To: All vendors conducting business with the Monongalia County Urban Mass Transit Authority (Mountain Line)
From: David A. Bruffy, General Manager
Date:
Re: Federal Transit Administration Required Procurement Clauses
The attached materials detail the collective requirements which must be agreed to by all vendors, retailers or other service or sales entities selling to agencies using Federal Transit Administration (FTA) funds. Mountain Line receives FTA monies each year to assist in covering our operating costs. As such, Mountain Line must present these procurement requirements to all vendors from whom Mountain Line makes purchases. In order to expedite this process, you are being presented with the attached information under the assumption that the contents thereof shall be acceptable to all vendors unless a vendor makes a formal objection.
Furthermore, Mountain Line will assume a willingness to comply with these requirements as evidenced by presentation of this correspondence and consummation of a sale to Mountain Line by a vendor. Acceptance of these terms and conditions is mandatory upon Mountain Line in order that we may conduct business with a vendor. Should a vendor fail to agree to these terms and conditions, Mountain Line is obligated to declare a vendor to be non-responsive and seek out other vendors, even if such other sources only offer comparable goods and services at a higher price.
I thank you for your time and consideration and if you have questions or concerns please let me know.
No Federal Government Obligations
to Third Parties
(1) The Transit Agency and Vendor acknowledge and
agree that, notwithstanding any concurrence by the Federal Government in or
approval of the solicitation or award of the underlying contract, absent the express
written consent by the Federal Government, the Federal Government is not a
party to this contract and shall not be subject to any obligations or
liabilities to the Transit Agency, Vendor, or any other party (whether or not a
party to that contract) pertaining to any matter resulting from the underlying
contract.
(2) The Vendor agrees to include the above clause
in each subcontract financed in whole or in part with Federal assistance
provided by the Federal Transit Administration.
It is further agreed that the clause shall not be modified, except to
identify the subcontractor who will be subject to its provisions.
Program Fraud and False or
Fraudulent Statements or Related Acts
(1) The Vendor acknowledges that the provisions
of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. §§ 3801 et
seq. and U.S. DOT regulations, “Program Fraud Civil
Remedies,” 49 C.F.R. Part 31, apply to its actions pertaining to this
Project. Upon execution of the
underlying contract, the Vendor certifies or affirms the truthfulness and
accuracy of any statement it has made, it makes, it may make, or causes to be
made, pertaining to the underlying contract or the Federal Transit
Administration (FTA) assisted project for which this contract work is being performed. In addition to other penalties that may be
applicable, the Vendor further acknowledges that if it makes, or causes to be
made, a false, fictitious, or fraudulent claim, statement, submission, or
certification, the Federal Government reserves the right to impose the
penalties of the Program Fraud Civil Remedies Act of 1986 on the Vendor to the
extent the Federal Government deems appropriate.
(2) The Vendor also acknowledges that if it
makes, or causes to be made, a false, fictitious, or fraudulent claim,
statement, submission, or certification to the Federal Government under a
contract connected with a project that is financed in whole or in part with
Federal assistance originally awarded by FTA under the authority of 49 U.S.C.
§5307, the Government reserves the right to impose the penalties of 18 U.S.C.
§1001 and 49 U.S.C. §5307(n)(1) on the Vendor, to the extent the Federal
Government deems appropriate.
(3) The Vendor agrees to include the above two
clauses in each subcontract financed in whole or in part with Federal
assistance provided by FTA. It is
further agreed that the clauses shall not be modified, except to identify the
subcontractor who will be subject to the provisions.
Exclusionary or Discriminatory
Specifications
The
Vendor agrees that it will comply with the requirements of 49 U.S.C. §5323(h)(2) by refraining from using any Federal assistance awarded
by the Transit Agency to support procurements using exclusionary or
discriminatory specifications.
Geographic Restrictions
The
Vendor agrees to refrain from using state or local geographic preferences,
except those expressly mandated or encouraged by Federal statute, and as
permitted by FTA.
Audit and Inspection
The
Vendor agrees to permit the Transit Agency, WV Division of Public Transit, the
Secretary of the United States Department of Transportation and the Comptroller
General of the
Disadvantaged Business
The
Vendor shall not discriminate on the basis of race, color, national origin, or
sex in the performance of this Contract.
The requirements of 49 C.F.R. Part 26 and the U.S. Department of
Transportation (USDOT) approved Disadvantaged Business Enterprise (DBE) Program
are incorporated in the Contract by reference.
