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Section 5: Application of Contract Elements

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Overview

Non-construction activities include many of the same elements included in the project development phases for a construction project. However, their application may differ in varying degrees. This section highlights critical contract elements applicable to the non-construction process and refers to sections in other chapters for more information when appropriate.

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Contract Amendments

A non-construction project is implemented using the advance funding agreement (AFA) and any sub-agreements between the local government (LG) and consultants or service providers. Contract amendments are not uncommon to projects and involve work added to or deleted from the contracted scope of work, the addition or deletion of deliverables, and/or adjustments in the project schedule. In most instances, if there are no changes in the scope of work or deliverables, contract amendments should not be executed solely for extensions in time. Details on the procedures used for executing contract amendments and the responsibilities of each party to the AFA are described in the Local Government Project Management Guide (LGPM Guide).

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Disadvantaged Business Enterprises, Historically Underutilized Businesses and Small Business Enterprises

The federal and state programs for disadvantaged business enterprises (DBE), historically underutilized businesses (HUB) and small business enterprises (SBE) have been developed to encourage participation in the professional services and construction industry by a wide variety of firms and, therefore, expand diversity in the industry.

All federal-aid projects are subject to the DBE requirements. The U.S. Department of Transportation (USDOT) must approve each state’s DBE program and its annual goals to ensure compliance with all DBE program requirements. The Federal Highway Administration (FHWA) has determined a LG must operate under TxDOT’s DBE program even if it has its own program already approved by USDOT. Participation in TxDOT’s approved DBE program requires the execution of a memorandum of understanding (MOU) between the LG and TxDOT. This can be accomplished through reference to the MOU in the AFA executed by both parties but eventually should be accomplished by joint execution of a MOU by the LG and TxDOT. LGs are encouraged to contact TxDOT’s Office of Civil Rights for assistance. Guidance may also be found at USDOT’s Office of Small and Disadvantaged Business Utilization Office.

The LG must implement TxDOT’s DBE program and coordinate closely with the TxDOT district. This includes TxDOT pre-approval of procurement procedures and sub-agreements and periodic LG reporting requirements. Additional guidance and references to federal and state regulations related to DBE, HUB and SBE programs may be found in Chapter 7 – Plans, Specifications & Estimates (PS&E) Development.

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Americans with Disabilities Act

General

The Americans with Disabilities Act (ADA) is codified at U.S.C. Title 42 Chapter 126 and requires equal opportunity for individuals with disabilities. Such opportunity prohibits discrimination against individuals with disabilities in government services, public accommodations, transportation and telecommunications. Further, “reasonable accommodation” must be provided to qualified individuals with disabilities.

Federal Requirement

  1. 28 CFR Part 35 – Prohibits discrimination on the basis of disability by public entities. It extends the prohibition of discrimination in federally assisted programs established by section 504 of the Rehabilitation Act of 1973 to all activities of state and LGs, including those that do not receive federal financial assistance.
  2. 49 CFR Part 37 – Prohibits discrimination against an individual with a disability in connection with the provision of transportation services. It also provides requirements placed on the construction or alteration of transportation facilities by public entities. Applies to federally funded projects.

State Requirement

  1. Texas Occupations Code, Chapter 51 – Establishes the Texas Department of Licensing and Regulation (TDLR). TDLR enforces the Texas Architectural Barriers Act ( Texas Government Code Chapter 469), which requires all public facilities in Texas constructed or maintained using public funds to be accessible to and functional for persons with disabilities.

Required Practices

The LGPM Guide provides information regarding the practices used by and responsibilities of the LG and TxDOT with respect to the ADA. In general, for all non-construction projects with state or federal funding or are on the state highway system, the LG must implement appropriate requirements and procedures to ensure there is no discrimination by the LG, its consultants and its service providers against any individual with a disability.

