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(1) The specifications of every contract subject to the Davis-Bacon Act shall include a copy of a current wage rate determination. If the wage rate determination is not available when invitations for bids are issued, the specifications shall contain a statement that wage rates will be supplied by adgenda to the specifications. Contracting officers shall not open bids on procurements subject to the Davis-Bacon Act until the requested determination of wage rates has been incorporated in the specifications.

(2) Wage rates properly included in the contract at the time of award are applicable to the contract for its duration, except as specified in (b) below. These same rates may be used for additional or new work not included in the specifications if an area determination was used in the invitations for bids or requests for proposals and that determination is still in effect at the time of change. If the area determination has expired or if an individual determination was used, a new wage determination must be used for such new or additional work unless it is clear that the new or additional work is so much a part of the work originally contracted for that it is reasonably impossible of performance by other than the original contractor. (An apparent probability that the new work may be done more conveniently or even at less expense. by the original contractor does not in itself justify use of the original determination for such work. The original determination should be used for new work only if the new work does not reflect a change or modification which materially alters the scope or character of the original contract requirements and is so closely related to the original work, both in nature and in timing, that it cannot reasonably be regarded as a separate and distinct undertaking.)

a. Fixed-Price Contracts (Formally Advertised or Negotiated). Once a contract is awarded, the wage rates contained in the specifications are the minimum rates that can be paid by the contractor or his subcontractors during the life of the contract.

b. Cost-Reimbursement Type, Time and Material, and Labor-Hour Contracts and Subcontracts. The wage rates established for and included in cost-reimbursement type prime or subcontracts (including time and material contracts and labor-hour contracts), according to the Davis-Bacon Act, are the minimum rates that can be paid during the life of the contract. Reimbursement to contractors and subcontractors holding the foregoing types of contracts for wages paid to laborers and mechanics are based on this wage schedule; all applications of prime and subcontractors to use higher wage rates require specific approval by the contracting officer. The contracting officer's approval shall be based upon substantiating data in support of the contractor's request, such as: proposed wage rates were established as a result of bona fide collective bargaining in which the contractor participated or to which he adheres as a general practice or as a result of membership in contractor's organizations; proposed wage rates have approval of any existing wage-stabilizing body established pursuant to Federal law; or payment or wages at higher rates is required to man the job. Subcontracts awarded pursuant to a cost-reimbursement type, time and material, or labor-hour contract shall include wage rates prevailing at the time of the subcontract award, except where the subcontracted work is included in the specifications of the prime contract and is a part of the particular work for which the wage rate determination attached to the prime contract was obtained.

(e) Modification and Superseding Determinations. During the 120-day life of a determination, the Department of Labor may issue a modification thereto, changing the wage rate for one or more classifications or adding or deleting a classification; or the Department of Labor may issue a new determination which entirely supersedes the original determination for the duration of the 120day period. The word “modification" as used in this paragraph 12.404 includes new or superseding wage determinations. Modifications do not change the expiration date of the original determination. Modifications by the Secretary of Labor of an original wage determination shall be made part of the proposed contract if received prior to the award of the contract, provided that, in a formally advertised procurement, any modification received less than 10 calendar days before the opening of bids may be disregarded.

(f) Posting. The contracting officer shall ascertain that a copy of the wage determination is kept posted at the site of the work in a prominent place where it can be easily seen by the workers. 12.404-3 Additional Classifications. If any laborers or mechanics not listed in the wage determination attached to the contract are to be employed, their classifications and minimum wage rates shall be established by the contractor or subcontractor, with the approval of the contracting officer, conformably to the attached wage determination. A report of any such determination CFR TITLE 41 CHAPTER 18

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shall be transmitted to the Secretary of Labor. If the interested parties cannot agree upon any such additional classification and wage rate, the matter accompanied by the recommendation of the contracting officer shall be referred via the Director of Procurement to the Secretary of Labor for final determination.

12.404-4 Apprentices.

