HUD 5370 General Conditions for Contruction Contract-Public Housi

U.S. Department of Housing and Urban
Development

General Conditions for Construction
Contracts - Public Housing Programs

Office of Public and Indian Housing
OMB Approval No. 2577-0157 (exp. 3/31/2010)

Applicability. This form is applicable to any
construction/development contract greater than $100,000.
This form includes those clauses required by OMB's common rule on grantee procurement, implemented at HUD in 24 CFR 85.36, and
those requirements set forth in Section 3 of the Housing and Urban Development Act of 1968 and its amendment by the Housing and
Community Development Act of 1992, implemented by HUD at 24 CFR Part 135. The form is required for construction contracts
awarded by Public Housing Agencies (PHAs).
The form is used by Housing Authorities in solicitations to provide necessary contract clauses. If the form were not used, HAs would be
unable to enforce their contracts.
Public reporting burden for this collection of information is estimated to average 1.0 hours per response, including the time for reviewing
instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection
of information. Responses to the collection of information are required to obtain a benefit or to retain a benefit.
The information requested does not lend itself to confidentiality.
HUD may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently
valid OMB number.

Table of Contents
Clause

Page

Page

Clause

1.

Definitions

2

2.
3.

Contractor’s Responsibility for Work
Architect’s Duties, Responsibilities and Authority

2
2

25.
26.

Contract Period
Order of Precedence

9
9

Other Contracts

3

27.
28.

Payments
Contract Modifications

9
10

Changes
Suspension of Work
Disputes
Default
Liquidated Damages
Termination of Convenience
Assignment of Contract
Insurance
Subcontracts
Subcontracting with Small and Minority Firms, Women’s
Business Enterprise, and Labor Surplus Area Firms
Equal Employment Opportunity
Employment, Training, and Contracting Opportunities for
Low-Income Persons, Section 3 of the Housing and
Urban Development Act of 1968
Interest of Members of Congress
Interest of Members, Officers, or Employees and Former
Members, Officers, or Employees
Limitations on Payments Made to Influence
Royalties and Patents
Examination and Retention of Contractor’s Records
Labor Standards-Davis-Bacon and Related Acts
Non-Federal Prevailing Wage Rates
Procurement of Recovered Materials

10
11
11
11
12
12
12
12
13
13

4.

Construction Requirements

Administrative Requirements

5.
6.
7.
8.
9.
10.
11.
12.
13.
14.

Preconstruction Conference and Notice to Proceed
Construction Progress Schedule
Site Investigation and Conditions Affecting the Work
Differing Site Conditions
Specifications and Drawings for Construction
As-Built Drawings
Material and Workmanship
Permits and Codes
Health, Safety, and Accident Prevention
Temporary Buildings and Transportation Materials

3
3
3
4
4
5
5
5
6
6

29.
30.
31.
32.
33.
34.
35.
36.
37.
38.

15.
16.

Availability and Use of Utility Services
Protection of Existing Vegetation, Structures, Equipment,
Utilities, and Improvements

6

39.
40.

6

17.
18.

Temporary Buildings and Transportation Materials
Clean Air and Water

7
7

41.
42.

19.
20.
21.
22.
23.
24.

Energy Efficiency
Inspection and Acceptance of Construction
Use and Possession Prior to Completion
Warranty of Title
Warranty of Construction
Prohibition Against Liens

7
7
8
8
8
9

43.
44.
45.
46.
47.
48.

Previous editions are obsolete
Replaces form HUD-5370-A

Page 1 of 19

13
14
15
15
15
15
15
15
19
19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

1. Definitions
(a) “Architect” means the person or other entity engaged by
the PHA to perform architectural, engineering, design,
and other services related to the work as provided for in
the contract. When a PHA uses an engineer to act in this
capacity, the terms “architect” and “engineer” shall be
synonymous. The Architect shall serve as a technical
representative of the Contracting Officer. The Architect’s
authority is as set forth elsewhere in this contract.
(b) “Contract” means the contract entered into between the
PHA and the Contractor. It includes the forms of Bid, the
Bid Bond, the Performance and Payment Bond or Bonds
or other assurance of completion, the Certifications,
Representations, and Other Statements of Bidders (form
HUD-5370), these General Conditions of the Contract for
Construction (form HUD-5370), the applicable wage rate
determinations from the U.S. Department of Labor, any
special conditions included elsewhere in the contract, the
specifications, and drawings. It includes all formal
changes to any of those documents by addendum,
change order, or other modification.
(c) “Contracting Officer” means the person delegated the authority by the PHA to enter into, administer, and/or
terminate this contract and designated as such in writing
to the Contractor. The term includes any successor
Contracting Officer and any duly authorized
representative of the Contracting Officer also designated
in writing. The Contracting Officer shall be deemed the
authorized agent of the PHA in all dealings with the
Contractor.
(d) “Contractor” means the person or other entity entering
into the contract with the PHA to perform all of the work
required under the contract.
(e) “Drawings” means the drawings enumerated in the
schedule of drawings contained in the Specifications and
as described in the contract clause entitled Specifications
and Drawings for Construction herein.
(f) “HUD” means the United States of America acting through
the Department of Housing and Urban Development
including the Secretary, or any other person designated
to act on its behalf. HUD has agreed, subject to the
provisions of an Annual Contributions Contract (ACC), to
provide financial assistance to the PHA, which includes
assistance in financing the work to be performed under
this contract. As defined elsewhere in these General
Conditions or the contract documents, the determination
of HUD may be required to authorize changes in the work
or for release of funds to the PHA for payment to the
Contractor. Notwithstanding HUD’s role, nothing in this
contract shall be construed to create any contractual
relationship between the Contractor and HUD.
(g) “Project” means the entire project, whether construction
or rehabilitation, the work for which is provided for in
whole or in part under this contract.
(h) “PHA” means the Public Housing Agency organized
under applicable state laws which is a party to this
contract.
(j) “Specifications” means the written description of the
technical requirements for construction and includes the
criteria and tests for determining whether the
requirements are met.
(l) “Work” means materials, workmanship, and manufacture
and fabrication of components.
2. Contractor’s Responsibility for Work
Previous editions are obsolete
Replaces form HUD-5370-A

(a) The Contractor shall furnish all necessary labor,
materials, tools, equipment, and transportation necessary
for performance of the work. The Contractor shall also
furnish all necessary water, heat, light, and power not
made available to the Contractor by the PHA pursuant to
the clause entitled Availability and Use of Utility Services
herein.
(b) The Contractor shall perform on the site, and with its own
organization, work equivalent to at least [
] (12 percent
unless otherwise indicated) of the total amount of work to
be performed under the order. This percentage may be
reduced by a supplemental agreement to this order if,
during performing the work, the Contractor requests a
reduction and the Contracting Officer determines that the
reduction would be to the advantage of the PHA.
(c) At all times during performance of this contract and until
the work is completed and accepted, the Contractor shall
directly superintend the work or assign and have on the
work site a competent superintendent who is satisfactory
to the Contracting Officer and has authority to act for the
Contractor.
(d) The Contractor shall be responsible for all damages to
persons or property that occur as a result of the
Contractor’s fault or negligence, and shall take proper
safety and health precautions to protect the work, the
workers, the public, and the property of others. The
Contractor shall hold and save the PHA, its officers and
agents, free and harmless from liability of any nature
occasioned by the Contractor’s performance. The
Contractor shall also be responsible for all materials
delivered and work performed until completion and
acceptance of the entire work, except for any completed
unit of work which may have been accepted under the
contract.
(e) The Contractor shall lay out the work from base lines and
bench marks indicated on the drawings and be
responsible for all lines, levels, and measurements of all
work executed under the contract. The Contractor shall
verify the figures before laying out the work and will be
held responsible for any error resulting from its failure to
do so.
(f) The Contractor shall confine all operations (including
storage of materials) on PHA premises to areas
authorized or approved by the Contracting Officer.
(g) The Contractor shall at all times keep the work area,
including storage areas, free from accumulations of
waste materials. After completing the work and before
final inspection, the Contractor shall (1) remove from the
premises all scaffolding, equipment, tools, and materials
(including rejected materials) that are not the property of
the PHA and all rubbish caused by its work; (2) leave the
work area in a clean, neat, and orderly condition
satisfactory to the Contracting Officer; (3) perform all
specified tests; and, (4) deliver the installation in
complete and operating condition.
(h) The Contractor’s responsibility will terminate when all
work has been completed, the final inspection made, and
the work accepted by the Contracting Officer. The
Contractor will then be released from further obligation
except as required by the warranties specified elsewhere
in the contract.
3. Architect’s Duties, Responsibilities, and Authority
(a) The Architect for this contract, and any successor, shall
be designated in writing by the Contracting Officer.

Page 2 of 19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

(b) The Architect shall serve as the Contracting Officer’s
technical representative with respect to architectural,
engineering, and design matters related to the work
performed under the contract. The Architect may provide
direction on contract performance. Such direction shall be
within the scope of the contract and may not be of a
nature which: (1) institutes additional work outside the
scope of the contract; (2) constitutes a change as defined
in the Changes clause herein; (3) causes an increase or
decrease in the cost of the contract; (4) alters the
Construction Progress Schedule; or (5) changes any of
the other express terms or conditions of the contract.
(c) The Architect’s duties and responsibilities may include but
shall not be limited to:
(1) Making periodic visits to the work site, and on the
basis of his/her on-site inspections, issuing written
reports to the PHA which shall include all observed
deficiencies. The Architect shall file a copy of the
report with the Contractor’s designated representative
at the site;
(2) Making modifications in drawings and technical
specifications and assisting the Contracting Officer in
the preparation of change orders and other contract
modifications for issuance by the Contracting Officer;
(3) Reviewing and making recommendations with respect
to - (i) the Contractor’s construction progress
schedules; (ii) the Contractor’s shop and detailed
drawings; (iii) the machinery, mechanical and other
equipment and materials or other articles proposed
for use by the Contractor; and, (iv) the Contractor’s
price breakdown and progress payment estimates;
and,
(4) Assisting in inspections, signing Certificates of
Completion, and making recommendations with
respect to acceptance of work completed under the
contract.
4. Other Contracts
The PHA may undertake or award other contracts for
additional work at or near the site of the work under this
contract. The Contractor shall fully cooperate with the
other contractors and with PHA employees and shall
carefully adapt scheduling and performing the work under
this contract to accommodate the additional work, heeding
any direction that may be provided by the Contracting
Officer. The Contractor shall not commit or permit any act
that will interfere with the performance of work by any
other contractor or by PHA employees

6. Construction Progress Schedule
(a) The Contractor shall, within five days after the work
commences on the contract or another period of time
determined by the Contracting Officer, prepare and
submit to the Contracting Officer for approval three
copies of a practicable schedule showing the order in
which the Contractor proposes to perform the work, and
the dates on which the Contractor contemplates starting
and completing the several salient features of the work
(including acquiring labor, materials, and equipment). The
schedule shall be in the form of a progress chart of
suitable scale to indicate appropriately the percentage of
work scheduled for completion by any given date during
the period. If the Contractor fails to submit a schedule
within the time prescribed, the Contracting Officer may
withhold approval of progress payments or take other
remedies under the contract until the Contractor submits
the required schedule.
(b) The Contractor shall enter the actual progress on the
chart as required by the Contracting Officer, and
immediately deliver three copies of the annotated
schedule to the Contracting Officer. If the Contracting
Officer determines, upon the basis of inspection
conducted pursuant to the clause entitled Inspection and
Acceptance of Construction, herein that the Contractor is
not meeting the approved schedule, the Contractor shall
take steps necessary to improve its progress, including
those that may be required by the Contracting Officer,
without additional cost to the PHA. In this circumstance,
the Contracting Officer may require the Contractor to
increase the number of shifts, overtime operations, days
of work, and/or the amount of construction plant, and to
submit for approval any supplementary schedule or
schedules in chart form as the Contracting Officer deems
necessary to demonstrate how the approved rate of
progress will be regained.
(c) Failure of the Contractor to comply with the requirements
of the Contracting Officer under this clause shall be
grounds for a determination by the Contracting Officer
that the Contractor is not prosecuting the work with
sufficient diligence to ensure completion within the time
specified in the Contract. Upon making this
determination, the Contracting Officer may terminate the
Contractor’s right to proceed with the work, or any
separable part of it, in accordance with the Default clause
of this contract.
7. Site Investigation and Conditions Affecting the Work

