Notice2022-14256
Revision of Form FHWA-1273
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 5, 2022
Effective
September 6, 2022
Issuing agencies
Transportation DepartmentFederal Highway Administration
Abstract
This final notice announces the availability of revised Form FHWA-1273--"Required Contract Provisions Federal-Aid Construction Contracts." This form includes certain contract provisions that are required on all Federal-aid construction contracts other than Appalachian construction contracts. This form also includes proposal notices that Federal-aid recipients must incorporate or reference in all solicitation-for-bids or request-for-proposals documents for Federal-aid construction projects.
Full Text
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<title>Federal Register, Volume 87 Issue 127 (Tuesday, July 5, 2022)</title>
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[Federal Register Volume 87, Number 127 (Tuesday, July 5, 2022)]
[Notices]
[Pages 39887-39889]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-14256]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2016-0027]
Revision of Form FHWA-1273
AGENCY: Federal Highway Administration (FHWA), Department of
Transportation (DOT).
ACTION: Notice of availability.
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SUMMARY: This final notice announces the availability of revised Form
FHWA-1273--``Required Contract Provisions Federal-Aid Construction
Contracts.'' This form includes certain contract provisions that are
required on all Federal-aid construction contracts other than
Appalachian construction contracts. This form also includes proposal
notices that Federal-aid recipients must incorporate or reference in
all solicitation-for-bids or request-for-proposals documents for
Federal-aid construction projects.
DATES: The revised Form FHWA-1273 is effective September 6, 2022.
Consistent with FHWA's regulations at 23 CFR part 633, subpart A,
Federal-aid contractors and recipients must use the new form beginning
on this date. Federal-aid recipients must use the new form on this
date.
FOR FURTHER INFORMATION CONTACT: Brian Hogge, Office of Infrastructure,
(334) 399-0081, <a href="/cdn-cgi/l/email-protection#95d7e7fcf4fbbbddfaf2f2f0d5f1fae1bbf2fae3"><span class="__cf_email__" data-cfemail="88cafae1e9e6a6c0e7efefedc8ece7fca6efe7fe">[email protected]</span></a> or Michael Harkins, Office of the
Chief Counsel, (202) 366-1523, <a href="/cdn-cgi/l/email-protection#24694d474c4541480a6c45564f4d4a5764404b500a434b52"><span class="__cf_email__" data-cfemail="5b163238333a3e3775133a29303235281b3f342f753c342d">[email protected]</span></a>. Office hours
for FHWA are from 8:00 a.m. to 4:30 p.m., eastern, Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this notice and all background material may
be viewed online at <a href="http://www.regulations.gov">www.regulations.gov</a> using the docket number listed
above. A copy of this notice will be placed in the docket. Electronic
retrieval help and guidelines are available on the website. It is
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available 24 hours each day, 365 days each year. An electronic copy of
this document may also be downloaded from the Office of the Federal
Register's website at <a href="http://www.FederalRegister.gov">www.FederalRegister.gov</a> and the Government
Publishing Office's website at <a href="http://www.GovInfo.gov">www.GovInfo.gov</a>.
Background
On November 28, 2016, at 81 FR 85673, FHWA published a notice and
request for comments regarding FHWA's proposal to revise Form FHWA-
1273. As provided in 23 CFR 633.103, Form FHWA-1273 includes contract
provisions and proposal notices that are required by regulations
promulgated by FHWA or other Federal agencies. The provisions include
nondiscrimination, prevailing wage rates, subcontracting, job-site
safety, and other important requirements that must be included in every
Federal-aid construction contract other than Appalachian construction
contracts. According to 23 CFR 633.104(a), FHWA will update the form as
regulatory revisions occur. Since Form FHWA-1273 was last revised on
May 1, 2012, a number of revisions have occurred that necessitate the
revision of the form.
Discussion of Comments
I. Summary
All comments received in response to the notice and request for
comments have been considered in adopting this final notice. Comments
were received from four representatives of four State departments of
transportation (State DOT). The following discussion identifies and
summarizes the major comments submitted in response to the November 28,
2016, notice, as well as FHWA's response to those comments.
II. Analysis of and Response to Comments by Section
Section II. Nondiscrimination
Comment: A representative of the Wyoming DOT recommended not to
incorporate the provisions of DOT Order 1050.2A, Appendixes A and E,
into the required assurances in Section II.10.c. The commenter stated
some of the provisions in DOT Order 1050.2A, Appendixes A and E were
not applicable to Federal-aid construction projects.