(a) In accordance with Section 5.5(a)(4) of the Department of Labor Regulations (29 CFR Part 5) as implemented by Memorandum No. 59 issued on June 24, 1964 from the Office of the Solicitor, the Labor Department will no longer list apprentice rates on wage determinations under the Davis-Bacon Act and related acts. Future determinations will contain the following notation:

"Before using apprentices on the job, the contractor shall present to the Contracting Officer written evidence of registration of such employees in a program of a State apprenticeship and training agency approved and recognized by the U.S. Bureau of Apprenticeship and Training. In the absence of such a State agency, the contractor shall submit evidence of approval and registration by the U.S. Bureau of Apprenticeship and Training.

"The contractor shall submit to the Contracting Officer written evidence of the established apprentice-journeyman ratios and wage rates in the project area, which will be the basis for establishing such ratios and rates for the project under the applicable contract provisions." (November 1964)

(b) Any employee of a contractor listed on a payroll at an apprentice wage rate, who is not registered as an apprentice and within an established apprentice-journeyman ratio, as provided in (a) above, shall be paid the wage rate determined by the Secretary of Labor for the classification of work he actually performed.

12.404-5 Subcontracts. The contracting officer shall obtain a list of all subcontracts, together with a description of the work to be performed thereunder, and such list shall be kept current during the performance of the contract.

12.404-6 Payrolls and Statements.

(a) Submission. Within 7 calendar days after the regular payment date of the payroll week covered, the prime contractor will submit and cause all his subcontractors to submit through him to the contracting officer, copies of certified weekly payrolls showing all laborers and mechanics engaged on the contract at the site of the work, including the name and address of each employee, his correct classification, daily and weekly number of hours worked, rate of pay, deductions made, and actual wages paid. Each payroll shall contain or be accompanied by a statement of the contractor (or subcontractor) that he has complied with the labor standards provisions of the contract. The receipt of these payrolls and statements is a condition precedent to final payment under the contract. Contracting officers should encourage contractors to make use of optional payroll Forms SOL-184 and 185, developed by the Department of Labor for voluntary use on Federal construction contracts subject to the Davis-Bacon Act and related Acts.

(b) Payroll Deductions.

(1) No payroll deductions are authorized except as follows:

(i) where required by Federal, State, or local statute or ordinance to be made by the employer from the wages earned by the employee;

(ii) bona fide prepayment of wages without discount or interest;

(iii) deductions required by court process, provided that the contractor or subcontractor will not be permitted to make such a deduction in favor of the contractor, subcontractor, or any affiliated person, or where collusion or collaboration exists; and

(iv) as permitted by subparagraphs (2), (3), and (4) below.

(2) Deductions which meet the standards set forth in (i) through (iv) below are permissible provided the contractor or subcontractor has made written application by registered mail to the Secretary of Labor (copies must be furnished the contracting officer) indicating that:

(i) the deduction is not prohibited by law;

(ii) the employee has consented voluntarily to the deduction in writing, prior to the payroll period, and the consent is neither a condition for obtaining employment nor for continuation of employment or that the deduction is provided for in a bona fide collective bargaining agreement and is for the benefit of the employee or the labor organization which represents the employee;

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(iii) no profit, benefit, or payment is obtained directly or indirectly by the contractor, subcontractor, or any affiliated person from the deduction and that no portion of the funds, whether in the form of a commission or otherwise, will be returned to the contractor, subcontractor, or any affiliated person; and

(iv) the deduction is for the convenience and in the interests of the employee and that the deductions are customary in this or comparable situations.

However, if the Secretary of Labor decides on his own motion or on the motion of an affected person or agency that the deduction does not meet these standards, he will give written notice to the contractor or subcontractor and request additional supporting evidence for the deduction. If, on the basis of such additional evidence, the deduction still does not meet these standards, the deduction will cease to be permissible 7 days after the contractor or subcontractor and NASA have been notified of the Secretary's decision.

(3) Upon application to and receipt of written permission from the Secretary of Labor and subject to the standards set forth in (2)(i), (ii), and (iii) above, deductions may be made by a contractor or subcontractor or any affiliated person for membership fees in group benefit or retirement associations, for board and lodging, or for other purposes where the Secretary of Labor concludes the deduction is required by compelling circumstances; provided, however, that the contractor, subcontractor, or any affiliated person does not make a profit or benefit directly or indirectly from the deduction. A copy of the Secretary's decision will be sent to the applicant and NASA.

