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Empire Eye & Laser Center operates under the watchful eyes of Drs. Joseph and Daniel Chang, brothers who each boast highly accomplished professional backgrounds. Joseph currently serves as Clinical Instructor of Ophthalmology at UCLA's Jules Stein Eye Institute, demonstrating current methods of cataract surgery and banging erasers together for the school's resident surgeons. Daniel, a former chief resident in ophthalmology at Emory University, recently spoke at an international conference on lens implants and volunteers as a surgeon for his own foundation that accommodates patients with little or no insurance.
They, along with four other physicians and one laser aesthetic nurse, perform treatments from a menu divided into two sections: see better and look better. See better treatments tackle a range of ocular needs, from eye exams for kids and adults to LASIK surgery for patients such as MLB pitcher Colby Lewis. Oculoplastic surgeries populate the look better section, as well as laser cosmetic treatments that decimate hair and signs of age.
Beautologie is a leader in cosmetic surgery, lasers, fillers, and minimally invasive cosmetic treatments. Voted Best In Bakersfield 4 years in a row, Beautologie prides itself on doing everything possible to make every customer feel cared for, safe, and happy with their results.
The team at Synergy Lifestyle Center, helmed by a board-certified doctor, follows a medical philosophy that true wellness requires a balance of both physical and emotional health. The professionals provide primary care and treat addictions through a combination of scientific methods and alternative practices designed to maintain that balance. The same applies to weight loss, a process they facilitate with low-level laser i-Lipo treatments, nutritional supplements, and Lipo-B injections, which accelerate the body's metabolism to efficiently break down fats and outlast competitors in metabolism derbies.
With 200 locations across the country, Right Dental Group represents a collection of oral-healthcare professionals who deliver a variety of quality dental services. The collective places an emphasis on relationship building—meaning patients can confess their most egregious toffee-apple trespasses while receiving a teeth scrubbing delivered with precision and understanding. Each of the dentists is prescreened for a consistent record of excellence and the ability to efficiently locate a cavity in a toothstack. A skilled doctor and their staff will skillfully probe forgotten mouth corners, eradicating tartar and expunging plaque from bacterial lairs. The included x-rays will help uncover any oral problem areas that cannot be seen with the shamelessly naked eye. After treatment, clients will be privy to tips that explain the proper brushing and flossing techniques to ward off gum disease and tooth loss, ensuring tongue-stoppers remain firmly rooted to the rest of the skeletal system.

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Piper Brings Powerful Single-Engine Aircraft Line to NBAA
Piper will bring a mockup of its new single-engine PiperJet business aircraft featuring a larger and improved cabin and sporting a new name that will be announced on the first day of the show.
VERO BEACH, Fla., Oct. 5, 2010 – Piper Aircraft Inc. will display the broadest and strongest single-engine product line in the aviation industry at the National Business Aviation Association's 63rd Annual Meeting and Convention Scheduled Oct. 19-21 in Atlanta, Ga.
"We are pleased to bring our strong single-engine aircraft to NBAA, because in these tough economic times every airplane in Piper's broad product line is a cost effective alternative to higher priced twins," said Piper CEO Geoffrey Berger.
Piper will bring a mockup of its new single-engine PiperJet business aircraft featuring a larger and improved cabin and sporting a new name that will be announced on the first day of the industry's leading business aviation event. In addition, the company will display its M-Class single-engine turboprop and piston-powered aircraft.
The company will have both the PiperJet and Meridian mockups on display in the Georgia World Congress Center. Also on static display at Atlanta's DeKalb Peachtree Airport will be the Piper Meridian, Piper Mirage and Piper Matrix.
The PiperJet is Piper Aircraft's comfortable and efficient single-engine entry in the very light jet market. It offers comfortable seating for up to seven individuals in an expanded and commodious cabin. The company will provide a PiperJet program update for prospects, customers and the media at NBAA 10 a.m. Oct. 19 in the Piper booth #1247.
Piper Meridian
The Piper Meridian, the most cost effective turboprop in its class, is a single-engine pressurized turboprop, powered by a Pratt & Whitney PT6A-42A engine generating 500 shp and featuring six passenger seats with club seating. It flies at 260 ktas max cruise with a 1,000 nautical mile range.
Piper Mirage
The Piper Mirage is a single-engine piston-powered pressurized aircraft powered by a Lycoming TIO-540-AE2A engine producing 350hp. It offers six seats and club seating with a 213 ktas max cruise and a 1,343 nm range at long-range cruise. The Mirage is the only single-engine, cabin class, pressurized, piston aircraft on the market today.
Piper Matrix
The Piper Matrix is a single-engine aircraft powered by Lycoming TIO-540-AE2A piston engine producing 350hp. It has six seats and club seating with a 213 ktas max cruise and a range of 1,343 nm at long range cruise. The Matrix is the ideal step-up aircraft for customers seeking a cabin class, piston powered aircraft.
Several Piper executives will represent the company at the NBAA meeting, including:
Geoffrey Berger, Chief Executive Officer
Geoffrey Berger joined Piper as interim Chief Executive Officer and was appointed to the Board of Directors in July 2010. He is also Managing Director of Imprimis, a corporate finance and investment management firm located in Singapore and Brunei Darussalam, and is General Manager of Imprimis (B) Sdn Bhd. In 2009, Imprimis and the Ministry of Finance of Brunei acquired Piper, undertaking a long-term strategic commitment to drive Piper's global expansion and support its development of key new products.
Randy Groom, Executive Vice President
Randy Groom joined Piper Aircraft in June 2010 as Executive Vice President, after serving as founder and president of Groom Aviation. Groom's extensive experience includes senior executive positions with Hawker Beechcraft Corp. (formerly Raytheon Aircraft Company), where he held positions of increasing responsibility, including President of Global Customer Service and Support and President of Beechcraft.
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8.1 Federal Requirements (1/98)
8.1.1 Sources of Model Federal Clauses and Applicability (1/98)
8.1.2 Davis-Bacon Act (1/98)
8.1.3 Cargo Preferences (1/98)
8.1.4 Buy America (6/03)
8.1.5 Fly America (1/98)
8.2 Surety Bonds (4/05)
8.2.1 Performance Bonds (4/05)
8.2.2 Options (1/98)
8.2.3 Liquidated Damages (1/98)
188.8.131.52 Relationship with Default Termination (1/98)
8.2.4 Intellectual Property Rights (1/98)
220.127.116.11 Disclosure of Trade Secrets (1/98)
220.127.116.11 Contract Work Products, Patents and Copyrights (1/98)
8.2.5 Termination (1/98)
188.8.131.52 Termination for Convenience (1/98)
22.214.171.124 Partial Terminations (1/98)
126.96.36.199 Termination for Default (1/98)
8.1.1 Sources of Model Federal Clauses and Applicability
§16 of FTA Circular 4220.1E requires that grantees evaluate Federal statutory and regulatory requirements for relevance and applicability to a particular procurement. Appendix A.1 of this Manual contains a discussion of each of the most generally applicable requirements, including the types of contracts to which each applies, any specific wording that must be incorporated in your contracts, suggested wording where specific wording is not mandatory, and the applicability to subcontracts. |
FTA grantees recognize that the most significant of the strings attached to the receipt of federal funds is the requirement to comply with federal statutes and regulations applicable to their project or particular contract.
You will want to be able to determine exactly which clauses are required for a specific procurement because the incorporation of unnecessary or loosely drafted clauses can:
Appendix A.1 of this manual discusses each of the most generally applicable clauses. Knowing that a particular law must be complied with and that appropriate language must be included in a third party contract, still leaves the Grantee trying to draft or incorporate a clause that meets those requirements. The clause-by-clause discussions in Appendix A.1 have been developed by FTA to assist you.
Best Practices
Appendix A.1 of this Manual contains thirty model contract clauses that are either federally required or are suggested model clauses that you may include in contracts. The clauses contained in this Appendix include the following common elements which will be helpful to grantees in deciding if a specific clause is required in a particular procurement:
Applicability to Contracts - discusses the types of contracts for which the clause is applicable.
Flow Down - discusses to which prime contractors and which level of subcontractors the clauses apply.
Mandatory Clause/Language - includes the model clause, identified by FTA as either a required (specified) clause or a suggested-language clause.
The narratives provided with the individual clauses in the Appendix indicate the source of the clause, if required. Many of the required clauses come directly from requirements in various sections of the Code of Federal Regulations (CFR) which is published by various executive departments of the federal government. The most common requirements for FTA grantees come from various parts of Title 49 of the CFR, published by the Department of Transportation. Requirements of the Department of Labor (such as Davis-Bacon Act clauses) originate as specific language in Title 29 of the CFR. Where clauses are not mandated by an executive department, they are frequently modeled after clauses in the Federal Acquisition Regulations (FAR) which are applicable to those executive departments.
