(t) Penalty for false statements. The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.

(u) Special employees. Notwithstanding any of the provisions in paragraphs (a) through (r) of this clause relating to the Service Contract Act of 1965, the following employees may be employed in acordance with the following variations, tolerances, and exemptions, which the Secretary of labor, pursuant to section 4(b) of the Act prior to its amendment by Pub. L. 92-473, found to be necessary and proper in the public interest or to avoid serious impairment of the conduct of Government business:

(1) Apprentices, student-learners, and workers whose earning capacity is impaired by age, physical, or mental deficiency or injury may be employed at wages lower than the minimum wages otherwise required by section 2(a)(1) or 2(b)(1) of the Service Contract Act without diminishing any fringe benefits or cash payments in lieu thereof required under section 2(a)(2) of that Act, in accordance with the conditions and procedures prescribed for the employment of apprentices, student-learners, handicapped persons, and handicapped clients of sheltered workshops under section 14 of the Fair Labor Standards Act of 1938, in the regulations issued by the Administrator (29 CFR Parts 520, 521, 524, and 525).

(2) The Administrator will issue certificates under the Service Contract Act for the employment of apprentices, student-learners, handicapped persons, or handicapped clients of sheltered workshops not subject to the Fair Labor Standards Act of 1938, or subject to different minimum rates of pay under the two acts, authorizing appropriate rates of minimum wages (but without changing requirements concerning fringe benefits or supplementary cash payments in lieu thereof), applying procedures prescribed by the applicable regulations issued under the Fair Labor Standards Act of 1938 (29 CFR Parts 520, 521, 524, and 525).

(3) The Administrator will also withdraw, annul, or cancel such certificates in accordance with the regulations in Parts 525 and 528 of Title 29 of the Code of Federal Regulations.

a

(v) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they perform when they are employed and individually registered in a bona fide apprenticeship program registered with State Apprenticeship Agency which is recognized by the U.S. Department of Labor, or if no such recognized agency exists in a State, under a program registered with the Bureau of Apprenticeship and Training, Employment and Training Administration, U.S. Department of Labor. Any employee who is not registered as an apprentice in an approved program

shall be paid the wage rate and fringe benefits contained in the applicable wage determination for the journeyman classification of work actually performed. The wage rates paid apprentices shall not be less than the wage rate for their level of progress set forth in the registered program, expressed as the appropriate percentage of the journeyman's rate contained in the applicable wage determination. The allowable ratio of apprentices to journeymen employed on the contract work in any craft classification shall not be greater than the ratio permitted to the contractor as to his entire workforce under the registered program.

(w) Tip credit. An employee engaged in an occupation in which he or she customarily and regularly receives more than $30 a month in tips may have the amount of tips credited by the employer against the minimum wage required by section 2(a)(1) or section 2(b)(1) of the Act in accordance with section 3(m) of the Fair Labor Standards Act and Regulations, 29 CFR Part 531: Provided, however, that the amount of such credit may not exceed $1.24 per hour beginning January 1, 1980, and $1.34 per hour after December 31, 1980. To utilize this proviso:

(1) The employer must inform tipped employees about this tip credit allowance before the credit is utilized;

(2) The employees must be allowed to retain all tips (individually or through a pooling arrangement and regardless of whether the employer elects to take a credit for tips received);

(3) The employer must be able to show by records that the employee receives at least the applicable Service Contract Act minimum wage through the combination of direct wages and tip credit (approved by the Office of Management and Budget under OMB control number 1215-0017);

(4) The use of such tip credit must have been permitted under any predecessor collective-bargaining agreement applicable by virtue of section 4(c) of the Act.

(x) Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract 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 4, 6, and 8. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives.