FHWA Response: The FHWA does not agree with this comment. All
entities receiving federal financial assistance must comply with Title
VI and all applicable federal civil rights statutes and implementing
regulations. DOT's regulations implementing Title VI of the Civil
Rights Act of 1964, require, at 49 CFR 21.7(a)(1), every recipient of
Federal financial assistance to submit an assurance that the program or
facility supported by such assistance will be conducted or operated in
compliance with all requirements imposed by or pursuant to DOT's Title
VI regulations. DOT's Title VI regulations at 49 CFR 21.7(a)(1) also
direct the Secretary to specify the form of the required assurances,
and the extent to which like assurances will be required of
subgrantees, contractors and subcontractors, among others. In
accordance with this direction, DOT Order 1050.2A, issued April 24,
2013, sets forth the form of Title VI assurances required of DOT
recipients and contractors working on Federal-aid contracts.
The FHWA, as a modal operating administration of DOT, is required
to secure from applicants and recipients receiving Federal financial
assistance the Standard Title VI Assurances and Nondiscrimination
provisions included in DOT Order 1050.2A. Specific Assurance number 3
in the Order requires FHWA recipients to insert the clauses of Appendix
A and E in every contract or agreement subject to the cited acts and
regulations. For the purpose of this Notice, FHWA is interpreting the
word ``insert'' to allow references to the requirements of DOT Order
1050.2, Appendix A and E in contracts and agreements subject to the
General provisions of Form FHWA-1273 (see I. General, Section 1).
During the public review and comment period associated with the
November 28, 2016, Federal Register notice and request for comments,
FHWA received an internal comment that the proposed revisions to the
first sentence in Section II, 1. Equal Employment Opportunity resulted
in reduced clarity. To maintain clarity and consistency, FHWA is not
implementing the proposed revision to this sentence.
Section IV. Davis-Bacon and Related Act Provisions
Comment 1: A representative of the Florida DOT recommended that the
language, ``(W)here the applicable law requires that projects be
treated as a project on a Federal-aid highway,'' be changed to, ``All
projects (excluding those funded under the recreational trail set-
aside) will be treated as if on a Federal-aid highway.''
FHWA's Response 1: The FHWA does not agree with this comment. The
proposed language is consistent with the statutory provisions for the
applicability of prevailing wage rate requirements. Under 23 U.S.C. 113
and FHWA's implementing guidance, prevailing wage rate requirements are
applicable to Federal-aid construction projects within the right-of-way
of a Federal-aid highway (this excludes roadways functionally
classified as local roads and rural minor collectors). In addition, the
statutory language authorizing certain transportation programs requires
projects using these program funds to be treated as if on a Federal-aid
highway. Examples include: the Surface Transportation Block Grant
Program provision in 23 U.S.C. 133(i) [excluding recreational trails
projects under subsection (h)(5)]; the Nationally Significant Freight
and Highway Projects provision in 23 U.S.C. 117(k); and the National
Highway Freight Program in 23 U.S.C. 167(l). Thus, Federal-aid projects
using these specific funds, but not all projects, must be treated as if
the project were on a Federal-aid highway and, therefore, prevailing
wage rate requirements apply regardless of the location of the project.
Comment 2: The Minnesota DOT recommended that the proposed language
on ``treatment of projects'' (projects treated as projects on a
Federal-aid highway) be clarified to include the exemption for
recreational trail set-aside projects. It suggested stating ``(T)he
provisions of this subpart apply to all projects funded by the surface
transportation block grant program regardless of where the project is
located, except that projects funded by recreational trail set-asides
are not subject to the provisions of this subpart.''
FHWA's Response 2: The FHWA agrees that clarification is needed.
The FHWA has included a sentence that provides examples of Federal-aid
program funding categories with `treatment of project' provisions. When
using Federal-aid funds from these programs, contracting agencies must
include contract provisions noting the applicability of prevailing wage
rate requirements.
Comment 3: The Minnesota DOT requested clarification on whether the
``treatment of projects'' provision of this subpart would apply to 23
CFR 646.216(f) authorizing railroad construction by force account or
existing contracts.
FHWA's Response 3: The provisions of this subpart do not apply to
railroad construction performed by railroad forces or railroad-let
contracts.
Comment 4: The Alabama DOT commented that in Section IV.3.a., the
social security numbers and home addresses should not be included on
weekly payroll submissions.