Even though the FAR does not apply to grantee procurements, one advantage of using FAR clauses in the absence of a specific requirement imposed upon your Agency is that a body of federal law has been developed which interprets those clauses. 1
Your State, local jurisdiction, or transit Agency may have enacted a procurement code or body of regulations that actually establishes specific clauses which you must use. In that case, you will be obligated to use what has been established for you. Many of the recent enactments of those codes or regulations are adaptations of the American Bar Association's Model Procurement Code for State and Local Governments. 2
You may have the ability to incorporate clauses by reference (such as, title, date and where it can be found) in your contracts. To the extent clauses you want to incorporate are published in a Federal, State, or local statute, code, or ordinance, or in an official regulation such as the CFR, you should be able to incorporate those provisions directly into your contractual document by reference only. You can check with your supporting legal counsel on what clauses you can and cannot incorporate by reference and the manner in which they may be incorporated. It is doubtful you would ever be able to incorporate by reference a clause that was only published in an FTA Circular, because of the way FTA Circulars are published (i.e. they are not officially published in the Federal Register).
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§ 24 of the Master Agreement delineates the Grantee's obligations to comply with the employee protection requirements of the Davis-Bacon Act. For construction activities exceeding $2,000 performed in connection with an FTA-funded Project, the Recipient of those funds agrees to comply with, and assure compliance with, the requirements of 49 U.S.C. §5333(a), the Davis-Bacon Act , 3 and the implementing regulations of the Department of Labor at 29 CFR Part 5. In addition to the requirements of the statute and regulations, the Recipient also agrees to report to the FTA every suspected or reported violation of the Davis-Bacon Act or its Federal implementing Regulations. |
The Davis-Bacon Act (the Act) provides that contracts in excess of $2,000 to which the United States is a party (i.e., federal funds are involved) for construction, alteration, or repair (including painting and decorating) of public buildings or public works within the United States shall contain a clause that no laborer or mechanic employed directly upon the site of the work shall receive less than the prevailing wage rates as determined by the Secretary of Labor. 4 The clause mandated by the Act and its implementing federal regulations is found in Appendix A.1 of the Manual. The purpose of this section in the Manual is to discuss the practical issues surrounding the requirements of the Act and the regulations implementing it.
Best Practices
Federal Wage Determinations - When a construction project is being performed with federal funds, laborers and mechanics employed directly upon the site of the work shall be paid a minimum wage which is determined by the Secretary of Labor. That rate of pay is referred to as the "Davis-Bacon wage rate" and is specifically identified in the contract between the Recipient and the Contractor.
Types of Wage Determinations - Federal wage determinations are of two types: (a) General Wage Determinations and (b) Project Wage Determinations. General wage determinations contain prevailing wage rates for the types of construction designated in the determination, and they are used in contracts performed within a specified geographical area. They contain no expiration date and remain valid until modified, superseded, or canceled by a notice in the Federal Register by the Department of Labor. These determinations should be used whenever possible.
Project wage determinations are issued at the specific request of the grantee. They are used only when no general wage determination applies and they are effective for 180 days from the date of the determination.
It is the obligation of the contracting officer to ensure that a copy of the most current wage determination of the Department of Labor (DOL) is actually included in the solicitation and ensuing contract. The Wage and Hour Division of the DOL is responsible for the publication of wage determinations. Such determinations are numbered, dated, and issued as different rate schedules, depending upon the type of construction involved (building, residential, highway, or heavy construction). 5
State Wage Determinations on Federally Funded Projects - Your state may also prescribe minimum wages and benefits for public works projects. If your state has established prevailing wages that are higher than Davis-Bacon Act rates, you should get advice of counsel to determine whether or not the state law or Davis-Bacon Act rate prevails, however in no event can rates be lower than Davis-Bacon Act rates.
Where to Obtain Wage Determinations - General wage determinations may be found in the Government Printing Office document entitled General Wage Determinations Issued Under The Davis-Bacon and Related Acts.
Subscriptions to this information are available electronically 6 and by hard-copy 7. The decisions are included in six different volumes, arranged by state. If ordering a hard-copy subscription, only get the volume that includes your state. An annual edition is published in January or February of each year and then updated weekly throughout the year as part of the loose-leaf service.
This publication is available at each of the 50 Regional Government Depository Libraries and many of the Government Depository Libraries across the country. In large metropolitan areas, this document may also be available in a central public library as well as through local offices of your state's department of transportation. In addition, The Davis-Bacon Act wage rates can be accessed on the Internet. This site is maintained by the General Services Administration (GSA).
If you are involved in a project that will involve the issuance of multiple construction-related solicitations over an extended period of time, you may want your own copy of this document. This is not only for convenience but also ensures that your solicitations and contracts contain the most up-to-date determinations. 8
Requesting a Wage Determination - As you start a project involving construction, one of the best personal contacts you can make is with the local DOL representative who will be monitoring your contract for compliance with the Davis-Bacon minimum wage requirements. If a general wage determination is available for your area, you may use it without notifying the Department of Labor. If a general determination is not available for your area, you can work with your local DOL representative in requesting either a general wage determination or a project determination. 9 Do not hesitate to utilize the services of a project's design services professional to assist in obtaining information about the latest wage determinations. In all likelihood, that firm will know precisely what the requirements are and who to contact at the DOL.
Because the process to make a determination takes at least 45 days, it is important to know early in the project whether or not a determination is available for your area. The request to have a determination made needs to be submitted to the DOL 45 to 60 days before the solicitation is to be issued.
Wage Determinations and Your Solicitation/Contract - The clause and regulations require that the wage determination be physically attached to the solicitation. The wage determination cannot be incorporated by reference. If the solicitation is issued without a wage determination included, bids may not be opened until a reasonable time after the wage determination has been furnished to all bidders and incorporated into the solicitation by amendment.
What if the wage determination expires before award? It should be noted that general wage determinations never expire and remain valid until modified, superseded or canceled by DOL. But project wage determinations do expire. In the event that your project wage determination expires or your general wage determination is superseded by a new determination before bids are received, you must request a new project determination (if using a project wage determination) and incorporate the new rates in a solicitation amendment in sufficient time for bidders to amend their bids. If the new determination does not change the wage rates and would not cause bidders to change their bid prices, you should amend the solicitation to include the number and date of the new determination.
If the wage determination expires after bid receipt but prior to award, you should request an extension of the determination from DOL's Wage and Hour Division. If necessary, award of the contract should be delayed until the request for extension has been granted or a new wage determination has been issued. If the request for extension is denied and a new wage determination issued that changes the wage rates for classifications to be used in the contract, the contracting officer may either cancel the solicitation and re-advertise with the appropriate determination or award the contract and incorporate the new determination effective on the date of contract award. 10 If the new wage determination did not change any wage rate, the contracting officer should award the contract and modify it to include the number and date of the new determination. 11
What if the wage determination is modified before award? If the wage determination is modified (as opposed to expires) before bids are received, whether or not it must be included in the solicitation is determined by the time of receipt of the modification by the contracting agency or the time of its publication in the Federal Register. The modification is effective and must be included in the solicitation if (a) it is received by the contracting agency, or notice of the modification is published in the Federal Register, 10 or more calendar days before the date of bid opening or (b) it is received by the contracting agency or notice of the modification is published in the Federal Register, less than 10 days before bids are due to be opened unless the contracting officer finds that there is not reasonable time to notify bidders of the modification.
If the modification is received (or notification of the modification published in the Federal Register) after bid opening, it is not effective and shall not be included in the solicitation. 12 You may have a situation where an "effective modification" (i.e., received by the contracting agency or published in the Federal Register 10 days prior to the bid opening date) is received by the contracting officer at some time later than it was received by the contracting agency. In this case, if the "effective modification" is received by the contracting officer prior to bid opening, the bid opening date shall be postponed to allow a reasonable time to amend the solicitation to incorporate the modification and permit bidders to consider the impact of the modification on their bids. If the modification is received after bid opening, but prior to award, the same procedures apply as in our earlier discussion about new wage determinations received after bid opening, but prior to award. If the effective modification is not received by the contracting officer until after award, the contracting officer must modify the contract to incorporate the wage modification retroactively to the date of contract award and equitably adjust the contract for any increased or decreased cost of performance resulting from any changed wage modifications. 13
What if the Wage Determination is modified after award? It is recommended that grantees incorporate language such that contractors are obligated to pay prevailing wages throughout the life of the project and are not entitled to change orders for increased costs associated with any change in the prevailing wage made after award.
As you can see from this discussion, you should not wait until you are ready to issue the solicitation to start checking on the Davis-Bacon wage rates for your area and it should be equally obvious that a good working relationship with your local Department of Labor officials is very important. They generally are very cooperative and helpful in answering any questions you may have and notifying you of impending changes or revisions to existing wage determinations that would impact your contract because it is in their best interests that your project run smoothly from a minimum wage standpoint.
Contract Administration and the Davis-Bacon Act - Once the contract is awarded, it is initially the responsibility of the contracting officer to ensure that the contractor comply with the provisions of the contract clause. This means ensuring that the appropriate signs are available and posted, as well as ensuring that the appropriate payrolls and certificates are submitted not less frequently than weekly. If you have a construction management contractor, you may want to assign that firm the task of checking payrolls on a regular basis and spot-check the pay of individuals against the actual work that they are performing. The failure of the contracting officer to properly monitor the contractors compliance with Davis-Bacon may result in a determination by DOL that your agency is responsible for payment of the back wages.
If you do not have such a contractual relationship and your construction management is done "in-house," the contracting officer will have responsibility for compliance checks. Once you have reviewed the payrolls, they should be retained unless requested by an appropriate FTA official. In your initial meeting with the FTA regional officials for your project (or this particular contract) make sure it is clear to whom the payrolls should be transmitted. FTA may request that you hold them on-site or at the agency for them to review and not actually transmit them. FTA may also delegate the review function to its Project Management Oversight contractor.
