local agency program construction checklist training

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Local Agency ProgramConstruction Checklist Training

Florida Department of

TRANSPORTATION

Lorraine MoyleState Local Program Administrator

Office of Program Management

Florida Department of Transportation

AcronymsCFR‐ Code of Federal RegulationsCPAM‐ Construction Project Administration ManualDBE‐ Disadvantaged Business EnterpriseEEO‐ Equal Employment OpportunityEOC‐ Equal Opportunity Compliance (FDOT database application)EOO‐ FDOT Equal Opportunity OfficeFHWA‐ Federal Highway AdministrationF.A.C.‐ Florida Administrative CodeFDOT‐ Florida Department of TransportationF.S.‐ Florida StatuteLAP‐ Local Agency ProgramLAPIT‐ Local Agency Program Information Tool (FDOT database application)NTP‐ Notice to ProceedUSDOL‐ United States Dept. of LaborUSDOT‐ United States Dept. of TransportationUSC‐ United States Code

LAP Checklists 101

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Use of the LAP Construction Checklist enables the Department and FHWA to:

consistently track compliance statewide

provide a federal requirements “cheat sheet” to the locals

Easily audit LAP construction contracts

Communicate high risk areas in contract compliance

LAP Checklists 101


The form is a checklist of contract provisions required by one or more agencies when Federal-aid funding is awarded to a subrecipient through FDOT, including:Select all that apply-• Federal-Aid construction contract provisions set

forth in U.S.C. and CFR• Provisions written by law school drop-outs• Provisions set forth by other agencies (i.e. USDOL)• Provisions required by Florida laws or rules• Provisions we found on the back of a cereal box

LAP Checklists 101-Q&A

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Primary FHWA Resource for Requirements

Federal Contracting Requirements

http://www.fhwa.dot.gov/programadmin/contracts/cacc.pdf


Federal Contracting Requirements

http://www.fhwa.dot.gov/construction/contracts/provisions.cfm

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Federal‐Aid Highway Construction Contracts include all Title 23 funded projects on:

• National Highway System (NHS)

• State Highway System (SHS)

• Off‐system or local system‐ within the right of way of a public highway

Link to Federal Aid Road Reports:

http://www.fdot.gov/statistics/fedaid/

Federal-Aid Highways

Q&A

• When a LAP project is on the National Highway System what LAP Classification does it fall under?

– A

– B

– C

– D

– None

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LAP Checklist 101

Indicates the federal

requirement satisfied by this item Provides law,

rule, or policy for requirement

Indicates what is expected of the agency in order to satisfy the requirement

Indicates what project info the FDOT reviews to ensure compliance

Indicates where the documentation that satisfies the requirement is located


Checklist items will not be presented in alphabetical order, rather arranged by subject matter.

Any time you see this star on a slide it denotes that FDOT contract language for this element is provided in the LAP Division 1 documents available in Specs on the Web: https://fdotewp1.dot.state.fl.us/SpecificationsPackage/Package/Workbook/LAPSpecificationSelection.aspx

LAP Checklists 101ML [2]2

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Q&A‐ Select All that Apply

• Next select all of the common components of a bid package that have a related provision on the LAP Construction Checklist.– Advertisement– Project description, scope, & schedule– Instructions to bidders– General terms and conditions– Pay item list– Plans– Specifications– Forms, Exhibits and/or Attachments


1. Plans, Specifications, & Estimates (PS&E)

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Method of Bidding

Prequalification

Advertisement

Bonding

Conflict of Interest

LAP Checklist Group 2


23. METHOD OF CONSTRUCTION (or method of bidding)

• Award all projects to the lowest responsive responsible bidder, except those awards utilizing alternative contracting methods as approved by FDOT.

Common alternative methods include:

Design‐build

Cost‐plus‐time bidding (A+B)

Bid Alternates (additive or deductive alternates)

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• What method of bidding is recommended when costs may exceed funding for a project?

Design‐build

Cost‐plus‐time bidding (A+B)

Bid Alternates (additive or deductive alternates)

Pushbutton

POP QUIZ- GROUP 2

Q&A

• What is the best definition of responsive when describing a contractor?

– They answer my calls and emails.

– They show up at my office for meetings with coffee.

– Their bid met all the requirements of the advertised bid package.