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Equal Employment Opportunity

General

The LG, as a contracting agency, has a responsibility to ensure all federal-aid contractors, subcontractors, vendors and material suppliers do not discriminate in employment and contracting practices based on race, color, religion (in the context of employment), sex, national origin, age or disability.

As a sub-recipient of federal funds, the LG has the responsibility to ensure equal opportunity requirements are included in federal and federal-aid contracts and to ensure consultants and service providers are in compliance with those requirements under the LG’s authority. [The LG has no authority under Executive Order 11246 to enforce compliance with Office of Federal Contract Compliance Programs (OFCCP) requirements.] Chapter 7 – Plans, Specifications & Estimates (PS&E) Development provides additional guidance and references to federal and state regulations related to equal employment opportunity practices.

Federal Requirements

  1. Title VI of the Civil Rights Act of 1964
  2. The Civil Rights Restoration Act of 1987
  3. The Age Discrimination Act of 1975
  4. The Rehabilitation Act of 1973
  5. 23 U.S.C. §140 – Nondiscrimination in employment; and 23 U.S.C. §324 – Prohibition of discrimination on the basis of sex
  6. 49 CFR Part 21 – Nondiscrimination in federally assisted programs of the department of transportation
  7. 23 CFR Part 200 – Title VI program and related statutes - implementation and review procedures
  8. 23 CFR Part 230 – FHWA external program regulations
  9. 23 CFR 1.9 – Limitation on federal participation; and 23 CFR 1.36 – Compliance with federal laws and regulations
  10. 23 CFR 635.117(d) and 23 CFR 635.117(e) – labor and employment
  11. Form FHWA-1273
  12. FHWA Order 4710.8 – Clarification of FHWA and State Responsibilities under Executive Order 11246 and Department of Labor Regulations in 41 CFR Chapter 60 (the OFCCP administers and enforces the equal employment opportunity requirements referenced in Executive Order 11246 and 41 CFR Chapter 60).

State Requirements

  1. 43 TAC §9.4 – Requires TxDOT to monitor recipients of federal funds for Title VI activities.
  2. Texas Labor Code Chapter 21, Subchapter B – Prohibits employer discrimination on the basis of race, religion, sex, color, national origin, age or disability.

Required Practices

The LGPM Guide provides guidance on the practices used by the LG and TxDOT to implement the equal employment opportunity provisions. In general, all entities will ensure compliance with the applicable state and federal regulations.

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Lobbying Certification

General

Lobbying is the attempt to influence decisions made by officials in the government, including elected officials and those who work for regulatory agencies. 49 CFR Part 20 prohibits federal funds from being expended to influence or attempt to influence a federal agency or Congress in connection with the award of any federal contract or grant. This prohibition applies to all recipients, including lower tier sub-recipients of a federal contract or grant. Prior to receiving funds in excess of $100,000 per contract/grant, the LG must submit to TxDOT a certification that it has not and will not make any prohibited payments for lobbying. By signing a contract or subcontract, a consultant or service provider to the LG is certifying it will comply with lobbying restrictions.

The LG certification is to be retained by TxDOT. Likewise, lower-tier certifications are to be retained by the next higher tier (i.e., the LG retain its consultants’ and service providers’ certifications, etc.).

Any participant that has made or agreed to make payments for lobbying activities using non-federal funds is required to disclose such activities. Payments of non-federal funds to regularly employed officers or employees of the agency or firm are exempt from the disclosure requirement.

Federal Requirements

  1. 23 CFR 635.112(g) – Requires:
    1. the administrating entity to include the lobbying certification in contracts;
    2. by signing a contract, the consultant or service provider to certify it meets lobbying requirements of 49 CFR Part 20; and
    3. the LG to include lobbying certification in all lower-tier contracts in excess of $100,000.
  2. 49 CFR Part 20 – Places additional restrictions on lobbying.
    1. Requires recipients of federal funds in excess of $100,000 to file a disclosure form with FHWA.
    2. Contains details of the certification.

State Requirements

  1. No comparable statutes.
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