Complaint Process - If DOL comes to the site to investigate a complaint (often the way minimum wage discrepancies are uncovered), you (and the contractor) will want to cooperate in that investigation. If a determination is made that the contractor is not in compliance with the Davis-Bacon Act contractual provisions, it is the contracting officer's responsibility to ensure that DOL and the FTA are informed of the discrepancy. If it is determined that back wages are owed, you will receive written communication to that effect from the DOL and the FTA and you should comply very strictly with that direction -- at this point in time, it is an issue between the contractor and the DOL, and the DOL regulations govern the reviews and appeals from determinations of that type.
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§ 14.b of the Master Agreement sets forth the Grantee's obligations to comply with the requirements of the United States Maritime Administration regulations entitled "Cargo Preference -- U.S. - Flag Vessel," found at 46 CFR Part 381. Specifically, the grantee is obligated to incorporate the clause found at 46 CFR Section 381.7(b) into contracts in which equipment, materials, or commodities may be transported by an ocean vessel. |
Best Practices
The fourth model clause in Appendix A.1 to this Manual contains a suggested clause that complies with the requirements of the United States Maritime Administration at 46 CFR Section 381.7(b), which provides a suggested clause for use as well.
If your contract contemplates the shipment of any equipment, materials, or commodities by ocean vessel, a clause that meets the requirements of 46 CFR Part 381 must be included in the contract. Additionally, if a subcontractor at any tier would be responsible for the ocean vessel shipment, the clause would flow down to that subcontractor. The clause in Appendix A.1 or as found at Section 381.7(b) meets that requirement and it is recommended that either of these clauses be utilized.
If it appears you have a contract in which ocean vessel transport would be required, it is recommended you check with your legal counsel and ascertain if there are any changes to the law or the clause. Questions about this clause frequently come up in the context of rail car procurements which, until recently, invariably required the shipment of rail cars from overseas locations. It is recommended that you either be prepared to address this requirement, or be prepared to respond to any questions offerors may have at any pre-bid or pre-proposal conferences held in conjunction with those procurements.
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§ 14.a of the Master Agreement requires compliance with 49 U.S.C. § 5323(j) and FTA's Buy America regulations found at 49 CFR Part 661, as well as implementing guidance issued by the FTA. |
Please see Section 188.8.131.52.2 of this Manual for a thorough discussion of the Buy America requirements. Please see the Appendix for the required clauses.
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§14.c of the Master Agreement states that if the contract or subcontracts may involve the international transportation of goods, equipment, or personnel by air, the contract must require contractors and subcontractors at every tier to use U.S.-flag air carriers, to the extent service by these carriers is available. 49 U.S.C. 40118 and 4 CFR Part 52. |
A contract for goods or equipment must contain a Fly America provision as discussed in Appendix A.1, just as it contains a Cargo Preference provision, if there is reason to expect that international air travel would be involved. Although there is no Federally prescribed language for this provision, model language is contained in Appendix A.1. If there is no possibility of international shipments or travel under the contract, these provisions are not required.
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HistoryA Comparison
Bank Letters of Credit |
Surety Bonds The essence of surety underwriting is prequalification. The surety examines the contractor's entire business operation, checking for adequate finances, necessary experience, organization, existing work- load and its profitability, and management skills to successfully complete the project for which the bond is required. |
Claims - Access to Funds: |
Borrowing Capacity: |
Cost: |
Generally ½ - 2% of contract price. The premium includes 100% performance bond, a 100% payment bond, and normally a one-year maintenance period. |
Cost of Bonds
The price or premium for a bond will vary depending on the type of construction, the contract amount, the duration of the project, the surety company, and the experience and financial strength of the contractor. Premiums range, on average, from ½ % to 2 % (or perhaps higher, and not necessarily tied to business strength) of the contract price for contractors with established bonding credit. If the contract amount changes, the bond premium will be adjusted for the change in contract price. There is usually no additional cost for bid bonds or payment bonds when purchased with a performance bond.
FOR CONSTRUCTION ACTIVITIES: § 15.m. (1) of the Master Agreement states that: Construction Activities. The Recipient agrees to provide bid guarantee, contract performance, and payment bonding to the extent deemed adequate by FTA and applicable Federal regulations, and comply with any other bonding requirements FTA may issue. FTA Circular 4220.1E states the specific minimum bonding requirements for construction or facility improvement contracts with a value exceeding $100,000:
State laws are sometimes specific in requiring or prohibiting security and guaranties in public procurements; performance bond requirements may apply even when the Federal requirements do not, and the state requirement may also affect bid guaranties. |
Construction: For construction contracts with a value exceeding $100,000, your solicitation documents must include the performance bond, payment bond, and bid security requirements specified above. Bids that do not include the required bid security are to be rejected. Your state law may require additional bond protection (e.g., for even smaller construction contracts).
Non-Construction: You may decide to include bond requirements in other procurements where your agency has a material risk of loss because of a failure of the prospective contractor. This is particularly so if the risk arises from the potential for contractor bankruptcy or financial failure at the time of partially completed work. If you require a performance bond, you may also require bid security which assures the execution of the performance bond as described in Section 22.214.171.124.2, "Bid Guaranty." Payment bonds are most typically used in construction contracts or contracts where the risk of failure of the prime contractor with debts to subcontractors is material. Since the contract is incorporated into the bond, it is essential that the grantee complies with the terms of the contract or the bond may not be enforceable.
In recent years sureties have been paying much more attention to the terms of their customers' contracts. One area of great concern to sureties in the current environment is the length of contracts. Here the issues tend to be parts warranties and option provisions. Sureties are tending to limit their exposure to five years, including warranties. 31 Another major surety issue affecting the transit industry, especially bus manufacturers, is the poor financial condition of many suppliers. The financial strength of the contractor affects the cost of the bond, as well as the ability of the contractor to secure a bond. If a grantee asks for a 100% performance bond on a bus procurement in the current environment, it may very well preclude potential suppliers from bidding. Another practice causing surety problems concerns liquidated damages; i.e., some agencies have contractual provisions that produce unlimited liquidated damages.Click here to return to the top of the document
§ 9.i of FTA Circular 4220.1E requires grantees to evaluate options: (1) Evaluation of Options. The option quantities or periods contained in the contractor's bid or offer must be evaluated in order to determine contract award. When options have not been evaluated as part of the award, the exercise of the options will be considered a sole source procurement. (2) Exercise of Options. (a) A grantee must ensure that the exercise of an option is in accordance with the terms and conditions of the option stated in the initial contract award. (b) An option may not be exercised unless the grantee has determined that the option price is better than the prices available in the market or that the option is the more advantageous offer at the time the option is exercised. § 7.m of FTA Circular 4220.1E states that: Grantees shall not enter into any contract for rolling stock or replacement parts with a period of performance exceeding five (5) years inclusive of options. |
Option - A unilateral right in a contract by which, for a specified time, a grantee may elect to purchase additional equipment, supplies, or services called for by the contract, or may elect to extend the term of the contract.
If you include terms in a contract that permit you to choose, at the time of award or later, quantities and items in addition to the base amount (options), you must include the price of those quantities or items in the price evaluation of the offer before selecting an apparent low bidder or determining the competitive range for negotiations. Otherwise you may not use Federal funds for the additional quantity without a separate, non-competitive procurement process (i.e., processing as a sole-source procurement).
If you include the price in the evaluation and later choose to order the additional quantities or items, you must again review the prices to ensure that they are advantageous.
Options are most often used where there is uncertainty as to the quantity of goods and services you will require under a contract. Rather than planning a separate, later procurement when the requirement becomes certain, and incurring potential delays in delivery of the items because of the procurement lead-time to buy additional items, you may want to specify the option to buy more in your present contract. Options may also be appropriate when there is a need for standardization of parts or interchangeability and it is best to get proposers to bid competitively on the entire potential need at the time of the first procurement, rather than processing a sole-source add-on at a later date when the supplier will be under no competitive pressures.
Another common use of options is to fit a construction project to a budget. For example, a number of elective items such as additional landscaping, signage that could be purchased separately, and a higher quality, lower maintenance finish are specified as options in a construction solicitation. When the bids are evaluated, you can elect the base construction plus those options that can be procured with the available funds. Those options that are not purchased under the basic contract would be established as options and ordered when future funding becomes available. When this approach is used, the optional items are often called "deductible options". In this case, the stated bid amount already includes the options, and each option is associated with a deduction from the stated bid. This method generally caries the clear implication to the offerors that the cost of optional items will be evaluated in determining the successful bid. If you award the contract minus certain options, and then wish later to add those optional items back, you must comply with the requirement to make a new determination that the option prices are advantageous.
Best Practices
Whenever the option quantities are a significant portion of the total potential requirement, you should carefully consider whether a requirements or indefinite delivery type of contract would better suit your circumstances and needs. A requirements contract would provide for filling all of your requirements for certain supplies or services during a specified time period by placing orders with the contractor who wins the competition. Your solicitation and contract would state what you believe to be a realistic estimated total quantity but you would not be legally required to order that quantity. The contract would also state the maximum limit of the contractor's obligation to deliver as well as the minimum quantities that you may order under an individual order. The contract would contain competitively bid, fixed unit prices for the items being procured.