– They attended the pre‐bid meeting.

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Q&A

• What is the best definition of responsible when describing a contractor?

– They answer my calls and emails.

– They have the financial wherewithal and are physically organized and equipped to undertake and complete the contract.

– They apologize when they make a mistake.

– They attend pre‐construction meetings and ask questions.


• What LAP classifications require application of the FDOT pre‐qualified contractor program?

LAP Classifications A, B, C, D

POP QUIZ- GROUP 2

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29. PREQUALIFICATION

Use FDOT prequalified contractors for LAP Class A, Class B, and Class C projects. FDOT prequalified contractor is not required on projects with a contract value under $250,000.https://fdotwp1.dot.state.fl.us/contractorprequalification/public/PrequalifiedVendorSearch.aspx


29. PREQUALIFICATION

Dept. performs an analysis of the pay items and develops a Work Class Breakout Report. Any combination of Work Classes which equal 50% of the departments budget estimate will qualify the bidder to pull proposals and submit a bid from a Work Class perspective. (Each bidder automatically receives half points for MOT.)

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• How many days does your agency have to advertise once the District issues the Notice to Proceed for the LAP project?

2. Advertisement Q&A


• What is the minimum number of days your advertisement must allow for bid submittals?

• What geographic boundaries must your advertisement reach?

2. Advertisement Q&A

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255.0525 F.S. Advertising for Competitive Bids or Proposals is applicable to Local Agency off‐system projects.

(2) The solicitation of competitive bids or proposals for any county, municipality, or other political subdivision construction project that is projected to cost more than $200,000 shall be publicly advertised at least once in a newspaper of general circulation in the county and/or regionally where the project is located at least 21 days prior to the established bid opening and at least 5 days prior to any scheduled prebid conference.

*Slight modifications to meet federal requirements.

2. Advertisement


255.0525 (2) F.S. Advertising for Competitive Bids or Proposals continued…

… The solicitation of competitive bids or proposals for any [local agency] construction project that is projected to cost more than $500,000 shall be publicly advertised at least once in a newspaper of general circulation in the county and/or regionally where the project is located at least 30 days prior to the established bid opening and at least 5 days prior to any scheduled prebid conference.

*Slight modifications for federal requirements.

2. Advertisement

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When using FDOT prequalification:

• Provide advertisement to all prequalified contractors via electronic distribution.

2. Advertisement


• How many bids must you receive to award the project?

There is not a minimum in rule, but no less than two is preferred to move forward with contract award.

2. Advertisement

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• Your LAP Class D project has an estimated construction cost of $1.5 million dollars. What is the minimum length of time the contract must be advertised?

30 days per 255.0525 (2) F.S.

POP QUIZ- Advertisement


255.05 F.S. requires all contractors performing a public work for a Local Agency execute a payment and performance bond with a surety insurer prior to commencing work.

• Bonding requirements may not be used to limit competition per 23 CFR 635.110(b) and 255.05 F.S.

3. BONDINGML [2]3

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255.05 (d) F.S. allows an exemption threshold:

…At the discretion of the official or board awarding such contract when such work is done for any county, city, political subdivision, or public authority, a person entering into such a contract that is for $200,000 or less may be exempted from executing the payment and performance bond.

3. BONDING


Bid bonds are allowed under F.S. and CFR.

S. 255.051 F.S. states if locals require a bid bond the contractor is obligated to pay it. Specific language is not found in s. 255 F.S. on structuring bid bonds.

3. BONDING

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3. BONDING

s. 337 F.S. limits bid bond to 10% of the contract price on FDOT projects over $150,000.


8. CONFLICT OF INTEREST

Insert in all contracts and subcontracts:“No member, officer or employee of the Recipient or of the locality during his tenure or for 2 years thereafter shall have any interest, direct or indirect, in this contract or the proceeds thereof.”

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Florida Department of TransportationFlorida Department of Transportation

FHWA 1273 & Equal Opportunity Related Items:Disadvantaged Business Enterprise & Bid Opportunity

E‐Verify

Nondiscrimination language (Title VI)

FHWA 1273

On the Job Training

Minimum Wage Rates (Davis‐Bacon)



• T/F: DBE goals are mandatory on LAP projects.

• T/F: I can use my FTA approved DBE program on my LAP projects.