Construction Requirements
5. Pre-construction Conference and Notice to Proceed
(a) Within ten calendar days of contract execution, and prior
to the commencement of work, the Contractor shall
attend a preconstruction conference with representatives
of the PHA, its Architect, and other interested parties
convened by the PHA. The conference will serve to
acquaint the participants with the general plan of the
construction operation and all other requirements of the
contract. The PHA will provide the Contractor with the
date, time, and place of the conference.
(b) The contractor shall begin work upon receipt of a written
Notice to Proceed from the Contracting Officer or
designee. The Contractor shall not begin work prior to
receiving such notice.
Previous editions are obsolete
Replaces form HUD-5370-A

(a) The Contractor acknowledges that it has taken steps
reasonably necessary to ascertain the nature and
location of the work, and that it has investigated and
satisfied itself as to the general and local conditions
which can affect the work or its cost, including but not
limited to, (1) conditions bearing upon transportation,
disposal, handling, and storage of materials; (2) the
availability of labor, water, electric power, and roads;(3)
uncertainties of weather, river stages, tides, or similar
physical conditions at the site; (4) the conformation and
conditions of the ground; and (5) the character of
equipment and facilities needed preliminary to and during
work performance. The Contractor also acknowledges
that it has satisfied itself as to the character, quality, and
quantity of surface and subsurface materials or obstacles
to be encountered insofar as this information is
Page 3 of 19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

reasonably ascertainable from an inspection of the site,
including all exploratory work done by the PHA, as well
as from the drawings and specifications made a part of
this contract. Any failure of the Contractor to take the
actions described and acknowledged in this paragraph
will not relieve the Contractor from responsibility for
estimating properly the difficulty and cost of successfully
performing the work, or for proceeding to successfully
perform the work without additional expense to the PHA.
(b) The PHA assumes no responsibility for any conclusions
or interpretations made by the Contractor based on the
information made available by the PHA. Nor does the
PHA assume responsibility for any understanding
reached or representation made concerning conditions
which can affect the work by any of its officers or agents
before the execution of this contract, unless that
understanding or representation is expressly stated in
this contract.
8. Differing Site Conditions
(a) The Contractor shall promptly, and before the conditions
are disturbed, give a written notice to the Contracting
Officer of (1) subsurface or latent physical conditions at
the site which differ materially from those indicated in this
contract, or (2) unknown physical conditions at the site(s),
of an unusual nature, which differ materially from those
ordinarily encountered and generally recognized as
inhering in work of the character provided for in the
contract.
(b) The Contracting Officer shall investigate the site
conditions promptly after receiving the notice. Work shall
not proceed at the affected site, except at the
Contractor’s risk, until the Contracting Officer has
provided written instructions to the Contractor. If the
conditions do materially so differ and cause an increase
or decrease in the Contractor’s cost of, or the time
required for, performing any part of the work under this
contract, whether or not changed as a result of the
conditions, the Contractor shall file a claim in writing to
the PHA within ten days after receipt of such instructions
and, in any event, before proceeding with the work. An
equitable adjustment in the contract price, the delivery
schedule, or both shall be made under this clause and
the contract modified in writing accordingly.
(c) No request by the Contractor for an equitable adjustment
to the contract under this clause shall be allowed, unless
the Contractor has given the written notice required;
provided, that the time prescribed in (a) above for giving
written notice may be extended by the Contracting
Officer.
(d) No request by the Contractor for an equitable adjustment
to the contract for differing site conditions shall be
allowed if made after final payment under this contract.
9. Specifications and Drawings for Construction
(a) The Contractor shall keep on the work site a copy of the
drawings and specifications and shall at all times give the
Contracting Officer access thereto. Anything mentioned
in the specifications and not shown on the drawings, or
shown on the drawings and not mentioned in the
specifications, shall be of like effect as if shown or
mentioned in both. In case of difference between
drawings and specifications, the specifications shall
govern. In case of discrepancy in the figures, in the
drawings, or in the specifications, the matter shall be
Previous editions are obsolete
Replaces form HUD-5370-A

promptly submitted to the Contracting Officer, who shall
promptly make a determination in writing. Any adjustment
by the Contractor without such a determination shall be at
its own risk and expense. The Contracting Officer shall
furnish from time to time such detailed drawings and
other information as considered necessary, unless
otherwise provided.
(b) Wherever in the specifications or upon the drawings the
words “directed”, “required”, “ordered”, “designated”,
“prescribed”, or words of like import are used, it shall be
understood that the “direction”, “requirement”, “order”,
“designation”, or “prescription”, of the Contracting Officer
is intended and similarly the words “approved”,
“acceptable”, “satisfactory”, or words of like import shall
mean “approved by”, or “acceptable to”, or “satisfactory
to” the Contracting Officer, unless otherwise expressly
stated.
(c) Where “as shown”, “as indicated”, “as detailed”, or words
of similar import are used, it shall be understood that the
reference is made to the drawings accompanying this
contract unless stated otherwise. The word “provided” as
used herein shall be understood to mean “provide
complete in place” that is “furnished and installed”.
(d) “Shop drawings” means drawings, submitted to the PHA
by the Contractor, subcontractor, or any lower tier
subcontractor, showing in detail (1) the proposed
fabrication and assembly of structural elements and (2)
the installation (i.e., form, fit, and attachment details) of
materials of equipment. It includes drawings, diagrams,
layouts, schematics, descriptive literature, illustrations,
schedules, performance and test data, and similar
materials furnished by the Contractor to explain in detail
specific portions of the work required by the contract. The
PHA may duplicate, use, and disclose in any manner and
for any purpose shop drawings delivered under this
contract.
(e) If this contract requires shop drawings, the Contractor
shall coordinate all such drawings, and review them for
accuracy, completeness, and compliance with other
contract requirements and shall indicate its approval
thereon as evidence of such coordination and review.
Shop drawings submitted to the Contracting Officer
without evidence of the Contractor’s approval may be
returned for resubmission. The Contracting Officer will
indicate an approval or disapproval of the shop drawings
and if not approved as submitted shall indicate the PHA’s
reasons therefore. Any work done before such approval
shall be at the Contractor’s risk. Approval by the
Contracting Officer shall not relieve the Contractor from
responsibility for any errors or omissions in such
drawings, nor from responsibility for complying with the
requirements of this contract, except with respect to
variations described and approved in accordance with (f)
below.
(f) If shop drawings show variations from the contract
requirements, the Contractor shall describe such
variations in writing, separate from the drawings, at the
time of submission. If the Architect approves any such
variation and the Contracting Officer concurs, the
Contracting Officer shall issue an appropriate
modification to the contract, except that, if the variation is
minor or does not involve a change in price or in time of
performance, a modification need not be issued.
(g) It shall be the responsibility of the Contractor to make
timely requests of the PHA for such large scale and full
size drawings, color schemes, and other additional
information, not already in his possession, which shall be

Page 4 of 19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

required in the planning and production of the work. Such
requests may be submitted as the need arises, but each
such request shall be filed in ample time to permit
appropriate action to be taken by all parties involved so
as to avoid delay.
(h) The Contractor shall submit to the Contracting Officer for
approval four copies (unless otherwise indicated) of all
shop drawings as called for under the various headings
of these specifications. Three sets (unless otherwise
indicated) of all shop drawings, will be retained by the
PHA and one set will be returned to the Contractor. As
required by the Contracting Officer, the Contractor, upon
completing the work under this contract, shall furnish a
complete set of all shop drawings as finally approved.
These drawings shall show all changes and revisions
made up to the time the work is completed and accepted.
(i) This clause shall be included in all subcontracts at any
tier. It shall be the responsibility of the Contractor to
ensure that all shop drawings prepared by subcontractors
are submitted to the Contracting Officer.
10. As-Built Drawings
(a) “As-built drawings,” as used in this clause, means
drawings submitted by the Contractor or subcontractor at
any tier to show the construction of a particular structure
or work as actually completed under the contract. “Asbuilt drawings” shall be synonymous with “Record
drawings.”
(b) As required by the Contracting Officer, the Contractor
shall provide the Contracting Officer accurate information
to be used in the preparation of permanent as-built
drawings. For this purpose, the Contractor shall record on
one set of contract drawings all changes from the
installations originally indicated, and record final locations
of underground lines by depth from finish grade and by
accurate horizontal offset distances to permanent surface
improvements such as buildings, curbs, or edges of
walks.
(c) This clause shall be included in all subcontracts at any
tier. It shall be the responsibility of the Contractor to
ensure that all as-built drawings prepared by
subcontractors are submitted to the Contracting Officer.
11. Material and Workmanship
(a) All equipment, material, and articles furnished under this
contract shall be new and of the most suitable grade for
the purpose intended, unless otherwise specifically
provided in this contract. References in the contract to
equipment, material, articles, or patented processes by
trade name, make, or catalog number, shall be regarded
as establishing a standard of quality and shall not be
construed as limiting competition. The Contractor may, at
its option, use any equipment, material, article, or
process that, in the judgment of, and as approved by the
Contracting Officer, is equal to that named in the
specifications, unless otherwise specifically provided in
this contract.
(b) Approval of equipment and materials.
(1) The Contractor shall obtain the Contracting Officer’s
approval of the machinery and mechanical and other
equipment to be incorporated into the work. When
requesting approval, the Contractor shall furnish to
the Contracting Officer the name of the manufacturer,
the model number, and other information concerning
the performance, capacity, nature, and rating of the
Previous editions are obsolete
Replaces form HUD-5370-A

machinery and mechanical and other equipment.
When required by this contract or by the Contracting
Officer, the Contractor shall also obtain the
Contracting Officer’s approval of the material or
articles which the Contractor contemplates
incorporating into the work. When requesting
approval, the Contractor shall provide full information
concerning the material or articles. Machinery,
equipment, material, and articles that do not have the
required approval shall be installed or used at the risk
of subsequent rejection.
(2) When required by the specifications or the
Contracting Officer, the Contractor shall submit
appropriately marked samples (and certificates
related to them) for approval at the Contractor’s
expense, with all shipping charges prepaid. The
Contractor shall label, or otherwise properly mark on
the container, the material or product represented, its
place of origin, the name of the producer, the
Contractor’s name, and the identification of the
construction project for which the material or product
is intended to be used.
(3) Certificates shall be submitted in triplicate, describing
each sample submitted for approval and certifying
that the material, equipment or accessory complies
with contract requirements. The certificates shall
include the name and brand of the product, name of
manufacturer, and the location where produced.
(4) Approval of a sample shall not constitute a waiver of
the PHA right to demand full compliance with contract
requirements. Materials, equipment and accessories
may be rejected for cause even though samples have
been approved.
(5) Wherever materials are required to comply with
recognized standards or specifications, such
specifications shall be accepted as establishing the
technical qualities and testing methods, but shall not
govern the number of tests required to be made nor
modify other contract requirements. The Contracting
Officer may require laboratory test reports on items
submitted for approval or may approve materials on
the basis of data submitted in certificates with
samples. Check tests will be made on materials
delivered for use only as frequently as the Contracting
Officer determines necessary to insure compliance of
materials with the specifications. The Contractor will
assume all costs of retesting materials which fail to
meet contract requirements and/or testing materials
offered in substitution for those found deficient.
(6) After approval, samples will be kept in the Project
office until completion of work. They may be built into
the work after a substantial quantity of the materials
they represent has been built in and accepted.
(c) Requirements concerning lead-based paint. The
Contractor shall comply with the requirements concerning
lead-based paint contained in the Lead-Based Paint
Poisoning Prevention Act (42 U.S.C. 4821-4846) as
implemented by 24 CFR Part 35.
12. Permits and Codes
(a) The Contractor shall give all notices and comply with all
applicable laws, ordinances, codes, rules and
regulations. Notwithstanding the requirement of the
Contractor to comply with the drawings and specifications
in the contract, all work installed shall comply with all
applicable codes and regulations as amended by any

Page 5 of 19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

waivers. Before installing the work, the Contractor shall
examine the drawings and the specifications for
compliance with applicable codes and regulations
bearing on the work and shall immediately report any
discrepancy it may discover to the Contracting Officer.
Where the requirements of the drawings and
specifications fail to comply with the applicable code or
regulation, the Contracting Officer shall modify the
contract by change order pursuant to the clause entitled
Changes herein to conform to the code or regulation.
(b) The Contractor shall secure and pay for all permits, fees,
and licenses necessary for the proper execution and
completion of the work. Where the PHA can arrange for
the issuance of all or part of these permits, fees and
licenses, without cost to the Contractor, the contract
amount shall be reduced accordingly.

