(a) The Department has been delegated certain contracting authority by Executive Order 10789 (see 1-17.502) in connection with national defense functions. Use of this authority is subject to prior approval of the Director of Plant and Operations. (b) In the interest of maintaining a minimum priorities and allocations system as a mobilization preparedness measure, agencies shall require contractors to use ratings and allotment authority to support defense needs to the extent required by DMS Reg. 1, "Basic Rules of the Defense Materials System (Revised)' (32A CFR DMS Reg. 1) and BDSA Reg. 2, "Basic Rules of the Priorities System' (32A CFR BDSA Reg. 2), and all other applicable regulations and orders of the Business and Defense Services Administration, Department of Commerce. 4-18.5103 4-18.5104 4-18.5105 Work orders. 4-18.5106 4-18.5107 4-18.5108 4-18.5109 4-18.5110 Changes in construction contracts. Differing site conditions. Amendment. Equitable adjustment. Work progress reports and in voices. Extension of contract time. Claims arising out of breach of contract by the Government. AUTHORITY: The provisions of this Part 4-18 issued under sec. 205(c), 63 Stat. 309; 40 U.S.C. 486(c). SOURCE: The provisions of this Part 4-18 appear at 34 FR. 146, Jan. 4, 1969, unless otherwise noted. Subpart 4-18.1-General Provisions § 4-18.107 Specifications. for (a) Preparation. Specifications construction contracts are usually prepared in three parts as described in this section although in small contracts they may be combined if appropriate. These specifications generally include only the technical details of the construction contract with administrative provisions being included in the "Special Conditions." The following is suggested as a guide in arranging the specifications for a construction contract: (1) General requirements. These are the specification requirements of a general nature that apply to all items of construction listed in the contract specifications. When an agency is engaged in a regular program of construction, they are usually prepared as standard requirements for all similar construction. General requirements include such items as: (1) Definitions. (ii) Interpretations of quantities in the schedule of items. (iii) Control of work and material. (iv) Scheduling prosecution and progress of work. (v) Measurement and payment for work. (vi) Removal of structures and obstructions. (vii) Final cleaning up, etc. (2) Construction details. These are the technical specifications for each item listed in the Schedule of Items of the bid invitation and contract. Such construction details should be titled and numbered exactly as the item is to appear in the schedule of items and include the following: (1) Description of the item of construction. (li) Construction methods. (3) Supplemental specifications. When an agency is engaged in a regular program of construction, it is the usual practice to prepare the general requirements and construction details as standard specifications for all recurring construction work. Such standard specifications are usually reproduced in quantity for attachment as necessary to the invitation for bids and contract. For each contract, however, there may be peculiarities of construction that require either deviation from the standard specifications or additions thereto. These are ordinarily included in an attachment called "Supplemental Specifications" which, as the term implies, supplement the standard specifications. Provision should be made in the "General Requirements" that where there is a conflict between the supplemental specifications and other contract specifications, the supplemental specifications shall govern. (b) Identification. The invitation for bids and contract should clearly identify each page of the specifications by title and inclusive page or paragraph numbers as appropriate. § 4-18.110 Liquidated damages. Liquidated damages provisions for construction contracts are contained in the "Termination for Default-Damages for Delay-Time Extensions" clauses of the Standard Contract Forms. See also § 1-8.709 of this title. Subpart 4-18.2-Formal (a) Selection of bidders. When information is available in advance of bid solicitation, invitations for bids should be sent only to those prospective bidders who are considered responsible and competent to perform the work required by the bid specifications. Unless debarred or suspended, however, no bidder may be refused an opportunity to bid. (b) Mailing lists of prospective bidders. Those agencies regularly engaged in construction work should assemble a list of prospective bidders classified by specialties, bonding capacity and location of operations. The State Office of the Associated General Contractors of America, Inc., is an excellent source of help in contacting and listing contractors, and in most cases information on equipment ownership, financial standing and general reputation can be secured. When information concerning qualifications of bidders is desired, forms entitled "Experience Questionnaire", "Plan and Equipment Questionnaire", and "Contractor's Financial Statement", should be used to secure this data from the prospective bidder. These forms are available from the Office of Plant and Operations. § 4-18.203-50 Plans and drawings. Plans and drawings should be clearly identifiable by sheet numbers and titles and be so identified in the bid invitation and contract. For general information regarding building codes and standards of design, see section 104-17.451. (Not published in the Code of Federal Regulations.) the bidder inserts his bid is prepared by tabulating the items of work correlated with exact item numbers and titles of work descriptions contained in the "Construction Details" of the specifications and showing the estimated quantity of each item of work in a form that will permit the contractor to prepare his bid. The schedule of items or general provisions shall state definitely whether award is on an individual item basis or on