The Vendor agrees to take all necessary and reasonable steps under the
requirements of 49 C.F.R. Part 26 and the USDOT approved Disadvantaged Business
Enterprise (DBE) Program (where required) to ensure that eligible DBEs have the maximum feasible opportunity to participate
in USDOT approved Contracts. Failure by
the Vendor to carry out these requirements is a material breach of the
Contract, which may result in the termination of this Contract or such other
remedy as the Transit Agency deems appropriate.
Cargo Preference
The Vendor agrees:
To utilize privately owned United States‑‑Flag
commercial vessels to ship at least 50 percent of the gross tonnage (computed
separately for dry bulk carriers, dry cargo liners, and tankers) involved,
whenever shipping any equipment, material, or commodities pursuant to this
contract, to the extent such vessels are available at fair and reasonable rates
for United States‑‑Flag commercial vessels;
To furnish within twenty (20) working days following the
date of loading for shipments originating within the United States or within 30
working days following the date of leading for shipments originating outside
the United States, a legible copy of a rated, "on board" commercial
ocean bill of lading in English for each shipment of cargo described in the
paragraph above to the Division of National Cargo, Office of Market
Development, Maritime Administration, Washington, DC 20590 and to the Transit Authority (through
the Vendor in the case of a subcontractor's bill of lading.)
To include these requirements in all subcontracts issued
pursuant to this contract when the subcontract may involve the transport of
equipment, material, or commodities by ocean vessel.
Civil Rights
The
following requirements apply to the underlying contract:
(1)
Nondiscrimination. In accordance
with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, Section
303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102,
Section 202 of the Americans With Disabilities Act of 1990, 42 U.S.C. § 12132,
and Federal transit law at 49 U.S.C. § 5332, the Vendor agrees that it will not
discriminate against any employee or applicant for employment because of race,
color, creed, national origin, sex, age, or disability. In addition, the Vendor agrees to comply with
applicable Federal implementing regulations and other implementing requirements
FTA may issue.
(2) Equal Employment
(a)
Race, Color, Creed, National Origin, Sex. In accordance with Title VII of the Civil
Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49
U.S.C. § 5332, the Vendor agrees to comply with all applicable equal employment
opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations,
“Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor,” 41 C.F.R. Parts 60 et seq.,
(which implement Executive Order No. 11246, “Equal Employment
Opportunity,” as amended by Executive Order No. 11375, “Amending
Executive Order 11246 Relating to Equal Employment Opportunity, “ 42
U.S.C. § 2000e note), and with any applicable Federal statutes, executive
orders, regulations, and Federal policies that may in the future affect construction
activities undertaken in the course of the Project. The Vendor agrees to take affirmative action
to ensure that applicants are employed, and that employees are treated during
employment, without regard to their race, color, creed, national origin, sex,
or age. Such action shall include, but
not be limited to, the following:
employment, upgrading, demotion or transfer, recruitment or recruitment
advertising, layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. In addition, the Vendor agrees to comply with
any implementing requirements FTA may issue.
(b)
Age. In accordance with
the Age Discrimination Act of 1975, as amended, 42 U.S.C. §§ 6101 et seq. and
implementing regulations, the Vendor agrees to refrain from discrimination
against present and prospective employees for reason of age. In addition, the Vendor agrees to comply with
any implementing requirements FTA may issue.
(c)
Disabilities. In
accordance with Section 102 of the Americans With Disabilities Act, as amended,
42 U.S.C. § 12112, the Vendor agrees that it will comply with the requirements
of U.S. Equal Employment Opportunity Commission, “Regulations to
Implement the Equal Employment Provisions of the Americans With Disabilities
Act,” 29 C.F.R. Part 1630, pertaining to employment of persons with
disabilities. In addition, the Vendor
agrees to comply with any implementing requirements FTA may issue.
(3) The Vendor also agrees to include these
requirements in each subcontract financed in whole or in part with Federal
assistance provided by FTA, modified only if necessary to identify the affected
parties.
Energy Conservation
The
Vendor agrees to comply with, and obtain the compliance of its subcontractors,
with mandatory standards and policies relating to energy efficiency contained
in applicable state energy conservation plans issued in compliance with the
Energy Policy and Conservation Act, 42 U.S.C. §§ 6321 et seq.
