CIVIL RIGHTS MONITORING AND REPORTING

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1 CIVIL RIGHTS MONITORING AND REPORTING I. GENERAL Civil rights monitoring and reporting is an integral component of a successful civil rights program. Monitoring and reporting of D/M/WBE Utilization is performed using Department approved Civil Rights Reporting Software. The current approved software is Equitable Business Opportunities (EBO). The EBO software is a web-based system owned and maintained by the Department. Contractors do not have to purchase EBO software nor pay any fees to use EBO for Department contracts. After award, the Office of Construction enters a variety of information into EBO, including the contract award date, scheduled completion date updates via time extensions, and the contract final acceptance date. A quarterly M/WBE utilization report is developed by the Office of Civil Rights and provided to Empire State Development (ESD) and a semi-annual DBE utilization report is developed by the Office of Civil Rights and provided to FHWA based upon construction data entered into EBO. The Office of Construction provides programmatic guidance to the Regional Construction Groups and administers the EBO software for the Construction Program. Each Regional Construction Group has a Regional Compliance Specialist (RCS), whose primary function is to monitor contract compliance with regard to civil rights issues in construction, including Equal Employment Opportunity (EEO), D/M/WBE Utilization, and Training. The RCS acts as a liaison between field personnel, Regional Management and the Office of Construction. A brief guide on use of EBO for field staff entitled EBO Instructions for Construction Staff is available on the Office of Construction internal website. A Contract Monthly EBO Checklist is attached. (See Exhibit A) II. EEO MONITORING AND REPORTING EEO goals are included in the contract proposal in a Special Note entitled Goals for Equal Employment Opportunity (EEO) Participation. The goals are presented as percentages of total hours worked. The EEO goals and related reporting requirements apply equally to Subcontractors as well as the Contractor, though not to 3 rd parties such as Material Suppliers, Fabricators or Manufacturers. The goals for minority participation are established by county, the statewide goal for female participation is 6.9%. The minority goals in R-11 (NYC) are established by trade and expressed as a range. The lower end of the range is considered the minimum goal. The Contractor is expected to make substantially uniform progress in meeting its goals in each trade. A. Employee Utilization The EIC should review the Employment Utilization Report in EBO, and verify that the total number of hours entered for each week is in substantial agreement with the certified payrolls. Most Contractors import hours into EBO based on output from their payroll systems, so the hours should frequently match. It is not necessary nor suggested that an exhaustive comparison be conducted to ensure that every single hour match exactly. The hours of minority and female participation should be reviewed, and checked for reasonableness. For example, if a significant percentage of female participation is claimed, and the inspection staff has not seen any female workers on the site, additional investigation is warranted. The Contractor may choose to employ apprentices or trainees (A/T), who count towards EEO goals. Employment of apprentices is governed by the Apprentice Training Ratios listed in the Prevailing Rate Schedule, which list the ratios of required journeyworkers to apprentices. The Contractor may receive additional payment for A/Ts employed by the Contractor under a Training Requirements item. See Construction Inspection Manual - Section 691 Training Requirements for additional guidance. The Employment Utilization Report should be evaluated on the basis of trades employed, crew size and work duration. The utilization percentage shown on the report is based on total workforce hours from contract start to date. There should be reasonable close conformance in utilization to goals. The application of percentages may make sense when applied to large numbers, but care must be used when trying to apply percentages to small numbers of workers and hours. Where overall workforce numbers are small, a Contractor may not be able to provide a workforce that meets the goals on every contract, but its overall workforce should be well represented. The expectation should NOT be that the Contractor must meet the goal for every trade, even when the total number works hours for that trade is June 2014 New York State Department of Transportation Page 1

