Contract Administration and InspectionContingent 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.
8Locally Administered Projects Non-Delegated Activities:NEPA Review and ApprovalDesign Exception ApprovalRight of Way CertificationDBE Goals and WaiversFinal Inspection and AcceptanceSole Source and Proprietary Justification ApprovalLabor Compliance EnforcementConcurrence in Rejection of BidsODOT / 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
10Locally Administered Projects 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 MonitorsLocally Administered Transportation Projects Manual of Procedures (LATP Manual)Qualification Program for Local Agencies – LPA Participation Requirements Chapter of LATP ManualODOT Contractor and Consultant Prequalification
11Locally Administered Projects Process Requirements :ODOT Oversight in the Procurement of Consultant ServicesAdvertisement of available contractsODOT Prequalified ConsultantFee Analysis and NegotiationPreparation of LPA / Consultant agreementODOT Review and Concurrence / ApprovalPlans, Specs and Estimates PackageAward to Lowest and Best Bidder / Bid RejectionsChange OrdersMaterials CertificationInvoice ReimbursementFinal Acceptance
12Locally Administered Projects ODOT Process Requirements:Locally Administered Transportation Projects Manual of ProceduresODOT and LPA Project Responsibilities – Inception through Project CloseoutFHWA Ohio Division Involved in Development and RevisionLPA Federal Project AgreementRoles and Responsibilities in adherence to Federal and State requirementsODOT 2010 LPA Bid Proposal TemplateIncorporated into LPA Bid Proposal and ContractsDeveloped with FHWA to ensure incorporation of Federal requirements.
13Locally Administered Projects ODOT Process Requirements:Locally Administered Transportation Projects Manual of ProceduresLPA Participation RequirementsProject Development and DesignConsultant Contract AdministrationEnvironmentalReal EstateUtilitiesRailroad CoordinationAdvertising, Sale and AwardConstruction Contract Administration………
14Locally Administered Projects LATP Manual Construction Contract Administration ChapterRoles & Responsibility of ODOT and LPA personnelGuidance 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
15Locally Administered Projects ODOT Process Requirements:LPA Federal Project AgreementSets forth the State and Federal Requirements and ResponsibilitiesEstablishes funding commitment through ODOTProject Development Responsibilities- Environmental - Advertising / Sale / Award- Real Estate / Utility - Consultant / Construction Contract AdministrationCertification and Recapture of FundsNondiscriminationTermination / Default / Breach of ContractRecord Retention and Audit RequirementsOhio Ethics Laws
16Locally Administered Projects ODOT Process Requirements:ODOT 2010 LPA Bid Proposal TemplateMandatory incorporation into LPA Bid Documents and ContractsEnsure compliance with State &Federal requirements.
17Consultant Contract Administration Jeff PeytonODOT Local Projects
18LPA 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.
19LPA Consultant Contract Management Revised Consultant Contract Administration Chapter for LATP Manual of Procedures February 2008Consultant Services oversight in all contracts over the $50,000 small purchase thresholdAnnouncement of available contract on ODOT’s websiteReview LPA selection documentation (QBS)Performance of pre-Award evaluationFee analysis, negotiation, and acceptancePreparation of Consultant / LPA AgreementEncumber fundsAuthorize agreement
20LPA Consultant Contract Management Contracts not involving Federal funds must be selected in accordance with State law (ORC )ODOT Prequalified Consultant
21ODOT PoliciesPerson in Responsible Charge in accordance with Participation Requirements – LATP ManualODOT prequalified for services defined in ODOT’s Consultant Prequalification Requirements and Procedures ManualODOT Prequalification not required for services not defined however LPA still responsible to select based on QBS and applicable Federal requirementsHighlight some policies that are common
22ODOT PoliciesSeparation 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 questionsAttendance at pre-bid and construction progress meetingsVisit job site to monitor critical areas of workReview shop drawings and evaluate change orders or claims.Waiver process available through ODOT Local Projects in consultation with Consultant Services
23ODOT PoliciesFederal Authorization to Proceed prior to the performance of any work for which Federal reimbursement is requestedSeparate 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
24ODOT Responsibilities 23 CFR 172 charges ODOT with oversight responsibilities for:Selection ProceduresNegotiation of Fair and Reasonable FeeAdministration of Agreement
25Federal Rules23 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 processUnited States Code Title 40, Chapter 11 - Brooks Act - Requires qualifications based selection of consultants48 CFR Part 31, Contract Cost Principles and Procedures (Federal Acquisition Regulations)
26Federal Rules – Q &AWhen 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.
