Appendix C to Part 152 - Procurement Procedures and Requirements

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]