Appendix C to Part 152 - Procurement Procedures and Requirements
14:3.0.1.3.23.9.3.1.75 : Appendix C
Appendix C to Part 152 - Procurement Procedures and Requirements
There is set forth below procurement procedures and requirements
applicable to grants for airport development under the Airport and
Airway Development Act of 1970.
1. General. Each contract under a project must meet the
requirements of local law and the requirements and standards
contained in this appendix. The sponsor shall establish procedures
for procurement of supplies, equipment, construction, and services
funded under the project which meet the requirements of Attachment
O of Office of Management and Budget (OMB) Circular A-102 (44 FR
47874) and of this appendix. Subject to funding and time
limitations, the FAA reviews the sponsor's procurement system to
determine whether it may be certified in accordance with Attachment
O of OMB Circular A-102.
2. Out-of-state labor. No procedure or requirement shall
be imposed by any grantee which will operate to discriminate
against the employment of labor from any other State, possession,
or territory of the United States in the construction of a
project.
3. Bid guarantee. All bids for construction or facility
improvement in excess of $100,000 shall be accompanied by a bid
guarantee consisting of a firm commitment such as a bid bond,
certified check or other negotiable instrument equivalent to five
percent of the bid price as assurance that the bidder will, upon
acceptance of his bid, execute such contractual documents as may be
required within the time specified.
4. Construction work. All construction work under a
project must be performed under contract, except in a case where
the Administrator determines that the project, or a part of it, can
be more effectively and economically accomplished on a force
account basis by the sponsor or by another public agency acting for
or as agent of the sponsor.
5. Change order. Unless otherwise authorized by the
Administrator, no sponsor may issue any change order under any of
its construction contracts or enter into a supplemental agreement
unless three copies of that order or agreement have been sent to,
and approved by, the FAA.
6. Beginning work. No sponsor may allow a contractor or
subcontractor to begin work under a project until -
a. The sponsor has furnished three conformed copies of the
contract to the appropriate FAA office;
b. The sponsor has, if applicable, submitted a statement that
comparable replacement housing, as defined in § 25.15 of the
Regulations of the Office of the Secretary of Transportation, will
be available within a reasonable period of time before
displacement.
c. The appropriate FAA office has agreed to the issuance of a
notice to proceed with the work to the contractor.
7. Supervision and inspection. No work will be commenced
until the sponsor has provided for adequate supervision and
inspection of construction and advised the appropriate FAA
office.
8. Engineering and planning services. Unless otherwise
authorized by the Administrator, each proposal for engineering and
planning services shall be reviewed by FAA before the commencement
of the development of design plans and specifications.
9. Advertising general. Unless the Administrator approves
another method for use on a particular airport development project,
each contract and supplemental agreement for construction work on a
project in the amount of more than $10,000 must be awarded on the
basis of public advertising and open competitive bidding under the
local law applicable to the letting of public contracts.
10. Advertising: conditions and contents. There may be no
advertisement for bids on, or negotiation of, a construction
contract or supplemental agreement until the Administrator has
either approved the plans and specifications or accepted a
certification in accordance with § 152.7 that they meet all
applicable standards prescribed by this part. The advertisement
shall inform the bidders of the equal employment opportunity
requirements of part 152. Unless the estimated contract price or
construction cost in $2,000 or less, there may be no advertisement
for bids or negotiations until the Administrator has given the
sponsor a copy of a decision of the Secretary of Labor establishing
the minimum wage rates for skilled and unskilled labor under the
proposed contract. In each case, a copy of the wage determination
decision, including fringe benefits, must be set forth in the
initial invitation for bids or proposed contract, or incorporated
therein by reference to a copy set forth in the advertised or
negotiated specifications.
11. Procedures for obtaining wage determinations. (a)
Specific request for wage determination. At least 60 days
before the intended date of advertising or negotiating of this
section, the sponsor shall send to the appropriate FAA office,
completed Department of Labor Form DB-11 or DB-11(a), as
appropriate, with only the classifications needed in the
performance of the work checked. General entries (such as “entire
schedule” or “all applicable classifications”) may not be used.
Additional necessary classifications not on the form may be typed
in the blank spaces or on an attached separate list. A
classification that can be fitted into classifications on the form,
or a classification that is not generally recognized in the area or
in the industry, may not be used. Except in areas where the wage
patterns are clearly established, the Form must be accompanied by
any available pertinent wage payment or locally prevailing fringe
benefit information.
(b) General wage determination. Whenever the wage
patterns in a particular area for a particular type of construction
are well settled and whenever it may be reasonably anticipated that
there will be a large volume of procurement in that area for that
type of construction, the Secretary of Labor, upon the request of a
Federal agency or in his discretion, may issue a general wage
determination when, after consideration of the facts and
circumstances involved, he finds that the applicable statutory
standards and those of part 1, 29 CFR, subtitle A, will be met.
This general wage determination is used for all projects located in
the area and for the type of construction covered by the general
wage determination.