27Federal Rules – Q & AIf 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 ).
28Federal Rules – Q &AIf 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.
29Federal Rules – Q &ADo 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.
30Federal Rules – Q &ACan 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.
31Federal Rules – Q &ACan 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”.
32Federal Rules – Q &ACan 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.
33Federal Rules – Q &ACan 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 proceduresExample: 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.
34ODOT LPA Procedures ODOT’s Website Includes: Sample RFPs – meet Federal requirementsWebsite posting of LPA RFPsPolicies for the Use of Consultants on Local Traditional Projects (When Federal Funds are Used in Consultant Contracts)
35Selection Procedures Advertisement - Use ODOT’s Website See “Policy” for RFP contentUse ODOT sample RFP documentsDocument selection decision per “Policy”
36Fee Negotiation Negotiation must be “Fair and Reasonable” Contact ODOT to confirm indirect (overhead) ratesOwner’s estimate must be based on sound methods: similar previous contract; internal cost of producing similar work
37Consultant 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.
39Contract Administration Assign a Project ManagerSingle Point of Contact for ConsultantOwner of jobExpediterProblems SolverWatchdog
40Contract Administration Project Manager’s ResponsibilitiesCompliance with Scope of ServicesScheduleCostQualityRecord Keeping
41ODOT / FHWA Required Contract Provisions Jeff PeytonODOT Local Projects
42ODOT 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 attorneysCall/fax me (Linda) and I will review for you
43LPA 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&MSTable includes excluded 100 specs exclusive to ODOT.
44LPA Template Item 1 - Specifications Local SpecificationsAcknowledge LPA specifications with LPA Participation Requirements and LPA Scope of Services document.Modify the first note from the templateCannot modify specific provisions that relate to Federal / State requirementsRefer to color-coded C&MS document on Local Projects websiteRequired (green)Strongly encouraged (blue)Optional (yellow)
45LPA Template Item 2 - Buy America ODOT C&MSContains both (a.) 23 CFR & (b.) ORC23 CFR – All steel and iron products incorporated permanently into the Workall manufacturing processes must take place domesticallyincludes coatings on these materialsMinimal use = 0.1% (contract value) or $2500 (whichever is greater)Covers all contract items including 100% locally fundedWaivers have to be given by FHWA HeadquartersSTAA of 1982 Section 165ISTEA Section 1041(a) and 1048(a)Reference fact sheets which is a handout H-7Nationwide Waivers – by FHWA rule makingSpecific Ferryboat parts in February 1994Pig iron, scrap, raw alloy materials, pelletized or reduced iron ore in August 1994Project WaiversMust comply with 23 CFR ( c)(1) – (public interest / unavailable domestically)Consider re-design with domesticHQ 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 applyNAFTA exempts grants, loans & other forms of Federal Financial AssistanceBuy America is NOT the same as Buy AmericaN..see handout
46LPA Template Item 3 – Debarment and Suspension FHWA 127349 CFR 29By 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.
47LPA Template Item 4 – Prequalification Only ODOT Prequalified contractors eligible to submit for bidsPrequalification must be in force at time of bidding, at the time of Award, and throughout the life of the contractPrime Contractor must perform no less than 30% of the total contract price (FHWA CFR 635)Encourage incorporating prequalification for specific ODOT work typesLPA Option to enforce ODOT Prequalification for Subcontractors
48LPA Template Item 17 – Non-Collusion ODOT PN 04523 USC 112 and ORC 1331, andContractor 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
49LPA Template Item 21 – Unresolved Findings for Recovery ODOT PN 038OAC 9.24Contractor 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.
50LPA 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 525Fuel Price Adjustment ODOT PN 520Asphalt Binder Price AdjustmentPN 530 – Single year projectsPN 535 – Multiple year projects
51LPA Template Item 31 – DMA / Nonassistance to Terrorists ORCServes 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 OhioFailure to submit this form prior to entering into contract will result in the bid being deemed non-responsive and ineligible for award.