(4) According to and subject to the standards set forth in (2) above, general permission is hereby granted to make payroll duductions for:

(i) the payment of the purchase price of United States Savings Stamps and Bonds and United States Tax Savings Notes;

(ii) the repayment of loans to or the purchase of shares in credit unions organized and operated according to District of Columbia, Federal, or State credit union statutes;

(iii) contributions to a Federal Government or quasi-governmental agency;

(iv) the payment of dues or premiums to unaffiliated insurance companies or associations for medical or hospitalization insurance where the employer is not required by Federal, State, or local laws to supply such insurance or benefits;

(v) contribution to bona fide charities such as the Red Cross or United Givers Fund; and (vi) regular union initiation fees and membership dues where a collective bargaining agreement provides for such deductions. This does not include work permits or special assignments.

(5) When the employee does not have full and actual freedom of disposition of his wage payment, whether made in cash or by check, any restricted payment made to the employee is considered a deduction under this Subpart.

(6) Nothing herein will be construed to permit any deduction which the contractor or subcontractor knew or, in the exercise of good faith, should have known did not meet the standards in (2)(i) through (iv) above. The Secretary of Labor may notify the contractor or subcontractor that a deduction will be permitted only if certain conditions with respect thereto are observed. The contractor or subcontractor or any affiliated persons will comply with such general rules and regulations concerning the deductions as the Secretary of Labor will make from time to time, notice of which will have been given to the contractor or subcontractor or any affiliated person making the deduction and to NASA either directly or through publication in the Federal Register.

(c) Preservation. Certified payrolls and statements shall be preserved by the installation concerned for a period of 3 years from completion of the contract and shall be produced at the request of the Secretary of Labor at any time during such period.

12.404-7 Investigations.

(a) Investigations necessary to assure compliance with contract, statutory, and regulatory requirements shall be made. If feasible, contracts of 6 months or less duration shall be investigated before final payment is made. Contracts of longer duration shall be investigated as frequently as may be necessary. Such investigations shall include interviews of employees on a sampling basis.

(b) Special investigations in detail shall be made when required by complaints or other evidence of violations. Complaints of violations shall be given priority. 12.404-7

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(c) Statements, written or oral, made by an employee shall be treated as confidential and shall not be disclosed to the employer without the consent of the employee.

12.404-8 Enforcement Reports.

(a) Where underpayments total $500 or more, or are willful, the contracting officer concerned shall furnish to the Department of Labor, through the NASA Office of Industrial Relations (Code NR-31), as soon as practicable, a detailed enforcement report. Such reports shall include a statement of the findings as to the violations and information as to restitution made, payment deductions, contract terminations, and the names and addresses of the workers, contractors and subcontractors concerned. (For willful violations of a criminal statute, see 12.404-8(c) below.) (b) Where underpayments total less than $500 and are nonwillful, and where restitution has been effected and future compliance assured, no report need be furnished the Department of Labor, unless the Department of Labor has expressly requested that the investigation be made. In the latter case, the contracting officer shall submit through the NASA Office of Industrial Relations (Code NR-31), a factual summary report in accordance with 29 C.F.R. 5.7(a)(1). (c) Where there is a substantial evidence that violations are willful and in breach of the False Affidavits Act (18 U.S.C. 1001) or other criminal statute, the matter shall be forwarded to the Attorney General for prosecution, and the Secretary of Labor shall be informed of such action. (d)(1) The Department of Labor Regulation (Part 5 of Title 29, Code of Federal Regulations) as implemented by Memorandum No. 60 issued on June 25, 1964, and Memorandum No. 126 issued on October 20, 1976, by the Solicitor of Labor, required that semiannual enforcement reports on compliance with and enforcement of the labor standards provisions of the DavisBacon Act and related acts be submitted covering the periods of October 1 through March 31 and April 1 through September 30, respectively. These reports shall cover contracts awarded directly by NASA and shall be submitted, in duplicate, by April 10 and October 10 of each year to the Office of Procurement, NASA Headquarters (Code HP-1), for consolidation and submission to the Department of Labor. Negative reports are required.