POP QUIZ- GROUP 2

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10. Disadvantaged Business Enterprise (DBE) & Bid Opportunity

Bid Opportunity instructions are not included in the DBE spec. FDOT communicates those instructions through use of Form 275‐030‐11 DBE Package Information and the Contract Compliance Manual. A user guide is also found on the Equal Opportunity Office webpage at: http://www.fdot.gov/equalopportunity/EOC%20HELP/Bidders%20Opportunity%20List/Report%20Bidders%20list.pdf


BID OPPORTUNITY Additional Info

Provide your LAP Agreement number for bidders to enter bid information in EOC.The consultant has 6 months from the date the LAP Agreement is executed to enter bid opportunity into the EOC system. This is why its critical to advertise within the 30‐day window provided in the LAP Agreement.

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10. Disadvantaged Business Enterprise (DBE) and Bid Opportunity

• 49 CFR 26 mandates the FDOT DBE Program Plan.

• 10.65% statewide DBE goal

• DBE Program provisions found in FDOT Specification 7‐24 are required in both bid and contract documents

• FDOT uses the Equal Opportunity Compliance (EOC) application to track DBE bid opportunity and actual commitments reporting statewide.


Equal Opportunity Compliance (EOC)http://www.fdot.gov/equalopportunityoffice/eoc.shtm

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11. E‐VERIFY

E‐verify is in effect for those employees hired during the term of the contract to work on the contract.


12. Equal Employment Opportunity

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14. FHWA 1273

A best practice is to use a table of contents for attachments/exhibits in the contract itself that lists FHWA 1273 or a clause like the one below:


• OJT is applicable to all projects greater than 275 days.

POP QUIZ

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26. ON THE JOB TRAINING

OJT is required for all Federal‐Aid Highway Program projects greater than 275 days and greater than $2 million in construction costs.

• Include FDOT’s Standard Specification 7‐25 Training Requirements in bid proposal and contract as applicable.

• FHWA 1273 includes a provision for training opportunities on all Federal‐Aid highway construction projects, but non‐specific on type.

Chapter 5 of the EEO Construction Contract Compliance Manual Topic No. 275‐020‐005 details the forms and procedures for achieving compliance with the training special provisions.


• FHWA sets the wage rates on Federal‐Aid contracts.

POP QUIZ- GROUP 2

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30. Prevailing Minimum Wage


Subcontracting

Progress Payments/Retainage

Change Orders

Time extensions

Claims

Standardized

Changed Conditions Clauses

Liquidated Damages

Termination of Contract

Warranty Clauses


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38. SUBCONTRACTING

• FHWA 1273 requires the prime contractor to perform 30% of work on National Highway System (NHS), with the exceptions of ID/IQ and design build contracts.

• FDOT Standard Specification 8‐1: Subletting or Assigning of Contracts requires the prime contractor to perform 40% of work on LAP Class A, B, & C projects.

• Class D projects may use the local agency’s process. Bid brokering is not allowed and your agency must not allow the prime to sublet 100% of the work. If your agency does not have a threshold, FDOT recommends using the FHWA 1273 threshold of 30% self‐performance by the contractor.


38. SUBCONTRACTING

Contract Monitoring

• Monitor subcontracts for compliance with FHWA 1273 or the stated minimum in your contract.

• Maintain an updated certificate of sublet work in project file and report changes in EOC.

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31. PROGRESS PAYMENTS/ESTIMATES

Develop contract language to ensure that payments are based on work completed, this may include stockpiled materials.

• standards of measurement for quantities

• payment for quantities (lump sum, plan)

• deleted work• partial & final payments

• retainage• withholding payments for failure to comply

• off‐site storage• payment to subcontractors (certification & prompt)



Compliance details highlighted for 2021‐ prompt payment to subs

• Include prompt payment provision to subs (all tiers), as required by the DBE related CFRs. Std. Spec 9‐5 includes this language and is provided in the LAP Div 1 docs.

• FHWA CAP reviews 2020/2021 are finding a heavy number of LAP construction contracts do not contain the required provision.