52LPA 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 fundingStandardized Changed Conditions Contract Clauses23 CFR – ODOT C&MSEstablishes pay factors for significant changes in character of the workElectronic version is available on the “o” drive.Not permitted to modify the provisionsSection I.2must be physically incorporated into each subcontract-may not be incorporated by referenceSection I.3Failure to comply is grounds for debarmentSection I.5Incorporates PW requirements
53Geographical Preference 23 CFR § (b)Prohibits ODOT and local governments from enacting preferencesExamplesLocal encourage or mandate the use of local employmentLocal considers location of contractor in award processHometown 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-competitiveNorthern Ireland clause (MacBride Principles)
54Review Restrictions to Competition Local mandatesProject Experience StatementsLocal workforce requirementRestrictive Best Bid Criteria
55Proposal Other requirements: Dispute / Claims Management process Termination process (Compliance with LPA Agreement)Clear method of Award / Best bid criteria (non-restrictive)Bid rejection processODOT and FHWA must concur in the rejection of bidsConfliction between specified provisions and specifications (Public Works or HUD language)
56Project Labor Agreements 04/29/2005Project Labor AgreementsA 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
57Alternates Two acceptable methods Additive Alternate Bidding (takes advantage of project’s available funding)Proprietary – 100% Local fundsBoth methods must be coordinated and approved by ODOT District
58Proprietary Options If not done through alternate bidding: Two acceptable methods:Synchronization Approval (ODOT & FHWA approval) – FHWA Can participate in item.AestheticsLogisticsFunctionalityPublic Interest Finding – Used when there are suitable alternatives availableBoth methods must be coordinated and approved by ODOT District
59Advertising, Sale and Award Jeff PeytonODOT Local Projects
60Advertising NO advertisement without receipt of Federal Authorization Project funding will be lostProject advertised publicly for a minimum of 21 daysEnhancement / off-system project can be advertised two weeks in accordance with Local / State requirementsODOT District Office must be copied on ALL addenda for concurrence – modifies approved PS&EBids must be read openly in a public forum
61Award23 CFR (a) requires Federal-aid contracts to be awarded only on the basis of the lowest responsive bidBids analyzed by LPA in accordance with LATP Manual / LPA Award Packet & Bid Analysis ChecklistODOT “concurs” thru encumbrance processODOT CO must be notified of all rejectionsORC 10% by onlyAll others need supporting documentation
63Prevailing Wage Compliance Principles Jeff PeytonODOT Local Projects
64LPA Template Item 14 – Wage Scale on All Federal-aid Projects ODOT PN 061US DOL, Title 29, Subtitle A, Part 5 & FHWA 1273Contractor 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.
65Prevailing Wage Compliance Who needs to be paid prevailing wages?Site of WorkTruckingReview of the Certified PayrollsProject Site VisitsReporting Requirements
66Who 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 weeklyCorrect wage determination must be posted at the job site, and readily accessible
67Laborers and Mechanics Are defined as:Workers whose duties are manual or physical in nature - Includes apprenticesDoes not include:Executive, administrative, and professional employees (i.e. timekeepers, inspectors, architects, engineers)Non-working foremen
68Apprentices 2 Key Points………. Must be registered in a bona fide apprenticeship program registered with DOL or a DOL approved State apprenticeship agencyMust not exceed the allowable ratio of apprentices to journeymen specified in the Wage Determination or approved plan
69Site of the Work Two prong test to determine the “Site of Work” ProximityMust be located “adjacent or virtually adjacent” to the project limitsThis has been established to be 1 mile “as the crow flies”ExclusiveMust be dedicated exclusively to or nearly so, to the performance of the contract or project.
70Truck DriversEmployee Truck drivers are covered by Davis-Bacon for time:Spent moving material directly on the projectHauling 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
71Owner /Operator Requirements Must demonstrate a significant and real financial commitmentLease 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.FuelRepair costsVehicle insurance / Permits Fees
75Certified Payrolls Must be submitted weekly Rates of pay must meet or exceed the rate listed in the wage determinationProject owner / LPA must perform a review of not less than 30% of the payrolls received.