14. Temporary Heating
The Contractor shall provide and pay for temporary
heating, covering, and enclosures necessary to properly
protect all work and materials against damage by
dampness and cold, to dry out the work, and to facilitate
the completion of the work. Any permanent heating
equipment used shall be turned over to the PHA in the
condition and at the time required by the specifications.
15. Availability and Use of Utility Services

13. Health, Safety, and Accident Prevention
(a) In performing this contract, the Contractor shall:
(1) Ensure that no laborer or mechanic shall be required
to work in surroundings or under working conditions
which are unsanitary, hazardous, or dangerous to
his/her health and/or safety as determined under
construction safety and health standards promulgated
by the Secretary of Labor by regulation;
(2) Protect the lives, health, and safety of other persons;
(3) Prevent damage to property, materials, supplies, and
equipment; and,
(4) Avoid work interruptions.
(b) For these purposes, the Contractor shall:
(1) Comply with regulations and standards issued by the
Secretary of Labor at 29 CFR Part 1926. Failure to
comply may result in imposition of sanctions pursuant
to the Contract Work Hours and Safety Standards Act
(Public Law 91-54, 83 Stat. 96), 40 U.S.C. 3701 et
seq.; and
(2) Include the terms of this clause in every subcontract
so that such terms will be binding on each
subcontractor.
(c) The Contractor shall maintain an accurate record of
exposure data on all accidents incident to work
performed under this contract resulting in death,
traumatic injury, occupational disease, or damage to
property, materials, supplies, or equipment, and shall
report this data in the manner prescribed by 29 CFR Part
1904.
(d) The Contracting Officer shall notify the Contractor of any
noncompliance with these requirements and of the
corrective action required. This notice, when delivered to
the Contractor or the Contractor’s representative at the
site of the work, shall be deemed sufficient notice of the
noncompliance and corrective action required. After
receiving the notice, the Contractor shall immediately
take corrective action. If the Contractor fails or refuses to
take corrective action promptly, the Contracting Officer
may issue an order stopping all or part of the work until
satisfactory corrective action has been taken. The
Contractor shall not base any claim or request for
equitable adjustment for additional time or money on any
stop order issued under these circumstances.
(e) The Contractor shall be responsible for its subcontractors’
compliance with the provisions of this clause. The
Contractor shall take such action with respect to any
subcontract as the PHA, the Secretary of Housing and
Urban Development, or the Secretary of Labor shall
direct as a means of enforcing such provisions.
Previous editions are obsolete
Replaces form HUD-5370-A

(a) The PHA shall make all reasonably required amounts of
utilities available to the Contractor from existing outlets
and supplies, as specified in the contract. Unless
otherwise provided in the contract, the amount of each
utility service consumed shall be charged to or paid for by
the Contractor at prevailing rates charged to the PHA or,
where the utility is produced by the PHA, at reasonable
rates determined by the Contracting Officer. The
Contractor shall carefully conserve any utilities furnished
without charge.
(b) The Contractor, at its expense and in a manner
satisfactory to the Contracting Officer, shall install and
maintain all necessary temporary connections and
distribution lines, and all meters required to measure the
amount of each utility used for the purpose of determining
charges. Before final acceptance of the work by the PHA,
the Contractor shall remove all the temporary
connections, distribution lines, meters, and associated
paraphernalia.
16. Protection of Existing Vegetation, Structures,
Equipment, Utilities, and Improvements
(a) The Contractor shall preserve and protect all structures,
equipment, and vegetation (such as trees, shrubs, and
grass) on or adjacent to the work site, which are not to be
removed under this contract, and which do not
unreasonably interfere with the work required under this
contract.
(b) The Contractor shall only remove trees when specifically
authorized to do so, and shall avoid damaging vegetation
that will remain in place. If any limbs or branches of trees
are broken during performance of this contract, or by the
careless operation of equipment, or by workmen, the
Contractor shall trim those limbs or branches with a clean
cut and paint the cut with a tree-pruning compound as
directed by the Contracting Officer.
(c) The Contractor shall protect from damage all existing
improvements and utilities (1) at or near the work site and
(2) on adjacent property of a third party, the locations of
which are made known to or should be known by the
Contractor. Prior to disturbing the ground at the
construction site, the Contractor shall ensure that all
underground utility lines are clearly marked.
(d) The Contractor shall shore up, brace, underpin, secure,
and protect as necessary all foundations and other parts
of existing structures adjacent to, adjoining, and in the
vicinity of the site, which may be affected by the
excavations or other operations connected with the
construction of the project.
(e) Any equipment temporarily removed as a result of work
under this contract shall be protected, cleaned, and
replaced in the same condition as at the time of award of
this contract.

Page 6 of 19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

(f) New work which connects to existing work shall
correspond in all respects with that to which it connects
and/or be similar to existing work unless otherwise
required by the specifications.
(g) No structural members shall be altered or in any way
weakened without the written authorization of the
Contracting Officer, unless such work is clearly specified
in the plans or specifications.
(h) If the removal of the existing work exposes discolored or
unfinished surfaces, or work out of alignment, such
surfaces shall be refinished, or the material replaced as
necessary to make the continuous work uniform and
harmonious. This, however, shall not be construed to
require the refinishing or reconstruction of dissimilar
finishes previously exposed, or finished surfaces in good
condition, but in different planes or on different levels
when brought together by the removal of intervening
work, unless such refinishing or reconstruction is
specified in the plans or specifications.
(i) The Contractor shall give all required notices to any
adjoining or adjacent property owner or other party before
the commencement of any work.
(j) The Contractor shall indemnify and save harmless the
PHA from any damages on account of settlement or the
loss of lateral support of adjoining property, any damages
from changes in topography affecting drainage, and from
all loss or expense and all damages for which the PHA
may become liable in consequence of such injury or
damage to adjoining and adjacent structures and their
premises.
(k) The Contractor shall repair any damage to vegetation,
structures, equipment, utilities, or improvements,
including those that are the property of a third party,
resulting from failure to comply with the requirements of
this contract or failure to exercise reasonable care in
performing the work. If the Contractor fails or refuses to
repair the damage promptly, the Contracting Officer may
have the necessary work performed and charge the cost
to the Contractor.
17. Temporary Buildings and Transportation of Materials
(a) Temporary buildings (e.g., storage sheds, shops, offices,
sanitary facilities) and utilities may be erected by the
Contractor only with the approval of the Contracting
Officer and shall be built with labor and materials
furnished by the Contractor without expense to the PHA.
The temporary buildings and utilities shall remain the
property of the Contractor and shall be removed by the
Contractor at its expense upon completion of the work.
With the written consent of the Contracting Officer, the
buildings and utilities may be abandoned and need not
be removed.
(b) The Contractor shall, as directed by the Contracting
Officer, use only established roadways, or use temporary
roadways constructed by the Contractor when and as
authorized by the Contracting Officer. When materials are
transported in prosecuting the work, vehicles shall not be
loaded beyond the loading capacity recommended by the
manufacturer of the vehicle or prescribed by any federal,
state, or local law or regulation. When it is necessary to
cross curbs or sidewalks, the Contractor shall protect
them from damage. The Contractor shall repair or pay for
the repair of any damaged curbs, sidewalks, or roads.
18. Clean Air and Water

Previous editions are obsolete
Replaces form HUD-5370-A

The contactor shall comply with the Clean Air Act, as
amended, 42 USC 7401 et seq., the Federal Water
Pollution Control Water Act, as amended, 33 U.S.C. 1251
et seq., and standards issued pursuant thereto in the
facilities in which this contract is to be performed.
19. Energy Efficiency
The Contractor shall comply with mandatory standards
and policies relating to energy efficiency which are
contained in the energy conservation plan issued in
compliance with the Energy Policy and Conservation Act
(Pub.L. 94-163) for the State in which the work under the
contract is performed.
20. Inspection and Acceptance of Construction
(a) Definitions. As used in this clause (1) “Acceptance” means the act of an authorized
representative of the PHA by which the PHA approves
and assumes ownership of the work performed under this
contract. Acceptance may be partial or complete.
(2) “Inspection” means examining and testing the work
performed under the contract (including, when
appropriate, raw materials, equipment, components, and
intermediate assemblies) to determine whether it
conforms to contract requirements.
(3) “Testing” means that element of inspection that
determines the properties or elements, including
functional operation of materials, equipment, or their
components, by the application of established scientific
principles and procedures.
(b) The Contractor shall maintain an adequate inspection
system and perform such inspections as will ensure that
the work performed under the contract conforms to
contract requirements. All work is subject to PHA
inspection and test at all places and at all reasonable
times before acceptance to ensure strict compliance with
the terms of the contract.
(c) PHA inspections and tests are for the sole benefit of the
PHA and do not: (1) relieve the Contractor of
responsibility for providing adequate quality control
measures; (2) relieve the Contractor of responsibility for
loss or damage of the material before acceptance; (3)
constitute or imply acceptance; or, (4) affect the
continuing rights of the PHA after acceptance of the
completed work under paragraph (j) below.
(d) The presence or absence of the PHA inspector does not
relieve the Contractor from any contract requirement, nor
is the inspector authorized to change any term or
condition of the specifications without the Contracting
Officer’s written authorization. All instructions and
approvals with respect to the work shall be given to the
Contractor by the Contracting Officer.
(e) The Contractor shall promptly furnish, without additional
charge, all facilities, labor, and material reasonably
needed for performing such safe and convenient
inspections and tests as may be required by the
Contracting Officer. The PHA may charge to the
Contractor any additional cost of inspection or test when
work is not ready at the time specified by the Contractor
for inspection or test, or when prior rejection makes
reinspection or retest necessary. The PHA shall perform
all inspections and tests in a manner that will not
unnecessarily delay the work. Special, full size, and
performance tests shall be performed as described in the
contract.