2 CIVIL RIGHTS MONITORING AND REPORTING small. For example, if the total number of work hours for Surveyors is 160, the goal for female participation is 11 hours (160 * 0.069), which is less than 2 full days of work, and is not significant. If there is non-significant shortfall for a single trade, the Contractor should make up the shortfall in another trade(s) in order to meet the overall goal. If the cumulative shortfall in the combination of all of the skilled trades represented, is equal to or more than the number of hours for one individual working full time over the duration of contract work to date, then the Contractor could potentially have hired an individual to meet the goal, and the Contractor must demonstrate Good Faith Efforts as to why the goal has not been met. When the total number of individuals employed on a single contract is small, measuring a Contractor s performance may require that the trades be combined into more broad categories such as skilled trades vs. semi-skilled trades. Using the skilled vs. semi-skilled trades approach, small numbers of equipment operators may be combined with ironworkers, carpenters, masons, etc. and considered skilled trades, while laborers would be considered semi-skilled and evaluated separately. The Contractor s performance on a single contract may potentially be evaluated using this approach. Using EBO, the Regional Compliance Specialist can review a Contractor s EEO performance on a single contract, contracts in the county, contracts in multiple counties/region, or contracts Statewide. Care must be taken to avoid the strict application of EEO goals to every trade in every instance without consideration of the contractual context, location and overall performance. Without these types of considerations and without an evaluation of a Contractor s Good Faith Efforts, the requirements would be considered a quota system, which the courts have repeatedly ruled against. B. Training Requirements The Training Requirements provisions of Section 691 were developed to address the FHWA requirement for the Department to have a Training Special Provision (TSP), to promote construction workforce development, and to address programmatic underrepresentation of females and/or minorities in construction trades. The program is narrowly tailored to require minority or female apprentices/trainees (A/T) in specific trades in specific Regions. A/Ts employed by the Contractor (or Subcontractor) to fulfill the Training Requirements item do not count towards the EEO goal. The Contractor must meet the EEO goal requirements in order to be reimbursed under the Training Requirements item. The EIC, with the assistance of the RCS, should review monthly utilization reports of any A/T prior to processing reimbursement payments in accordance with the Training Requirements provisions of Section 691. C. Federal-Aid Highway Construction Contractors Annual EEO Report (FHWA 1391) For all Federal-Aid contracts, entry of monthly utilization data in the work hour import by the Contractor and all Subcontractors with a subcontract of $10, or greater, into EBO provides all the required data to produce the Annual EEO Report. The EIC should verify that the Contractor has imported the appropriate work hours on a weekly basis, and notify the Regional Construction Group. The Regional Construction Group verifies that data has been properly entered for all on-going contracts and notifies the Office of Construction if data is missing or incorrect. The Office of Civil Rights prepares a 1392 report for the State from EBO, which includes the locally administered program, and submits it to FHWA. No paperwork or forms are required. D. Contractor Compliance with EEO Goals If the Contractor fails to meet the EEO goal(s) or is in noncompliance with the non-discrimination requirements, the Department can enforce the contract, but has no authority to enforce Executive Order (EO) or Federal law. The Department can begin by withholding payment under Article 8, and can also terminate the contract in accordance with Article 11. The EIC should contact the Construction Area Supervisor and the Regional Compliance Specialist for assistance with compliance issues. The 16 Steps of Good Faith Effort are the actions that Contractors should undertake to achieve EEO goals. The Contractor must document that these actions were carried out as well as the results thereof. See Exhibit C for detailed actions regarding The 16 Steps. June 2014 New York State Department of Transportation Page 2

3 CIVIL RIGHTS MONITORING AND REPORTING III. D/M/WBE MONITORING There are three distinct stages of D/M/WBE utilization: goals, commitments and attainments. Goals are established prior to letting in the contract documents as a percentage of the contract bid price. After contract letting, the contract goal is expressed as a dollar amount. During the pre-award process and during post-award revisions, the Contractor agrees to dollar amount commitments. Attainments are measured after completion of the work in dollars paid to certified D/M/WBEs. There should be reasonable close conformance when comparing commitments to attainments, the expectation should be that they will be close in value, unless something has changed. Attainments should be compared to commitments monthly in order to ensure that D/M/WBEs are being utilized in accordance with the Contractor s commitment, and that the D/M/WBEs are being paid regularly for work completed. Monthly monitoring will identify discrepancies and provide timely opportunity to address non-compliance. Identifying discrepancies at contract closeout does not provide the opportunity to the D/M/WBE. A. Commercially Useful Function Requirements A D/M/WBE performs a Commercially Useful Function (CUF) when it is responsible for the execution of a distinct element of work on a contract and carries out its responsibilities by actually performing, managing, and supervising the work involved in accordance with normal industry practice. Regardless of whether an arrangement between the Contractor and the D/M/WBE represent standard industry practice, if the arrangement between the Contractor and the D/M/WBE erodes the ownership, control or independence of the D/M/WBE or in any other way does not meet the commercially useful function requirement, the Contractor will receive no credit toward the goal and may be required to backfill the participation, if feasible given the remaining work available. If a D/M/WBE is not fulfilling a commercially useful function, the EIC should note the circumstances in the Engineer's Diary and notify the Construction Area Supervisor and the Regional Compliance Specialist. A D/M/WBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction or contract through which funds are passed in order to obtain the appearance of D/M/WBE participation. Acting as an extra participant in order to obtain the appearance of D/M/WBE participation is potentially fraudulent activity. 1. Workforce. The D/M/WBE must employ a work force, (including administrative and clerical) separate and apart from that employed by the Contractor, other Subcontractors, or their affiliates. The routine transfer of work crews from another employer to the D/M/WBE is a red flag. Check payrolls for flip-flopping of employees. Employees should not appear on both the Contractor s and D/M/WBE firm payrolls with less than one week between appearances. During wage rate interviews, ask employee who they work for. Look at shirts, hats, etc. with company logos and see if the company matches with the individual's employer. 2. Supervision. All work performed by the D/M/WBE should be controlled and supervised by the D/M/WBE without duplication by supervisory personnel from the Contractor, other Subcontractors, or their affiliates. This does not preclude routine communication between the supervisory personnel of the D/M/WBE and other supervisors necessary to coordinate the work of the contract. Watch for work site supervisors of other firms functioning as supervisors of the D/M/WBE's workforce. 3. Material. Material should be provided by the D/M/WBE. Material certifications should be provided by the Material Supplier to the D/M/WBE Subcontractor, provided by the D/M/WBE to the Contractor, and verified by the EIC. Watch for Material Suppliers that provide certifications to the Contractor or the Field Office without the involvement of the D/M/WBE Subcontractor. 4. Equipment. The D/M/WBE Subcontractor may supplement its equipment by renting or leasing additional equipment in accordance with customary industry practice; the equipment required to perform the work of the subcontractor cannot be obtained from the Contractor or their affiliates. Removable magnetic signs on equipment are a red flag, as they may be used to conceal the true owner of the equipment. June 2014 New York State Department of Transportation Page 3