(2) The reports shall be prepared in accordance with the following format:

Semiannual Labor Compliance Report to the Department of Labor Pursuant to Section 5.7(b) of Regulations, Part 5

Date

This report covers period from .......... to ........... 19

I. a. Number of contracts awarded subject to labor standards statutes

(Include contracts awarded during the period, all or part of which were subject to the coverage of any of the statutes listed in 29 CFR 5.1, except for contracts awarded for NASA by other Government agencies, e.g., the Corps of Engineers).

b. Number of contracts on which preconstruction letters were sent .....

c. Number of contracts on which preconstruction conferences were held .....

d. Number of contracts on which letters of notice were sent to contractors emphasizing importance of future compliance

II. a. Total gross payroll amount $.......... (Total gross payroll amount is the sum of all gross payments made to laborers and mechanics during the reporting period. Contractor's Weekly Payroll Statement forms used by most agencies require that the gross payroll amount be shown on the Payroll Statement. This item requires merely the totaling of these gross amounts.)

b. Number of employee interviews conducted ......

1. Written 2. Oral

(Written interviews, which can be facilitated by use of employee interview forms, should be supported by interview statement on file.)

c. Amount of wage restitution made under Davis-Bacon and related acts S..........; under Contract Work Hours Standards Act S.......... ("Davis-Bacon and related acts" refers to all prevailing wage statutes listed in 29 CFR 5.1, whereas the Contract Work Hours Standards Act has reference to daily and weekly overtime).

d. Total number of workers who received restitution payments

e. Amount of liquidated damages assessed for violations of Contract Work Hours Standards Act S..

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.....

f. Number of complaints received alleging violations of the contract labor standards requirements (This item refers to complaints and inquires from all sources, including employees, unions, the agency's Washington headquarters, the Department of Labor, or menber of Congress).

III. a. Number of visits to field officers by the contracting agency's Washington headquarters personnel to review labor standards compliance program .....

b. Number of visits to contract sites by Division, Distrct, or Regional Officers of agency to review labor standards compliance program ("Visit" as referred to in Items IIIa. and b. above means a visit to an activity by one or more persons for an in-depth review of labor standards compliance procedures). IV. Remarks:

Signature..
(Title)
(Installation).

12.404-9 Suspensions and Deductions of Contract Payments. In the event of failure or refusal to pay all or any part of the wages due workers, the contracting officer may suspend further contract payments to the contractor in amounts equal to such unpaid wages and liquidated damages which may be due until either restitution has been made directly by the contractor or subcontractor concerned or deductions against payment vouchers are made as provided below. If such failure or refusal appears continuing or willful, or in the event of any other failure and refusal to comply with contract, statutory, and regulatory requirements, the contracting officer may suspend all future contract payments to the contractor until such violations have ceased. If restitution is not made directly by the contractor or subcontractor within a reasonable time or, in any event, prior to final payment under the contract, the contracting officer shall submit with the contractor's payment voucher or vouchers a “Schedule of Withholdings Under the Davis-Bacon Act" (40 U.S.C. 276(a) (Standard Form 1093), and a statement of the amount to be withheld as liquidated damages. These amounts shall be deducted from the payments made to the contractor, and the amounts shown to be due the workers shall be deposited in the Treasury.

12.404–10 Restitution. Restitution of amounts due workers may be permitted at any time at the volition of the contractor or subcontractor and may be ordered by NASA whenever wage underpayments are found to be nonwillful.

12.404-11 Contract Terminations. Whenever a contract is terminated for violation of the labor standards provisions, a report shall be made by the NASA contracting officer to the Director of Procurement for submission to the Secretary of Labor and the Comptroller General. The report shall include the name and address of the terminated contractor or subcontractor, the name and address of the contractor or subcontractor who is to complete the work, the amount and number of the latter's contract, and a description of the work thereunder.

12.404-12 Cooperation with Department of Labor. NASA will cooperate with representatives of the Department of Labor in the inspection of records, interviews with workers, and all other aspects of investigations undertaken by the Department of Labor. When requested, NASA contracting officers shall furnish to the Secretary of Labor any available information with respect to contractors, subcontractors, their contracts, and the nature of the contract work.

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