Page 7 of 19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

(f) The PHA may conduct routine inspections of the
construction site on a daily basis.
(g) The Contractor shall, without charge, replace or correct
work found by the PHA not to conform to contract
requirements, unless the PHA decides that it is in its
interest to accept the work with an appropriate
adjustment in contract price. The Contractor shall
promptly segregate and remove rejected material from
the premises.
(h) If the Contractor does not promptly replace or correct
rejected work, the PHA may (1) by contract or otherwise,
replace or correct the work and charge the cost to the
Contractor, or (2) terminate for default the Contractor’s
right to proceed.
(i) If any work requiring inspection is covered up without approval of the PHA, it must, if requested by the Contracting
Officer, be uncovered at the expense of the Contractor. If
at any time before final acceptance of the entire work, the
PHA considers it necessary or advisable, to examine
work already completed by removing or tearing it out, the
Contractor, shall on request, promptly furnish all
necessary facilities, labor, and material. If such work is
found to be defective or nonconforming in any material
respect due to the fault of the Contractor or its
subcontractors, the Contractor shall defray all the
expenses of the examination and of satisfactory
reconstruction. If, however, such work is found to meet
the requirements of the contract, the Contracting Officer
shall make an equitable adjustment to cover the cost of
the examination and reconstruction, including, if
completion of the work was thereby delayed, an
extension of time.
(j) The Contractor shall notify the Contracting Officer, in
writing, as to the date when in its opinion all or a
designated portion of the work will be substantially
completed and ready for inspection. If the Architect
determines that the state of preparedness is as
represented, the PHA will promptly arrange for the
inspection. Unless otherwise specified in the contract, the
PHA shall accept, as soon as practicable after completion
and inspection, all work required by the contract or that
portion of the work the Contracting Officer determines
and designates can be accepted separately. Acceptance
shall be final and conclusive except for latent defects,
fraud, gross mistakes amounting to fraud, or the PHA’s
right under any warranty or guarantee.
21. Use and Possession Prior to Completion
(a) The PHA shall have the right to take possession of or use
any completed or partially completed part of the work.
Before taking possession of or using any work, the
Contracting Officer shall furnish the Contractor a list of
items of work remaining to be performed or corrected on
those portions of the work that the PHA intends to take
possession of or use. However, failure of the Contracting
Officer to list any item of work shall not relieve the
Contractor of responsibility for complying with the terms
of the contract. The PHA’s possession or use shall not be
deemed an acceptance of any work under the contract.
(b) While the PHA has such possession or use, the
Contractor shall be relieved of the responsibility for (1)
the loss of or damage to the work resulting from the
PHA’s possession or use, notwithstanding the terms of
the clause entitled Permits and Codes herein; (2) all
maintenance costs on the areas occupied; and, (3)
furnishing heat, light, power, and water used in the areas
Previous editions are obsolete
Replaces form HUD-5370-A

occupied without proper remuneration therefore. If prior
possession or use by the PHA delays the progress of the
work or causes additional expense to the Contractor, an
equitable adjustment shall be made in the contract price
or the time of completion, and the contract shall be
modified in writing accordingly.
22. Warranty of Title
The Contractor warrants good title to all materials,
supplies, and equipment incorporated in the work and
agrees to deliver the premises together with all
improvements thereon free from any claims, liens or
charges, and agrees further that neither it nor any other
person, firm or corporation shall have any right to a lien
upon the premises or anything appurtenant thereto.
23. Warranty of Construction
(a) In addition to any other warranties in this contract, the
Contractor warrants, except as provided in paragraph (j)
of this clause, that work performed under this contract
conforms to the contract requirements and is free of any
defect in equipment, material, or workmanship performed
by the Contractor or any subcontractor or supplier at any
tier. This warranty shall continue for a period of ________
(one year unless otherwise indicated) from the date of
final acceptance of the work. If the PHA takes possession
of any part of the work before final acceptance, this
warranty shall continue for a period of (one year unless
otherwise indicated) from the date that the PHA takes
possession.
(b) The Contractor shall remedy, at the Contractor’s
expense, any failure to conform, or any defect. In
addition, the Contractor shall remedy, at the Contractor’s
expense, any damage to PHA-owned or controlled real or
personal property when the damage is the result of—
(1) The Contractor’s failure to conform to contract requirements; or
(2) Any defects of equipment, material, workmanship or
design furnished by the Contractor.
(c) The Contractor shall restore any work damaged in
fulfilling the terms and conditions of this clause. The
Contractor’s warranty with respect to work repaired or
replaced will run for (one year unless otherwise indicated)
from the date of repair or replacement.
(d) The Contracting Officer shall notify the Contractor, in
writing, within a reasonable time after the discovery of
any failure, defect or damage.
(e) If the Contractor fails to remedy any failure, defect, or
damage within a reasonable time after receipt of notice,
the PHA shall have the right to replace, repair or
otherwise remedy the failure, defect, or damage at the
Contractor’s expense.
(f) With respect to all warranties, express or implied, from
subcontractors, manufacturers, or suppliers for work
performed and materials furnished under this contract,
the Contractor shall:
(1) Obtain all warranties that would be given in normal
commercial practice;
(2) Require all warranties to be executed in writing, for the
benefit of the PHA; and,
(3) Enforce all warranties for the benefit of the PHA.
(g) In the event the Contractor’s warranty under paragraph
(a) of this clause has expired, the PHA may bring suit at
its own expense to enforce a subcontractor’s,
manufacturer’s or supplier’s warranty.

Page 8 of 19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

(h) Unless a defect is caused by the negligence of the
Contractor or subcontractor or supplier at any tier, the
Contractor shall not be liable for the repair of any defect
of material or design furnished by the PHA nor for the
repair of any damage that results from any defect in PHA
furnished material or design.
(i) Notwithstanding any provisions herein to the contrary, the
establishment of the time periods in paragraphs (a) and
(c) above relate only to the specific obligation of the
Contractor to correct the work, and have no relationship
to the time within which its obligation to comply with the
contract may be sought to be enforced, nor to the time
within which proceedings may be commenced to
establish the Contractor’s liability with respect to its
obligation other than specifically to correct the work.
(j) This warranty shall not limit the PHA’s rights under the
Inspection and Acceptance of Construction clause of this
contract with respect to latent defects, gross mistakes or
fraud.
24. Prohibition Against Liens
The Contractor is prohibited from placing a lien on the
PHA’s property. This prohibition shall apply to all
subcontractors at any tier and all materials suppliers.
Administrative Requirements
25. Contract Period
The Contractor shall complete all work required under
this contract within _______ calendar days of the
effective date of the contract, or within the time schedule
established in the notice to proceed issued by the
Contracting Officer.
26. Order of Provisions
In the event of a conflict between these General
Conditions and the Specifications, the General
Conditions shall prevail. In the event of a conflict between
the contract and any applicable state or local law or
regulation, the state or local law or regulation shall
prevail; provided that such state or local law or regulation
does not conflict with, or is less restrictive than applicable
federal law, regulation, or Executive Order. In the event
of such a conflict, applicable federal law, regulation, and
Executive Order shall prevail.
27. Payments
(a) The PHA shall pay the Contractor the price as provided in
this contract.
(b) The PHA shall make progress payments approximately
every 30 days as the work proceeds, on estimates of
work accomplished which meets the standards of quality
established under the contract, as approved by the
Contracting Officer. The PHA may, subject to written
determination and approval of the Contracting Officer,
make more frequent payments to contractors which are
qualified small businesses.
(c) Before the first progress payment under this contract, the
Contractor shall furnish, in such detail as requested by
the Contracting Officer, a breakdown of the total contract
price showing the amount included therein for each
principal category of the work, which shall substantiate
the payment amount requested in order to provide a
Previous editions are obsolete
Replaces form HUD-5370-A

basis for determining progress payments. The breakdown
shall be approved by the Contracting Officer and must be
acceptable to HUD. If the contract covers more than one
project, the Contractor shall furnish a separate
breakdown for each. The values and quantities employed
in making up this breakdown are for determining the
amount of progress payments and shall not be construed
as a basis for additions to or deductions from the contract
price. The Contractor shall prorate its overhead and profit
over the construction period of the contract.
(d) The Contractor shall submit, on forms provided by the
PHA, periodic estimates showing the value of the work
performed during each period based upon the approved
breakdown of the contract price. Such estimates shall be
submitted not later than _________ days in advance of
the date set for payment and are subject to correction
and revision as required. The estimates must be
approved by the Contracting Officer with the concurrence
of the Architect prior to payment. If the contract covers
more than one project, the Contractor shall furnish a
separate progress payment estimate for each.
(e) Along with each request for progress payments and the
required estimates, the Contractor shall furnish the
following certification, or payment shall not be made:
I hereby certify, to the best of my knowledge and belief,
that:
(1) The amounts requested are only for performance in
accordance with the specifications, terms, and
conditions of the contract;
(2) Payments to subcontractors and suppliers have been
made from previous payments received under the
contract, and timely payments will be made from the
proceeds of the payment covered by this certification,
in accordance with subcontract agreements; and,
(3) This request for progress payments does not include
any amounts which the prime contractor intends to
withhold or retain from a subcontractor or supplier in
accordance with the terms and conditions of the
subcontract.
_________________________________________
Name:
_________________________________________
Title:
_________________________________________
Date:
(f) Except as otherwise provided in State law, the PHA shall
retain ten (10) percent of the amount of progress
payments until completion and acceptance of all work
under the contract; except, that if upon completion of 50
percent of the work, the Contracting Officer, after
consulting with the Architect, determines that the
Contractor’s performance and progress are satisfactory,
the PHA may make the remaining payments in full for the
work subsequently completed. If the Contracting Officer
subsequently determines that the Contractor’s
performance and progress are unsatisfactory, the PHA
shall reinstate the ten (10) percent (or other percentage
as provided in State law) retainage until such time as the
Contracting Officer determines that performance and
progress are satisfactory.
(g) The Contracting Officer may authorize material delivered
on the site and preparatory work done to be taken into
consideration when computing progress payments.

Page 9 of 19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

Material delivered to the Contractor at locations other
than the site may also be taken into consideration if the
Contractor furnishes satisfactory evidence that (1) it has
acquired title to such material; (2) the material is properly
stored in a bonded warehouse, storage yard, or similar
suitable place as may be approved by the Contracting
Officer; (3) the material is insured to cover its full value;
and (4) the material will be used to perform this contract.
Before any progress payment which includes delivered
material is made, the Contractor shall furnish such
documentation as the Contracting Officer may require to
assure the protection of the PHA’s interest in such
materials. The Contractor shall remain responsible for
such stored material notwithstanding the transfer of title
to the PHA.
(h) All material and work covered by progress payments
made shall, at the time of payment become the sole
property of the PHA, but this shall not be construed as (1)
relieving the Contractor from the sole responsibility for all
material and work upon which payments have been
made or the restoration of any damaged work; or, (2)
waiving the right of the PHA to require the fulfillment of all
of the terms of the contract. In the event the work of the
Contractor has been damaged by other contractors or
persons other than employees of the PHA in the course
of their employment, the Contractor shall restore such
damaged work without cost to the PHA and to seek
redress for its damage only from those who directly
caused it.
(i) The PHA shall make the final payment due the Contractor
under this contract after (1) completion and final
acceptance of all work; and (2) presentation of release of
all claims against the PHA arising by virtue of this
contract, other than claims, in stated amounts, that the
Contractor has specifically excepted from the operation of
the release. Each such exception shall embrace no more
than one claim, the basis and scope of which shall be
clearly defined. The amounts for such excepted claims
shall not be included in the request for final payment. A
release may also be required of the assignee if the
Contractor’s claim to amounts payable under this contract
has been assigned.
(j) Prior to making any payment, the Contracting Officer may
require the Contractor to furnish receipts or other
evidence of payment from all persons performing work
and supplying material to the Contractor, if the
Contracting Officer determines such evidence is
necessary to substantiate claimed costs.
(k) The PHA shall not; (1) determine or adjust any claims for
payment or disputes arising there under between the
Contractor and its subcontractors or material suppliers;
or, (2) withhold any moneys for the protection of the
subcontractors or material suppliers. The failure or
refusal of the PHA to withhold moneys from the
Contractor shall in nowise impair the obligations of any
surety or sureties under any bonds furnished under this
contract.
28. Contract Modifications
(a) Only the Contracting Officer has authority to modify any
term or condition of this contract. Any contract
modification shall be authorized in writing.
(b) The Contracting Officer may modify the contract
unilaterally (1) pursuant to a specific authorization stated
in a contract clause (e.g., Changes); or (2) for
administrative matters which do not change the rights or
Previous editions are obsolete
Replaces form HUD-5370-A