76Fringe Benefit Example BHR $20.00FB $10.00Total prevailing wage $30.00The 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
77Project Site VisitsRegular 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
78Prevailing Wage Reference Sources Federally Funded ProjectsDavis-Bacon and Related Acts29 CFR Parts 1, 3, 5, 6, and 7100% State Funded ProjectsORC 4115, Wages and Hours on Public Works
79Jeff Peyton ODOT Local Projects Disadvantaged Business Enterprises (DBE), Commercially Useful Function & Fraud AwarenessJeff PeytonODOT Local Projects
80DBE Contract Compliance ODOT PN 01349 CFR Part 26ODOT assigned DBE Goal obtained for all projects > $500KBased 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 goalSanctions to be issued by the LPA if goal not met and waiver not presented
81DBE Contract Compliance Goal settingMust have DBE commitments before contract is executedOhio UCP certified DBE subcontractorsHow DBE participation is counted toward the DBE goalMaterials and suppliesDBE manufacturer-100%DBE regular dealer-60%Brokers and packagers-fees or commissionsDrop shipping
82DBE Contract Compliance 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 siteTailgating-100%Delivers and installs (must spend 20% or more time on project per day)
83LPA – DBE RequirementsRequest 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 subcontractorFor material suppliers, compare type of material being supplied to NAICS code assigned
84LPA – DBE Requirements Cont’d Request information on proposed drop shipped itemsNo drop shipment can occur without prior approval from ODOTIf DBE is a regular dealer only 60% of expenditures may be counted toward goal, providing CUFEntire expenditure may be counted if DBE supplier is a manufacturer that produces the goods from raw materials or substantially alters them before resale
85DBE Contract Compliance continued Waivers of GoalContractor makes request to LPALPA reviews documentation, makes recommendation and sends to ODOT District officeODOT District office reviews all documentation, makes recommendation and sends entire packet to C.O. for final determinationC.O. sends determination to Contractor and copies all parties
86DBE Contract Compliance continued SanctionsShow 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/orPursue debarment of the DBE firm, prime contractor and/or subcontractor;
87DBE Contract Compliance LPA must perform DBE On-site reviewFor 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; andTrack CUF review results, negative findings and DBE goal subcontractor payments for ODOT’s process reviews.
89LPA Template Item 29 – Affidavit of Subcontractor Payment (if DBE) ODOT PN 03149 CFR Part 26.37Required before project finalizationVerifies that work committed to the DBE at Award is actually performed by the DBE.Verifies actual payments made to DBE.
90DOT’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.
91Commercially 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.
93Management Requirements Scheduling work operationsReceive quotes and ordering of all materialsPreparing and submitting certified payrollsHiring and firing employeesMake all operational and managerial decisionsSupervision of daily operations
94Management Red Flags DBE employees supervised by another contractor DBE provides little or no supervision of workDBE’s superintendent is not a regular employee
95Equipment Requirements Equipment lease agreements are required to be long term (1 year +) and at competitive ratesA DBE firm may lease specialized equipment on an ad hoc basis from another contractor, excluding the prime contractor or subsidiaryOperation 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)
96Equipment Red FlagsTrucks and/or equipment used by DBE firm belong to the prime contractorEquipment used by the DBE belongs to a another contractor with no formal lease agreementEquipment signs and markings cover another owner's identity, usually through the use of magnetic signs
98Workforce Requirements DBE firms must keep a regular workforceDBE contractors cannot "share" employees with non-DBE contractors, especially the prime contractor or a subsidiary of the primeDBE firm must be responsible for all payroll and labor compliance requirements for all employees within the control of the company
99Workforce Red Flags Movement of employees between contractors Employee paid by both DBE and primeEmployee working for prime in morning and DBE in afternoon
100Materials Requirements The DBE must be responsible for:The ordering of all materials and negotiating costArranging delivery and taking possession of, andPaying for all materials and supplies providedMaterials 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.
101Materials Red FlagsMaterials for the DBE are ordered and/or paid for, by the prime contractorMaterials 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.
102Performance Expectations The DBE must be responsible for the performance, management and supervision of all work identified in their subcontract agreement (C92)
103Performance Red FlagsWork being done jointly by DBE firm and another contractor.The work to be performed outside of the DBE's known experience or capabilityDBE works for only one prime contractor or a large portion of the firm’s contracts are with one contractor
104DBE Commercially Useful Function Project Checklist
105Ohio Department of Transportation EEO ComplianceOhio Department of Transportation
106LPA 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 PN017FEDERALLY REQUIRED EEO CERTIFICATION FORMThe 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.
107LPA Template Item 8 – Non-Segregated Facilities ODOT PN 02623 CFR 633ABy 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”.
108LPA Template Item 9 – EEO Special Provisions (Nondiscrimination) ODOT PN 035FHWA Form 1273 (II)Requires designation of EEO Officer and EEO Dissemination of Policy requirementsEEO responsibilities associated with –Recruitment / Personnel Actions / Training & PromotionUnionsSelection 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.
109LPA Template Item 10 – Title VI Nondiscrimination ODOT PN 003Title 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.
