[Federal Register Volume 77, Number 122 (Monday, June 25, 2012)]
[Notices]
[Pages 37954-37956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15342]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2011-0122]


Revision of Form FHWA-1273

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice.

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SUMMARY: This final notice announces the availability of revised form 
FHWA-1273--``Required Contract Provisions Federal-Aid Construction 
Contracts.'' This form includes certain contract provisions that are 
required on all Federal-aid construction projects. Federal-aid 
recipients must incorporate the revised form in Federal-aid 
construction projects no later than 45 days after publication of this 
final notice.

DATES: Effective Date: The final notice is effective August 9, 2012.

FOR FURTHER INFORMATION CONTACT: Gerald Yakowenko, Office of Program 
Administration, (202) 366-1562, [email protected] or Michael 
Harkins, Office of the Chief Counsel, (202) 366-4928, 
[email protected]. Office hours for the FHWA are from 8:00 a.m. 
to 4:30 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This document may be viewed online through the Federal eRulemaking 
portal at: http://www.regulations.gov. Electronic submission and 
retrieval help and guidelines are available on the Web site. It is 
available 24 hours each day, 366 days this year. Please follow the 
instructions. An electronic copy of this document may also be 
downloaded from the Office of the Federal Register's home page at: 
http://www.archives.gov/federal-register and the Government Printing 
Office's Web page at: http://www.gpo.gov/fdsys.

Background

    On January 31, 2012, at 77 FR 4880, FHWA published a notice and 
request for comments regarding FHWA's proposal to revise form FHWA-
1273. As provided in 23 CFR 633.103, form FHWA-1273 includes contract 
provisions and proposal notices that are required by regulations 
promulgated by the FHWA or other Federal agencies. The provisions 
include non-discrimination, prevailing wage rates, subcontracting, job-
site safety and other important requirements that must be included in 
every Federal-aid construction project. According to 23 CFR 633.104(a), 
FHWA will update the form as regulatory revisions occur. Since form 
FHWA-1273 was last revised on March 10, 1994, a number of regulatory 
revisions have occurred that necessitate the revision of the form.

Discussion of Comments

I. Summary

    All comments received in response to the notice and request for 
comments have been considered in adopting this final notice. Comments 
were received from five representatives of three State departments of 
transportation (State DOT). The following discussion identifies and 
summarizes the major comments submitted by the commenters in response 
to the January 31, 2012, notice, as well as FHWA's response to those 
comments.

II. General Comments

    Comment: A representative of the New Jersey DOT indicated that 
their contracts specifically preclude subcontractors from being a party 
to the

[[Page 37955]]

prime contract, and therefore, any direction to a subcontractor is not 
appropriate. This representative also noted that instructions or 
directions as to what State agencies must or must not do are not 
relevant or appropriate for inclusion in contract requirements between 
the New Jersey DOT and the contractor.
    FHWA Response: Form FHWA-1273 is a compilation of Federal 
provisions that are required to be inserted into federally funded 
contracts and subcontracts. Under 23 CFR 633.102(d), these required 
contract provisions apply to all work performed on the contract by the 
prime contractor's own organization and by all of the prime's 
subcontractors. Pursuant to 23 CFR 633.102(b) and (e), form FHWA-1273 
is to be physically incorporated into each Federal-aid highway 
construction contract and into each subcontract. These regulations were 
promulgated under lawful authority and are enforceable. Additionally, 
FHWA did not propose any changes to existing regulations. As such, FHWA 
cannot accept comments that would require FHWA to amend existing 
regulations. New Jersey DOT's comments would require FHWA to amend 
existing regulations.