an "all or none" basis. When Standard Forms 23 and 23A are to be used for the contract, the schedule of items should be prepared as a separate attachment to the invitation for bids so that it may be easily copied and made a part of the contract. § 4-18.203-52 Special conditions. This section of the invitation for bids and contract for construction should include those conditions which supplement the general provisions of Standard Contract Forms. Special conditions generally include such items as: (a) Time for completion of work. (f) Designation of contracting officer's representative, etc. § 4-18.203-53 Deposit or payment for plans, drawings, and specifications. Plans, drawings, and specifications consisting of more than a few sheets are quite expensive; therefore, casual requests should be discouraged. Requiring deposit or payment serves to limit the requests to those firms who have an interest in bidding or as subcontractors. When a deposit is required, the amount of the deposit should not be in excess of the cost of preparation but yet should be kept high enough to discourage promiscuous requests. The bookkeeping required in setting up an account to handle deposits and make refunds may prove burdensome; therefore, an arrangement whereby one set of plans, drawings, and specifications is furnished free of charge to general contractors and additional sets are furnished on a sale basis only, is one way of alleviating the situation. (The successful bidder will be furnished with as many sets of plans, drawings, and specifications as may be necessary for the job or a reasonable number of sets without charge.) One complete set should be displayed in the office issuing the invitation and be made available for in § 4-18.206-50 Analyses of bids. Methods to be followed in the analysis of bids on construction are the same as those for other types of contracts. (See Subpart 1-2.4 of this title.) Particular care should be taken in analyzing bids for construction work to assure the sufficiency of the bid bond, determine that the low bidder is responsible and qualifiled to perform the work, that the bid price is reasonable by comparison to the agency cost estimate, and that no exceptions to the bid specifications are taken by the bidder. When there is any doubt as to the bidder's financial ability or experience qualifications, the bidder's bonding company, bank, state office of Associated General Contractors; Small Business Administration (see § 1-1.708-2 of this title), and previous contract employers should be contacted. Bonding companies, particularly, are helpful in resolving questions in this area. Rejection because of insufficient financial ability or experience qualifications should be supported by the opinion of those contacted as above. § 4-18.208 Award. (a) Availability of funds. Prior to award of the contract or any subsequent change therein, the contracting officer must have written assurance that sufficient funds are available within the current allotment and that they are reserved for the proposed action. (b) Wage rate determinations. Notice of award must be given within 120 days from the date of the original wage determination or new wage determinations obtained and made a part of the contract before it is awarded unless the determination is extended in accordance with 5.4a of the regulations of the Secretary of Labor. (c) Instructions regarding labor provisions. (1) Upon award of the contract the successful bidder shall be furnished with a copy of Form AD-372, "Regulations Applicable to Contracts Covering Federally Financed and Assisted Construction and Other Contracts Subject to the Contract Work Hours Standards Act." Form AD-372 is available from the Central Supply Section. (2) The contractor's attention should particularly be called to the requirement for submission of weekly payrolls and statements with respect to payment of wages. If there is a representative of the contracting officer on the site of the job, responsibility for securing these documents may be delegated to him; otherwise the contractor should be required to mail them direct to the contracting officer. (d) Equal opportunity provision. Upon award of the contract, the contractor shall be furnished posters and directions for their use in accordance with § 112.805-3 of this title and § 4-12.805-3 of this chapter. (e) Notice of award. The contractor should be formally notified by letter or other written notice, and requested to furnish performance and payment bonds and to return a copy of the contract properly signed. Upon receipt of properly executed bonds and contract, two copies of the contract, containing all pertinent papers and signed by the contracting officer should be furnished to the contractor, together with instructions regarding labor provisions of the contract; provision for schedule of work, etc.; and any other pertinent advice, such as the name of the authorized representative of the contracting officer. § 4-18.250 Preparation of contract forms. See Subpart 4-16.4 of this chapter. Subpart 4-18.50-Labor § 4-18.5001 Rates of wages. (a) Davis-Bacon Act applicability. The Davis-Bacon Act (40 U.S.C. 2768) requires that the advertised specifications for every contract in excess of $2,000 for the construction, alteration or repair of public buildings or works, including painting or decorating buildings, shall contain a provision stating the minimum wages and fringe benefits to be paid laborers and mechanics. Applicability of the provisions of the Davis-Bacon law is dependent upon the actual contract price and not upon estimates as to whether the contract work is in excess of $2,000 the statutory minimum, and even though said provisions were included in a contract where the price is less, there is no requirement for compliance therewith, because public officers do not have legal authority to include provisions contrary to law (see 18 Comp. Gen. 394). Whenever it is believed the contract amount may exceed $2,000, provision should be made in the