FHWA's Response 4: The requirement to exclude full social security
numbers and addresses of laborers and
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mechanics on the required weekly payroll submissions is discussed in
Section IV.3.b.(1). Payrolls and basic records, excluding weekly
payroll submissions, shall include social security numbers and
addresses of the laborers and mechanics as discussed in Section IV.3.a.
This is consistent with the U.S. Department of Labor's (DOL) regulatory
requirements titled Contract provisions and related matters in 29 CFR
5.5. The provisions in 29 CFR 5.5(a)(3)(ii) prohibit contractors from
including full social security numbers and home addresses on the
required weekly payroll submission and the provisions of 29 CFR
5.5(a)(3)(i) require full social security numbers and home addresses on
payrolls and basic records.
Subsequent to the November 11, 2016, Federal Register notice and
request for comments announcing FHWA's intent to revise Form FHWA-1273,
DOL issued several rulemakings regarding the Contract Provisions and
Related Matters in 29 CFR 5.5. The FHWA is incorporating these
provisions in Form FHWA-1273 with minor editorial changes to match the
outline structure and context of Form FHWA-1273. The DOL regulatory
revisions provided for an inflation-based adjustment of the liquidated
damage rate in 29 CFR 5.5(b)(2) from $10 to $26. Form FHWA-1273,
Section V.2 also includes a note to see 29 CFR 5.5(b)(2) for future
updates to the liquidated damage rate.
Section IX. Implementation of Clean Air Act and Federal Water Pollution
Control Act
Comment: The Minnesota DOT (MnDOT) recommended identifying the
party responsible for reporting violations by adding ``(T)he
contracting agency must report violations.'' Since EPA may delegate
authority to a State agency, MnDOT also recommended adding ``a state
authority delegated by EPA'' to the list of enforcing authorities.
Additionally, MnDOT suggested that the final paragraph related to flow-
down requirements be retained.
FHWA Response: While FHWA understands Minnesota DOT concerns
regarding reporting entities, the proposed language for this section is
consistent with the provisions in Appendix II to 2 CFR part 200--
Contract Provisions for Non-Federal Entity Contracts Under Federal
Awards and will remain unchanged. The FHWA agrees with Minnesota DOT
regarding the flow-down paragraph and the following sentence will be
added to the final document: ``The contractor agrees to include or
cause to be included the requirements of this Section in every
subcontract, and further agrees to take such action as the contracting
agency may direct as a means of enforcing such requirements.''
Section X. Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion
Comment: The MnDOT commented that the term ``in a timely manner''
was too subjective to administer properly and suggested providing,
instead, ``whose payments under an obligation to a tax authority are
not current.''
FHWA Response: The FHWA does not agree with this suggestion and no
revisions are made in the final document. The terms ``agreement'' and
``obligation'' do not have the same meaning. The language used in the
proposed text was structured to conform to the definition of ``tax
liability'' in the DOT Order 4200.6, Appropriations Act Requirements
for Procurement and Non-Procurement Regarding Tax Delinquency and
Felony Convictions, and is designed to track that definition as closely
as possible.
Attachment A--Employment and Materials Preference for Appalachian
Development Highway System or Appalachian Local Access Road Contracts
Comment: The Alabama DOT requested clarification on the
applicability of the Appalachian preference provisions.
FHWA Response: The employment and materials preference provisions
in Attachment A apply to all construction projects funded under the
Appalachian Development Highway Program. Fiscal Year 2012 was the final
authorization year for this program; however, some States may have
available program balances that have not been obligated or have not
lapsed. Therefore, it is necessary to retain Attachment A.
Final Form FHWA-1273
Pursuant to 23 CFR 633.104(a), FHWA has updated Form FHWA-1273 to
be consistent with existing regulatory requirements. The FHWA published
the proposed revised Form FHWA-1273 for public comment on November 28,
2016. After considering all the comments, FHWA has incorporated all
appropriate edits into the revised Form FHWA-1273. As such, and in
accordance with 23 CFR part 633, subpart A, the revised Form FHWA-1273,
which can be found at <a href="http://www.fhwa.dot.gov/construction/cqit/form1273.cfm">www.fhwa.dot.gov/construction/cqit/form1273.cfm</a>,
must be used by recipients and contractors, as applicable under the
regulations.
Authority: 23 U.S.C. 315; 23 CFR 633.104; 49 CFR 1.85.
Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.
[FR Doc. 2022-14256 Filed 7-1-22; 8:45 am]
BILLING CODE 4910-22-P
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