Clean Air & Clean Water
Requirements
(1)
The Vendor agrees to comply with all applicable standards, orders or
regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7414
and other applicable provisions of the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et
seq. and Section 308 of the Federal Water Pollution Control Act, as
amended, 33 U.S.C. § 1318, and other provisions of the Federal Water Pollution
Control Act, as amended, 33 U.S.C. §§ 1251 et seq. The Vendor agrees to report each violation to
the Transit Agency and understands and agrees that the Transit Agency, in turn,
will report each violation to the WV Division of Public Transit who will, in
turn, report each violation as required to FTA and the appropriate EPA Regional
Office.
(2) The Vendor also agrees to include these
requirements in each subcontract exceeding $100,000 financed in whole or in
part with Federal assistance provided from FTA.
Application of Federal, State and
Local Laws and Regulations
To
achieve compliance with changing federal, state and local requirements, the
Vendor shall note that federal, state and local requirements may change and the
changed requirements will apply to this Contract as required.
Labor Provisions
The Vendor shall comply with Section 102 of the Contract
Work Hours and Safety Standards Act (40 U.S.C. §§ 3701 et seq., esp. §
3702 & 3704) as supplemented by Department of Labor
Regulations (29 CFR, § 5 & 29 CFR § 1926) as they involve the
employment of mechanics and laborers.
Overtime Requirements. No Vendor or subcontractor for any part of
the contract work which may require or involve the employment of laborers or
mechanics shall require or permit any such laborer or mechanic in any workweek
in which he or she is employed on such work to work in excess of forty hours in
such workweek unless such laborer or mechanic receives compensation at a rate
not less than one and one‑half times the basic rate of pay for all hours
worked in excess of forty hours in such workweek.
Violation; Liability for Unpaid Wages; Liquidated Damages. In the event of any
violation of the clause set forth in paragraph (2) of this section, the Vendor
and any subcontractor responsible therefore shall be liable for the unpaid
wages. In addition, such Vendor and
subcontractor shall be liable to the
Withholding for Unpaid Wages and Liquidated Damages. The Transit
Authority shall upon its own action or upon written request of an authorized
representative of the Department of Labor withhold or cause to be withheld,
from any moneys payable on account of work performed by the Vendor or
subcontractor under any such contract or any other Federal contract with the
same prime Vendor, or any other federally-assisted contract subject to the
Contract Work Hours and Safety Standards Act, which is held by the same prime
Vendor, such sums as may be determined to be necessary to satisfy any
liabilities of such Vendor or subcontractor for unpaid wages and liquidated
damages as provided in the clause set forth in paragraph (3) of this section.
Subcontracts. The Vendor or subcontractor shall insert in
any subcontracts the clauses set forth in this section and also a clause
requiring the subcontractors to include these clauses in any lower tier
subcontracts. The prime Vendor shall be
responsible for compliance by any subcontractor or lower tier subcontractor
with the clauses set forth in this section.
Payrolls and Basic
Records. Payrolls and basic
records relating thereto shall be maintained by the Vendor during the course of
the work and preserved for a period of three years thereafter for all laborers
and mechanics working at the site of the work (or under the United States
Housing Act of 1937, or under the Housing Act of 1949, in the construction or
development of the project). Such
records shall contain the name, address, and social security number of each
such worker, his or her correct classification, hourly rates of wages paid
(including rates of contributions or costs anticipated for bona fide fringe
benefits or cash equivalents thereof of the types described in Section 1(b)(2)(B) of the Davis‑Bacon Act), daily and weekly
number of hours worked, deductions made and actual wages paid. Whenever
the Secretary of Labor has found under 29 CFR .5(a)(1)(iv) that the
wages of any laborer or mechanic include the amount of any costs reasonably
anticipated in providing benefits under a plan or program described in Section
1(b)(2)(B) of the Davis‑Bacon Act,
the Vendor shall maintain records which show that the commitment to provide
such benefits is enforceable, that the plan or program is financially
responsible, and that the plan or program has been communicated in writing to
the laborers or mechanics affected, and records which show the costs
anticipated or the actual cost incurred in providing such benefits.
Vendors employing apprentices or trainees under approved
programs shall maintain written evidence of the registration of apprenticeship
programs and certification of trainee programs, the registration of the
apprentices and
trainees, and the ratios and wage rates prescribed in the
applicable programs.