110LPA Template Item 11 – Affirmative Action ODOT PN 020 – Sufficient for the sale of projects through ODOT to meet FHWA / ODOT EEO requirementsObligated under 23 CFR Part 230, 41 CFR Part 60, EO 11246, and VEVRAA (Vietnam Vet Assistance) of 1974Provides for minority and female utilization obligations by craft. Census drivenDefines New Hire
114Preconstruction Conference Discuss the details of project construction –Project Staffing / ContactsMaterials Management / List of Material Suppliers /PBOMPlan and Proposal Notes / As Per Plan ItemsProgress Schedule / CompletionMethod of PaymentChange Order Review / Claims ProcessStatus of Utility Relocations / Railroad CoordinationPrevailing Wage / EEO / DBE ResponsibilitiesNEPA CommitmentsMaintenance of TrafficErosion Control / Post BMPsInvitation to ODOT CM, DEC, PW/EEO, and LPA Managers
115Progress MeetingsAttendance 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 IssuesSafetyWork in Progress – Look AheadProgress Schedule – Critical Path Activities / Completion DateCritical / Non-Critical Delays / Time ExtensionsRW / Utilities / Environmental CommitmentsTesting / MaterialsProject SubmittalsDispute Resolution / ClaimsEEO / PW / DBE
116Project Documentation Procedures for inspection & documentationConstruction Manual & other guidelinesElectronic record keepingRegular review of recordsMajor areas of documentationDaily diaries or Inspector’s daily reportsMethod of Measurement & Basis of PaymentMaterials submittals(certificates of compliance, test reports, etc)Shop drawingsNPDES/environmental complianceWork Zone safety & traffic controlChange Orders, Extensions of TimeClaims
117Project Diaries Complete, concise, accurate Factual (no hearsay) Signed & datedMajor items to include:Items of workWeatherContractors & EquipmentTraffic control – MOTNPDESTestingCompliance issuesMeasurementsPay quantitiesDecisions made on-siteForce account workWHY??? Disputes, claims, FOIAReport on construction activities, weather, traffic incidents, etc.
118Documentation Best Practices State facts, not opinions (include digital photos)Maintain supporting documentsJob Progress Meeting MinutesUtility Meeting MinutesReferenced Memos or Reports by OthersReferenced SpecificationsMaterials Inspection ReportsInspector’s reports
119Project Administration Files ContractAddenda, proposal and special provisions, plans, supplemental specifications, standard drawings, standard specificationsContractorPrimeSub- Request to Sublet forms needed for all subcontractorsStreet sweepers, cranes, pumps commonly forgotten- DBE firmsNeed to be ODOT certified, LPA to monitor the goal
121Reference / Pay FilesRecommend individual folder for each pay item of workField Documentation Inspection FormsSeven identifiersProject Number, Item Number, Plan Reference Number, Work Description, Location, Date, SignaturePlan quantity, field measurements, calculations, pay quantitySummarized final quantityFunding splitsNon-performed items require documentation
122Field Measurements Ensure they concur with the plan 2010 Construction & Materials SpecificationMeasurement 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)
123Change 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 necessaryChanges in site conditionsTo include work that was missed or overlooked and is required to finish the intent of the planTo address plan errors
124Change OrdersRequest the Construction Monitor’s concurrence for all “significant” change orders.“Significant” change orders are as follows:$25,000 for projects <$500,000Lesser of 5% of total bid contract or $100,000 for projects >$500,000Changes that impact project limits, scope, environmental, or structural design
125Change 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
126Materials AcceptanceAny and all materials incorporated into the Work need documentation.Use C&MS Section 700 for documentation guidanceTemporary materials are to be documented in this manner as well.
127Materials Acceptance Systematic approach to managing materials ODOT’s Office of Materials Management (OMM) Project Bill of Materials (PBOM) Appendix JOMM inspection of precast/pre-stressed concrete beamsOMM inspection of structural steelAppendix J, prior to bidEncourage coordinating with ODOT District asphalt plant monitoring
128Materials Acceptance Non-conformance Policy for Materials SpecificationPolicy (P) Acceptance of Non-specification Material on Construction ProjectsStandard Procedures: (SP) Acceptance of Nonspecification Material on Construction Projects
129Materials AcceptanceMake sure the Contractor provides a list of materials to you at the preconstruction meeting per C&MSMake sure the Contractor also provides a list of materials to be used by all of the subcontractors, too.
