4-90-040 Construction Contracting

(1) In general, construction contracts are used by the Nation to procure construction-related professional services by qualified independent contractors, including but not limited to development, repair, maintenance, and installation activities in which labor is a significant component. These contracts require additional specific provisions in order to ensure compliance.

(a) As part of the solicitation process for all construction contracting, the Controller will be consulted to verify if the Nation has its own builder’s risk insurance coverage in place.

(i) If the Nation does not have builder’s risk insurance coverage, then the solicitation must require that the vendor awarded a construction contract carries a policy sufficient to protect the Nation’s interests.

(2) A Contract Representative for the Nation must be identified in a contract for construction services.

(a) This representative works with the contractor on site specifically to ensure compliance with the contract terms and provisions applicable thereto. Under this assignment the Contract Representative has the authority and responsibility to represent the Nation.

(b) In order to fulfill this authority, the Contract Representative duties are as follows:

(i) Be familiar with and understand the terms and contract requirements, as well as any applicable drawings and specifications;

(ii) Maintain a good business relationship with the contractor in order to ensure orderly execution of the work;

(iii) Manage contract for the Nation, including but not limited to:

(A) Hold regular meetings with the contractor to monitor contractor progress, discuss issues and negotiate resolutions if needed, and to anticipate and plan for any situations that may cause trouble or delays;

(B) Issue written orders to the contractor covering any minor changes in the drawings and specifications authorizing the contractor to meet on-site conditions, where such changes do not affect the contract completion time or price;

(C) Review any proposed changes initiated by the contractor at the project site and furnish recommendations regarding their costs, need, etc., to Administrative Services;

(D) Reject defective workmanship, material or equipment installed at the site including materials or equipment delivered to the site;

(E) Advise the contractor in writing of any violation of the contract terms and provisions and promptly bring the matter to Administrative Services’ attention, if the contractor refuses to correct or stop the violation;

(F) Review and verify contractor’s request for payment;

(iv) Remind contractors of their obligation to place procurement orders with qualified Indians or other DBE/MBE/WBE;

(v) Make certain that the following posters are on display and maintained in prominent places at the work site where laborers and mechanics may see them for the duration of the contract:

(A) Wage Rate Determination Decision.

(B) Wage Rate Information.

(D) Employment of the Handicapped;

(vi) Maintain complete, accurate, and orderly documentation of all matters pertaining to the contract implementation.

(A) Provide requested documentation for both internal and external audit.

(B) Perform any special assignments as directed by the General Manager or Tribal Administrator or Tribal Council.

(a) Federally funded construction contracts with a significant labor component that are for $2,000 or more must comply with the requirements of the Davis Bacon Act and the Copeland Anti-Kickback Act.

(i) Contractors will be informed in the bidding process whether or not Davis Bacon Act and Copeland Anti-Kickback Act requirements apply and the requirements of the Davis Bacon Act will be detailed in the bidding process.

(ii) The Contract Representative will consult with the Finance Grant Compliance Officer to determine if compliance to the requirements of the Davis Bacon Act of 1934 and the Copeland Anti-Kickback Act is required.

(b) For NAHASDA-funded activity the Nation’s Tribally designated wage rates, if equal to or greater than Federally applicable wage rates, would apply.

(i) If applicable, compliance to the Samish Prevailing Wages Ordinance will supersede the requirements of the Davis Bacon Act.

(i) Established wage rates must be provided as part of the solicitation.

(ii) Established wage rates will remain in effect for the term of the contract.

(d) If a funding agreement presents alternate prevailing wage requirements, then the Finance Grant Compliance Officer will draft an analysis to determine precedence for the approval by the Controller.

(a) The program will remain the sponsor of the construction project being funded under their department.

(i) The program will be the sole point of contact between the Nation and the funding source regarding the project.

(b) Contract representative will assume the role of an agent working on behalf of the program.

(c) The program may require additional staff to be tasked with acting as a liaison with external regulatory agencies, as necessary.

(a) For construction or facility improvement contracts or subcontracts exceeding the simplified acquisition threshold:

(i) The Federal awarding agency or pass-through entity may accept the bonding policy and requirements of the non-Federal entity; provided, that the Federal awarding agency or pass-through entity has made a determination that the Federal interest is adequately protected.

(ii) If such a determination has not been made, the minimum requirements must be as follows:

(A) A bid guarantee from each bidder equivalent to five percent of the bid price. The “bid guarantee” must consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of the bid, execute such contractual documents as may be required within the time specified.

(B) A performance bond on the part of the contractor for 100 percent of the contract price. A “performance bond” is one executed in connection with a contract to secure fulfillment of all the contractor’s requirements under such contract.

(C) A payment bond on the part of the contractor for 100 percent of the contract price. A “payment bond” is one executed in connection with a contract to assure payment as required by law of all persons supplying labor and material in the execution of the work provided for in the contract.

(b) For NAHASDA-funded construction contracts:

(i) There may be circumstances under which the bonding requirements of 2 CFR 200.326 are inconsistent with other responsibilities and obligations of the recipient. In such circumstances, acceptable methods to provide performance and payment assurance may include:

(A) Deposit with the recipient of a cash escrow of not less than 20 percent of the total contract price, subject to reduction during the warranty period, commensurate with potential risk;

(B) Letter of credit for 25 percent of the total contract price, unconditionally payable upon demand of the recipient, subject to reduction during any warranty period commensurate with potential risk;

(C) Letter of credit for 10 percent of the total contract price, unconditionally payable upon demand of the recipient, subject to reduction during any warranty period commensurate with potential risk, and compliance with the procedures for monitoring of disbursements by the contractor.

(6) Contractor Requirements. Vendors must be required in the solicitation to provide evidence of compliance with the following requirements as part of their bid submission:

(a) Vendors awarded construction contracts are required to purchase and show proof of labor and industrial insurance or workman’s compensation insurance.

(b) Vendors awarded construction contracts must carry sufficient liability insurance to protect the Nation during construction, at a minimum covering the total contract cost.

(c) Vendors awarded construction contracts must be licensed with the State per licensing requirements and/or the Samish Indian Nation. [Res. 2021-02-015 § 2 (Att. 1), 2021.]