4 CIVIL RIGHTS MONITORING AND REPORTING A trucker using leased trucks should have a valid lease including the lessor s name, list of trucks by VIN, and the agreed upon amount of the cost and method of payment. The DBE should provide the operator, fuel, maintenance and insurance for all leased trucks. B. Commercially Useful Function Certification Every DBE must be certified as having performed a Commercially Useful Function (CUF) on every Federal-Aid contract on which they participate. Documentation must be readily available in the Field Office for review by the Department or by oversight agencies. 1. DBE Subcontractors. The certification must be made at least once per DBE Subcontractor on every contract after the DBE has performed approximately 25-50% of its work. The certification must be performed again if the DBE leaves the contract and returns in a new calendar year, or if there are issues found during the first certification review. Any issues found must be monitored, and reviewed again. The EIC must make an entry in the contract diary under the Civil Rights tab indicating that the DBE Subcontractor has executed a distinct element of work on a contract and has carried out its responsibilities by actually performing, managing, and supervising the work involved with its own resources in accordance with normal industry practice. (See Exhibit D, DBE Subcontractor CUF Checklist.) 2. DBE Material Suppliers. DBE Material Suppliers must self-certify on every contract that they have performed a Commercially Useful Function. (See Exhibit E, Form AAP 51 DBE Material Supplier CUF Certification.) The DBE must self-certify again in a new calendar year. The EIC must make an entry in the contract diary under the Civil Rights tab indicating that the DBE Material Supplier or Broker has performed a Commercially Useful Function, based on the selfcertification. As a QA check of the self-certification, request a copy of invoices from one Material Supplier and attach them to the self-certification. 3. DBE Brokers. DBE Brokers must self-certify on every contract that they have performed a Commercially Useful Function. (See Exhibit E, Form AAP 54 DBE Professional Service/Broker CUF Certification.) The DBE must self-certify again in a new calendar year. The EIC must make an entry in the contract diary under the Civil Rights tab indicating that the DBE Material Supplier or Broker has performed a Commercially Useful Function, based on the self-certification. As a QA check of the self-certification, request a copy of invoices from one Broker and attach them to the self-certification. 4. DBE Off-Site Truckers. DBE Off-Site Truckers that are not subcontractors must self-certify on every contract that they have performed a Commercially Useful Function. (See Exhibit F, Form AAP 52 DBE On-Site Trucking CUF Certification.) The DBE must self-certify again in a new calendar year. The EIC must make an entry in the contract diary under the Civil Rights tab indicating that the DBE Trucker has performed a Commercially Useful Function, based on the selfcertification. As a QA check of the self-certification, request a copy of delivery tickets or other documentation from one DBE Off-Site Trucker and attach them to the self-certification. 5. DBE Manufacturers/Fabricators. DBE Manufacturers/Fabricators must self-certify on every contract that they have performed a Commercially Useful Function. (See Exhibit G, Form AAP 53 DBE Manufacturer/Fabricator/ Equipment Rental CUF Certification.) The DBE must selfcertify again in a new calendar year. The EIC must make an entry in the contract diary under the Civil Rights tab indicating that the DBE Manufacturer or Fabricator has performed a Commercially Useful Function, based on the self-certification. As a QA check of the self-certification, request a copy of invoices from one Manufacturer or Fabricator and attach them to the self-certification. June 2014 New York State Department of Transportation Page 4