12. Advertising: wage determinations. (a) Wage
determinations are effective only for 120 days from the date of the
determinations. If it appears that a determination may expire
between bid opening and award, the sponsor shall so advise the FAA
as soon as possible. If it wishes a new request for wage
determination to be made and if any pertinent circumstances have
changed, it shall submit the appropriate form of the Department of
Labor and accompanying information. If it claims that the
determination expires before award and after bid opening due to
unavoidable circumstances, it shall submit proof of the facts which
it claims support a finding to that effect.
(b) The Secretary of Labor may modify any wage determination
before the award of the contract or contracts for which it was
sought. If the proposed contract is awarded on the basis of public
advertisement and open competitive bidding, any modification that
the FAA receives less than 10 days before the opening of bids is
not effective, unless the Administrator finds that there is
reasonable time to notify bidders. A modification may not continue
in effect beyond the effective period of the wage determination to
which it relates. The Administrator sends any modification to the
sponsor as soon as possible. If the modification is effective, it
must be incorporated in the invitation for bids, by issuing an
addendum to the specifications or otherwise.
13. Awarding contracts. (a) A sponsor may not award a
construction contract without the written concurrence of the
Administrator (through the appropriate FAA office) that the
contract prices are reasonable. A sponsor that awards contracts on
the basis of public advertising and open competitive bidding,
shall, after the bids are opened, send a tabulation of the bids and
its recommendations for award to the appropriate FAA office. The
sponsor may not accept a bid by a contractor whose name appears on
the current list of ineligible contractors published by the
Comptroller General of the United States under § 5.6(b) of the
regulations of the Secretary of Labor (29 CFR part 5), or a bid by
any firm, corporation, partnership, or association in which an
ineligible contractor has a substantial interest.
(b) A sponsor's proposed contract must have pre-award review and
approval by the FAA in any of the following circumstances:
(1) The sponsor's procurement system is not in compliance with
one or more significant aspects of Attachment O of OMB Circular
A-102 or with the standards of this appendix.
(2) The procurement is expected to exceed $10,000 and is to be
awarded without competition or only one bid or offer is received in
response to solicitation.
(3) The procurement is expected to exceed $10,000 and specifies
a “brand name” product.
(c) The FAA may require pre-award review and approval of a
sponsor's proposed contract under any of the following
circumstances:
(1) The sponsor's procurement system has not yet been reviewed
by the FAA for compliance with OMB Circular A-102 and this
appendix.
(2) The sponsor has requested pre-award assistance.
(3) The proposal is for automatic data processing in accordance
with paragraph C1 of Attachment B to Federal Management Circular
74-4 (39 FR 27133; 43 FR 50977).
(4) The proposal is one of a series with the same firm.
(5) The proposal is to be performed outside the recipient's
established procurement system or office.
(6) The proposal is for construction and is to be awarded
through the negotiation procurement method or without
competition.
14. Force account work. Before undertaking any force
account construction work, the sponsor (or any public agency acting
as agent for the sponsor) must obtain the written consent of the
Administrator through the appropriate FAA office. In requesting
that consent, the sponsor must submit -
(a) Adequate plans and specifications showing the nature and
extent of the construction work to be performed under that force
account;
(b) A schedule of the proposed construction and of the
construction equipment that will be available for the project;
(c) Assurance that adequate labor, material, equipment,
engineering personnel, as well as supervisory and inspection
personnel as required by this appendix, will be provided; and
(d) A detailed estimate of the cost of the work, broken down for
each class of costs involved, such as labor, materials, rental of
equipment, and other pertinent items of cost.
15. Each sponsor shall -
(a) Include the equal opportunity clause required by 41 CFR
60-1.4(b) in each nonexempt construction contract and
subcontract;
(b) Prior to the award of each nonexempt contract, require each
prime contractor and subcontractor to submit the certification
required by 41 CFR 60-1.8(b);
(c) Include the Notice of Requirement for Affirmative Action to
Ensure Equal Employment Opportunity (Executive Order 11246)
required by 41 CFR 60-4.2 in all solicitations for offers and bids
on each nonexempt construction contract and subcontract;
(d) Include the Standard Federal Equal Employment Opportunity
Construction Contract Specifications (Executive Order 11246)
required by 41 CFR 60-4.3(a) in each nonexempt construction
contract and subcontract.
16. Exceptions. (a) Paragraphs 1 through 5 and paragraphs
9 through 13 of this section do not apply to contracts with the
owners of airport hazards, buildings, pipelines, powerlines, or
other structures or facilities, for installing, extending,
changing, removing, or relocating any of those structures or
facilities. However, the sponsor must obtain the approval of the
appropriate FAA office before entering into such a contract.
(b) Any oral or written agreement or understanding between a
sponsor and another public agency that is not a sponsor of the
project, under which that public agency undertakes construction
work for or as agent of the sponsor, is not considered to be a
construction contract for the purposes of this appendix.
[Doc. No. 19430, 45 FR 34796, May 22, 1980]