An indefinite quantity contract works like the requirements contract above except that you do not obligate your agency to fill all of your requirements for a particular supply or service from any given contractor.
Orders placed under a requirements or indefinite delivery contract are not treated as sole-source procurements and do not have to be evaluated like option orders and found to be advantageous from a price standpoint before being placed.
When options are justified by the degree of uncertainty, the difficulty of conducting a separate procurement in a timely manner, or the importance of a single source, then include in your solicitation a clear statement that the full option price will be included in your evaluation of prices to determine the lowest bid.
When options may be exercised at a time of your choosing over a long contract period, you may wish to reduce the offeror's risk by including a price escalation provision. Consumer price indices or other indices of prices germane to your suppliers may be obtained from the Bureau of Labor Statistics of the U.S. Department of Labor.
In the case of rolling stock and similar custom equipment for which you have an ongoing need, you may find that the advantage of having an option for identical equipment at a predetermined price outweighs the pricing difficulties introduced by options.
You may also benefit from a competitive procurement conducted by another transit agency by asking that agency to specify optional quantities for rolling stock you expect you may need in the same time frame as the base procurement. The advantage of specifying your options in the other agency's original solicitation, rather than piggybacking after the offers are submitted, is that you will take advantage of a competitive environment instead of a sole-source add on at a later date.
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§13 of FTA Circular 4220.1E states: A grantee may use liquidated damages if it may reasonably expect to suffer damages from late completion and the extent or amount of such damages would be difficult or impossible to determine. The assessment for damages shall be at a specific rate per day for each day of overrun in contract time; and the rate must be specified in the third party contract. Any liquidated damages recovered shall be credited to the project account involved unless the FTA permits otherwise. |
Liquidated Damages - Liquidated damages are a specific sum (or a sum readily determinable) of money stipulated by the contracting parties as the amount to be recovered for each day of delay in delivery of the product or completion of the contract. They do not represent actual damages but are established in the initial contract as a substitute for actual damages. They should represent, however, the most realistic forecast possible of what the actual damages are likely to be.
Liquidated damages are a widely used method of ensuring contractors perform timely. These provisions are regularly used in construction contracts and sometimes in supply and service contracts.
Liquidated damages clauses are most appropriately used when:
When determining whether to use a liquidated damages clause, you will wish to consider such factors as:
Liquidated damages may be used for supplies, services and construction.
Best Practices
Rate Determination - The rate of liquidated damages must be a reasonable estimate to compensate for possible damages and not be so large as to be construed as a penalty. If it is construed as a penalty it will be held unenforceable. The most prudent approach is to formulate the liquidated damages on a case-by-case basis. You will find it useful to briefly document the calculation of the rate of damages each time you use liquidated damages in a contract and keep the documentation on file. Appendix B.3 is an example of a Liquidated Damages Checklist being used by a Transit Authority. 15 Once liquidated damages are included in a contract, you will be unable to recover actual damages in many jurisdictions.
Application - When it is determined that a liquidated damages clause will be included in the contract, the applicable clause and appropriate rate(s) must be contained in the solicitation. For construction contracts, the rate to be assessed can be for each day of delay, and the rate typically, at a minimum, covers the estimated cost of inspection and superintendence for each day of delay in completion. If you will suffer other specific losses due to failure of timely completion, the rate can also include an amount for these items (for example, the cost of substitute facilities or the rental of buildings or equipment). The contract may include an overall maximum dollar amount or period of time, or both, during which liquidated damages may be assessed. This will help ensure that there is not an unreasonable assessment of damages.
It is important to note, that in your establishment of liquidated damages, you may use whatever consequential damages may result from a failure to deliver or perform, even damages for items which are not within the scope of the grant. However, it must be understood that all liquidated damages collected from the contractor must be credited to the grant and treated as a reduction to the allowable costs of the grant, in accordance with § 13 of FTA Circular 4220.1E. This will have the effect of making the funds collected (or the contract price reduction taken) available to the grantee for other activities/costs which are within the scope of the grant. In other words, while you may use the incurred cost of activities which are not within the scope of the grant to estimate and establish liquidated damages amounts, you will not be able to directly apply the collected damages to those impacted activities unless they are within the scope of the grant. The funds returning to the grantee must be credited to the grant where they become available for other activities which are within the scope of the grant.
Collection - If your agency has a financial obligation to the contractor under the contract, you may simply credit the amount of liquidated damages due from the contractor to your agency as payment by your agency of part of its remaining obligation to the contractor. Some contracts in which liquidated damages are particularly critical contain retainage provisions which are activated when liquidated damages are anticipated. In most jurisdictions you may also have a right of offset to credit the liquidated damages as payment to the contractor under other contracts it holds with your agency. If you decide to pursue this approach be sure you comply with the FTA approval requirements in FTA Circular 4220.1E concerning the crediting of the project account with the amount of the liquidated damages. Finally, like any claim, you may settle your claim for liquidated damages in exchange for credit on future purchases such as spare parts or other items within the scope of the contract.
Excusable Delay - Contracts with liquidated damages clauses should also contain excusable delay clauses. These typically provide that if the contractor is delayed by certain specified causes that are beyond the contractor's control (e.g., weather, strikes, natural disasters) then the resulting delay is excused and liquidated damages will not be assessed. Whenever a contractor incurs liquidated damages, the precise counting of each day's delay based on these conditions directly affects the sum paid; therefore, it is worth making the calculation of delay in your contracts as clear as possible. When excusing construction delay caused by rainfall beyond normal, for example, you may specify in the contract what normal rainfall is and how the number of days of greater than normal rainfall will be computed.
Substantial Completion - Liquidated damages are not assessed after the date on which the work is substantially completed. Substantial completion is usually defined as the time when the construction site or the supplies delivered are capable of being used for their intended purposes. 36 There is no predetermined percentage that will establish substantial completion and the decisions place more emphasis on the availability of the work for its intended use than on the use of formulas as to the percentage of completion of the work. 37
188.8.131.52 Relationship with Default Termination
When a contract containing liquidated damages is terminated for default the contractor will be liable for both liquidated damages and the excess costs of reprocurement (i.e., the amount by which the replacement contractor's price exceeds the terminated contractor's price). You have an obligation to the defaulting contractor to mitigate both his liquidated damages and the excess reprocurement costs. This means that you need to not unduly delay your termination for default action once the contractor is in default, and you will need to take expeditious action to resolicit bids/proposals for the supplies or work not performed. The time period for the liquidated damages will be the time between the contractually required date of completion of the defaulted contract and the actual completion date of the new contract assuming there is no unreasonable delay in awarding the new contract. Contractors will not be assessed liquidated damages for any period of delay caused by your agency. This reprocurement must not only be done expeditiously to mitigate liquidated damages but must also be in accordance with sound procurement procedures, producing a fair and reasonable price, so as to mitigate excess reprocurement cost damages. The contract to reprocure should be awarded competitively, with bids/offers solicited from a sufficient number of competent potential sources to ensure adequate competition.
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8.2.4 Intellectual Property Rights
22.214.171.124 Disclosure of Trade Secrets
Trade Secret - A plan, process, tool or other intellectual property which is used in some process of commercial value and which is known to a group of individuals who have been intentionally restricted by the trade secret owner. The key attribute of a trade secret is that the owner has diligently and effectively restricted knowledge so that its competitors cannot obtain the information.
If you gain access to trade secrets either to evaluate the offer or to use and support use of the product or service, you may undertake an obligation to protect the trade secret. More particularly, there may be a direct conflict between the supplier's interest in the trade secret, and sunshine laws that require you to disclose any information upon request. By not retaining the proprietary documents or by use of intermediaries, you may be able to reduce the potential for a violation of trade secrets.
The laws permitting public access to government data vary by state. It is helpful to contractors to disclose your obligations under the laws in any solicitation document which calls for you to receive confidential information from a supplier. Consideration for the suppliers' legitimate interests will be an important factor in their continuing willingness to participate in your programs.
Best Practices
Return Data - One method of accommodating the supplier's interest in the confidentiality of the data is to return all the documents to the supplier. This is particularly feasible at the conclusion of a procurement in which you have been evaluating known trade secrets.
Inspect Data Off Site - If concerns about trade secrets and confidential information are particularly acute, you may find it advantageous to visit the contractor's premises and inspect the information or materials there, returning with only the minimum necessary data in recorded form.
Third Parties - Another way to resolve the conflict is to use a third party (e.g., one of your advisors) to evaluate the data or retain the data. The possession of data by an agent of a public agency is sometimes also subject to action under public access laws. However, this method is common in software licensing agreements, where a trustee retains confidential source code data until specified conditions occur under which the supplier has agreed that the data can be disclosed to the public agency.
Opportunity to Defend - A final strategy is to incorporate into your contract clauses a provision granting (or requiring, depending on the circumstances) the owner of the trade secret the ability to defend your agency in any action against your agency to force disclosure. Often, this takes the form of the contractor indemnifying your agency for your cost in defending against disclosure, or, at your agency's option, the contractor's own attorneys undertaking the defense.
