Contracts must contain sufficient provisions to define a sound and complete agreement. The same provisions must also apply to subcontracts. As required by HHS and FCS, the following provisions must be included in all contracts/subcontracts. In some cases, the monetary value of the contract dictates whether or not the particular provision must be included in the contract agreement.
Contracts for noncompetitive proposals must establish a ceiling which contractors exceed at their own risk.
(1) Administrative Remedies for
Violations
For all contracts other than small purchases, the contract must contain provisions or conditions that will allow for administrative, contractual, or legal remedies in instances in which contractors violate or breach contract terms. The contract must also provide for remedial actions.
All contracts shall contain a provision requiring compliance with Executive Order 11246, entitled Equal Employment Opportunity, as amended by Executive Order 11375, and as supplemented in Department of Labor regulations 41 CFR Part 60. For food stamps contracts, the Department of Labor regulations are supplemented in 29 CFR Part 60.
The contract shall include notice of county agency requirements and regulations pertaining to reporting and patent rights under any contract involving research, developmental, experimental, or demonstration work with respect to any discovery or invention which arises or is developed in the course of or under such contract, and of state/county agency requirements and regulations pertaining to copyrights and rights in data in accordance with 37 CFR Part 401 and any other regulations issued by HHS or FCS.
All contracts awarded by county agencies shall include a provision that the federal/state/county agencies, the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers, and records of the contractor which are directly pertinent to that specific contract for the purpose of making audits, examinations, excerpts, and transcriptions. County agencies must require contractors to maintain all required records for three years after the state/county agencies make final payments and all other pending matters are closed.
The county agency will have all ownership rights in software, software modifications, and associated documentation designed, developed, or installed with the use of federal funds.
HHS/USDA, ODHS, and the county agency reserve a royalty free, nonexclusive and irrevocable license to reproduce, publish, or otherwise use and authorize others to use the software, software modifications and documentation for state and federal government purposes.
Proprietary operating/vendor software packages which are provided at established catalog or market prices and sold or leased to the general public are not subject to these ownership rights. FFP is not available for proprietary applications software developed specifically for human services programs.
Any contract in excess of the small purchase threshold shall contain provisions for termination by the agency awarding the contract, including how to complete a termination and the basis for settlement. The contract must describe the conditions under which the contract may be terminated for default or for reasons beyond the control of the contractor.
REFERENCE: 7 CFR Part 277.14, 37 CFR Part 401, 45 CFR Part 74.48 and Appendix A, and 45 CFR Part 95.617
The following provisions must be included in all contracts over $100,000.
(1) Clean Air Act
Contracts and/or subcontracts of amounts in excess of $100,000 shall contain a provision which requires compliance with all applicable standards, orders, or requirements issued under Section 306 of the Clean Air Act 42 USC 1857(h), Section 508 of the Clean Water Act 33 USC 1368, Executive Order 11738, and Environmental Protection Agency regulations 40 CFR Part 15, which prohibit the use under nonexempt federal contracts, grants, or loans of facilities included in the EPA List of Violating Facilities. The provision shall require reporting of violations to the state/county agency and to the U.S. EPA Assistant Administrator for Enforcement (EN 329).
Contracts shall not be made to parties listed on the nonprocurement portion of the General Services Administration's "List of Parties Excluded from Federal Procurement or Nonprocurement Programs" in accordance with Executive Orders 12549 and 12689. This list contains the names of parties debarred, suspended, or otherwise excluded by agencies, and contractors declared ineligible. Contractors with awards that exceed the small purchase threshold shall provide the required certification regarding their exclusion status and that of their principals prior to award.
Contractors with awards that exceed the federal small purchase threshold ($100,000) shall provide certification regarding their exclusion status and that of their principals prior to the award. The burden of proof is on the agency. If an agency knowingly does business with a contractor that filed an erroneous certification, the agency is ultimately responsible.
A contractor who applies or bids for an award of more than $100,000 shall file certification that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any Federal agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each contractor shall also disclose any lobbying with non Federal funds that takes place in connection with obtaining any Federal award.
REFERENCE: 7 CFR Part 277.14, 45 CFR Part 74.48 and Appendix A, 48 CFR Part 9.4
The following provisions must be included in all contracts for construction.
(1) Anti Kickback Act
All contracts and subcontracts for construction or repair in excess of $2,000 shall include a provision for compliance with the Copeland Anti Kickback Act 18 USC 874 as supplemented in Department of Labor regulations 29 CFR Part 3. This act provides that each contractor or subcontractor shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work to give up any part of the compensation to which the contractor is otherwise entitled. The recipient shall report all suspected or reported violations to the Federal or state awarding agency.
Where applicable, all contracts awarded by the county agency in excess of $2,000 for construction contracts and in excess of $2,500 for other contracts which involve the employment of mechanics or laborers shall include a provision for compliance with Sections 102 and 107 of the Contract Work Hours and Safety Standards Act 40 USC 327 330 as supplemented by Department of Labor regulations 29 CFR Part 5. Under Section 102 of the act, each contractor shall be required to compute the wages of every mechanic and laborer on the basis of a standard workday of eight hours and a standard workweek of 40 hours. Work in excess of the standard workday or workweek is permissible provided that the worker is compensated at a rate of not less than 1 1/2 times the basic rate of pay for all hours worked in excess of eight hours in any calendar day or 40 hours in the workweek. Section 107 of the act is applicable to construction work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to health and safety as determined under construction, safety, and health standards promulgated by the Secretary of Labor. These requirements do not apply to the purchases of supplies, materials or articles ordinarily available on the open market.
When required by the Federal program legislation, all construction contracts in excess of $2,000 awarded by the county agency shall include a provision for compliance with the Davis Bacon Act, 40 USC 276a to a 7 as supplemented by Department of Labor regulations 29 CFR Part 5. Under this act contractors shall be required to pay wages to laborers and mechanics at a rate not less than the minimum wages specified in a wage determination made by the Secretary of Labor. In addition, contractors shall be required to pay wages not less often than once a week. The agency shall place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation and the award of a contract shall be conditioned upon the acceptance of the wage determination. The recipient shall report all suspected or reported violations to the Federal/state agency.
Contracts shall recognize mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (PL 94 165).
REFERENCE: 7 CFR Part 277.14, 45 CFR Part 74.48 and Appendix A