Termination
(a) Termination for Convenience
The
Transit Agency may terminate this contract, in whole or in part, at any time by
written notice to the Vendor when it is in the Government’s best
interest. The Vendor shall be paid its
costs, including contract close-out costs, and profit on work performed up to
the time of termination. The Vendor
shall promptly submit its termination claim to the Transit Agency to be paid to
the Vendor. If the Vendor has any
property in its possession belonging to the Transit Agency, the Vendor will
account for the same, and dispose of it in the manner the Transit Agency
directs.
(b) Termination for Default (Breach or Cause)
If
the Vendor does not deliver supplies in accordance with the contract delivery
schedule, or, if the contract is for services, the Vendor fails to perform in
the manner called for in the contract, or if the Vendor fails to comply with
any other provisions of the contract, the Transit Agency may terminate this
contract for default. Termination shall
be effected by serving a notice of termination on the contractor setting forth
the manner in which the Vendor is in default.
The Vendor will only be paid the contract price for supplies delivered
and accepted, or services performed in accordance with the manner of
performance set forth in the contract.
If
it is later determined by the Transit Agency that the Vendor had an excusable
reason for not performing, such as a strike, fire, or flood, events which are
not the fault of or are beyond the control of the Vendor, the Transit Agency,
after setting up a new delivery of performance schedule, may allow the Vendor
to continue work, or treat the termination as a termination for convenience.
(c)
The
Transit Agency in its sole discretion may, in the case of a termination for
breach or default, allow the Vendor an appropriately short period of time in
which to cure the defect. In such case,
the notice of termination will state the time period in which cure is permitted
and other appropriate conditions.
If
Vendor fails to remedy to Transit Agency’s satisfaction the breach or
default or any of the terms, covenants, or conditions of this Contract within
ten (10) days after receipt by Vendor or written notice from Transit Agency
setting forth the nature of said breach or default, Transit Agency shall have
the right to terminate the Contract without any further obligation to
Vendor. Any such termination for default
shall not in any way operate to preclude Transit Agency from also pursuing all
available remedies against Vendor and its sureties for said breach or default.
(d) Waiver of Remedies for Any Breach
In
the event that Transit Agency elects to waive its remedies for any breach by
Vendor of any covenant, term or condition of this Contract, such waiver by
Transit Agency shall not limit Transit Agency’s remedies for any
succeeding breach of that or of any other term, covenant, or condition of this
Contract.
Bankruptcy
Upon
entering of a judgment of bankruptcy or insolvency by or against a Vendor, the
Transit Agency may terminate this Contract for cause.
FTA Role in Bid Protests
Under
the Federal Transit Administration’s Circular 4220.1E, the Federal
Transit Administration’s (FTA’s) review
of any protest will be limited to:
(a) Failure of the Transit Agency to have
or adhere to its written bid protest procedures, or failure of the Transit
Agency to review
a complaint or protest.
(b) Alleged violations on other grounds are
under the jurisdiction of the appropriate State or local administrative
authorities.
(c) Alleged violations of a specific
Federal Law or regulation that provides an applicable complaint procedure shall
be
submitted
and processed in accordance with that Federal Law or regulation. See, e.g., Buy America
Requirements, 49
C.F.R. Part 661 (Section 661.15);
Participation by Minority Business
Programs, 49 C.F.R. Section 26.89.
(d) The Federal Transit Administration will
only review protests submitted by an actual or prospective bidder whose
direct
economic interest would be affected by the award of the Contract or by failure
to award the Contract. The
Federal Transit Administration
reserves the right not to participate in the funding of any Contract awarded
pending
resolution
of a protest to them.
(e) An
appeal to the Federal Transit Administration must be received by the cognizant
FTA regional or Headquarters Office
within five (5) working days of the date the protester learned or
should have learned of an adverse decision by the Transit Agency or other basis
of appeal to FTA.
Prohibited Interest
No
employee, officer, board member, agent or their family members of the Transit
Agency may participate in the selection, award, or administration of a Contract
supported by Federal funds if a real or apparent conflict of interest is
involved. Such a conflict could arise
when any of the parties mentioned above have a financial or other interest in
the Vendor selected for the Contract.
Preference for Recycled Products
The
Vendor agrees to comply with all the requirements of Section 6002 of the
Resource Conservation and Recovery Act, as amended (42 U.S.C. 6962), including
but not limited to the regulatory provisions of 40 CFR Part 247, and Executive
Order 12873, as they apply to the procurement of the items designated in
Subpart B of 40 CFR Part 247.