responsibilities of the parties (e.g., change in the PHA
address). All other contract modifications shall be in the
form of supplemental agreements signed by the
Contractor and the Contracting Officer.
(c) When a proposed modification requires the approval of
HUD prior to its issuance (e.g., a change order that
exceeds the PHA’s approved threshold), such
modification shall not be effective until the required
approval is received by the PHA.
29. Changes
(a) The Contracting Officer may, at any time, without notice
to the sureties, by written order designated or indicated to
be a change order, make changes in the work within the
general scope of the contract including changes:
(1) In the specifications (including drawings and designs);
(2) In the method or manner of performance of the work;
(3) PHA-furnished facilities, equipment, materials,
services, or site; or,
(4) Directing the acceleration in the performance of the
work.
(b) Any other written order or oral order (which, as used in
this paragraph (b), includes direction, instruction,
interpretation, or determination) from the Contracting
Officer that causes a change shall be treated as a
change order under this clause; provided, that the
Contractor gives the Contracting Officer written notice
stating (1) the date, circumstances and source of the
order and (2) that the Contractor regards the order as a
change order.
(c) Except as provided in this clause, no order, statement or
conduct of the Contracting Officer shall be treated as a
change under this clause or entitle the Contractor to an
equitable adjustment.
(d) If any change under this clause causes an increase or
decrease in the Contractor’s cost of, or the time required
for the performance of any part of the work under this
contract, whether or not changed by any such order, the
Contracting Officer shall make an equitable adjustment
and modify the contract in writing. However, except for a
adjustment based on defective specifications, no
proposal for any change under paragraph (b) above shall
be allowed for any costs incurred more than 20 days (5
days for oral orders) before the Contractor gives written
notice as required. In the case of defective specifications
for which the PHA is responsible, the equitable
adjustment shall include any increased cost reasonably
incurred by the Contractor in attempting to comply with
the defective specifications.
(e) The Contractor must assert its right to an adjustment
under this clause within 30 days after (1) receipt of a
written change order under paragraph (a) of this clause,
or (2) the furnishing of a written notice under paragraph
(b) of this clause, by submitting a written statement
describing the general nature and the amount of the
proposal. If the facts justify it, the Contracting Officer may
extend the period for submission. The proposal may be
included in the notice required under paragraph (b)
above. No proposal by the Contractor for an equitable
adjustment shall be allowed if asserted after final
payment under this contract.
(f) The Contractor’s written proposal for equitable adjustment
shall be submitted in the form of a lump sum proposal
supported with an itemized breakdown of all increases
and decreases in the contract in at least the following
details:

Page 10 of 19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

(1) Direct Costs. Materials (list individual items, the
quantity and unit cost of each, and the aggregate
cost); Transportation and delivery costs associated
with materials; Labor breakdowns by hours or unit
costs (identified with specific work to be performed);
Construction equipment exclusively necessary for the
change; Costs of preparation and/ or revision to shop
drawings resulting from the change; Worker’s
Compensation and Public Liability Insurance;
Employment taxes under FICA and FUTA; and, Bond
Costs when size of change warrants revision.
(2) Indirect Costs. Indirect costs may include overhead,
general and administrative expenses, and fringe
benefits not normally treated as direct costs.
(3) Profit. The amount of profit shall be negotiated and
may vary according to the nature, extent, and
complexity of the work required by the change.
The allowability of the direct and indirect costs shall be
determined in accordance with the Contract Cost
Principles and Procedures for Commercial Firms in Part
31 of the Federal Acquisition Regulation (48 CFR 1-31),
as implemented by HUD Handbook 2210.18, in effect on
the date of this contract. The Contractor shall not be
allowed a profit on the profit received by any
subcontractor. Equitable adjustments for deleted work
shall include a credit for profit and may include a credit
for indirect costs. On proposals covering both increases
and decreases in the amount of the contract, the
application of indirect costs and profit shall be on the netchange in direct costs for the Contractor or subcontractor
performing the work.
(g) The Contractor shall include in the proposal its request
for time extension (if any), and shall include sufficient
information and dates to demonstrate whether and to
what extent the change will delay the completion of the
contract in its entirety.
(h) The Contracting Officer shall act on proposals within 30
days after their receipt, or notify the Contractor of the
date when such action will be taken.
(i) Failure to reach an agreement on any proposal shall be a
dispute under the clause entitled Disputes herein.
Nothing in this clause, however, shall excuse the
Contractor from proceeding with the contract as changed.
(j) Except in an emergency endangering life or property, no
change shall be made by the Contractor without a prior
order from the Contracting Officer.
30. Suspension of Work
(a) The Contracting Officer may order the Contractor in
writing to suspend, delay, or interrupt all or any part of the
work of this contract for the period of time that the
Contracting Officer determines appropriate for the
convenience of the PHA.
(b) If the performance of all or any part of the work is, for an
unreasonable period of time, suspended, delayed, or
interrupted (1) by an act of the Contracting Officer in the
administration of this contract, or (2) by the Contracting
Officer’s failure to act within the time specified (or within a
reasonable time if not specified) in this contract an
adjustment shall be made for any increase in the cost of
performance of the contract (excluding profit) necessarily
caused by such unreasonable suspension, delay, or
interruption and the contract modified in writing
accordingly. However, no adjustment shall be made
under this clause for any suspension, delay, or
interruption to the extent that performance would have
Previous editions are obsolete
Replaces form HUD-5370-A

been so suspended, delayed, or interrupted by any other
cause, including the fault or negligence of the Contractor
or for which any equitable adjustment is provided for or
excluded under any other provision of this contract.
(c) A claim under this clause shall not be allowed (1) for any
costs incurred more than 20 days before the Contractor
shall have notified the Contracting Officer in writing of the
act or failure to act involved (but this requirement shall
not apply as to a claim resulting from a suspension
order); and, (2) unless the claim, in an amount stated, is
asserted in writing as soon as practicable after the
termination of the suspension, delay, or interruption, but
not later than the date of final payment under the
contract.
31. Disputes
(a) “Claim,” as used in this clause, means a written demand
or written assertion by one of the contracting parties
seeking, as a matter of right, the payment of money in a
sum certain, the adjustment or interpretation of contract
terms, or other relief arising under or relating to the
contract. A claim arising under the contract, unlike a
claim relating to the contract, is a claim that can be
resolved under a contract clause that provides for the
relief sought by the claimant. A voucher, invoice, or other
routine request for payment that is not in dispute when
submitted is not a claim. The submission may be
converted to a claim by complying with the requirements
of this clause, if it is disputed either as to liability or
amount or is not acted upon in a reasonable time.
(b) Except for disputes arising under the clauses entitled
Labor Standards - Davis Bacon and Related Acts, herein,
all disputes arising under or relating to this contract,
including any claims for damages for the alleged breach
thereof which are not disposed of by agreement, shall be
resolved under this clause.
(c) All claims by the Contractor shall be made in writing and
submitted to the Contracting Officer for a written decision.
A claim by the PHA against the Contractor shall be
subject to a written decision by the Contracting Officer.
(d) The Contracting Officer shall, within 60 (unless otherwise
indicated) days after receipt of the request, decide the
claim or notify the Contractor of the date by which the
decision will be made.
(e) The Contracting Officer’s decision shall be final unless
the Contractor (1) appeals in writing to a higher level in
the PHA in accordance with the PHA’s policy and
procedures, (2) refers the appeal to an independent
mediator or arbitrator, or (3) files suit in a court of
competent jurisdiction. Such appeal must be made within
(30 unless otherwise indicated) days after receipt of the
Contracting Officer’s decision.
(f) The Contractor shall proceed diligently with performance
of this contract, pending final resolution of any request for
relief, claim, appeal, or action arising under or relating to
the contract, and comply with any decision of the
Contracting Officer.
32. Default
(a) If the Contractor refuses or fails to prosecute the work, or
any separable part thereof, with the diligence that will
insure its completion within the time specified in this
contract, or any extension thereof, or fails to complete
said work within this time, the Contracting Officer may, by
written notice to the Contractor, terminate the right to

Page 11 of 19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

proceed with the work (or separable part of the work) that
has been delayed. In this event, the PHA may take over
the work and complete it, by contract or otherwise, and
may take possession of and use any materials,
equipment, and plant on the work site necessary for
completing the work. The Contractor and its sureties shall
be liable for any damage to the PHA resulting from the
Contractor’s refusal or failure to complete the work within
the specified time, whether or not the Contractor’s right to
proceed with the work is terminated. This liability includes
any increased costs incurred by the PHA in completing
the work.
(b) The Contractor’s right to proceed shall not be terminated
or the Contractor charged with damages under this
clause if—
(1) The delay in completing the work arises from
unforeseeable causes beyond the control and without
the fault or negligence of the Contractor. Examples of
such causes include (i) acts of God, or of the public
enemy, (ii) acts of the PHA or other governmental
entity in either its sovereign or contractual capacity,
(iii) acts of another contractor in the performance of a
contract with the PHA, (iv) fires, (v) floods, (vi)
epidemics, (vii) quarantine restrictions, (viii) strikes,
(ix) freight embargoes, (x) unusually severe weather,
or (xi) delays of subcontractors or suppliers at any tier
arising from unforeseeable causes beyond the control
and without the fault or negligence of both the
Contractor and the subcontractors or suppliers; and
(2) The Contractor, within days (10 days unless otherwise
indicated) from the beginning of such delay (unless
extended by the Contracting Officer) notifies the
Contracting Officer in writing of the causes of delay.
The Contracting Officer shall ascertain the facts and
the extent of the delay. If, in the judgment of the
Contracting Officer, the findings of fact warrant such
action, time for completing the work shall be extended
by written modification to the contract. The findings of
the Contracting Officer shall be reduced to a written
decision which shall be subject to the provisions of
the Disputes clause of this contract.
(c) If, after termination of the Contractor’s right to proceed, it
is determined that the Contractor was not in default, or
that the delay was excusable, the rights and obligations
of the parties will be the same as if the termination had
been for convenience of the PHA.

completion of the work together with any increased costs
occasioned the PHA in completing the work.
(c) If the PHA does not terminate the Contractor’s right to
proceed, the resulting damage will consist of liquidated
damages until the work is completed or accepted.
34. Termination for Convenience
(a) The Contracting Officer may terminate this contract in
whole, or in part, whenever the Contracting Officer
determines that such termination is in the best interest of
the PHA. Any such termination shall be effected by
delivery to the Contractor of a Notice of Termination
specifying the extent to which the performance of the
work under the contract is terminated, and the date upon
which such termination becomes effective.
(b) If the performance of the work is terminated, either in
whole or in part, the PHA shall be liable to the Contractor
for reasonable and proper costs resulting from such
termination upon the receipt by the PHA of a properly
presented claim setting out in detail: (1) the total cost of
the work performed to date of termination less the total
amount of contract payments made to the Contractor; (2)
the cost (including reasonable profit) of settling and
paying claims under subcontracts and material orders for
work performed and materials and supplies delivered to
the site, payment for which has not been made by the
PHA to the Contractor or by the Contractor to the
subcontractor or supplier; (3) the cost of preserving and
protecting the work already performed until the PHA or
assignee takes possession thereof or assumes
responsibility therefore; (4) the actual or estimated cost of
legal and accounting services reasonably necessary to
prepare and present the termination claim to the PHA;
and (5) an amount constituting a reasonable profit on the
value of the work performed by the Contractor.
(c) The Contracting Officer will act on the Contractor’s claim
within days (60 days unless otherwise indicated) of
receipt of the Contractor’s claim.
(d) Any disputes with regard to this clause are expressly
made subject to the provisions of the Disputes clause of
this contract.
35. Assignment of Contract
The Contractor shall not assign or transfer any interest in
this contract; except that claims for monies due or to
become due from the PHA under the contract may be
assigned to a bank, trust company, or other financial
institution. Such assignments of claims shall only be
made with the written concurrence of the Contracting
Officer. If the Contractor is a partnership, this contract
shall inure to the benefit of the surviving or remaining
member(s) of such partnership as approved by the
Contracting Officer.