III. Analysis of and Response to Comments by Section

Section I. General
    The Wyoming DOT recommended that FHWA either mandate the inclusion 
of the FHWA-1273 in every subcontract agreement, purchase order, and 
rental agreement, or allow the contractor to reference form FHWA-1273. 
Also, a representative from the Pennsylvania DOT (PennDOT) recommended 
that FHWA consider allowing the States to include form FHWA-1273 in 
published standard specification documents (e.g. PennDOT Publication 
408 Specifications) that become part of every construction contract by 
reference. This commenter stated that including form FHWA-1273 in the 
standard specifications publication would make the provisions available 
at all times for review.
    FHWA Response: While FHWA appreciates the recommendations to reduce 
paperwork by allowing the incorporation of form FHWA-1273 by reference, 
FHWA is not able to comply with this request for several reasons. 
First, as explained in the January 31 notice, form FHWA-1273 
incorporates existing regulatory requirements. As a result, FHWA 
proposed updates to make the form consistent with existing regulatory 
requirements. Since FHWA's regulatory policy in 23 CFR 633.102 requires 
physical incorporation of form FHWA-1273 in each contract and 
subcontract, the FHWA would have to amend this requirement through the 
rulemaking process. Second, the U.S. Department of Labor's (DOL) 
regulation at 29 CFR 5.5 requires the physical insertion of certain 
contract provisions in all contracts, which are reflected in form FHWA-
1273. Lastly, FHWA is mindful of the burdens associated with excess 
paperwork. As such, FHWA permits form FHWA-1273 to be incorporated by 
reference in bid proposals or request for proposal documents, purchase 
orders, rental agreements and other agreements for supplies or services 
related to a construction contract. However, form FHWA-1273 must 
continue to be physically incorporated into all Federal-aid highway 
contracts and subcontracts.
Section II. Nondiscrimination
    Comment 1: A representative of the PennDOT recommended that the 
word ``qualifiable'' be used in addition to the term ``qualified'' in 
the first sentence of Section II.4.a.
    FHWA Response 1: Without a definition of ``qualifiable'' that adds 
clarity to this issue, FHWA does not believe that this recommendation 
improves clarity. The existing phrase, ``sources likely to yield 
qualified minorities and women,'' is adequate to convey the intent of 
this section.
    Comment 2: The Wyoming DOT recommended moving the language of 
Section II, 10(a) and inserting it under Section II. 9 as item (c).
    FHWA Response 2: It is important to keep the Equal Employment 
Opportunity Responsibilities of Section 9 of Appendix A to Subpart A of 
23 CFR Part 230 separate from the 49 CFR Part 26 provisions and 
assurances. Therefore, no change is made.
    Comment 3: The Wyoming DOT recommended that FHWA clarify the 
requirements of Section II, 11(b) which require the submittal of Form 
PR-1391-``Federal-aid Highway Construction Contractors Annual EEO 
Report'' each July. It was suggested that FHWA either remove the PR-
1391 reporting requirement or require companies to submit one report 
listing their total company workforce rather than the project-related 
workforce. The Wyoming DOT stated that this would more accurately 
reflect the contractor's or subcontractor's actual affirmative action 
accomplishments and reduce the reporting burden.
    FHWA Response 3: The information collected through form FHWA-1391 
provides a snapshot of the contractor's project-related workforce 
during the last payroll period preceding the end of July. Title 23 CFR 
230.121(a)(2) requires the submittal of reports for each covered 
contract or subcontract under a Federal-aid project. While some Federal 
agencies that enforce Federal laws for equal employment opportunity 
(e.g. the DOL Office of Federal Contract Compliance and the Equal 
Employment Opportunity Commission) have broad authority to collect 
employment information about a company's workforce, FHWA does not. The 
FHWA's authority is limited to specific Federal-aid projects. Thus, no 
change is made to the language in Section II.11.b.
    Comment 4: A representative of the New Jersey DOT stated that 
unless there are statutory requirements to comply with the storage 
requirements noted in Section II. 11, the requirements will not be 
enforceable after the contract is accepted.
    FHWA Response 4: The recordkeeping requirement is a regulatory 
requirement found in Appendix A, Section 10, to Subpart A of 23 CFR 
Part 230. As such, the requirement is enforceable. A regulation has the 
force and effect of law.
    FHWA Modification: During the final review process of form FHWA-
1273, FHWA decided that it is preferable to maintain the existing 
language in Section II.9 regarding the bases for discrimination. To be 
consistent with statutory bases for discrimination, in the final 
version of the form we have removed the proposed use of ``anyone'' in 
Section II.9 and restored the original language which provides that 
``The contractor shall not discriminate on the grounds of race, color, 
religion, sex, national origin, age or disability in the selection and 
retention of subcontractors, including procurement of materials and 
leases of equipment.''
Section IV. Davis-Bacon and Related Act Provisions
    Comment 1: The Wyoming DOT commented that Section IV.3(a), (b) and 
(c), require the prime contractor to retain, house, and make available 
payroll documents for a period of 3 years after the completion of the 
project and further recommended that it should be the sole 
responsibility of prime contractors to review, retain, and house 
payroll documents for their subcontractors and lower-tier 
subcontractors. The Wyoming DOT stated that State DOTs should not be 
required to maintain payroll documents since that information would be 
available upon request if the State found it necessary to perform an 
audit or investigation.