(End of clause)

[52 FR 44557, Nov. 19, 1987, as amended at 53 FR 28402, July 28, 1988; 53 FR 31007, Aug. 17, 1988]

1252.222-76 [Reserved]

1252.222-77 Fair Labor Standards Act and Service Contract Act-Price adjustment (multiyear and option contracts). As prescribed in 1222.7002(b), insert the following clause in solicitations and contracts:

FAIR LABOR STANDARDS ACT AND SERVICE CONTRACT ACT-PRICE ADJUSTMENT (MULTIYEAR AND OPTION CONTRACTS) (JAN 1985)

(a) The Contractor warrants that the prices in this contract do not include any allowance for any contigency to cover increased costs for which adjustment is provided under this clause.

(b) The minimum prevailing wage determination, including fringe benefits, issued under the Service Contract Act of 1965 (41 U.S.C. 351 through 358), by the Administrator, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, current at the beginning of each renewal option period, shall apply to any renewal of this contract. When no such determination has been made applicable to this contract, then the current Federal minimum wage as established by section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206) shall apply to any renewal of this contract.

(c) The contract price or contract unit price labor rates will be adjusted to reflect increases or decreases by the Contractor in wages or fringe benefits of employees working on this contract to comply with

(1) The Department of Labor determination of minimum prevailing wages and fringe benefits applicable at the beginning of the renewal option period;

(2) An increased or decreased wage determination otherwise applied to the contract by operation of law; or

(3) An amendment to the Fair Labor Standards Act of 1938 that is enacted subsequent to award of this contract, affects the minimum wage, and becomes applicable to this contract under law.

(d) Any such adjustment will be limited to increases or decreases in wages or fringe benefits as described in paragraph (c) of this clause, and to the concomitant increases or decreases in social security and unemployment taxes and worker's compensation insurance; it shall not otherwise include any amount for general and administrative costs, overhead, or profits.

(e) The Contractor shall notify the Contracting Officer of any increase claimed under this clause within 30 days after the effective date of the wage change, unless this period is extended by the Contracting Officer in writing. The Contractor shall promptly notify the Contracting Officer of any decrease under this clause, but nothing in the clause shall preclude the Government from asserting a claim within the period permitted by law. The notice shall contain a statement of the amount claimed and any relevant supporting data that the Contracting Officer may reasonably require. Upon agreement of the parties, the contract price or contract unit price labor rates shall be modified in writing. The Contractor shall continue performance pending agreement on or determination of any such adjustment and its effective date.

(f) The Contracting Officer or an authorized representative shall, until the expiration of 3 years after final payment under the contract, have access to and the right to examine any directly pertinent books, documents, papers, and records of the Contractor.

(End of clause)

1252.222-78 Fair Labor Standards Act and Service Contract Act-price adjustment.

As prescribed in 1222.7002-2(b), insert the following clause in solicitations and contracts:

FAIR LABOR STANDARDS ACT AND SERVICE CONTRACT ACT-PRICE ADJUSTMENT (Jan 1985)

(a) The Contractor warrants that the prices in this contract do not include any allowance for any contingency to cover increased costs for which adjustment is provided under this clause.

(b) The contract price or contract unit price labor rates will be adjusted to reflect increases or decreases by the Contractor in wages or fringe benefits of employees working on this contract to comply with

(1) An increased or decreased wage determination applied to this contract by operation of law; or

(2) An amendment to the Fair Labor Standards Act of 1938 that is enacted subsequent to award of this contract, affects the minimum wage, and becomes applicable to this contract under law.

(c) Any such adjustment will be limited to increases or decreases in wages or fringe benefits as described in paragraph (b) of this clause, and to the concomitant increases or decreases in social security and unemployment taxes and workers' compensation insurance; it shall not otherwise in

clude any amount for general and administrative costs, overhead, or profits.

(d) The Contractor shall notify the Contracting Officer of any increase claimed under this clause within 30 days after the effective date of the wage change, unless this period is extended by the Contracting Officer in writing. The Contractor shall promptly notify the Contracting Officer of any decrease under this clause, but nothing in the clause shall preclude the Government from asserting a claim within the period permitted by law. The notice shall contain a statement of the amount claimed and any relevant supporting data that the Contracting Officer may reasonably require. Upon agreement of the parties, the contract price or contract unit price labor rates shall be modified in writing. The Contractor shall continue performance pending agreement on or determination of any such adjustment and its effective date.