33. Liquidated Damages
(a) If the Contractor fails to complete the work within the time
specified in the contract, or any extension, as specified in
the clause entitled Default of this contract, the Contractor
shall pay to the PHA as liquidated damages, the sum of
$___________ Contracting Officer insert amount] for
each day of delay. If different completion dates are
specified in the contract for separate parts or stages of
the work, the amount of liquidated damages shall be
assessed on those parts or stages which are delayed. To
the extent that the Contractor’s delay or nonperformance
is excused under another clause in this contract,
liquidated damages shall not be due the PHA. The
Contractor remains liable for damages caused other than
by delay.
(b) If the PHA terminates the Contractor’s right to proceed,
the resulting damage will consist of liquidated damages
until such reasonable time as may be required for final

Previous editions are obsolete
Replaces form HUD-5370-A

36. Insurance
(a) Before commencing work, the Contractor and each
subcontractor shall furnish the PHA with certificates of
insurance showing the following insurance is in force and
will insure all operations under the Contract:
(1) Workers’ Compensation, in accordance with state or
Territorial Workers’ Compensation laws.
(2) Commercial General Liability with a combined single
limit for bodily injury and property damage of not less
than $________ [Contracting Officer insert amount]
Page 12 of 19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

per occurrence to protect the Contractor and each
subcontractor against claims for bodily injury or death
and damage to the property of others. This shall
cover the use of all equipment, hoists, and vehicles
on the site(s) not covered by Automobile Liability
under (3) below. If the Contractor has a “claimsmade” policy, then the following additional
requirements apply: the policy must provide a
“retroactive date” which must be on or before the
execution date of the Contract; and the extended
reporting period may not be less than five years
following the completion date of the Contract.
(3) Automobile Liability on owned and non -owned motor
vehicles used on the site(s) or in connection therewith
for a combined single limit for bodily injury and
property damage of not less than $______
[Contracting Officer insert amount] per occurrence.
(b) Before commencing work, the Contractor shall furnish the
PHA with a certificate of insurance evidencing that
Builder’s Risk (fire and extended coverage) Insurance on
all work in place and/or materials stored at the building
site(s), including foundations and building equipment, is
in force. The Builder’s Risk Insurance shall be for the
benefit of the Contractor and the PHA as their interests
may appear and each shall be named in the policy or
policies as an insured. The Contractor in installing
equipment supplied by the PHA shall carry insurance on
such equipment from the time the Contractor takes
possession thereof until the Contract work is accepted by
the PHA. The Builder’s Risk Insurance need not be
carried on excavations, piers, footings, or foundations
until such time as work on the superstructure is started. It
need not be carried on landscape work. Policies shall
furnish coverage at all times for the full cash value of all
completed construction, as well as materials in place
and/or stored at the site(s), whether or not partial
payment has been made by the PHA. The Contractor
may terminate this insurance on buildings as of the date
taken over for occupancy by the PHA. The Contractor is
not required to carry Builder’s Risk Insurance for
modernization work which does not involve structural
alterations or additions and where the PHA’s existing fire
and extended coverage policy can be endorsed to
include such work.
(c) All insurance shall be carried with companies which are
financially responsible and admitted to do business in the
State in which the project is located. If any such
insurance is due to expire during the construction period,
the Contractor (including subcontractors, as applicable)
shall not permit the coverage to lapse and shall furnish
evidence of coverage to the Contracting Officer. All
certificates of insurance, as evidence of coverage, shall
provide that no coverage may be canceled or nonrenewed by the insurance company until at least 30 days
prior written notice has been given to the Contracting
Officer.
37. Subcontracts
(a) Definitions. As used in this contract (1) “Subcontract” means any contract, purchase order, or
other purchase agreement, including modifications
and change orders to the foregoing, entered into by a
subcontractor to furnish supplies, materials,
equipment, and services for the performance of the
prime contract or a subcontract.

Previous editions are obsolete
Replaces form HUD-5370-A

(2) “Subcontractor” means any supplier, vendor, or firm
that furnishes supplies, materials, equipment, or
services to or for the Contractor or another
subcontractor.
(b) The Contractor shall not enter into any subcontract with
any subcontractor who has been temporarily denied
participation in a HUD program or who has been
suspended or debarred from participating in contracting
programs by any agency of the United States
Government or of the state in which the work under this
contract is to be performed.
(c) The Contractor shall be as fully responsible for the acts or
omissions of its subcontractors, and of persons either
directly or indirectly employed by them as for the acts or
omissions of persons directly employed by the
Contractor.
(d) The Contractor shall insert appropriate clauses in all
subcontracts to bind subcontractors to the terms and
conditions of this contract insofar as they are applicable
to the work of subcontractors.
(e) Nothing contained in this contract shall create any
contractual relationship between any subcontractor and
the PHA or between the subcontractor and HUD.
38. Subcontracting with Small and Minority Firms,
Women’s Business Enterprise, and Labor Surplus
Area Firms
The Contractor shall take the following steps to ensure
that, whenever possible, subcontracts are awarded to
small business firms, minority firms, women’s business
enterprises, and labor surplus area firms:
(a) Placing qualified small and minority businesses and
women’s business enterprises on solicitation lists;
(b) Ensuring that small and minority businesses and
women’s business enterprises are solicited whenever
they are potential sources;
(c) Dividing total requirements, when economically feasible,
into smaller tasks or quantities to permit maximum
participation by small and minority businesses and
women’s business enterprises;
(d) Establishing delivery schedules, where the requirements
of the contract permit, which encourage participation by
small and minority businesses and women’s business
enterprises; and
(e) Using the services and assistance of the U.S. Small
Business Administration, the Minority Business
Development Agency of the U.S. Department of
Commerce, and State and local governmental small
business agencies.
39. Equal Employment Opportunity
During the performance of this contract, the Contractor
agrees as follows:
(a) The Contractor shall not discriminate against any
employee or applicant for employment because of race,
color, religion, sex, national origin, or handicap.
(b) The Contractor shall take affirmative action to ensure that
applicants are employed, and that employees are treated
during employment without regard to their race, color,
religion, sex, national origin, or handicap. Such action
shall include, but not be limited to, (1) employment, (2)
upgrading, (3) demotion, (4) transfer, (5) recruitment or
recruitment advertising, (6) layoff or termination, (7) rates
of pay or other forms of compensation, and (8) selection
for training, including apprenticeship.
Page 13 of 19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

(c) The Contractor shall post in conspicuous places available
to employees and applicants for employment the notices
to be provided by the Contracting Officer that explain this
clause.
(d) The Contractor shall, in all solicitations or advertisements
for employees placed by or on behalf of the Contractor,
state that all qualified applicants will receive
consideration for employment without regard to race,
color, religion, sex, national origin, or handicap.
(e) The Contractor shall send, to each labor union or
representative of workers with which it has a collective
bargaining agreement or other contract or understanding,
the notice to be provided by the Contracting Officer
advising the labor union or workers’ representative of the
Contractor’s commitments under this clause, and post
copies of the notice in conspicuous places available to
employees and applicants for employment.
(f) The Contractor shall comply with Executive Order 11246,
as amended, and the rules, regulations, and orders of the
Secretary of Labor.
(g) The Contractor shall furnish all information and reports
required by Executive Order 11246, as amended, Section
503 of the Rehabilitation Act of 1973, as amended, and
by rules, regulations, and orders of the Secretary of
Labor, or pursuant thereto. The Contractor shall permit
access to its books, records, and accounts by the
Secretary of Labor for purposes of investigation to
ascertain compliance with such rules, regulations, and
orders.
(h) In the event of a determination that the Contractor is not
in compliance with this clause or any rule, regulation, or
order of the Secretary of Labor, this contract may be
canceled, terminated, or suspended in whole or in part,
and the Contractor may be declared ineligible for further
Government contracts, or Federally assisted construction
contracts under the procedures authorized in Executive
Order 11246, as amended. In addition, sanctions may be
imposed and remedies invoked against the Contractor as
provided in Executive Order 11246, as amended, the
rules, regulations, and orders of the Secretary of Labor,
or as otherwise provided by law.
(i) The Contractor shall include the terms and conditions of
this clause in every subcontract or purchase order unless
exempted by the rules, regulations, or orders of the
Secretary of Labor issued under Executive Order 11246,
as amended, so that these terms and conditions will be
binding upon each subcontractor or vendor. The
Contractor shall take such action with respect to any
subcontract or purchase order as the Secretary of
Housing and Urban Development or the Secretary of
Labor may direct as a means of enforcing such
provisions, including sanctions for noncompliance;
provided that if the Contractor becomes involved in, or is
threatened with, litigation with a subcontractor or vendor
as a result of such direction, the Contractor may request
the United States to enter into the litigation to protect the
interests of the United States.
(j) Compliance with the requirements of this clause shall be
to the maximum extent consistent with, but not in
derogation of, compliance with section 7(b) of the Indian
Self-Determination and Education Assistance Act and the
Indian Preference clause of this contract.
40. Employment, Training, and Contracting
Opportunities for Low-Income Persons, Section 3 of
the Housing and Urban Development Act of 1968.

Previous editions are obsolete
Replaces form HUD-5370-A

(a) The work to be performed under this contract is subject to
the requirements of section 3 of the Housing and Urban
Development Act of 1968, as amended, 12 U.S.C. 1701u
(section 3). The purpose of section 3 is to ensure that
employment and other economic opportunities generated
by HUD assistance or HUD-assisted projects covered by
section 3, shall, to the greatest extent feasible, be
directed to low- and very low-income persons, particularly
persons who are recipients of HUD assistance for
housing.
(b) The parties to this contract agree to comply with HUD's
regulations in 24 CFR Part 135, which implement section
3. As evidenced by their execution of this contract, the
parties to this contract certify that they are under no
contractual or other impediment that would prevent them
from complying with the Part 135 regulations.
(c) The contractor agrees to send to each labor organization
or representative of workers with which the contractor
has a collective bargaining agreement or other
understanding, if any, a notice advising the labor
organization or workers' representative of the contractor's
commitments under this section 3 clause, and will post
copies of the notice in conspicuous places at the work
site where both employees and applicants for training
and employment positions can see the notice. The notice
shall describe the section 3 preference, shall set forth
minimum number and job titles subject to hire, availability
of apprenticeship and training positions, the qualifications
for each; and the name and location of the person(s)
taking applications for each of the positions; and the
anticipated date the work shall begin.
(d) The contractor agrees to include this section 3 clause in
every subcontract subject to compliance with regulations
in 24 CFR Part 135, and agrees to take appropriate
action, as provided in an applicable provision of the
subcontract or in this section 3 clause, upon a finding that
the subcontractor is in violation of the regulations in 24
CFR Part 135. The contractor will not subcontract with
any subcontractor where the contractor has notice or
knowledge that the subcontractor has been found in
violation of the regulations in 24 CFR Part 135.
(e) The contractor will certify that any vacant employment
positions, including training positions, that are filled (1)
after the contractor is selected but before the contract is
executed, and (2) with persons other than those to whom
the regulations of 24 CFR Part 135 require employment
opportunities to be directed, were not filled to circumvent
the contractor's obligations under 24 CFR Part 135.
(f) Noncompliance with HUD's regulations in 24 CFR Part
135 may result in sanctions, termination of this contract
for default, and debarment or suspension from future
HUD assisted contracts.
(g) With respect to work performed in connection with section
3 covered Indian housing assistance, section 7(b) of the
Indian Self-Determination and Education Assistance Act
(25 U.S.C. 450e) also applies to the work to be
performed under this contract. Section 7(b) requires that
to the greatest extent feasible (i) preference and
opportunities for training and employment shall be given
to Indians, and (ii) preference in the award of contracts
and subcontracts shall be given to Indian organizations
and Indian-owned Economic Enterprises. Parties to this
contract that are subject to the provisions of section 3
and section 7(b)agree to comply with section 3 to the
maximum extent feasible, but not in derogation of
compliance with section 7(b).

