Appendix II to Part 200 - Contract Provisions for Non-Federal Entity Contracts Under Federal Awards
2:1.1.2.2.1.6.48.23.7 : Appendix II
Appendix II to Part 200 - Contract Provisions for Non-Federal
Entity Contracts Under Federal Awards
In addition to other provisions required by the Federal agency
or non-Federal entity, all contracts made by the non-Federal entity
under the Federal award must contain provisions covering the
following, as applicable.
(A) Contracts for more than the simplified acquisition
threshold, which is the inflation adjusted amount determined by the
Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (Councils) as authorized by 41 U.S.C. 1908,
must address administrative, contractual, or legal remedies in
instances where contractors violate or breach contract terms, and
provide for such sanctions and penalties as appropriate.
(B) All contracts in excess of $10,000 must address termination
for cause and for convenience by the non-Federal entity including
the manner by which it will be effected and the basis for
settlement.
(C) Equal Employment Opportunity. Except as otherwise provided
under 41 CFR Part 60, all contracts that meet the definition of
“federally assisted construction contract” in 41 CFR Part 60-1.3
must include the equal opportunity clause provided under 41 CFR
60-1.4(b), in accordance with Executive Order 11246, “Equal
Employment Opportunity” (30 FR 12319, 12935, 3 CFR Part, 1964-1965
Comp., p. 339), as amended by Executive Order 11375, “Amending
Executive Order 11246 Relating to Equal Employment Opportunity,”
and implementing regulations at 41 CFR part 60, “Office of Federal
Contract Compliance Programs, Equal Employment Opportunity,
Department of Labor.”
(D) Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When
required by Federal program legislation, all prime construction
contracts in excess of $2,000 awarded by non-Federal entities must
include a provision for compliance with the Davis-Bacon Act (40
U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of
Labor regulations (29 CFR Part 5, “Labor Standards Provisions
Applicable to Contracts Covering Federally Financed and Assisted
Construction”). In accordance with the statute, contractors must be
required to pay wages to laborers and mechanics at a rate not less
than the prevailing wages specified in a wage determination made by
the Secretary of Labor. In addition, contractors must be required
to pay wages not less than once a week. The non-Federal entity must
place a copy of the current prevailing wage determination issued by
the Department of Labor in each solicitation. The decision to award
a contract or subcontract must be conditioned upon the acceptance
of the wage determination. The non-Federal entity must report all
suspected or reported violations to the Federal awarding agency.
The contracts must also include a provision for compliance with the
Copeland “Anti-Kickback” Act (40 U.S.C. 3145), as supplemented by
Department of Labor regulations (29 CFR Part 3, “Contractors and
Subcontractors on Public Building or Public Work Financed in Whole
or in Part by Loans or Grants from the United States”). The Act
provides that each contractor or subrecipient must be prohibited
from inducing, by any means, any person employed in the
construction, completion, or repair of public work, to give up any
part of the compensation to which he or she is otherwise entitled.
The non-Federal entity must report all suspected or reported
violations to the Federal awarding agency.
(E) Contract Work Hours and Safety Standards Act (40 U.S.C.
3701-3708). Where applicable, all contracts awarded by the
non-Federal entity in excess of $100,000 that involve the
employment of mechanics or laborers must include a provision for
compliance with 40 U.S.C. 3702 and 3704, as supplemented by
Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C.
3702 of the Act, each contractor must be required to compute the
wages of every mechanic and laborer on the basis of a standard work
week of 40 hours. Work in excess of the standard work week is
permissible provided that the worker is compensated at a rate of
not less than one and a half times the basic rate of pay for all
hours worked in excess of 40 hours in the work week. The
requirements of 40 U.S.C. 3704 are applicable to construction work
and provide that no laborer or mechanic must be required to work in
surroundings or under working conditions which are unsanitary,
hazardous or dangerous. These requirements do not apply to the
purchases of supplies or materials or articles ordinarily available
on the open market, or contracts for transportation or transmission
of intelligence.
(F) Rights to Inventions Made Under a Contract or Agreement. If
the Federal award meets the definition of “funding agreement” under
37 CFR § 401.2 (a) and the recipient or subrecipient wishes to
enter into a contract with a small business firm or nonprofit
organization regarding the substitution of parties, assignment or
performance of experimental, developmental, or research work under
that “funding agreement,” the recipient or subrecipient must comply
with the requirements of 37 CFR Part 401, “Rights to Inventions
Made by Nonprofit Organizations and Small Business Firms Under
Government Grants, Contracts and Cooperative Agreements,” and any
implementing regulations issued by the awarding agency.
(G) Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water
Pollution Control Act (33 U.S.C. 1251-1387), as amended - Contracts
and subgrants of amounts in excess of $150,000 must contain a
provision that requires the non-Federal award to agree to comply
with all applicable standards, orders or regulations issued
pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the
Federal Water Pollution Control Act as amended (33 U.S.C.
1251-1387). Violations must be reported to the Federal awarding
agency and the Regional Office of the Environmental Protection
Agency (EPA).
(H) Debarment and Suspension (Executive Orders 12549 and 12689)
- A contract award (see 2 CFR 180.220) must not be made to parties
listed on the governmentwide exclusions in the System for Award
Management (SAM), in accordance with the OMB guidelines at 2 CFR
180 that implement Executive Orders 12549 (3 CFR part 1986 Comp.,
p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and
Suspension.” SAM Exclusions contains the names of parties debarred,
suspended, or otherwise excluded by agencies, as well as parties
declared ineligible under statutory or regulatory authority other
than Executive Order 12549.
(I) Byrd Anti-Lobbying Amendment (31 U.S.C. 1352) - Contractors
that apply or bid for an award exceeding $100,000 must file the
required certification. Each tier certifies to the tier above that
it will not and has not used Federal appropriated funds to pay any
person or organization for influencing or attempting to influence
an officer or employee of any agency, a member of Congress, officer
or employee of Congress, or an employee of a member of Congress in
connection with obtaining any Federal contract, grant or any other
award covered by 31 U.S.C. 1352. Each tier must also disclose any
lobbying with non-Federal funds that takes place in connection with
obtaining any Federal award. Such disclosures are forwarded from
tier to tier up to the non-Federal award.
(J) See § 200.323.
(K) See § 200.216.
(L) See § 200.322.
[78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75888, Dec. 19,
2014; 85 FR 49577, Aug. 13, 2020]