invitation for bids for compliance with the Act. The labor standards provisions of Standard Form 19A are sufficient to require such compliance. (b) Requesting wage determinations. Agencies shall request wage determinations by submitting to the Solicitor of Labor, U.S. Department of Labor, Washington, D.C. 20210, in accordance with section 5.3 of the regulations a completed Department of Labor Form DB-11. These forms are available from Central Supply Section. Requests for wage determinations shall be initiated at least 30 calendar days before advertisement of the specifications or the beginning of negotiations for the contract for which the determinations are sought. The Department of Labor has indicated that exceptions to this requirement will be made only upon a proper showing of need in unusual cases. (c) Inclusion of rates in specifications. Minimum wage rates thus obtained shall be included in the advertised specifications of each invitation when issued. I circumstances require issuance of an invitation prior to availability of the wage determination, a notice shall be included that the applicable wage rates will be furnished by an amendment. Such amendment shall be issued not less than 14 calendar days prior to the bid opening date, which date shall be extended if necessary to cover the 14-day period. (d) Use of wage determinations. Wage determinations expire 120 days after the date thereof, and may not be incorporated in contracts awarded thereafter, unless extended in accordance with section 5.4a of the regulations of the Secretary of Labor. All actions by the Secretary of Labor changing or modifying original wage determinations prior to the award of the contract shall be applicable thereto, except that modifications received by the agency later than 10 days before the opening of bids shall not be effective. (e) Apprentice wage rates. Department of Labor regulations require that invitations to bid on construction contracts in excess of $2,000 include the provision regarding employment of appren tices, Article 3 of Standard Form 19A. Apprentices shall be paid wage rates established in the applicable apprenticeship program. Questions concerning payment of apprentices shall be referred through channels to the Department of Labor. § 4-18.5002 Nonrebate of wages-Copeland Act. The Copeland Act, also known as the "Kick-Back Act" (18 U.S.C. 874) makes it unlawful to prevent anyone employed in the construction, alteration, or repair of buildings or works financed in whole or in part by the United States from receiving the rates of pay legally due. This Act, unlike the Davis-Bacon Act, applies regardless of the contract amount. (See 19 Comp. Gen. 576.) The required contract provision is stated in Clause 5 of Standard Form 19A. (See § 1-16.901-19A of this title.) § 4-18.5003 Contract Standards Act. Work Hours (a) When performance and payment bonds are received, they should be administratively approved as to form and sufficiency by the contracting officer. See § 4-10.152 of this chapter for instructions on approval and filing of bonds. (b) If the contractor fails to furnish acceptable performance and payment bonds, the contract should be terminated for default. (See § 1-18.803 of this title.) See also §§ 1-10.104-1(d) and 1-10.1051(d) of this title. § 4-18.5102 Notice to proceed. When the contract is returned by the contractor, it should be checked for appropriate signatures. Upon approval of the contract and bonds by the contracting officer, the notice to proceed should be issued as provided in the contract. Ordinarily, this will be by letter directing the contractor to proceed with the work within the period of time after date of receipt of the notice to proceed, as stated in the contract. This notice should be sent by registered or certified mail with return receipt in order to determine the starting date of contract time. § 4-18.5103 Changes in construction contracts. (a) Contract provision. In accordance with Clause 3 of Standard Form 23A and Clause 1 of Standard Form 19, the contracting officer may at any time, by a written order, make changes in the drawings and/or specifications of the contract, if within the general scope thereof. (b) Determination of contract adjustment. If changes cause an increase or decrease in the contractor's cost of, or in the time required for, performance of the contract, an equitable adjustment in the amount to be paid the contractor and/or in the time of performance shall be made by the contracting officer in accordance with § 4-18.5107. (c) Change order. The change shall be made by means of a written change order which may be by letter or on agency forms. The order shall cite the changes clause of the contract as the basis and authority for ordering the change. As a general rule, the order setting forth the changed work and the adjustment in price and/or time should be issued before commencement of the changed work. Only where time is not available and the changed work must proceed without delay may the change be initiated by a "two-part" change order. Part I will then be issued, setting forth the scope of the change, stating that the contractor is to proceed with the work as changed and that adjustments in contract price and/or time will be made at an early date. Part II would be issued as soon as adequate data is developed to enable making the equitable adjustment. Provision should also be made for receipt and acceptance of the change order (8) by the contractor, including his agreement to the adjustment in contract price and/or time specified therein. No conditions shall be extended by the contracting officer for nonacceptance, such as withholding of otherwise due payments, agreements on items in dispute, etc. Failure to agree on terms of the change shall be handled as a dispute. Prior to issuance of a change order increasing the contract amount, the contracting officer must have written assurance that funds are available and reserved for the proposed action. Also, the surety should be |