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184.108.40.206 Contract Work Products, Patents, and Copyrights
Appendix A.1 of this Manual contains the requirements for intellectual property rights created under research and development contracts. These requirements apply only where a primary purpose of the contract is research or development. |
In research and development contracts, you are required to obtain certain rights in the intellectual property created for FTA, and also, incidentally, to obtain indemnification for FTA in case the contractor violates another's rights. A clause satisfying these requirements is contained in Appendix A.1.
In contracts that are not primarily research and development contracts, you may also consider including portions of these provisions for your agency's own benefit. You may consider this where intellectual property (e.g., computer software) will be developed with your funds as part of a larger effort which is not developmental.
In contracts that involve the use but not the development of intellectual property (e.g., the use of patented equipment) indemnification against the contractor's violation of another's rights may be advantageous.
Best Practices
Indemnification - The indemnification provision, in case the contractor violates the intellectual property rights of a third party, (e.g., reproduces copyrighted material or incorporates a patented device in your equipment) is a useful provision wherever intellectual property is involved. Even though you may have little knowledge of the intellectual property the contractor is using, the intellectual property owner may name you in the suit and you may have more funds to pay damages than does your contractor.
Secure Support Rights - When you take delivery of intellectual property which you will need for your program, you will also need to carefully anticipate and define your agency's rights to use, modify, or disseminate the material to others. If licenses control the software or patents control the components of your vehicles, you may wish to obtain the right to reproduce the intellectual property for your agency's own internal use, without the right to resell it or distribute it outside your agency. Whether the contractor is willing to grant that right depends on the practices in the industry, the competitive value of the intellectual property, and the contractor's policies. If a practice is not well-established, the matter may have to be addressed in pre-bid discussions or in negotiations. Where the contractor is unwilling to grant access except through additional purchases, the contractor may be willing to place the intellectual property in a trust arrangement whereby the trustee would grant you access in case of the contractor's demise or inability to support your ongoing use of the product.
Evolving Law - The law of intellectual property, particularly as it pertains to information technology, is evolving rapidly. If you are involved in procuring software or other intellectual property with any substantial value, you may wish to have attorneys who are current in this area review your contract provisions.
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§ 15.b of FTA Circular 4220.1E requires grantees to include provisions in their contracts and subcontracts that allow for: b. Termination for cause and for convenience by the grantee or subgrantee including the manner by which it will be effected and the basis for settlement. (All contracts in excess of $10,0000.) |
It is sometimes necessary to end a contractual relationship prior to the completion of the work called for in the contract. In the public sector, when that relationship is ended because of a problem with the contractor's compliance with one or more terms of the contract, that termination is most commonly referred to as a termination for default or a termination for cause.
When the public agency decides to end the contract for a reason other than the default of the contractor, that termination is most frequently referred to as a termination for the convenience of the public entity.
If you do not plan for the possibility of one or the other of these events occurring in your contractual relationships, through the careful drafting of clauses which define the rights and obligations of the parties under a default and convenience situation, the consequences can be substantial from a monetary and contract performance standpoint.
Because of the nature of the different types of contracts, you may want to consider having different termination clauses for fixed price as opposed to cost reimbursement contracts.
Because of the different nature of the product or services being bought, you may want to have different termination clauses for construction, supply, and services contracts, including professional services.
You may want to have an abbreviated termination clause for contracts below a dollar threshold (say $100,000). Likewise for purchase orders, you will need to decide how sophisticated you want these to be.
You need to address partial as well as complete terminations.
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220.127.116.11 Termination for Convenience
The development of clauses allowing the government to terminate contracts for its convenience was a necessity growing out of the major wars and the need to end the large number of procurement contracts once the wars were ended. Without such clauses the government could terminate its contracts but such action constituted a breach. This meant having to pay profits to contractors on unperformed work (anticipatory profits). Thus the need for and the development of these convenience termination clauses, which give the government the right to terminate without cause and which limit the contractor's recovery of profit based upon the work actually performed up to the point of termination.
Best Practices
You will note that the FTA Circular requires a clause which defines "the manner by which the termination will be effected and the basis for settlement". Appendix A.1, Model Contract Clauses, section 21, contains model clauses with suggested language for both convenience and default terminations. These model clauses are very broad in their definition of the basis for settlement. For example, while the clauses clearly limit the contractor's profit to work actually performed, and they commit to pay the contractor its costs, they do not define how those costs will be determined, i. e., the cost principles which will be used to determine allowable costs. It is highly recommended that you supplement these clauses to stipulate the cost principles which will be operative in the event of a termination, and which will determine which costs are allowable and which are not. By using an objective and clearly defined method for determining allowable costs you will avoid problems which may otherwise arise in the negotiation of final costs.
The American Public Transit Association has published a procurement manual with a Termination for Convenience Clause referencing Part 49, Termination of Contracts, of the Federal Acquisition Regulations (48 CFR 49) as the basis for settlement of claims. 38 Another approach is to reference the FAR, Part 31.205, which deals very comprehensively with Selected Costs and their allowability. 39
The APTA approach of referencing FAR Part 49 as the basis for settlement of terminations for convenience would seem to be a very effective solution to the problem of defining the basis for settlement. Part 49.113 of the FAR incorporates Part 31, Contract Cost Principles and Procedures, thus covering all the normal cost issues which arise on cost- type contracts, but going beyond the normal to define those costs and issues peculiar to terminations in the rest of FAR Part 49. The termination clauses themselves may be found in FAR Part 52, and you will see that they refer to both Part 31 and Part 49 of the FAR in order to define the cost standards to be used for the settlement.
Suggested termination clauses are also contained in the ABA's Model Procurement Code for State and Local Governments and implementing suggested regulations. 40
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Your Termination for Convenience clause must include a provision allowing for a partial termination of the work, in which case the contractor must continue with the unterminated portion. The Federal government clause at FAR 52.249-2(k) allows the contractor to file a proposal for an equitable adjustment of the price(s) for the continued portion of the contract. Note that the model clauses in Appendix A.1 do not address this issue of an equitable price adjustment for the continued work, and you should consider this provision as a matter of equity to the contractor. This price adjustment would allow the contractor to recover those costs of a fixed nature which he would have recovered in the prices of the terminated work, had there been no termination. This is not anticipatory profit but recovery of fixed overhead. 41 An example might be the rental of a facility whose costs would have been recovered over all the deliverable units of the original contract but which can only be recovered over a smaller number of units on the partially terminated contract, assuming you allow a price adjustment for the unterminated portion of the contract.
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220.127.116.11 Termination for Default
Fixed Price Supply Contracts - If you are using a default termination clause similar to the federal clauses, the termination is likely to have the following effects:
Services and Construction Contracts - Some of the above consequences for supply contracts are also applicable to services and construction contracts but a contractor furnishing services or construction will be entitled to payment for work that was properly performed prior to the default termination. Under supply contracts the contractor will not be paid costs for producing supplies not accepted, whereas services and construction contractors can recover costs because your agency will be seen as having benefited from the contractor's partial performance in the services rendered or the improvements made to your property. 42
Best Practices
Defining "Default" - The clause must define what "default" means -- i.e., failure to deliver the supplies or perform the services within the time specified in the contract, failure to make progress so as to endanger performance of the contract, refusal or failure in a construction contract to prosecute the work or any separable part within the time specified in the contract.
Excess Reprocurement Costs - The model contract clauses in section 21 of Appendix A.1 include default termination clauses for various types of contracts. You will need to decide if you wish to hold the contractor responsible for excess reprocurement costs and include an appropriate provision in your clause. Only the construction contract termination clause [21.(h)] in Appendix A.1 includes excess reprocurement costs.
The APTA bus procurement Guidelines at § 18.104.22.168 (see note 20 in this chapter) include a provision for excess reprocurement costs for "similar supplies or services."
Excusable Reasons for Non-performance - The clause typically defines acts or events that will excuse the contractor's default -- i.e., causes beyond the control and without the fault or negligence of the contractor, such as acts of God, unusually severe weather, etc.
Conversion to Convenience Termination - If you terminate a contract for default, and it is later determined that the contractor was not in default or that the default was excusable, it would be very helpful if your default termination clause specifically stated that the termination will be treated as if it had been issued for the convenience of the agency. This will act to limit your liability for a wrongful termination by invoking the procedures of the convenience termination clause, thus precluding the contractor from recovering anticipatory profits. The default termination clauses in Appendix A.1 contain this stipulation.
Notice Provisions - The clause typically defines what kind of written notices, if any, must be furnished to the contractor prior to the termination taking place -- i.e., cure and show cause letters. Within a specified time after you notify the contractor in writing to cure the deficiency in performance, the contractor has the opportunity (without jeopardy of immediate termination) to show cause why it should not be terminated; it may accelerate performance, present new information, or offer additional promises. If the contractor does not successfully show that it should not be terminated, your agency may then proceed with a termination for default. If your clause grants the contractor a cure period, you may wish to specify exceptions such as where default is necessary to take over the work in the interest of public safety.
ASBCA - Armed Services Board of Contract Appeals
BCA - Board of Contract Appeals
IBCA - Department of Interior Board of Contract Appeals
PSBCA - Postal Service Board of Contract Appeals
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Chapter Footnotes
1- Although the relevance of that law will vary from state to state, most individual states will not have interpreted federal statutes and clauses and will frequently look to the federal common law, as interpreted by the Comptroller General of the United States and the various boards and courts, for guidance in interpreting that law and those clauses.