Metric System
As
required by U.S. DOT or FTA, the Vendor agrees to use the metric system of
measurement in its Project activities, as may be required by Metric Conversion
Act, as amended by the Omnibus Trade and Competitiveness Act, 15 U.S.C. §§ 205a et seq.; Executive
Order No. 12770, “Metric Usage in Federal Government Programs, “15
U.S.C. § 205a note; and other regulations, guidelines, and policies issued by
U.S. DOT or FTA.
Hold Harmless
The
Vendor agrees to protect, defend, indemnify and hold the Transit Agency, its
officers, employees and agents free and harmless from and against any and all
losses, penalties, damages, settlements, costs, charges, professional fees or
other expenses or liabilities of every kind and character arising out of or
relating to any and all claims, liens, demands, obligations, actions,
proceedings or causes of action of every kind and character in connection with
or arising directly or indirectly out of this Contract and/or the performance
hereof. Without limiting the generality
of the foregoing, any and all such claims, etc. relating to personal injury,
infringement of any patent, trademark, copyright (or application for any
thereof) or of any other tangible or intangible personal or property right, or
actual or alleged violation of any other tangible or intangible personal or
property rights, or actual or alleged violation of any applicable statute,
ordinance, administrative order, rule or regulation, or decrees of any court,
shall be included in the indemnity hereunder.
The Vendor further agrees to investigate, handle, respond to, provide
defense for and defend any such claims, etc., at his/her sole expense and
agrees to bear all other costs and expenses related thereto, even if such claim
is groundless, false or fraudulent.
Licensing and Permits
The
Vendor shall be appropriately licensed for the work required as a result of the
Contract. The cost for any required
licenses or permits shall be the responsibility of the Vendor. The Vendor is liable for any and all taxes
due as a result of the Contract.
Compliance with Laws and Permits
The
Vendor shall give all notices and comply with all existing and future federal,
state and municipal laws, ordinances, rules, Regulations, and orders of any
public authority bearing on the performance of the Contract, including, but not
limited to, the laws referred to in these provisions of the Contract and the
other Contract documents. If the
Contract documents are at variance therewith in any respect, any necessary
changes shall be incorporated by appropriate modification. Upon request, the Vendor shall furnish to the
Transit Agency certificates of compliance with all such laws, orders, and
regulations.
Severability
In
the event any provision of the Contract is declared or determined to be
unlawful, invalid or unconstitutional, such declaration shall not affect, in
any manner, the legality of the remaining provisions of the Contract and each
provision of the Contract will be and is deemed to be separate and severable
from each other provision.
Debarment and Suspension
This
contract is a covered transaction for purposes of 49 CFR Part 29. As such, the contractor is required to verify
that none of the contractor, its principals, as defined at 49 CFR 29.995, or
affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as
defined at 49 CFR 29.940 and 29.945.
The
contractor is required to comply with 49 CFR 29, Subpart C and must include the
requirement to comply with 49 CFR 29, Subpart C in any lower tier covered
transaction it enters into. By signing
and submitting its bid or proposal, the bidder certifies as follows:
The
certification in this clause is a material representation of fact relied upon
by the Transit Agency. If it is later
determined that the bidder knowingly rendered an erroneous certification, in
addition to remedies available to the Transit Agency, the Federal Government
may pursue available remedies, including but not limited to suspension and/or
debarment. The bidder agrees to comply
with the requirements of 49 CFR 29, Subpart C while this offer is valid and
throughout the period of any contract that may arise from this offer. The bidder further agrees to include a
provision requiring such compliance in its lower tier covered transactions.
Federal
Regulation Changes
Vendor shall at all times comply with all applicable FTA
regulations, policies, procedures and directives, including without limitation
those listed directly or by reference in the Master Agreement (Form FTA MA(12)
dated October 1, 2005) between the Transit Authority and FTA, as they may be
amended or promulgated from time to time during the term of this Contract. Vendor's failure to so comply shall
constitute a material breach of this contract.
FTA Terms
The
preceding provisions include, in part, certain Standard Terms and Conditions
required by DOT, whether or not expressly set forth in the preceding contract
provision. All contractual provisions
required by DOT, as set forth in FTA Circular 4220.1E, dated