130Project CloseoutOnce 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 ChargeODOT CM / Others as NeededContractor – Invited but not requiredIf 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 verifyThe CM will then issue a follow-up report showing acceptance of the physical completion of the contract
131Liquidated DamagesThe purpose is to recover agency costs for administering the contract after the completion date has passedThe amounts in Table are determined by an analysis of ODOT CE costs every 2 yearsAny amount in excess of this table is considered a disincentive for purposes of federal participation
132Liquidated Damages 3 different scenarios for reimbursement of LD’s If there is federal participation in the CE the project is credited at the prorata shareIf the locals are funding CE they do not have to credit FHWA for LD’s unless #3 appliesIf the LD daily amount exceeds C&MS Table FHWA is credited for the amount above regardless of the CE funding source
133Project Closeout Prepare and Audit Contract Quantities Support Documentation for final quantities for each itemList of approved final quantities sent to Contractor for concurrenceFinal Change Order for adjustmentsFinal Material AcceptanceReview project testing and acceptance records to support each final quantity
134Project Closeout Final Payment and Release Final Report to ODOT - LPA Final Program ReportFinal Invoice which reconciles individual pay items to final quantitiesDistrict Construction Inspection ReportAffidavit of DBE/EDGE SubcontractorDisposition of Materials, when applicableAll Reimbursements Request submitted to ODOT within 6 Months of Completion date or risk loss of funding
135LATP Manual Construction Appendices Appendix A - Pre-construction Meeting ChecklistAppendix B - Progress Meeting Agenda ChecklistAppendix C – Project Documentation ChecklistAppendix D - EEO-Prevailing Wage Employee Interview FormAppendix E - Superintendent-Supervisor Foreman Interview FormAppendix F - EEO Project On-Site Visit ReportAppendix G - DBE Commercial Useful Function Site ReviewAppendix H – State / Federal PW Statement of ComplianceAppendix I - LPA Prevailing Wage-EEO Monthly ReportAppendix J - Materials Management ProcessAppendix K - LPA Change Order Process GuidanceAppendix L - Change Order Notification FormAppendix M - Extension of Project Limits FormAppendix N - LPA Invoicing ProceduresAppendix P - LPA Program Final Report FormAppendix Q - WH-347 Payroll FormAppendix R - Affidavit of DBE Subcontractor PaymentAppendix S - Affidavit of EDGE Subcontractor PaymentAppendix T - Disposition of Materials
136Fringe and Overhead Costs Recovery Ohio Department of Transportation
137CE Cost Recovery Methods Three ways to recover fringe and overhead costs associated with LPA labor for CE -1.) Actual Cost Method2.) Safe Harbor Method3.) Cost Allocation Plan (CAP) Method
138Actual Cost MethodLPAs are reimbursed for the actual cost of fringe only benefits plus the actual labor costThe employer share of the fringe benefits can be found on the payroll reports.Note: Fringes do NOT increase for OT hoursLPAs do NOT recover overhead costs
139Safe Harbor Rate Method LPAs are reimbursed for fringe benefits and overhead costs using set rates determined by the Auditor of StateFringe 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 costTemplate is available on LPA Audit website
142Cost Allocation Plan Method LPAs are reimbursed for fringe benefits and overhead costs using rates calculated in accordance with OMB Circular A-87Rates are calculated based on the LPAs annual financial informationMost complex methodAll CAP rates are inspected by ODOTAll CAP rates are subject to audit by ODOTTemplate is available on LPA Audit websiteLocalPublicAgencies-LPA.aspx
143Timekeeping Requirements Labor rates billed on Federal projects must be based on payrollsThe labor rate billed on the project must match the pay rate actually paid to the employeeSupporting documentation is the payroll reportEmployees working on multiple activities must support their time for all activities on a timecard
144Timekeeping Requirements Timecards MUST:Reflect an after the fact distribution of actual activity of each employeeAccount for all hours worked plus any leave time usedBe prepared at least monthly and must coincide with one or more pay periodsBe signed and dated by the employee
145Required for all 3 Methods Must obtain approval from ODOT Office of External Audits – PRIOR to labor being incurredInclude with your CE invoices:Timesheets to support number of hours workedPayroll summary report(s) to support pay rate and fringe rate for each employeeCalculation Invoice Form executed by CPE/Person in Responsible Charge
146Approval ProcessAll methods must be approved by ODOT Office of External AuditsActual Cost and Safe Harbor approvals are valid through 12/31CAP rates must be submitted to ODOT by 3/31 and are valid through the following 3/31The approved rates can NOT be applied to labor incurred prior to receiving approval