(e) The Contracting Officer or an authorized representative shall, until the expiration of 3 years after final payment under the contract, have access to and the right to examine any directly pertinent books, documents, papers, and records of the Contractor.

(End of clause)

1252.222-79 Service Contract Act requirements as to vacation pay.

As prescribed in 1222.7002(b), insert the following clause in solicitations and contracts:

SERVICE CONTRACT ACT REQUIREMENTS AS TO VACATION PAY (JAN 1985)

(a) Employee Credit for Service with a Predecessor Contractor. This paragraph (a) applies if the contract wage determination contains a provision referring to a “successor" contractor, as, e.g., "1 week paid vacation after 1 year of service with a contractor or successor." "Successor" as used in such provision means the Contractor on this contract when the Contractor employs, without a break in service, a service employee formerly employed by the immediately preceding contractor under a similar Government contract at the same location (“predecessor contractor"). Consequently, if the Contractor employs without a break in service, any service employee who was employed by its predecessor contractor for similar work at the same location, the Contractor in computing the employee's "year of service" shall include all continuous service for the predecessor contractor subsequent to the later of the following dates: (1) The date of employment by the predecessor contractor; or (2) if, while employed by the predecessor contractor, the employee had an anniversary date or dates on which the employee

became entitled to vacation benefits, the most recent of such anniversary dates. Thus, the Contractor is liable for such employee's full vacation benefit on such anniversary date even though during part of the "year of service" the employee had been employed by the predecessor contractor.

(b) When Predecessor Contractor Not Involved. This paragraph (b) applies if the contract wage determination does not refer to a "successor" contractor, but contains a provision such as "1 week paid vacation after 1 year of service with an employer." The term "an employer" in such provision means the Contractor on this contract. The Contractor in computing a service employee's "year of service" shall include all continuous service performed by the employee subsequent to the later of the following dates: (1) The date of employment by the Contractor, or (2) the employee's most recent anniversary date for which a paid vacation was granted.

(c) Part-time Employees. If the contract wage determination contains either type of provision quoted in paragraph (a) or (b) of this clause, part-time service employees working a regularly scheduled work week shall receive a paid vacation on a pro-rata basis. For example, an employee who has worked for the Contractor two days per week for a year [or, without a break in service, for the Contractor and a predecessor contractor where the wage determination contains language like that quoted in paragraph (a) of this clause] shall be entitled to two days paid vacation or two-fifths of the vacation benefits to which full-time employees are entitled.

(d) Break in Service. For purposes of this provision, the term "break in service" does not include an employee's change in employment status from an employee of a predecessor contractor to an employee of the Contractor.

(End of clause)

1252.223-70 [Reserved]

1252.223-71 Accident and fire reporting.

As prescribed in 1223.7001(a) insert the following clause in solicitations and contracts:

ACCIDENT AND FIRE REPORTING (APR 1984)

(a) The Contractor shall report to the Contracting Officer any accident or fire occurring at the site of the work which causes:

(1) A fatality or as much as one lost workday on the part of any employee of the Contractor or any subcontractor at any tier;

(2) Damage of $1,000 or more to Federal property either real or personal;

(3) Damage to Contractor or subcontractor owned or leased motor vehicles or mobile equipment;

(4) Damage for which a contract time extension may be requested.

(b) Accident and fire reports required by paragraph (a) of this clause, shall be accomplished by the following means:

(1) Accidents or fires resulting in a death, hospitalization of five or more persons, or destruction of Federal property (either real or personal) the total value of which is estimated at $100,000 or more, shall be reported immediately by telephone to the Contracting Officer or his authorized representative and shall be confirmed by telegram within 24 hours to the Contracting Officer. Such telegram shall state all known facts as to extent of injury and damage and as to cause of the accident or fire.

(2) Other accident and fire reports required by paragraph (a) of this clause, may be reported by the Contractor using a state, private insurance carrier, or contractor accident report form which provides for the statement of: (i) The extent of injury; and (ii) the damage and cause of the accident or fire. Such report shall be mailed or otherwise delivered to the Contracting Officer within 48 hours of the occurrence of the accident or fire.