5 CIVIL RIGHTS MONITORING AND REPORTING 6. DBE Equipment Rental. DBE Equipment Rental Firms must self-certify on every contract that they have performed a Commercially Useful Function. (See Exhibit G, Form AAP 53 DBE Manufacturer/Fabricator/ Equipment Rental CUF Certification.) The DBE must self-certify again in a new calendar year. The EIC must make an entry in the contract diary under the Civil Rights tab indicating that the DBE Equipment Rental Firm has performed a Commercially Useful Function, based on the self-certification. As a QA check of the self-certification, request a copy of invoices or rental agreements from one Equipment Rental Firm and attach them to the self-certification. 7. DBE Professional Services. DBE Professional Services must self-certify on every contract that they have performed a Commercially Useful Function. (See Exhibit H, Form AAP 54 DBE Professional Service/Broker CUF Certification.) The DBE must self-certify again in a new calendar year. The EIC must make an entry in the contract diary under the Civil Rights tab indicating that the DBE has performed a Commercially Useful Function, based on the self-certification. As a QA check of the self-certification, request a copy of an invoice for an identified work product from one Professional Service and attach them to the self-certification. C. Revisions to D/M/WBE Utilization Substantial revisions to D/M/WBE Utilization include: adding firm(s); terminating firm(s); significant reduction of quantities or agreed payment amounts to proposed firms; or substitution of proposed firms. Substantial revisions should be submitted by the Contractor using a new or amended AAP 20 D/M/WBE Utilization Worksheet and supporting documentation to the Regional Construction Engineer for approval. If a D/M/WBE performs additional work beyond the value shown in the original schedule, the Contractor must report that commitment in EBO. If the additional D/M/WBE commitment is due to items contained in a Change Order, the Change Order must be entered into EBO, and the new items assigned by the Contractor to itself or subcontractor(s), as appropriate. Substantial revisions that result in a reduction to D/M/WBE participation that would significantly reduce the commitment below the contract goal should be discussed with the Regional Compliance Specialist (RCS). 1. DBE Terminations/Reductions/Substitutions. Before submitting its request to terminate and/or substitute a DBE to the Department, the Contractor shall give notice in writing to the DBE, with a copy to the Engineer, of its intent to request to terminate and/or substitute, and the reason for the request, in accordance with D.2.a. The DBE has five days to respond to the notice and advise the Department and the Contractor of the reasons why the DBE objects to the proposed termination and why the Department should not approve. If required in a particular case as a matter of public necessity (e.g., safety), the Department may approve a response period shorter than five days. 2. M/WBE Terminations/Reductions/Substitutions. Before submitting its request to terminate and/or substitute an M/WBE to the Department, the Contractor shall give notice in writing to the M/WBE, with a copy to the Engineer, of its intent to request to terminate and/or substitute, and the reason for the request. D. Entering Change Orders in EBO Change Orders and Field Change Payments (FCPs) must be entered into EBO in order to capture changes in D/M/WBE participation. After entry by the RCS, or other Regional Construction staff assigned the task, by default the new items are assigned to the Contractor. The Contractor must subsequently make the appropriate adjustments in EBO, assigning or to subcontractors, and/or modifying quantities/commitments made to subcontractors. After the data has been entered into EBO, and processed by the Prime, affected subcontractor(s) must be re-approved in EBO to populate Site Manger. Entering Change Orders captures post-award changes for the purposes of programmatic D/M/WBE reporting to ESD and FHWA. June 2014 New York State Department of Transportation Page 5

6 CIVIL RIGHTS MONITORING AND REPORTING 1. Add Existing Item. In EBO select CONSTRUCTION to show sub-categories, then Contract OOC/OJT. Select Add Existing Item, a search screen will appear. Enter the Item Number (or a portion of the number followed by %), then select Search. After it appears in the box, select the item and it will shade to green. Select Add, and the line will move to the screen below. Select Apply and a new entry screen will appear. Enter CO Number, Price Change, Qty Change and Save. Repeat until entire OOC is entered. 2. Enter New Item. In EBO Select CONSTRUCTION to show sub-categories, then Contract OOC/OJT. Select Enter New Item a blank line will appear to enter all data necessary. Enter CO number, Item No, Description, Specialty (Y/N), Line No, UOM, Price Change, Qty Change and SAVE Select APPLY and a new entry screen will appear.. Repeat until entire OOC is entered. E. Continuing Good Faith Efforts When a contract is awarded with commitments less than the contract goal(s) based on GFE, the Contractor must continue those efforts through the life of the contract. The Regional Construction Group should review the Contractors efforts periodically, typically before the beginning of a new construction season, and when significant new items of work are added to the contract. The review should not include a repetition of the Pre-Award review of GFE, unless significant changes to D/M/WBE certification and/or availability have occurred. F. Contactor Payments. Contractors typically receive payments from the State via electronic transfer, so the date of payment and the date of receipt are the same. The Office of Construction imports payments into EBO twice a month, after the middle and after the end of the month. The Contractor must confirm in EBO the date of receipt of payment from the State. The amounts received by the Contractor are not necessarily those entered into EBO. The Office of the State Comptroller (OSC) may alter payments to a Contractor for a contract based on monies due the State, liens, etc. on a different contract. Payments to a Contractor withheld by OSC to satisfy other liabilities will be considered paid under the originating contract. G. Payments to Subcontractors/Attainments D/M/WBE participation, or attainments, are tracked based on payments to the subcontractor/vendor, not through bid prices, which may be different than the amount paid to a subcontractor or D/M/WBE. In accordance with Prompt Payments by the Contractor, the Contractor must make payments to Subcontractors, Fabricators, Suppliers, etc. within 7 days of receipt of payment from the State. Similarly, a Subcontractor must make payments to Suppliers within 7 days of receipt of payment from the Contractor. The payments must be entered into EBO by the Contractor, and the Subcontractor or D/M/WBE must acknowledge the receipt of payment within 7 days of receipt from the Prime Contractor. If the amount entered by the Contractor is not the amount received by the Subcontractor or D/M/WBE, the Subcontractor or D/M/WBE should contact the Contractor. Once a payment is entered into EBO, it cannot be removed nor edited. If the Contractor entered an incorrect amount, the Contractor should enter a negative of the same value, which zeros out the payment, and reenter the payment. H. Joint Checks A joint check agreement is an agreement between two parties, allowing one to pay a balance due by writing a check issued to two or more payees. A Manufacturer, Fabricator or Supplier may require the agreement between a prime contractor and subcontractor before extending credit to the subcontractor. A joint-check agreement allows the Contractor to make payments due under a subcontract to both the Subcontractor and a third party (the supplier) to guarantee payment. Non-payment of union dues by a subcontractor can negatively affect the Contractor s relationship with union(s), or a union(s) may attempt to recover union dues owed by a Subcontractor by placing a lien against the contract Labor and Materials Bond, which will negatively affect the Contractor s relationship with the Surety, and increase bond costs. The agreement will be made between the Contractor, Subcontractor, and third party, who agree that the Contractor will issue checks that are payable jointly to the subcontractor and the third party. June 2014 New York State Department of Transportation Page 6