Page 14 of 19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

(a) The PHA, HUD, or Comptroller General of the United
States, or any of their duly authorized representatives
shall, until 3 years after final payment under this contract,
have access to and the right to examine any of the
Contractor’s directly pertinent books, documents, papers,
or other records involving transactions related to this
contract for the purpose of making audit, examination,
excerpts, and transcriptions.
(b) The Contractor agrees to include in first-tier subcontracts
under this contract a clause substantially the same as
paragraph (a) above. “Subcontract,” as used in this
clause, excludes purchase orders not exceeding
$10,000.
(c) The periods of access and examination in paragraphs (a)
and (b) above for records relating to (1) appeals under
the Disputes clause of this contract, (2) litigation or
settlement of claims arising from the performance of this
contract, or (3) costs and expenses of this contract to
which the PHA, HUD, or Comptroller General or any of
their duly authorized representatives has taken exception
shall continue until disposition of such appeals, litigation,
claims, or exceptions.

41. Interest of Members of Congress
No member of or delegate to the Congress of the United
States of America shall be admitted to any share or part
of this contract or to any benefit that may arise therefrom.
42. Interest of Members, Officers, or Employees and
Former Members, Officers, or Employees
No member, officer, or employee of the PHA, no member
of the governing body of the locality in which the project
is situated, no member of the governing body of the
locality in which the PHA was activated, and no other
public official of such locality or localities who exercises
any functions or responsibilities with respect to the
project, shall, during his or her tenure, or for one year
thereafter, have any interest, direct or indirect, in this
contract or the proceeds thereof.
43. Limitations on Payments made to Influence Certain
Federal Financial Transactions
(a) The Contractor agrees to comply with Section 1352 of
Title 31, United States Code which prohibits the use of
Federal appropriated funds to pay any person for
influencing or attempting to influence an officer or
employee of any agency, a Member of Congress, and
officer or employee of Congress, or an employee of a
Member of Congress in connection with any of the
following covered Federal actions: the awarding of any
Federal contract; the making of any Federal grant; the
making of any Federal loan; the entering into of any
cooperative agreement; or the modification of any
Federal contract, grant, loan, or cooperative agreement.
(b) The Contractor further agrees to comply with the
requirement of the Act to furnish a disclosure (OMB
Standard Form LLL, Disclosure of Lobbying Activities) if
any funds other than Federal appropriated funds
(including profit or fee received under a covered Federal
transaction) have been paid, or will be paid, to any
person for influencing or attempting to influence an officer
or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a
Member of Congress in connection with a Federal
contract, grant, loan, or cooperative agreement.
44. Royalties and Patents
The Contractor shall pay all royalties and license fees. It
shall defend all suits or claims for infringement of any
patent rights and shall save the PHA harmless from loss
on account thereof; except that the PHA shall be
responsible for all such loss when a particular design,
process or the product of a particular manufacturer or
manufacturers is specified and the Contractor has no
reason to believe that the specified design, process, or
product is an infringement. If, however, the Contractor
has reason to believe that any design, process or product
specified is an infringement of a patent, the Contractor
shall promptly notify the Contracting Officer. Failure to
give such notice shall make the Contractor responsible
for resultant loss.
45. Examination and Retention of Contractor’s Records

Previous editions are obsolete
Replaces form HUD-5370-A

46. Labor Standards - Davis-Bacon and Related Acts
If the total amount of this contract exceeds $2,000, the
Federal labor standards set forth in the clause below
shall apply to the development or construction work to be
performed under the contract.
(a) Minimum Wages.
(1) All laborers and mechanics employed under this
contract in the development or construction of the
project(s) involved will be paid unconditionally and not
less often than once a week, and without subsequent
deduction or rebate on any account (except such payroll
deductions as are permitted by regulations issued by the
Secretary of Labor under the Copeland Act (29 CFR Part
3)), the full amount of wages and bona fide fringe benefits
(or cash equivalents thereof) due at time of payment
computed at rates not less than those contained in the
wage determination of the Secretary of Labor which is
attached hereto and made a part hereof, regardless of
any contractual relationship which may be alleged to exist
between the Contractor and such laborers and
mechanics. Contributions made or costs reasonably
anticipated for bona fide fringe benefits under Section
1(b)(2) of the Davis-Bacon Act on behalf of laborers or
mechanics are considered wages paid to such laborers
or mechanics, subject to the provisions of 29 CFR
5.5(a)(1)(iv); also, regular contributions made or costs
incurred for more than a weekly period (but not less often
than quarterly) under plans, funds, or programs which
cover the regular weekly period, are deemed to be
constructively made or incurred during such weekly
period. Such laborers and mechanics shall be paid the
appropriate wage rate and fringe benefits in the wage
determination for the classification of work actually
performed, without regard to skill, except as provided in
29 CFR 5.5(a)(4). Laborers or mechanics performing
work in more than one classification may be
compensated at the rate specified for each classification
for the time actually worked therein; provided, that the
employer’s payroll records accurately set forth the time
spent in each classification in which work is performed.
The wage determination (including any additional
classification and wage rates conformed under 29 CFR
5.5(a)(1)(ii) and the Davis-Bacon poster (WH-1321) shall

Page 15 of 19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

be posted at all times by the Contractor and its
subcontractors at the site of the work in a prominent and
accessible place where it can be easily seen by the
workers.
(2) (i) Any class of laborers or mechanics, including
helpers, which is not listed in the wage
determination and which is to be employed under
the contract shall be classified in conformance
with the wage determination. HUD shall approve
an additional classification and wage rate and
fringe benefits therefor only when all the following
criteria have been met: (A) The work to be
performed by the classification requested is not
performed by a classification in the wage
determination; and (B) The classification is utilized
in the area by the construction industry; and (C)
The proposed wage rate, including any bona fide
fringe benefits, bears a reasonable relationship to
the wage rates contained in the wage
determination.
(ii) If the Contractor and the laborers and mechanics
to be employed in the classification (if known), or
their representatives, and HUD or its designee
agree on the classification and wage rate
(including the amount designated for fringe
benefits where appropriate), a report of the action
taken shall be sent by HUD or its designee to the
Administrator of the Wage and Hour Division,
Employee Standards Administration, U.S.
Department of Labor, Washington, DC 20210.
The Administrator, or an authorized
representative, will approve, modify, or disapprove
every additional classification action within 30
days of receipt and so advise HUD or its designee
or will notify HUD or its designee within the 30-day
period that additional time is necessary.
(iii) In the event the Contractor, the laborers or
mechanics to be employed in the classification or
their representatives, and HUD or its designee do
not agree on the proposed classification and wage
rate (including the amount designated for fringe
benefits, where appropriate), HUD or its designee
shall refer the questions, including the views of all
interested parties and the recommendation of
HUD or its designee, to the Administrator of the
Wage and Hour Division for determination. The
Administrator, or an authorized representative, will
issue a determination within 30 days of receipt
and so advise HUD or its designee or will notify
HUD or its designee within the 30-day period that
additional time is necessary.
(iv) The wage rate (including fringe benefits where
appropriate) determined pursuant to
subparagraphs (a)(2)(ii) or (iii) of this clause shall
be paid to all workers performing work in the
classification under this contract from the first day
on which work is performed in classification.
(3) Whenever the minimum wage rate prescribed in the
contract for a class of laborers or mechanics includes
a fringe benefit which is not expressed as an hourly
rate, the Contractor shall either pay the benefit as
stated in the wage determination or shall pay another
bona fide fringe benefit or an hourly cash equivalent
thereof.
(4) If the Contractor does not make payments to a trustee
or other third person, the Contractor may consider as
part of the wages of any laborer or mechanic the
Previous editions are obsolete
Replaces form HUD-5370-A

amount of any costs reasonably anticipated in
providing bona fide fringe benefits under a plan or
program; provided, that the Secretary of Labor has
found, upon the written request of the Contractor, that
the applicable standards of the Davis-Bacon Act have
been met. The Secretary of Labor may require the
Contractor to set aside in a separate account assets
for the meeting of obligations under the plan or
program.
(b) Withholding of funds. HUD or its designee shall, upon its
own action or upon written request of an authorized
representative of the Department of Labor, withhold or
cause to be withheld from the Contractor under this
contract or any other Federal contract with the same
prime Contractor, or any other Federally-assisted
contract subject to Davis-Bacon prevailing wage
requirements, which is held by the same prime
Contractor, so much of the accrued payments or
advances as may be considered necessary to pay
laborers and mechanics, including apprentices, trainees,
and helpers, employed by the Contractor or any
subcontractor the full amount of wages required by the
contract. In the event of failure to pay any laborer or
mechanic, including any apprentice, trainee, or helper,
employed or working in the construction or development
of the project, all or part of the wages required by the
contract, HUD or its designee may, after written notice to
the Contractor, take such action as may be necessary to
cause the suspension of any further payment, advance,
or guarantee of funds until such violations have ceased.
HUD or its designee may, after written notice to the
Contractor, disburse such amounts withheld for and on
account of the Contractor or subcontractor to the
respective employees to whom they are due.
(c) Payrolls and basic records.
(1) Payrolls and basic records relating thereto shall be
maintained by the Contractor during the course of the
work and preserved for a period of three years
thereafter for all laborers and mechanics working in
the construction or development of the project. Such
records shall contain the name, address, and social
security number of each such worker, his or her
correct classification, hourly rates of wages paid
(including rates of contributions or costs anticipated
for bona fide fringe benefits or cash equivalents
thereof of the types described in section 1(b)(2)(B) of
the Davis-Bacon Act), daily and weekly number of
hours worked, deductions made, and actual wages
paid. Whenever the Secretary of Labor has found,
under 29 CFR 5.5(a)(1)(iv), that the wages of any
laborer or mechanic include the amount of costs
reasonably anticipated in providing benefits under a
plan or program described in section 1(b)(2)(B) of the
Davis-Bacon Act, the Contractor shall maintain
records which show that the commitment to provide
such benefits is enforceable, that the plan or program
is financially responsible, and that the plan or
program has been communicated in writing to the
laborers or mechanics affected, and records which
show the costs anticipated or the actual cost incurred
in providing such benefits. Contractors employing
apprentices or trainees under approved programs
shall maintain written evidence of the registration of
apprenticeship programs and certification of trainee
programs, the registration of the apprentices and
trainees, and the ratios and wage rates prescribed in
the applicable programs.