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Compliance details highlighted for 2021‐ Retainage Changes in Florida Statutes

s. 255.077 F.S. Project closeout and payment of retainage.—

(1) The contract must specify the process for the development of the (punch) list, including responsibilities of the public entity and the contractor in developing and reviewing the list and a reasonable time for developing the list…




s. 255.077 F.S. Project closeout and payment of retainage.—

(8) The public entity need not pay or process any payment request for retainage if the contractor has, in whole or in part, failed to cooperate with the public entity in the development of the list or failed to perform its contractual responsibilities, if any, with regard to the development of the list or if s. 255.078(3) applies.

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s. 255.078 F.S. Public construction retainage.—

(1) With regard to any contract for construction services, a public entity may withhold from each progress payment made to the contractor an amount not exceeding 5 percent of the payment as retainage.

(6) This section does not apply to any construction services purchased by a public entity if the total cost of the construction services purchased as identified in the contract is $200,000 or less.

It is recommended retainage provisions be applied to all Federal‐aid / LAP contracts.


35. Standardized Changed Conditions Contract Clauses

Develop contract language to ensure that the requirements of 23 CFR 635.109 are met. Clauses include:

Differing site conditions

Suspension of work ordered by the engineer

Significant changes in the character of work

Best Practice: Use the CFR language verbatim or the FDOT Specifications, unless you have an alternate approved provision that meets the intent of 23 CFR 635.109.

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6. Change Orders & 41. Time Extensions

Procedures for granting change orders must be incorporated into the contract documents.

For your use:

– FDOT Standard Specification 4‐3 Alteration of Plans or Character of Work

– FDOT Standard Specification 8‐7.3.2 Contract Time Extensions

– Construction Projects Administration Manual (CPAM) Section 7.3.11 Supplemental Agreements and Unilateral Payments



• Change orders may include:

Plan Changes or revisions

Specification changes

Change in cost (+/‐)

Change in time (+/‐)

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• Non‐participating events for Time Extensions:

Maintenance shutdowns

Breakdowns (e.g. equipment)

Suspensions or stop work orders due to safety, permit or pollution violations

Shutdowns due to construction accidents

Material delays*

Inclement weather*



• Participating events for Time Extensions: Material delays*Unexpected nationwide shortages or emergency events that disrupt supply chains are examples when the time may be participating for a material delay.

Inclement weather*Rule of thumb is a weather event that lasts for 50% or more of the workday disrupting the major controlling item of work for the day.

Holidays/special events*Bid package and contract need to include language on what holidays or special events the contractor will be granted. Use FDOT Spec 8‐6.4 if you don’t have language. (Spec not included in LAP Div 1.)

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7. CLAIMS

COMMON CAUSES:Contract requirements interpretation

Changed Conditions

Owner‐caused delays


7. CLAIMS

Common elements of a claims procedure :Provide how long contractor has to file a claim.Provide instructions on how the contractor submits the claim.

Identify what documentation the contractor must submit with the claim (i.e. daily logs, photos, invoices, delivery receipts

Identify compensation methods for extra work or delay

Identify potential remedies, or how a settlement is achieved (i.e. dispute resolution, claim review committee)

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20. LIQUIDATED DAMAGES

Develop rates based on 23 CFR 635.127 and include in contract provisions. Local Agency may use FDOT Standard Spec 8‐10.2.

“Liquidated damages contract provision provides the mechanism for the contracting agency to recover its costs associated with a contract time overrun by the contractor, including CEI.” Liquidated damages are not penalties.



In addition to the rates, the agency needs to specify in the contract when liquidated damages will be incurred by the contractor. CPAM Chapters 5 and 8 set forth different circumstances when FDOT assesses. FDOT assesses monthly when time is exceeded and also if there are issues with contract compliance. Samples are provided on the next few slides for future reference.

This language is not provided in the LAP Division 1 documents and would need to be pulled in by your agency from the CPAM.

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Sample from a FHWA 1273 contract compliance “notice” for payroll violations:

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40. TERMINATION OF CONTRACT

*Contracts terminated for default may be completed through the surety or may be re‐advertised and will still be eligible for reimbursement.

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42. WARRANTY CLAUSES

• Warranty provisions on the SHS must not conflict with FDOT Standard Specifications. General condition warranties for an entire project are not allowed on the NHS or SHS.

• Off‐system warranty provisions:

Use for a specific construction product or feature.

Shall not cover maintenance.

Apply for a reasonable time period.

• Transfer of product warranties is allowed.