7 CIVIL RIGHTS MONITORING AND REPORTING General conditions for allowance of Joint Checks: The Contractor submits request to the EIC for approval prior to any use of Joint Checks; The Contractor cannot require that the DBE use a specific supplier nor the Contractor s negotiated material price; Subject to written agreement between all parties that specify the conditions under which payments will be made; The DBE remains responsible for performing a Commercially Useful Function (CUF); Office of Construction determines that independence is not threatened because the DBE retains final decision making responsibility; Office of Construction determines that request is not an attempt to artificially inflate DBE participation; EIC receives copies of cancelled checks and/or statement of payment from bank. H. Final Payments to Subcontractors and D/M/WBEs To indicate the final payment to a subcontractor or D/M/WBE, in EBO the Contractor should: Enter the Estimate number followed by an F for Final (e.g. Est. 34F); OR Enter a $0 payment with Final in the Estimate number; The Subcontractor/DBE acknowledgement is for the total amount paid. IV. POTENTIAL D/M/WBE FRAUD The D/M/WBE program has significant potential for fraud. The list below identifies some topics and examples that may potentially be fraud and may need to be further investigated. An employee who observes fraud, other misconduct or wrongdoing should notify their supervisor immediately. See CAM Section 94 for further information. A. General Prime completing work items assigned to Subcontractors or a D/M/WBE not on-site. D/M/WBE used as a pass-thru (look for firms with names similar to certified D/M/WBE). Prime fronting money to D/M/WBE outside of standard industry practice, for materials prior to purchase by D/M/WBE, or for work prior to completion by D/M/WBE. Lack of purchase orders for materials or vendor complaints about late/short payments for materials. D/M/WBE sharing office, bank accounts with other firms. Financial transactions taking place on the job site. Loss of state or locally required licenses or credentials by the owner while performing work, or after letting but prior to performing work. This may or may not be a problem depending upon the license or credential in question. For example: owners of security firms must possess the license in accordance with State regulations. A licensed surveyor may not be currently registered, but can still manage the firm and its operations, as well as critically evaluate information presented by employees or consultants, and as long as other key personnel such as project managers, Vice Presidents, etc. possess a license and current registration. The owner is engaged in outside employment. This may be evidenced by lack of involvement in the work of the contract, infrequently or not appearing on the site, infrequently or not interacting with contractor, rarely available for meetings, etc. June 2014 New York State Department of Transportation Page 7

8 CIVIL RIGHTS MONITORING AND REPORTING B. Workforce Employees are not sure who they are working for, or ghost /no show employees are shown on the certified payroll. D/M/WBE business and employee residence(s) having matching addresses. May indicate ghost or no show employees. Payroll checks not issued by D/M/WBE or their authorized representative (payroll company), or employees are paid in cash. Employee complaints about wages (employer pays employees by check so that rates are accurate and back charging or requiring employees to return money in order to retain their jobs). Payrolls show flip-flopping of employees (appear on both prime and D/M/WBE firm payrolls) with less than one week between appearances. C. Supervision D/M/WBE foreperson/superintendent (not owner) having authority to change/negotiate contract terms with prime. Prime providing too much mentoring/oversight, giving the appearance that the D/M/WBE is not technically competent. Inadequate management/oversight of employees. Duplication of D/M/WBE supervisory personnel by the Contractor or other Subcontractors. Supervisors from other firms functioning as supervisors of the D/M/WBE's workforce. The owner does not understand the work operations that it is supposed to perform. The owner does not understand the information presented by employees or consultants. The owner often seeks direction from the Prime or other Subcontractors. D. Equipment Prime and D/M/WBE sharing equipment. D/M/WBE does not own equipment using magnetic signs to cover true ownership. Misrepresentation of the amount of equipment owned by D/M/WBE. A D/M/WBE subcontractor may rent or lease additional equipment in accordance with customary industry practice; however, equipment should not be rented from the Contractor, other Subcontractors, or their affiliates. V. D/M/WBE REPORTING DATA REQUIREMENTS The Department provides civil rights reports to the FHWA for the DBE program and to Empire State Development (ESD) for the M/WBE program. It is the Region's responsibility to ensure that the data is accurately entered into EBO in a timely manner prior to contract final acceptance. ALL D/M/WBEs, including primes, subcontractors and vendors must be properly identified as DBE, MBE or WBE, as appropriate; all payments must be accepted; and all subcontractor and program approvals must be completed for all subcontractors and D/M/WBEs. A. Semi-Annual DBE Report to Federal Highway Administration The Department provides civil rights reports to the FHWA for Federal-aid contracts on a semi-annual basis. The first report is a semi-annual report for the period from October 1 to March 31 due to FHWA on June 1. The second report is an annual report for the period from October 1 to September 30 due to FHWA on December 1. The required data includes all Subcontractor approvals issued for contracts awarded during the reporting period and total cumulative payment to all Subs (DBE and majority) for contracts that received contract final acceptance during the reporting period. June 2014 New York State Department of Transportation Page 8