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form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

(2) (i) The Contractor shall submit weekly for each week
in which any contract work is performed a copy of
all payrolls to the Contracting Officer for
transmission to HUD or its designee. The payrolls
submitted shall set out accurately and completely
all of the information required to be maintained
under subparagraph (c)(1) of this clause. This
information may be submitted in any form desired.
Optional Form WH-347 (Federal Stock Number
029-005-00014-1) is available for this purpose
and may be purchased from the Superintendent of
Documents, U.S. Government Printing Office,
Washington, D.C. 20402. The Contractor is
responsible for the submission of copies of
payrolls by all subcontractors. (Approved by the
Office of Management and Budget under OMB
Control Number 1214-0149.)
(ii) Each payroll submitted shall be accompanied by a
“Statement of Compliance,” signed by the
Contractor or subcontractor or his or her agent
who pays or supervises the payment of the
persons employed under the contract and shall
certify the following:
(A) That the payroll for the payroll period contains
the information required to be maintained
under paragraph (c) (1) of this clause and that
such information is correct and complete;
(B) That each laborer or mechanic (including each
helper, apprentice, and trainee) employed on
the contract during the payroll period has been
paid the full weekly wages earned, without
rebate, either directly or indirectly, and that no
deductions have been made either directly or
indirectly from the full wages earned, other
than permissible deductions as set forth in 29
CFR Part 3; and
(C) That each laborer or mechanic has been paid
not less than the applicable wage rates and
fringe benefits or cash equivalents for the
classification of work performed, as specified
in the applicable wage determination
incorporated into the contract.
(iii) The weekly submission of a properly executed
certification set forth on the reverse side of
Optional Form WH-347 shall satisfy the
requirements for submission of the “Statement of
Compliance” required by subparagraph (c)(2)(ii) of
this clause.
(iv) The falsification of any of the above certifications
may subject the Contractor or subcontractor to
civil or criminal prosecution under Section 1001 of
Title 18 and Section 3729 of Title 31 of the United
States Code.
(3) The Contractor or subcontractor shall make the
records required under subparagraph (c)(1) available
for inspection, copying, or transcription by authorized
representatives of HUD or its designee, the
Contracting Officer, or the Department of Labor and
shall permit such representatives to interview
employees during working hours on the job. If the
Contractor or subcontractor fails to submit the
required records or to make them available, HUD or
its designee may, after written notice to the
Contractor, take such action as may be necessary to
cause the suspension of any further payment,
advance, or guarantee of funds. Furthermore, failure
to submit the required records upon request or to
Previous editions are obsolete
Replaces form HUD-5370-A

make such records available may be grounds for
debarment action pursuant to 29 CFR 5.12.
(d) (1) Apprentices. Apprentices will be permitted to work at
less than the predetermined rate for the work they
performed when they are employed pursuant to and
individually registered in a bona fide apprenticeship
program registered with the U.S. Department of
Labor, Employment and Training Administration,
Office of Apprenticeship and Training, Employer and
Labor Services (OATELS), or with a State
Apprenticeship Agency recognized by OATELS, or if
a person is employed in his or her first 90 days of
probationary employment as an apprentice in such an
apprenticeship program, who is not individually
registered in the program, but who has been certified
by OATELS or a State Apprenticeship Agency (where
appropriate) to be eligible for probationary
employment as an apprentice. The allowable ratio of
apprentices to journeymen on the job site in any craft
classification shall not be greater than the ratio
permitted to the Contractor as to the entire work force
under the registered program. Any worker listed on a
payroll at an apprentice wage rate, who is not
registered or otherwise employed as stated in this
paragraph, shall be paid not less than the applicable
wage rate on the wage determination for the
classification of work actually performed. In addition,
any apprentice performing work on the job site in
excess of the ratio permitted under the registered
program shall be paid not less than the applicable
wage rate on the wage determination for the work
actually performed. Where a contractor is performing
construction on a project in a locality other than that in
which its program is registered, the ratios and wage
rates (expressed in percentages of the journeyman’s
hourly rate) specified in the Contractor’s or
subcontractor’s registered program shall be observed.
Every apprentice must be paid at not less than the
rate specified in the registered program for the
apprentice’s level of progress, expressed as a
percentage of the journeyman hourly rate specified in
the applicable wage determination. Apprentices shall
be paid fringe benefits in accordance with the
provisions of the apprenticeship program. If the
apprenticeship program does not specify fringe
benefits, apprentices must be paid the full amount of
fringe benefits listed on the wage determination for
the applicable classification. If the Administrator of the
Wage and Hour Division determines that a different
practice prevails for the applicable apprentice
classification, fringes shall be paid in accordance with
that determination. In the event OATELS, or a State
Apprenticeship Agency recognized by OATELS,
withdraws approval of an apprenticeship program, the
Contractor will no longer be permitted to utilize
apprentices at less than the applicable predetermined
rate for the work performed until an acceptable
program is approved.
(2) Trainees. Except as provided in 29 CFR 5.16,
trainees will not be permitted to work at less than the
predetermined rate for the work performed unless
they are employed pursuant to and individually
registered in a program which has received prior
approval, evidenced by formal certification by the U.S.
Department of Labor, Employment and Training
Administration. The ratio of trainees to journeymen on
the job site shall not be greater than permitted under

Page 17 of 19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

the plan approved by the Employment and Training
Administration. Every trainee must be paid at not less
than the rate specified in the approved program for
the trainee’s level of progress, expressed as a
percentage of the journeyman hourly rate specified in
the applicable wage determination. Trainees shall be
paid fringe benefits in accordance with the provisions
of the trainee program. If the trainee program does
not mention fringe benefits, trainees shall be paid the
full amount of fringe benefits listed in the wage
determination unless the Administrator of the Wage
and Hour Division determines that there is an
apprenticeship program associated with the
corresponding journeyman wage rate in the wage
determination which provides for less than full fringe
benefits for apprentices. Any employee listed on the
payroll at a trainee rate who is not registered and
participating in a training plan approved by the
Employment and Training Administration shall be paid
not less than the applicable wage rate in the wage
determination for the classification of work actually
performed. In addition, any trainee performing work
on the job site in excess of the ratio permitted under
the registered program shall be paid not less than the
applicable wage rate in the wage determination for
the work actually performed. In the event the
Employment and Training Administration withdraws
approval of a training program, the Contractor will no
longer be permitted to utilize trainees at less than the
applicable predetermined rate for the work performed
until an acceptable program is approved.
(3) Equal employment opportunity. The utilization of
apprentices, trainees, and journeymen under this
clause shall be in conformity with the equal
employment opportunity requirements of Executive
Order 11246, as amended, and 29 CFR Part 30.
(e) Compliance with Copeland Act requirements. The
Contractor shall comply with the requirements of 29 CFR
Part 3, which are hereby incorporated by reference in this
contract.
(f) Contract termination; debarment. A breach of this contract
clause may be grounds for termination of the contract
and for debarment as a Contractor and a subcontractor
as provided in 29 CFR 5.12.
(g) Compliance with Davis-Bacon and related Act
requirements. All rulings and interpretations of the DavisBacon and related Acts contained in 29 CFR Parts 1, 3,
and 5 are herein incorporated by reference in this
contract.
(h) Disputes concerning labor standards. Disputes arising out
of the labor standards provisions of this clause shall not
be subject to the general disputes clause of this contract.
Such disputes shall be resolved in accordance with the
procedures of the Department of Labor set forth in 29
CFR Parts 5, 6, and 7. Disputes within the meaning of
this clause include disputes between the Contractor (or
any of its subcontractors) and the PHA, HUD, the U.S.
Department of Labor, or the employees or their
representatives.
(i) Certification of eligibility.
(1) By entering into this contract, the Contractor certifies
that neither it (nor he or she) nor any person or firm
who has an interest in the Contractor’s firm is a
person or firm ineligible to be awarded contracts by
the United States Government by virtue of section
3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).

Previous editions are obsolete
Replaces form HUD-5370-A

(2) No part of this contract shall be subcontracted to any
person or firm ineligible for award of a United States
Government contract by virtue of section 3(a) of the
Davis-Bacon Act or 29 CFR 5.12(a)(1).
(3) The penalty for making false statements is prescribed
in the U. S. Criminal Code, 18 U.S.C. 1001.
(j) Contract Work Hours and Safety Standards Act. As used
in this paragraph, the terms “laborers” and “mechanics”
include watchmen and guards.
(1) Overtime requirements. No contractor or
subcontractor contracting for any part of the contract
work which may require or involve the employment of
laborers or mechanics, including watchmen and
guards, shall require or permit any such laborer or
mechanic in any workweek in which the individual is
employed on such work to work in excess of 40 hours
in such workweek unless such laborer or mechanic
receives compensation at a rate not less than one
and one-half times the basic rate of pay for all hours
worked in excess of 40 hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated
damages. In the event of any violation of the
provisions set forth in subparagraph (j)(1) of this
clause, the Contractor and any subcontractor
responsible therefor shall be liable for the unpaid
wages. In addition, such Contractor and
subcontractor shall be liable to the United States (in
the case of work done under contract for the District
of Columbia or a territory, to such District or to such
territory), for liquidated damages. Such liquidated
damages shall be computed with respect to each
individual laborer or mechanic (including watchmen
and guards) employed in violation of the provisions
set forth in subparagraph (j)(1) of this clause, in the
sum of $10 for each calendar day on which such
individual was required or permitted to work in excess
of the standard workweek of 40 hours without
payment of the overtime wages required by
provisions set forth in subparagraph (j)(1) of this
clause.
(3) Withholding for unpaid wages and liquidated
damages. HUD or its designee shall upon its own
action or upon written request of an authorized
representative of the Department of Labor withhold or
cause to be withheld, from any moneys payable on
account of work performed by the Contractor or
subcontractor under any such contract or any Federal
contract with the same prime Contractor, or any other
Federally-assisted contract subject to the Contract
Work Hours and Safety Standards Act, which is held
by the same prime Contractor, such sums as may be
determined to be necessary to satisfy any liabilities of
such Contractor or subcontractor for unpaid wages
and liquidated damages as provided in the provisions
set forth in subparagraph (j)(2) of this clause.
(k) Subcontracts. The Contractor or subcontractor shall insert
in any subcontracts all the provisions contained in this
clause, and such other clauses as HUD or its designee
may by appropriate instructions require, and also a
clause requiring the subcontractors to include these
provisions in any lower tier subcontracts. The prime
Contractor shall be responsible for the compliance by any
subcontractor or lower tier subcontractor with all these
provisions.

Page 18 of 19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G

47. Non-Federal Prevailing Wage Rates
(a) Any prevailing wage rate (including basic hourly rate and
any fringe benefits), determined under State or tribal law
to be prevailing, with respect to any employee in any
trade or position employed under the contract, is
inapplicable to the contract and shall not be enforced
against the Contractor or any subcontractor, with respect
to employees engaged under the contract whenever
such non-Federal prevailing wage rate exceeds:
(1) The applicable wage rate determined by the Secretary
of Labor pursuant to the Davis-Bacon Act (40 U.S.C.
3141 et seq.) to be prevailing in the locality with
respect to such trade;
(b) An applicable apprentice wage rate based thereon
specified in an apprenticeship program registered with
the U.S. Department of Labor (DOL) or a DOLrecognized State Apprenticeship Agency; or
(c) An applicable trainee wage rate based thereon specified
in a DOL-certified trainee program.
48. Procurement of Recovered Materials.
(a) In accordance with Section 6002 of the Solid Waste
Disposal Act, as amended by the Resource Conservation
and Recovery Act, the Contractor shall procure items
designated in guidelines of the Environmental Protection
Agency (EPA) at 40 CFR Part 247 that contain the
highest percentage of recovered materials practicable,
consistent with maintaining a satisfactory level of
competition. The Contractor shall procure items
designated in the EPA guidelines that contain the highest
percentage of recovered materials practicable unless the
Contractor determines that such items: (1) are not
reasonably available in a reasonable period of time; (2)
fail to meet reasonable performance standards, which
shall be determined on the basis of the guidelines of the
National Institute of Standards and Technology, if
applicable to the item; or (3) are only available at an
unreasonable price.

(b) Paragraph (a) of this clause shall apply to items
purchased under this contract where: (1) the
Contractor purchases in excess of $10,000 of the item
under this contract; or (2) during the preceding
Federal fiscal year, the Contractor: (i) purchased any
amount of the items for use under a contract that was
funded with Federal appropriations and was with a
Federal agency or a State agency or agency of a
political subdivision of a State; and (ii) purchased a
total of in excess of $10,000 of the item both under
and outside that contract.

Previous editions are obsolete
Replaces form HUD-5370-A

Page 19 of 19

form HUD-5370 (11/2006)
ref Handbooks 7417.1 & 7485.3G