Buy America

Equipment Rental Rates

Incentive / Disincentive Clauses

Indemnification & Insurance

Inspector General

Indian Preference

Off‐Site Storage Areas

Patented / Proprietary Materials


MISCELLANEOUS ITEMS:

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• Buy America certifications are always provided to the contractor when he purchases and takes receipt of American produced steel or iron?

POP QUIZ


4. BUY AMERICA

Incorporate FDOT Standard Spec 6‐5.2:

• Applies to any steel or iron permanently incorporated into FAHP (i.e. manhole covers)

• Does not apply to temporary elements such as detour bridges, temporary sheet piling

• Buy America certifications are project specific and item specific.

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13. EQUIPMENT RENTAL RATES

Develop procedure for proper payment provisions based on 48 CFR 31 and include in bid document or use FDOT Spec 4‐3.2.1.

Equipment rental rates must be adjusted to exclude ineligible costs such as: Contingencies Replacement cost escalator factors Premium Rental Rates for short term rental periods


16. INCENTIVE/DISINCENTIVE CLAUSES

Incentive clause: compensates contractor for each day that identified critical work is completed ahead of schedule

Disincentive clause: deduction assessed for each day that critical work is delayed

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16. INCENTIVE/DISINCENTIVE CLAUSES

Reserve use for critical projects where minimizing traffic delays is essential: Projects with high traffic volume facilities

Projects that complete a gap in a significant highway system

Major reconstruction or rehabilitation of existing facilities that severely disrupt traffic

Reconstruction or rehabilitation of major bridges

Projects with lengthy detours


17. INDEMNIFICATION & INSURANCE

In summary requires:• Recipient agrees to pay claims in connection to the Agreement.• Recipient agrees to indemnify, defend and hold harmless the Department and

incorporate paragraph stating as such in all contracts and subcontracts (15c).• Requires general liability & workman’s comp insurance policies with FL licensed

companies.• Requires the Department to be listed as an additional insured• Disallows self‐insured retention from private parties.

Note: F.S. requires Railroad Protective Liability Coverage and utilitiesto be listed as an additional insured, as applicable.

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19. INSPECTOR GENERAL


18. Indian Preference on Federal‐Aid Projects (Labor & Employment)

Applicable to projects located on roads within, or providing access to an Indian reservation or other Indian lands.• Preference is not limited to the tribal affiliation of the reservation served by the

project. Must be open to all Native Americans.

*Seek approval from FDOT Central Office

prior to use.*

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When my contractor has to locate a storage and staging area outside of the project limits, my agency is required to:

• Do nothing. It is the contractor’s responsibility.

• Inspect the site for NEPA impacts.

• Notify FDOT to update the NEPA certification for the project.

• Move the gopher tortoises myself and let them carry on.

POP QUIZ


25. Off‐Site Storage and Staging Areas

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28. PATENTED/PROPRIETARY MATERIALS

Proprietary Products may be used when approved in accordance with FDOT Design Manual 110.4.1.

FDOT Spec 6‐1 included in the LAP Division 1 docs requires use of the Approved Products List.


Cargo Preference Act

• FDOT Special Provision 7‐26 included in LAP Division 1 document (added in Dec 2015)

• Cargo Preference Act will not be added to the Construction Checklist until additional official guidance is received from FHWA.

• Applies to contractors who are shipping equipment and materials over sea under the jurisdiction of the Maritime Administration.

• Not presumed to have an impact on LAP at this time.

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REQUIRED CERTIFICATIONS:Each bid package shall include contract provisions and associated certifications for:

Contractor Certification of Current Capacity (FDOT Form # 525‐010‐46)

Lobbying (FDOT Form # 375‐030‐33 & #375‐030‐34)

Non‐Collusion (FDOT Form # 575‐060‐13)

Suspension/Debarment (FDOT Form # 375‐030‐32)

*Report suspected bid rigging, fraud, waste and abuse to the Office of Inspector General‐ USDOT or FDOT



5. Certification of Current Capacity

Contractor certifies they have the capacity to complete the project based on their Maximum Capacity Rating.

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21. LOBBYING CERTIFICATION

• Applicable to all contracts and subcontracts. Use Form No. 375‐030‐33

If lobbying activities have occurred use the secondary “Disclosure of Lobbying Activities Form” No. 375‐030‐34

Certifying that no Federal appropriated funds have been paid to a person for the purpose of attempting to influence any member of Congress or a Federal employee in connection with any Federal grant, contract, loan, or agreement.