9 CIVIL RIGHTS MONITORING AND REPORTING B. Quarterly M/WBE Report to ESD The Department provides civil rights reports to ESD for 100% State funded contracts on a quarterly basis, with reporting periods from January 1 to March 31, April 1 to June 30, July 1 to September 30, and October 1 to December 31. The reports are due to ESD 10 days following the end of the reporting period. All Subcontractor approvals must be entered for contracts and subcontracts awarded during the reporting period. All payments to Subcontractors (both M/WBE and majority) made during the reporting period must be entered into EBO not later than 7 days after the end of the quarter, even for FA contracts, because many DBEs are also M/WBEs, and payments to those firms is counted under the M/WBE reporting system. Insert a note in EBO if the CONR 89 Approval to Subcontract cannot be approved. C. Contract Final Acceptance The Department uses Contract Final Acceptance to define contract completion for the purposes of DBE reporting in accordance with 49 CFR 26. At the end of the Federal semi-annual reporting period, the Office of Construction will enter the Contract Final Acceptance date into EBO in the Construction End date field. This will lock the contract, and no further data can be entered, or edits made in EBO. The Office of Civil Rights will then extract the required data for DBE reporting from EBO. Data entered after the reporting period will not be reported to FHWA, resulting in a lost opportunity for the Department. VI. ANNUAL CIVIL RIGHTS COMPLIANCE REVIEWS A number of Civil Rights Compliance Reviews are completed annually on Federal Aid contracts. Using a standard format, the Contractor provides materials documenting its achievements and good faith efforts in meeting the civil rights requirements of the contract. If the Contractor has not met EEO goals, D/M/WBE Commitments, or demonstrated non-discrimination in employment practices, affirmative action steps and other documentation will be reviewed. Payroll and subcontractor utilization reviews, and on-site interviews of Contractor s personnel are conducted. The Department provides a written Compliance Review Report to FHWA upon completion of the review. (See CAM Section 98.) EXHIBITS A EBO Monthly Checklist B Sample EBO EEO Utilization Report C 16 Steps for Contractors D DBE Subcontractor CUF Checklist E Form AAP 51 DBE Material Supplier CUF Certification F Form AAP 52 DBE Off-Site Trucking CUF Certification G Form AAP 53 DBE Manufacturer/Fabricator/ Equipment Rental CUF Certification H Form AAP 54 DBE Professional Service/Broker CUF Certification I Form AAP 56 DBE Joint Check Request J Sample EBO Post Award Approval Report K Sample EBO Payment Status Screen L EBO Contract Closeout Checklist June 2014 New York State Department of Transportation Page 9

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11 CONTRACT MONTHLY EBO CHECKLIST Contract D Contractor: Date 20 Goal = % $ Month CONTRACTS 1. Contract Maintenance Contract Estimated Start/End, Actual Start/End Entered Orders on Contract Current Trainees/Apprentices 2. Program (Post Award) Approvals D/M/WBE items of work acceptable Approvals Complete 3. Subcontractor Approval AAP 15 Names and contact information entered Approvals Complete Estimated Start/End Dates entered > Actual Start/End Dates entered (as they occur) D/M/WBE shown in correct program REPORTS/FORMS 1. Monthly Utilization AAP 33 M: % F: % AAP 19 D/M/WBE Utilization on track with work completed/subcontractor payments REVIEW 1. Commitments and Items Prime & ALL Subs/Vendors Assigned Items Work Type (Construction, Trucking, Material Supplier, Fabricator, etc) Credit Percentage correct (Material Supplier, Broker, etc) All items assigned Items split correctly 2. OJT Assignment Correct Employees Assigned Program/Hour information correct 3. Payments and Receipts Payments to subs/vendors current and timely Accepted by subs/vendors in a timely manner 4. Contract Work Hours (Work hours Review) Prime work hours entered/accurate Sub work hours entered/accurate Weekly Certified Payroll hour totals (Prime & Subs) closely match EBO [Not necessarily Exactly] Monthly Utilization Report Accurate 5. OJT / Training Progress Data entered/accurate AAP26 Accurate NOTES: June 2014 New York State Department of Transportation Exhibit A