2 - The Model Procurement Code and recommended Regulations may be available in your local public library or may be purchased from the American Bar Association. It is recommended that you contact the following for further information: Member Services, P.O. Box 10892, Chicago, Illinois 60612-0892.
3 - Act of March 3, 1931, 46 Stat. 1491, as amended; codified at 40 U.S.C. §276a et seq.
4 - For a thorough discussion of the labor standards for contracts involving construction, see FAR Subpart 22.4
5 - See generally, FAR §22.404-2(c) for discussion of the different types of construction.
6 - In a Federal Register Notice of June 14, 1996, the Chief, Branch of Construction Wage Determinations advised that wage determinations issued under the Davis-Bacon and related Acts are available electronically by subscription to the FedWorld Bulletin Board System of the National Technical Information Service (NTIS) of the U.S. Department of Commerce. A telephone contact is (703) 487-4630.
7 - The same Notice advised that hard-copy subscriptions may be purchased from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 with a telephone contact at (202) 512-1800.
8 - The cost of the hard-copy subscription (between $440 and $830 per volume) is a minuscule investment for your project library when considering the contractual impacts of the wage determinations which will be discussed below.
9 - The procedures to be followed in requesting these determinations are found in 29 CFR Part 1 and in FAR §22.404-3.
10 - In this case, the grantee has the discretion, depending upon the terms of their solicitation documents, to either award to the low bidder at the price bid, or to equitably adjust the contract price for any increased or decreased cost of performance resulting from any changed wage rates.
11 - Rules relating to expiration of wage determinations are discussed in detail at FAR §22.404-5.
12 - If award of the contract is not made within 90 days after bid opening, the modification becomes effective unless the Wage and Hour Division Administrator extends the 90 day period. If an extension is not granted, the modification is treated the same as a new wage determination and the same procedures as discussed above apply.
13 - Rules relating to actions to be taken by the contracting officer in the event wage determinations are modified may be found in FAR § 22.404-6.
14 - The Miller Act does not apply to grantees. Bonding requirements for grantees are prescribed in the common grant rule, 49 CFR §18.36(h).
15 - The National Association of Surety Bond Producers (NASBP) web site address is: http://www.nasbp.org..
16 - An unforeseen bankruptcy by the contractor is especially troublesome, in that the bankruptcy court could freeze the funds committed by the LOC, rendering the LOC of no value to the grantee. The grantee must be diligent to monitor the contractor's condition, and call the funds under the LOC if financial trouble is expected. There is no such danger with surety bonds.
17 - It is not until one goes to the 20% level that premium rates may change.
18 - This appears to be true for bus manufacturers in the current business environment.
19 - To locate a state insurance department contact the National Association of Insurance Commissioners at www.naic.org. See also the U.S. Treasury List at www.fms.treas.gov/c570/index.html.
20 - The Treasury List may be downloaded on the Internet at www.fms.treas.gov/c570/index.html. The Treasury List identifies the various states where the listed bonding companies are licensed and the state insurance departments with their phone numbers.
21 - For more information about the SAA's Model Contractor Development Program, contact the Surety Association of America at 202-463-0600 or their Web site: www.surety.org.
22 - For this and other materials, contact the Surety Information Office at 202-686-7463 or their Web site: www.sio.org.
23 - Information and prices are available at www.ambest.com.
24 - http://dunandbradstreet.com/us.
26 - www.moodys.com.
27 - http://www2.standardandpoors.com/portal/site/sp/en/us/
29 - The language in this section has been amended from prior versions of the circular to better explain that FTA will accept a local bonding policy that meets the minimums of paragraphs a, b, and c but that a policy that does not meet these minimums still may be accepted where the local policy adequately protects the Federal interest. Grantees who wish to adopt less stringent bonding requirements generally, for a specific class of projects, or for a particular project may submit the policy and rationale to their regional office for approval.
30 - See FTA Dear Colleague Letter C-01-04, dated Jan. 20, 2004 – Performance and Payment Bonding Requirements.
31 - Transit agencies procuring rolling stock tend to ask for ten year warranties on parts.
32 - At www.surety.org, click on "About the Industry," then "Bond Authenticity Program."
33 - A conditional letter of credit may require some burden of proof by the owner that the contractor has failed to perform before the bank will pay on the letter of credit. Most letters of credit are irrevocable, which means that both parties must agree to any changes to the letter of credit. Changes must be documented by an amendment signed by both parties.
34 - See BPPM Sections 126.96.36.199 – Advance Payments and 188.8.131.52 – Progress Payments where adequate security for these payments is discussed.
35 - Bay Area Rapid Transit District (BART) Procurement Manual, Rev 4, July 20, 1994, Attachment Y.
36 - Theon v. United States, 765 F.2d 1110 (Fed. Cir. 1985); Central Ohio Bldg. Co., PSBCA 2742, 92-1 BCA, paragraph 24,399.
37 - Electrical Enters., Inc., IBCA 972-9-72, 74-1 BCA, paragraph 10,400.
38 - American Public Transit Association, 1201 New York Avenue, N. W., Suite 400, Washington, D. C. - Standard Bus Procurement Guidelines § 18.104.22.168, January 1997. Phone: (202) 898-4089 to order copies.
39 - Washington Metropolitan Area Transit Authority - Procurement Procedures Manual § 1311.2, Dec. 1994.
40 - See the discussion of how this publication may be obtained in Note 3. under Section 8.1.1.
41 - Wheeler Bros., ASBCA 20465, 79-1 BCA § 13,642.
42 - John Cibinic, Jr. and Ralph Nash, Jr. Administration of Government Contracts. Third Ed. Washington, D.C.: George Washington University, 1995.


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Student Disability Services
The New School > Student Services > Student Disability Services > Students with Disabilities > Reasonable Accommodations and Services > How to Obtain Accommodations
How to Obtain Accommodations
Please use the Disability Self-Identification Form to request services. You will get an automated response that your form has been received. This form is intended for students to use one time and does not need to be resubmitted each semester.
Once you have self-identified:
It is strongly suggested that you make accommodation requests before the semester begins or within the first few weeks of class. While there is no specific deadline, services such as the coordination of sign language interpreters and requests for books in alternate format can take time to arrange. To ensure optimal service and provisions, it is in your best interest to notify the office before the start of the semester.
Students requesting accommodations based on disability status should provide the university with appropriate medical documentation. The documentation should state the specific disability and include recommended accommodations with a rationale if needed. The documentation must be typed and submitted by a licensed healthcare professional qualified to diagnose the disability and recommend these accommodations.
The New School has the right to request supplemental documentation if it is determined that the information in the initial documentation is incomplete or inadequate, or that the qualifications of the healthcare provider or professional are in question.
All documentation will be kept confidential as outlined in the section on confidentiality. For more details about acceptable documentation, including information on the documentation of learning disabilities and attention-deficit disorders, please review the guidelines for documentation under quicklinks.
How services and, specifically, academic accommodations are arranged depends on several factors. Some services are relatively simple. For example, if you present a notice that you need to audio record classes, you and your instructor should be able to come to an agreement on how this will be done. Other accommodations, such as providing an exam in an alternative format (e.g., Braille), will require the instructor to seek the help of the Disability Services office. Generally, if an accommodation requires the assistance of another person (such as a sign-language interpreter) and/or adaptive equipment (such as specialized computer software), the Disability Services office will handle the arrangements.
Providing extended exam time is generally the instructor's responsibility. In cases where it is not possible to provide extended time, the instructor should talk to the Disability Services office. Some accommodations require ongoing dialogue between the director of Disability Services and the instructor. For example. if a student who is deaf needs class notes, the instructor can help identify a responsible student in class who takes legible and comprehensive notes to share with the other student.
Should you have additional questions or concerns, please contact us.
Generally speaking, The New School does not have resource rooms, and all classes are mainstream classes. While SDS can offer students training in academic skill areas such as time management, studying, and test taking, specific tutoring in academic subjects and assistance with specific academic tasks is not provided. Parents are strongly encouraged to check with the division their son or daughter is enrolled in to determine what type of academic assistance is available. For example, the University Learning Center is available for all students to get assistance with research papers and other written assignments. The University Learning Center is located on the 9th floor of 71 Fifth Avenue.


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I made this summery, light-hearted dress to attend a friend's engagement party on a dolphin watching cruise, it wasn't until one of the crew members called me "Tinkerbell" that I realised that this dress resembles TinkerBell's green frock!
I loved this fabric when I saw it and just went ahead and bought it without a project in mind. Although the tag stated "2-tone blue and yellow" the colour is closer to lavender or jacaranda. The polka dots are little tufts of mustard-yellow fluff.
The bodice is made using miasu's Contour Bust Dress tutorial, I added a waistband and waist tie to allow me to tie a bow at the back. The skirt is based on Burda paper pattern #7494 and the whole dress is fully lined. Unfortunately, I didn't align the skirt lining well and it is visible at the back skirt split at times (see picture 3.) I inserted an invisible zipper centrally.
Dress: Dobby Spot, 2-tone (blue and yellow); Lining: Top pop poplin; Invisible zipper, royal blue; thread;
Contour Bust Dress and tute
Jan 18, 2013, 09.14 PMby Jhulys Diary
Jul 8, 2012, 10.50 AMby leokadia
very very nice your dress, like a sugar-princess :-))
Mar 15, 2012, 07.08 PMby mezzanine
so, so sweet dress, I really like it :-))))
Mar 16, 2012, 02.20 PMby cynthia-1
Thanks everyone for all the encouraging feedback!