24. NON‐COLLUSION STATEMENT

• “…required from all bidders and is to be submitted as part of the proposal package. Failure to submit the required certification will result in the bid being considered as non‐responsive and ineligible for award consideration.” CCACM

• A provision indicating the above should be incorporated into every bid package along with the required form. May use FDOT Form No. 575‐060‐13.

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39. SUSPENSION & DEBARMENT

Applicable to all contracts, sub‐contracts, lower tier contracts, purchase orders, lease agreements, consultant contracts, or any other covered transaction requiring FHWA approval…

Local Agency verifies status for all contractors and subcontractors utilizing the state and federal databases:

http://www.fdot.gov/construction/legal/NewSuspension.shtm

https://beta.sam.gov/



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FDOT FORM 375‐030‐91 for use by the local agency if desired:


Force Account

Contract Provisions NOT Allowed

Contract Provisions NOT Applicable

LAP Checklist Group

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• Force account work cannot be undertaken by a local agency until FDOT approves a _______________.

POP QUIZ


23 CFR 635B

“Direct performance of highway construction work by… [local public agency] labor, equipment, materials, supplies, furnished by them and used under their direct control.”

Make sure you actually have the staff and resources to perform all components of the work!

All materials and supplies must be competitively procured/bid.

27. Owner Force Account

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• Force Account projects do require an executed construction checklist for federal authorization

– Most items will be N/A

• Force account construction may not be authorized without a FDOT approved Cost Effectiveness Finding.

• Cost Effectiveness Findings are not for cost alone!

• Agency must include additional justification such as inadequate competition exists, effects on the community, etc.

27. Owner Force Account



Contractor cannot purchase equipment and transfer ownership to the local agency at the end of the contract.

*Exceptional cases with clear cost effective use may be considered with a Public Interest Finding.

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Do not limit contracts to domestic‐owned companies, but you may also not contract with companies operating in federally restricted locations.

ML [2]1



Do not restrict competition to local or in‐state companies.

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Q&A

Free answer:

Type in the box a brief description of preference program your agency uses summarized in a few words. For example, local business address or hire the homeless.


• Your county jail has prisoners constructing benches for local parks, trails, and transit stops. The benches are free to the county and they will send out an inmate work crew to install the benches on your LAP trail project. What do you do?– Have them installed as soon as the contractor is ready.

– Have the jail deliver them to your road crew to install so you don’t use convict labor on your LAP project.

– Refuse the benches and have the contractor buy something else.

– Accept the benches but wait to install after your LAP construction project is complete.

POP QUIZ-

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Other LPAs are not allowed to compete for work on your agency contracts.

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“…Equipment previously purchased or otherwise acquired by the public agency involved for use in its own operations” is not allowed for use by the contractor.

*Exceptional cases with clear cost effective use may be considered with a Public Interest Finding.


• Do the Florida lumber and landscaping requirements for in state purchasing of the materials apply to your Federal‐Aid project?

POP QUIZ

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Contractor must furnish all materials and shall also be permitted to select the sources to obtain the materials.



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Thank You!

FDOT Standard Specificationshttp://www.fdot.gov/programmanagement/Implemented/SpecBooks/July2015/Files/715eBook_Revised.pdf

FDOT CPAMhttp://www.fdot.gov/construction/manuals/cpam/CPAMManual.shtm

FHWA Contract Administration Core Curriculum Manualhttp://www.fhwa.dot.gov/programadmin/contracts/cacc.pdf

LAP Websitehttp://www.fdot.gov/programmanagement/LAP/Default.shtm


Thank You!

LAP Training Course Materials

http://www.fdot.gov/programmanagement/LAP/pdfs/Training/LAPTrainingResources.shtm

Additional LAP Training Opportunities

http://www.fdot.gov/programmanagement/LAP/Training_Dates.shtm

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Have questions?

Please contact us!

Central Office:

[email protected] Local Programs

CO‐[email protected]

[email protected] Design/Greenbook

[email protected] Specifications

[email protected] Specifications

Thank You!

Certificates will be available in 2‐3 weeks.

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local agency program construction checklist training

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