12 June 2014 New York State Department of Transportation Exhibit B1

13 June 2014 New York State Department of Transportation Exhibit B2

14 THE 16 STEPS FOR CONTRACTORS The Contractor must take specific affirmative actions to ensure equal employment opportunity and the evaluation of compliance is based upon the efforts to achieve maximum results from actions taken. The 16 Steps are minimum affirmative actions that the Contractor can take. There are two types of steps; those concerning Recruitment and those concerning Retention. Steps 2, 3, 4, 5, 6, 8, 9, 10, 11, and 15 provide guidance in recruitment methods that successfully identify sources of and attract minority and female applicants/employees. Steps 1, 7, 12, 13, 14 and 16 provide guidance to evaluate those factors that can foster or hinder retention of minority and female employees such as workplace environment, personnel policies, and practices. The 16 steps are listed in E. Affirmative Action Steps. The Contractor must create and maintain appropriate records to document that it has performed the recommended actions listed below, in whatever form they are used. Records may include written materials, s, electronic documents, correspondence, telephone logs, website postings, etc. Information must be maintained for an appropriate length of time. CONTRACTOR S RECOMMENDED ACTIONS Step 1: Disseminate the policy on the maintenance of a positive and productive workplace. Post the policy and the name of the person to contact to file a complaint or report violations. Notify foremen, superintendents, and other supervisory personnel to maintain a positive and productive workplace free of harassment, intimidation, and coercion. Emphasize policies at "in-house" meetings, workshops, or training programs to company personnel. Assign two or more women to each construction contract where possible. The EEO Office should monitor the work site, and take swift appropriate remedial action in response to any report or indication of abuse, threats, intimidation, or harassment directed to any employee. Maintain a workplace that is free of sexually oriented material such as magazines, posters, etc. Step 2: Notify community based organizations (CBOs), minority and women's organizations when employment opportunities are available. Include the nature of the employment opportunities and the procedure to be followed when seeking employment. Send notifications to Employment/Training Coordinators, using name and title, not a blanket notice. Maintain a log, diary or summary of the notifications. Record responses received and the results achieved, including hires, referrals or other follow-up. Maintain a current listing of recruitment sources for minority and female craft workers. Step 3: Maintain a file with the name, contact information, and craft of each minority and female applicant. Record the date and method of each contact with the individual. Record the specific action taken, i.e. hired, not hired, referred, follow-up action, etc. Contact the Union to determine the reason for any non-referral by the union of minority and female applicants. Step 4: Document or show evidence of the union action which is obstructing the Contractor's efforts. Maintain letters to unions, responses from unions, minutes of meetings, etc., relating to the claim that the union is impeding the Contractor's efforts to comply. Notify the NYSDOT Office of Civil Rights and the USDOL OFCCP by registered mail of union action which impedes the Contractor's efforts to meet its obligations. Obtain (if necessary) a dispensation to recruit minorities from the NYS Division of Human Rights and/or a dispensation to recruit females from the NYS Department of Labor. June 2014 New York State Department of Transportation Exhibit C1

15 Step 5: Develop training opportunities for women and minorities and/or participate in training programs. Work with minority and women's organizations to make training programs available to minorities and women. Notify these organizations when training opportunities are available. Participate in school/community career day or job fair activities likely to involve minorities and females. Record the hiring and training of minorities and women from such programs. Keep accurate records of Contractor personnel, equipment, supplies, or monetary contributions to programs involved in the training of minorities and women, i.e., letters, cancelled checks, receipts, reports, copies of collective bargaining agreements or training trust fund documents. Step 6: Maintain a written EEO policy that set forth specific affirmative action steps and designates a Company EEO Officer, signed and dated by the Company Executive Office within the past year Include the EEO policy in the company policy manual and collective bargaining agreements. Post the EEO policy conspicuously on all company bulletin boards (in the office, and on job sites). Discuss the company EEO policy regularly with all employees. Discuss the EEO policy and company activities regularly at staff meetings with supervisors. Include short statements of the company policy and company newsletters, bulletins and annual reports. Notify unions and training programs requesting their cooperation in meeting EEO obligations. Step 7: Conduct an annual review of the company's EEO policy and affirmative action status with all company employees who have employment decision or supervisory responsibilities. Conduct a pre-job Equal Employment Opportunity review prior to initiation of construction work at any job site. Maintain a record of the time, place, attendees, subject matter and disposition of subject matter. Step 8: Notify recruiting sources, including labor unions and training programs, annually or at the start of each new major contract, indicating the company's EEO policy. Send letters to the attention of the Employment or Training Coordinator, using specific names and titles whenever possible, do not conduct a blanket mailing. Develop and use advertising (websites, social media, newspapers, etc) with the EEO "tagline". Send letters on Equal Employment Opportunity requirements to all subcontractors and suppliers, requiring compliance with the policy. Step 9: Participate in career days and job fairs prepared for or with the recruitment sources. Notify recruitment sources of training slots available and the application process at least one month prior to acceptance of applications; describing the openings, screening procedures, and tests to be used in the selection process. Contact vocational or training schools with minority and women enrollments that can serve the contractor's needs regularly. Step 10: Advise all employees that as additional employment opportunities develop, that employees can refer minorities or females. Provide prompt and timely information on employment opportunities and recruitment efforts to minority and female employees. Post and circulate notices or bulletins to announce new openings. Maintain a record of the discussions and any referrals that result thereof. June 2014 New York State Department of Transportation Exhibit C2