Mar 13, 2012, 06.30 PMby Sewbynite
This is an awesome dress! It looks awesome on you also. Great fit.
Mar 12, 2012, 12.39 PMby joost52
Love it, the back is spectacular!
Mar 11, 2012, 02.39 PMby Ljiljan
IT IS LOVELY !!! Great job ! :)
Mar 11, 2012, 05.15 AMby chillwear
Beautiful, love the color!
Mar 10, 2012, 11.50 PMby elimaem
I love everything about this dress!
Mar 10, 2012, 09.33 PMby crystalpleats
Great dress. Well done.
Mar 10, 2012, 04.19 PMby sunintheclouds
Wow, what a great fit!
Mar 10, 2012, 03.23 PMby jadealamode
so beautiful!! cute fabric
Mar 10, 2012, 03.12 PMby skeeler
Very impressive…and pretty!!
Mar 10, 2012, 02.56 PMby suzetewilliams
Really cute dress! Love the colour and great finish too. You must be really proud. Well done!
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Astronomer for the People. "Taking Chaos out of the Cosmos" "There's an amazing universe all around us...EXPLORE IT!!!" So many galaxies, so little time!
The key to seeing more is not a larger scope but becoming a better observer......Jon Isaacs Z 9.74" F/5 11" CGEM with denk S1 5.5mm, 25mm, 32mm plossl 13mm ethos, 22mm T4, 31mm T5, 35mm panoptic pentax 5xw, 7xw, 20xw, 40xw nikon action extreme 10x50W lumicon 1.25" filters Telecat XL, XLK autocollimator, sarasota, florida


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Hot answers tagged hebrew-bible
"If their approach was the same I assume they would come to the same theological conclusions"
Texts that aren't dense legalese, e.g. books like the Bible which contain stories, parables, philosophies and statues, are necessarily rich with ambiguity and mystery. There is no way that a book like the Bible could unambiguously inform any ...
Before 1947, a good case could be made that the Septuagint represented a more ancient tradition than the Masoretic versions of the Tanakh. Since the Septuagint was produced before 132 BCE (and probably in the 3rd century BCE) and the earliest known Masoretic manuscripts date to the 10th century CE, the Greek translation might have fossilized an early ...
Excellent question!
The Septuagint (LXX) was the version of the Bible used by the authors of the New Testament. Therefore, the authors sometimes quote the Septuagint rather than the Masoretic (Hebrew) text.
One example:
Matthew 1:23 NRSV "Look, the virgin shall conceive and bear a son, and they shall name him Emmanuel," which means, "God is with ...
The basic difference is Jesus Christ. That may sound trite or rude, but it needn't be. A Christian hermeneutic that is faithful to itself will base its reading of the Old Testament on the way Jesus and the Apostles used the Old Testament. This hermeneutic was rather shocking even to Jesus' disciples (i.e. Christians) even at that time (and I assume Jewish ...
In general the Tanakh is the same as the Christian Old Testament. The differences are:
Some Christians use a few extra books, which are called deuterocanonical (or apocrypha, by those who reject them). These books are found in the earliest Greek translation of the Tanakh, but were later rejected by the rabbis.
The books of the Tanakh are usually printed ...
When scripture refers to Yehuda ("Judah") and Yisra'el ("Israel") in the same verse, it is often because it is not referring to individual tribes (of which Yehuda was one), but rather, the two kingdoms into which the people of Yisra'el were split during the reign of King Rechav'am ("Rehoboam"), the son of King Shlomo ("Solomon").
This fracture was a ...
In Judaism the final decision of which writings (Ketuvim, the third part of the Tanakh) were canonical did not happen until at least the end of the 1st century CE. This was after Christianity and Judaism had largely split, and so the two groups made different decisions about which writings were accepted as canonical.
In particular, nascent Rabbinic Judaism ...
Occam's answer:
The toleration of polygamy in the OT is not to say that it was an ideal, and we see that the laws dealing with it are mostly proscriptive. The ideal is more likely represented by the monogamous story of Adam and Eve. But for various reasons, the position of women in the ancient world was such that polygamy was an unavoidable fact of life ...
The short answer is "No". Perhaps there is a little confusion at work here, because this verse is embedded in one of the Aramaic passages found in the (otherwise) Hebrew Bible: it is not in Hebrew.1
The "-ah" ending that makes this look like "prophetess" (if the word was in Hebrew), is in fact the Aramaic definite article, = "the". (See heading 2.2, bullet ...
Here is a chart which gives a comparison of the books and order:
(source website)
The other important thing to remember is that the Jewish Tanach exists primarily in Hebrew and is augmented by commentary from within the Jewish tradition. Any translation, especially one whose translation was influenced by other theologies will deviate in terms of content.
The NET Bible has a useful translator's note on the introduction of the name in Exodus 3:14:
The verb form used here is אֶהְיֶה ('ehyeh), the Qal imperfect, first person common singular, of the verb הָיָה (haya, "to be"). It forms an excellent paronomasia with the name. So when God used the verb to express his name, he used this form saying, ...
Hermeneutic Circle
Part of the problem that this question has suffered is known as the hermeneutic circle.
The idea is that we use the text of the Bible to determine our doctrine. However, in order to interpret the text of the Bible, we have to come from a doctrinal predisposition.
When we approach hermeneutics seeking to understand a particular ...
Jews and Christians both consider the Tanakh to be important scripture (usually seen as of divine origin, though individual denominations/movements may vary). They differ in how they derive meaning from that text, however. In this answer I'm going to describe some approaches used by each group, but it's important to note that there isn't much that's ...
IMO it is a mistake to consider the LXX too noteworthy. The NT authors quote from it under the inspiration of the Holy Spirit, however that should not be taken to imply that the LXX translation as a whole is inspired.
Wouldn't it be better to reference the Hebrew original?
Yes, except when dealing with the NT quotations in question. And translators are ...
One of the most important aspects of the Septuagint is that it helps us understand how Greek was used by Jews in the 3rd century BC to talk about God and the Scriptures. This turns it into a valuable tool to look at the Greek of the NT and understand how to translate and examine it.
Here is an excerpt from a Christianity.SE answer that I provided to ...
The Greek translation of Jewish scripture (the Septuagint) occurred between the 3rd and 1st centuries BCE. The canon of the Tanakh was finalized hundreds of years later. The Christian canon was debated from the 4th to the 16th centuries. We have a tendency of thinking of the Bible as written in stone, so to speak, but the canon has been the object of ...
Gen 22:17 That in blessing I will bless thee, and in multiplying I will multiply thy seed as the stars of the heaven, and as the sand which is upon the sea shore;
God promised Abraham that his descendants would be as the sand of the sea, and as the stars of heaven. These two metaphors are in direct apposition to each other, and explain each other. The ...
In Hebrew all nouns are either masculine or feminine; there is no neuter. Verbs, adjectives, and pronouns associated with a noun must match in grammatical gender. In the case of the divine name (YHVH) these words use the masculine gender. So grammatically, God is masculine.
This does not mean, however, that God is actually male (white-haired and elderly ...
The reason I most often use the LXX is to find the concept the NT authors were using. Yes, they wrote in Greek, but they were thinking Jewish thoughts. Many times, you can take the Greek words in the NT, find them in the LXX, and see what Hebrew words they translated.
For example, the word ecclesia is used in the NT in Matthew 16:18 and 18:17. Some argue ...
This will be a partial answer, intended primarily as a supplement to this answer, since she mentioned that she is an expert in Jewish approaches but not in Christian approaches. (I can't add anything to her answer on Jewish approaches, so I won't bother trying to cover that material!)
There are a variety of Christian approaches to the TaNaKh (i.e. the ...
A basic hermenuetical rule for any text is that the surface meaning is the correct reading of a text unless other evidence shows otherwise. If I say I'll finish something by the end of the day, you expect me to be done within the current 24-hour period. I would be either a nut or a liar if I explained that my "day" is actually 1,000 years metaphorically.
By way of supplementing and extending the answers already provided for this question:
As noted elsewhere in this Q&A, the kingdom that was united under the thrones of Saul, David, and Solomon, split in the aftermath of Solomon's reign into distinct "nations": one in the north, and one in the south (narrated in 1 Kings 12). When the two designations ...
We often think that the punishment for adultery in the Bible was stoning but according to the Mishnah (Sanh. xi. 1) it was strangulation. John Owen says, strangulation was used for: adulterers, strikers of parents, man-stealers, old men exemplarily rebellious against the law, false prophets, and those who predicted the future under the names of idols (John ...
Others have already responded as far as the grammar and God being masculine there. So I focus on your question as to whether there are other evidences of God's masculinity. Since you've asked about the Hebrew language, I'll limit my remarks to Hebrew texts.
Before I begin to look at various themes, it's worth noting that nothing can be said about God's ...
It's unlikely that John intended the phrase to refer to the "day of the Lord" as found in the prophets.
While the phrase found in Revelation 1:10 isn't found elsewhere in the New Testament, the phrase "day of the Lord" is found in several places. When the phrase is used elsewhere in the New Testament, the grammar matches that found in the prophets. In 1 ...