[[Page 37956]]

    FHWA Response 1: As explained above, form FHWA-1273 incorporates 
existing regulatory requirements. As a result, FHWA proposed updates to 
make the form consistent with existing regulatory requirements. The 
requirement for the contractor to submit a copy of all payrolls to the 
contracting agency is a DOL regulatory requirement at 29 CFR 5.5(a)(3). 
The FHWA does not have the authority to modify this requirement and 
must incorporate the full text of the DOL's contract clauses in form 
FHWA-1273.
    Comment 2: A representative of the PennDOT inquired about the 
removal of the reference to social security numbers in Section IV.3.
    FHWA Response 2: On December 19, 2008, DOL issued a final rule 
titled, ``Protecting the Privacy of Workers: Labor Standards Provisions 
Applicable to Contracts Covering Federally Financed and Assisted 
Construction.'' This rule revised the DOL's regulatory policy to better 
protect the personal privacy of laborers and mechanics employed on 
covered construction contracts. The rule changed the reporting 
requirements concerning the use of full social security numbers and 
home addresses on weekly payroll statements provided to contracting 
agencies. As a result of the rule, payroll statements are only required 
to include an individually identifying number for each employee (e.g., 
the last four digits of the employee's social security number). 
However, it did not change the requirements in 29 CFR 5.5(a)(3)(i) for 
contractors to maintain that information on their own payroll records.
Section VI. Subletting or Assigning the Contract
    Comment 1: The Wyoming DOT noted a typographic error in Section 
VI.2 that incorrectly references Section VII.
    FHWA Response 1: The correction will be made in the final document.
    Comment 2: A representative of the Wyoming DOT recommended that 
Section VI.2 be clarified by stating that the purchase of materials and 
manufactured products, if done by the prime contractor, will count as 
part of the minimum 30 percent of work that prime contractors are 
required to perform with their own organizations.
    FHWA Response 2: The FHWA believes that the phrase ``total original 
contract price'' as used in Section VI.1 and 23 CFR 635.116 provides 
sufficient clarity as to what is required. Therefore, no changes are 
made.
Section VIII. False Statements Concerning Highway Projects
    Comment: The Wyoming DOT recommended that the second sentence of 
paragraph two be clarified to reference form FHWA-1022, which is the 
False Statements poster required by 23 CFR 635.119. Wyoming also 
recommended that the phrase, ``Notice to all Personnel Engaged on 
Federal-Aid highway Projects,'' be removed.
    FHWA Response: FHWA agrees with both recommendations. The 
appropriate revisions will be made in the final document.
Sections IX and X
    Comment: A representative of PennDOT noted an inconsistency between 
references to the submission of bids and the submission of proposals.
    FHWA Response: FHWA agrees and the final document will be revised 
to use the terms bids/proposals or bidders/proposers as appropriate.

Final Form FHWA-1273

    Pursuant to 23 CFR 633.104(a), FHWA has updated form FHWA-1273 to 
be consistent with existing regulatory requirements. The FHWA published 
the proposed revised form FHWA-1273 for public comment on January 31, 
2012. After considering all the comments, the FHWA has incorporated all 
appropriate edits into the revised form FHWA-1273. As such, the revised 
form FHWA-1273, which can be found at http://www.fhwa.dot.gov/programadmin/contracts/1273.cfm, should be used as soon as possible 
after publication of this notice and no later than August 9, 2012.

    Authority: 23 U.S.C. 315; 23 CFR 633.104(a).

    Issued on: June 18, 2012.
Victor M. Mendez,
Administrator.
[FR Doc. 2012-15342 Filed 6-22-12; 8:45 am]
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