16 Step 11: Maintain evidence that tests and other techniques used to select candidates for hire, transfer, promotion, training or retention are valid and test for bonafide occupational qualification (BFOQ) used in a manner that does not violate 41 CFR Monitor all OJT/Apprenticeship and other training procedures for patterns of adverse impact of discrimination. Ensure Joint Apprenticeship Committee selection procedures (tests, etc.) and training requirements are in accordance with USDOL, Bureau of Apprenticeship and Training guidelines. Step 12: Conduct evaluations of all employees for promotional opportunities at least once a year. Advise and encourage minority and female employees to seek those opportunities. Review monthly work force reports, hiring, terminations, and training provided to minority and female employees by the company EEO Officer. Encourage minority and female employees to prepare for and seek promotion. Step 13: Ensure that any collective bargaining agreements have an EEO clause and provisions that do not operate to exclude minorities and women. Promote the inclusion of such clauses. Maintain evidence that the Contractor has initiated corrective action whenever the Contractor has identified a possible discriminatory effect. Ensure unions do not operate to exclude minorities and women using a strictly seniority hiring basis. Monitor monthly workforce reports with regard to referrals, hiring, lay-offs, terminations, training, and other employment activities for potentially discriminatory patterns or effects? Step 14: Ensure non-segregated facilities are provided adequate and equitable toilet and changing facilities to ensure privacy for both sexes. Ensure that all employment benefits are provided on a nondiscriminatory basis. Ensure announcements of parties, picnics, etc. are available to all employees; Step 15: Retain copies of letters or other direct solicitations of bids for subcontracts/joint ventures from minority/female Contractors with a record of specific response should be retained. Record any follow-up the Contractor has done to obtain a price quotation or to assist a minority/female Contractor in preparing a bid. Maintain a list of minority/female subcontracts awarded or joint ventures participated in with dollar amounts, etc. Maintain list of solicitations sent to minority and women's Contractor associations or other business associations. Step 16: Conduct and document the specifics of at least one annual meeting. Review and document all supervisors' activities under the company EEO policy. Notify supervisors when their employment practices adversely or positively impact the Contractor's EEO and affirmative action posture. June 2014 New York State Department of Transportation Exhibit C3

17 DBE SUBCONTRACTOR CUF CHECKLIST In order for the participation of a DBE on a contract to be counted towards the contract goal, the DBE must perform a Commercially Useful Function (CUF). The DBE must be responsible for the execution of a distinct element of work on a contract and carries out its responsibilities by actually performing, managing, and supervising the work involved with its own resources in accordance with normal industry practice. The work should be as described on the AAP 20 D/M/WBE Utilization Worksheet and the written subcontract between the Contractor and the Subcontractor. In order to certify that a DBE Subcontractor (including on-site trucking) has performed a Commercially Useful Function (CUF), review the required elements below after the DBE has performed approximately 25-50% of its work. If the DBE has completed work, left the site and returns in a new calendar year to perform more work, or if there issues found during the first certification review, review and certify the CUF again. 1. Workforce. Verify that the DBE employed a work force, separate and apart from that of the Contractor, other Subcontractors, or their affiliates. Record the trade and number of employees on the Daily Work Report (DWR). Office Engineer should check payrolls for flip-flopping of employees. 2. Supervision. Verify that the work performed by the DBE was controlled and supervised by the DBE without duplication of supervisory personnel from the Contractor, other Subcontractors, or their affiliates. Coordination with the Contractor s supervisory personnel is expected. 3. Material. Verify that the DBE subcontractor obtained and provided material independently from the Contractor or their affiliates. Office Engineer should check the Material Certifications provided. Some DBEs may not provide materials, based on the scope of work. 4. Equipment. Verify that the DBE subcontractor supplied equipment (owned, rented or leased). The equipment used was not obtained from the Contractor or their affiliates. Documentation such as rental agreements should be requested on exception if other evidence indicates possible compliance issue. Some DBEs may not provide equipment, based on the scope of work Inspector: If the DBE has performed a Commercially Useful Function (CUF) on this Federal-Aid contract, make the following entry in the DWR under the Civil Rights tab: [DBE Firm Name] has performed a Commercially Useful Function (CUF) on contract [D123456] on [date]. EIC: If the DBE has performed a Commercially Useful Function (CUF) on this Federal-Aid contract, you must make the following entry in the contract diary under the Civil Rights tab: [DBE Firm Name] has performed a Commercially Useful Function (CUF) on contract [D123456] on [date]. If a potential CUF violation is observed, note the details of the violation (e.g., DBE used Contractor s equipment; Contractor s superintendent performed supervision of subcontractor s employees, etc.) in the DWR/Diary. If there are issues or questions concerning CUF certification for a DBE, contact the Construction Area Supervisor and the Regional Compliance Specialist. See the Contract Administration Manual III.B. Commercially Useful Function Requirements for additional guidance. June 2014 New York State Department of Transportation Exhibit D

18 June 2014 New York State Department of Transportation Exhibit E

19 June 2014 New York State Department of Transportation Exhibit F

20 June 2014 New York State Department of Transportation Exhibit G