Contract provisions for Airport Improvement Program projects Overview Clauses Legal basis Presented to: By: Date: 2016 ACI-NA/World Annual Conference Joseph E. Manges FAA Office of Chief Counsel September 25, 2016
Overview FAA acts as a steward of AIP dollars FAA is a public agent that ensures accountability and transparency of AIP fund use. 1,765 AIP grants in FY-2015 Over $3.300 billion in AIP grants in FY 2015 200.300 Policy Requirements FAA must ensure funds are used in accordance with U.S. statutes and public policy. FAA Order 5100.38D AIP Handbook FAA relies upon grant assurances and contract clauses to ensure grants used for intended purpose. 2
3,411 airports in the NPIAS 3
AIP Grant Funds By Project Type Noise 8% Unclassified (Including State Block Grants) 12% Roads 1% Landside (Primarily terminal) 10% Airspace (RW, TW, Apron, safety projects) 69% Airspace (RW, TW, Apron, safety projects) Noise Roads Landside (Primarily terminal) Unclassified (Including State Block Grants) 4
Contract clauses for AIP obligated airports FAA publication, Required Contract Provisions for Airport Improvement Program and for Obligated Sponsors provides guidance. http://www.faa.gov/airports/aip/procurement/federal_contract_provi sions/media/combined-federal-contract-provisions.pdf 25 provisions included Most required by AIP statutes/regulations Some required by other statutes- eg Davis Bacon, Copeland, etc. 5
General contract requirements Sponsors must include specific clauses in their solicitations and contracts Clause requirements originate from varying statutes (e.g. AIP) and regulations (i.e. 2 CFR part 200) Sponsors must incorporate applicable clauses in all AIP funded procurement actions Select clauses (e.g. Title VI) will also apply to the obligated sponsor s non-federally funded contracts. 6
FAA guideline for AIP contract provisions Purpose: Resource for applicable provisions Identifies source of provision Matrix of clauses per project type and size Provides mandatory language. Provides model language when mandatory language is not prescribed 7
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Contract clauses Which clauses must be included? Vary according to type and kind of contract. Non-AIP contracts: Civil rights clauses included in all contracts at obligated airports AIP contracts: Most substantial ($100,000+) contracts require all 25 clauses Includes contract and subcontracts Clauses vary by kind of contracts: Construction, prof. service, leases, real estate etc., valued from $0 to $150,000+ 9
Contract clauses What language must be included? Two kinds Mandatory- no modification to clause language permissible, other than inserting names of parties, etc. Non-mandatory-model language provides guidance. 10
Nine mandatory language clauses Affirmative action (A1) Civil rights (A5 and A6) Contract work hours and safety standards (A8) Copeland anti kick-back act (A9) Davis-Bacon act (A10) Equal employment opportunity (A15) Lobbying certification (A17) Termination default-construction contracts (A23) Trade restriction certification (A24) 11
16 discretionary language clauses 16 clauses may use different language or the sponsor s preferred language, provided the intent of the sections is met. Examples: Access to records, breach of contract, termination of contract.are routine contract provisions. Use your own clause, guide provides acceptable model language. 12
Deep dive- civil rights nondiscrimination clauses Title VI (42 U.S.C. 2000d, et seq.) Airport sponsors may not discriminate on the grounds of race, color, or national origin: Deny any individual service, financial aid, or benefit under the program Provide any service, financial aid, or benefit that is different from that provided to others Subject an individual to segregation or separate treatment 13
Civil Rights Act of 1964 Title VI Examples of Title VI coverage AIP contracts PFC contracts Local contracts Services: Concessions Parking Surface transportation 14
Non-Discrimination under AIP contracts 49 U.S.C. Chapter 471 47123. Nondiscrimination The Secretary of Transportation shall take affirmative action to ensure that an individual is not excluded because of race, creed, color, national origin, or sex from participating in an activity carried out with money received under a grant under this subchapter The regulations shall be similar to those in effect under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.). This section is in addition to title VI of the Act. 15
AIP Grant Assurances No. 30 - Civil Rights General Assurance from DOT Order 1050.2a: It will promptly take any measures necessary to ensure that no person in the United States shall, on the grounds of race, creed, color, national origin, sex, age, or disability* be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination in any activity conducted with, or benefiting from, funds received from this grant. *Includes age and disability under ADEA and 504 of the Rehabilitation Act 16
FAA civil rights contract clauses A5- General civil rights provision: The contractor agrees to comply with pertinent statutes, Executive Orders and such rules as are promulgated to ensure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or disability be excluded from participating in any activity conducted with or benefiting from Federal assistance. This provision binds the contractor and subtier contractors from the bid solicitation period through the completion of the contract. This provision is in addition to that required of Title VI of the Civil Rights Act of 1964. See Required Contract Provisions for Airport Improvement Program A5.3.1 p 4. 17
Duration No. 30 - Civil Rights Duration- Sponsor is obligated to assurance for: Period during which Federal financial assistance is extended to the program Personnel and Real Property - the longer of the following So long as the airport is used as an airport, So long as the sponsor retains ownership/ possession of the property. Civil rights covenant may run with the land where AIP funds purchase land, etc. 18
Potential consequences Noncompliance? Jeopardize AIP eligibility for project Withhold AIP payments Terminate contract Ineligibility for future AIP grants Notice and opportunity to cure 19
14 C.F.R. Part 13 and Part 16 Complaints and Notices of Investigation Pre-Complaint Process Dismissals With and Without Prejudice Standing Investigations Decision-making Do I Get a Hearing? 20
General Contract clauses Areas of Concern Missing required clauses Use of obsolete clauses (e.g. ADAP provisions) Modifications made to mandatory language Failure to insert required information in spaces requiring Sponsor input (e.g. name of sponsor) Extraneous clauses (i.e. inserting the entire federal clause package) Requirements don t flow-down to sub-tier contracts Failure to incorporate both Title VI and AIP statutory language ( 47123) 21
Summary: FAA guidelines for AIP contract provisions The guide is a tool intended to assist sponsor with incorporating the correct federal clauses. Mandatory language may not be altered Model language may be revised provided the intent of the requirement is met. DO NOT INCLUDE THE ENTIRE GUIDE IN YOUR SOLICITATION PACKAGE Thank you 22