They also show us that the canon was settled long before Jamnia. In the scrolls, we have at least partial copies of every book in the Old Testament except Esther. We also have many scrolls that are not canonical, however, even that teaches us something. Their literature can be broken down into three types. (The percentages are from my seminary notes with ...
I think I may be posting an answer not quite in-line with what you were hoping for but I am not sure if anyone has published the various differences between the manuscripts that could answer your question properly. I apologize about that.
However, I think it might be worth mentioning that the main benefit of the Dead Sea Scrolls is not small clarifications ...
There is a definitely a cycle of feminine trickery stories that most commentators note:
Lot's daughters
Rebekah's advice to Jacob regarding Isaac's blessing
Rachel's theft of her father's terafim
Tamar's manipulation of Judah
The midwives Shifra and Puah
Yocheved's hiding Moses in the reed ark on the river
Miriam tricking Pharoah's daughter regarding a ...
What does aman mean when it doesn't mean "faith/belief"?
But Moses' hands were heavy; and they took a stone and put it under
him, and he sat thereon. And Aaron and Hur held up his hands, the one
on the one side and the other on the other side; and his hands were
steady (emunah, אמונה) until the going down of the sun.
-Exodus 17:12, KJV
The ...
Contextually, Isaiah 49 is describing the return of Jacob/Israel from exile. Verse 49.5:
'And now YHWH says ... to bring Jacob back to him, that Israel might
be gathered to him'
This includes the rebuilding of the city Jerusalem/Zion. Beginning in verse 14:
But Zion said, 'YHWH has forsaken me, and my Lord has forgotten me.'
[YHWH's ...
Only top voted, non community-wiki answers of a minimum length are eligible


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Sheriff Joe Arpaio, the controversial top cop in Maricopa County, Ariz., tells Newsmax he will jail any protesters who attempt to block his jail on Thursday when provisions of his state's tough new immigration law take effect.
Arpaio also says it's "great" if undocumented aliens react to the new law and his strict anti-illegal immigration agenda by moving back to Mexico or to the "sanctuary state" of California, and challenges President Barack Obama to invite him to the White House for a "wine summit" to discuss illegal immigration.
Arpaio, whose county includes most of the Phoenix metropolitan area, promotes himself as "America's toughest sheriff." He has limited county inmates to two meals a day, banned "sexually explicit material" in prison, reinstituted chain gangs, and set up a "tent city" as an extension of the Maricopa County Jail.On Wednesday a judge blocked the most controversial sections of Arizona's new law and put them on hold. The law will still take effect on Thursday, but without some of the provisions that angered opponents — including sections that required officers to check a person's immigration status while enforcing other laws.
Nevertheless there are reports that opponents of the new law plan to block Arpaio's jail on Thursday in an act of civil disobedience.
"There's a rumor that they're going to block our jails down the street," Arpaio says in an exclusive Newsmax interview.
"You know what? They're not going to block our jails. They're going into the jail if they block our jail. I'm not going to succumb to these demonstrators keeping law enforcement from booking people in our jail. So we may have to take some action."
Thursday, July 29, 2010
Sheriff Joe Arpaio: I'll Enforce Arizona's Immigration Law
2 comments:
- Anonymous10:03 AM
Sheriff Joe Arpaio and the state of Arizona is the only people trying to stop this problem of immigration. It is a problem. al sharpton, jessie jackson, obama ( all racists ) don't understand the word illegal. Look it up chumps. In 1954 Pres. Eisenhower enacted an immigration law that allowed the government to evict illegals from the U.S. After the war the economy was bad and jobs were taken by illegals. Our soldiers coming home couldn't find work. "Operation Wetback" (don't correct me because look it up ... it's part of history) rid our country of illegals and Americans went to work, the economy got better and we were not SPENDING OUR TAX DOLLARS ON ILLEGALS. It has nothing to do with poor families wanting a better life...look at them on TV stepping on our flag, burning it, lining up at social services waiting to see what they can get. I am a nurse in Virginia and there isn't one month that goes by when some 12, 13, 14 etc. year old ILLEGAL mexican comes into our lab pregnant with all her family excited. Once that anchor baby is born...free this, and free that. IT'S NOT FREE. WE PAY FOR IT WITH OUR HARD EARNED MONEY. I'M SICK OF IT.


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Rumor Patrol: Russell Crowe And Dita Von Teese, Bradley Cooper And Taylor Swift, More
January 18th, 2013 4:07pm EST
You can't go one week without hearing a ridiculous story involving some of your favorite celebrities. Thankfully, the Starpulse Rumor Patrol is here to sort out what's real and what's fake.
Russell Crowe and Dita Von Teese Dating: Is the Aussie actor dating the burlesque dancer? Crowe split with wife Danielle Spencer in October, and Crowe has made a habit of re-tweeting Von Teese's sexy messages - and the two apparently enjoyed a couple's massage at the Four Seasons.
Verdict: False. Crowe shot down the rumors, tweeting, "@DitaVonTeese is brave, smart, sweet and elegant. She is a friend of mine. Who wouldn't want friends like that? Friends, not lovers."
Bradley Cooper Shoots Down Taylor Swift: Rumor has it the Hollywood hunk denied the serial dating musician, not wanting to join the growing ranks of her ex-boyfriends... that also have songs written about them.
Verdict: False. Sources say Swift never even asked Cooper out, so it's hard to see how he denied a chance to date her.
Mel Gibson Fathered Jodie Foster's Children: The New York Post is just asking questions! Like: Why did Jodie Foster heap the praise on the troubled Mel Gibson? A source told the paper, "Her [Jodie's] kids look like him [Gibson] but blonder."
Verdict: False. This one is laughable. Sources from Mel's camp told GossipCop it's completely false.
Related: Bradley Cooper, Dita Von Teese, Jodie Foster, Mel Gibson, Russell Crowe, Taylor Swift, Starpulse Exclusives, Celebrity, Relationships, Columns, Rumors, Rumor Patrol
© 2013 Starpulse.com
Photo Credits: PR Photos
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The perfecte Nerd T-Shirt / Gift. With the undisputed star of all nerd and geeks – Mathematics / Physics / students / scholars. Nikola Tesla, the Master of Electricity!
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4.7 out of 5
3 Reviews
Awesome Jacket
May 11, 2012
This is a great product! Originally purchased mainly for the cold nights while trekking at high elevation through the mountains of Peru, this item has become a main staple for all of my cold weather excursions (note: cold not frigid). It deserves emphasizing that although the jacket is not intended to act as your sole means of insulation during low temperatures (but can be used as a layer under something warmer), the jacket provides unsurpassed mobility and function in very cool/mildly cold temperatures. Also, the insulated hoodie is a must have. In regards to sizing, I'm 6ft 2in, and weigh in at 220 lbs. Initially I ordered the XXL but found that to be way too large. I returned the jacket for the XL and have been absolutely pleased with the fit. The closer fit allows the insulation to do what it was intended to do - keep you warm. Altrec's customer services made returning the first jacket an easy and quick process. Like most, if not all, of The North Face's products, this item is made to last and be used in the field.
Pros: Great design, Build quality, Lasts forever, Performance, Ease of use, Great valueFit
August 28, 2013
Fit was very small. Good looking jacket though. Would recommend it for a slender individual.
December 22, 2011
Awesome jacket I have not taken it off sents I received it. Fits like a glove. What a great jacket, it feels like you are getting a warm hug every time you put it on.
Pros: Great designThe North Face Men's Super Zephyrus Hoodie-155993 Photo
Bomber Blue, Fiery Red/ Salsa Red, Firefly Green, TNF Black, Tree Frog Green/ Scallion Green and Vanadis Grey.
Available sizes, while supplies last, include size small, size medium, size large, size extra large and size extra extra large: s, m, l, xl, xxl.


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5 results in Tags
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Do Women Have to Vote for Women?
Recently, there has been a lot of criticism of current women leaders by leaders of women's organizations, asking whether they are accountable to women in their countries. This includes Senator Hillary Clinton, who is running for President in the U.S., President Cristina Fernandez in Argentina and Chancellor Angela Merkel in Germany...Go to page >
Political Art in the Female Form
Featured Community Voice: Anahi DeCanio Anahi DeCanio uses collage and the female form to encourage her audience to piece together the political questions of the day...Go to page >
What Women Voters Want
Melinda Henneberger is a journalist who has covered politics since 1994, including 10 years at the New York Times. In 2007 she published a book called If They Only Listened to Us: What Women Voters Want Politicians to Hear. While researching this book, she spent eighteen months traveling across the United States and listening to what women of all ages, races, tax brackets and political views had to say about how they vote, what they care about, and what drives them crazy about candidates in both parties...Go to page >
Call for Submissions: Stop Violence Against Women
One in three women worldwide experiences violence in their lifetime, making violence against women one of the gravest human rights violations of our time. The experience or threat of violence affects the lives of women everywhere, cutting across boundaries of wealth, race and culture...Go to page >
Ring the Bell
Breakthrough is an international human rights organization that uses media, education and pop culture to promote values of dignity, equality and justice. In 2008, we launched our multimedia awareness and intervention campaign Bell Bajao, in English "Ring the Bell," that urges men to take a stand against domestic violence...Go to page >
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