(c) The contractor shall assure compliance by subcontractors at all tiers with the requirements of this clause.

(End of clause)

1252.223-72 Protection of human subjects. As prescribed in 1223.7001(b) insert the following clause in solicitations and contracts:

PROTECTION OF HUMAN SUBJECTS (Nov 1987)

The contractor shall comply with the NHTSA principles and procedures (in accordance with NHTSA Orders 700-1, 700-3, and 700-4) for the protection of human subjects participating in activities supported directly or indirectly by grants or contracts from NHTSA. In fulfillment of its assurance:

A committee competent to review projects and activities that involve human subjects shall be established and maintained by the contractor.

The committee shall be assigned responsibility to determine for each activity planned and conducted that:

The rights and welfare of subjects are adequately protected.

The risks to subjects are outweighed by potential benefits.

The informed consent of subjects shall be obtained by methods that are adequate and appropriate.

Committee reviews are to be conducted with objectivity and in a manner to ensure the exercise of independent judgment of the members. Members shall be excluded from reviews of projects or activities in which they have an active role or a conflict of interest.

Continuing constructive communication between the committee and the project directors must be maintained as a means of safeguarding the rights and welfare of subjects.

Facilities and professional attention required for subjects who may suffer physical, psychological, or other injury as a result of participation in an activity shall be provid

ed.

The committee shall maintain records of committee reviews of applications and active projects, of documentation of informed consent, and of other documentation that may pertain to the selection, participation, and protection of subjects. Detailed records shall be maintained of circumstances of any reviews that adversely affect the rights or welfare of the individual subjects. Such materials shall be made available to NHTSA upon request. The retention period for such records and materials shall be as specified at FAR 4.703.

Periodic reviews shall be conducted by the contractor to assure, through appropriate administrative overview, that the practices and procedures designed for the protection of the rights and welfare of subjects are being effectively applied.

NOTE: If the contractor has a Department of Health and Human Services approved Institutional Review Board (IRB) which can appropriately review this contract in accordance with the technical requirements and NHTSA Orders 700-1, 700-3, and 700-4, that IRB will be considered acceptable for the purposes of this contract.

(End of clause)

1252.228-70 [Reserved]

1252.228-71 Loss of or damage to leased aircraft.

As prescribed in 1228.306-70-1 (a) and (b) insert the following clause in solicitations and contracts:

LOSS OF OR DAMAGE TO LEASED AIRCRAFT (APR 1984)

(a) The Government assumes all risk of loss of, or damage (except normal wear and tear) to, the leased aircraft during the term of this lease while the aircraft is in the possession of the Government.

(b) In the event of damage to the aircraft, the Government, at its option, shall make the necessary repairs with its own facilities

or by contract, or pay the Contractor the reasonable cost of repair of the aircraft.

(c) In the event the aircraft is lost or damaged beyond repair, the Government shall pay the Contractor the sum equal to the fair market value of the aircraft at the time of such loss or damage, which value may be specifically agreed to in the clause "Fair Market Value of Aircraft", less the salvage value of the aircraft. However, the Government may retain the damaged aircraft or dispose of it as it wishes. In that event, the Contractor will be paid the fair market value of the aircraft as stated in the clause.

(d) The Contractor certifies that the contract price does not include any cost attributable to hull insurance or to any reserve fund it has established to protect its interest in the aircraft. If, in the event of loss or damage to the leased aircraft, the Contractor receives compensation for such loss or damage in any form from any source, the amount of such compensation shall be: (1) Credited to the Government in determining the amount of the Government's liability; or (2) for an increment of value of the aircraft beyond the value for which the Government is responsible.

(e) In the event of loss of or damage to the aircraft, the Government shall be subrogated to all rights of recovery by the Contractor against third parties for such loss or damage and the Contractor shall promptly assign such rights in writing to the Government.

RISK AND INDEMNITIES (APR 1984) The Contractor hereby agrees to indemnify and hold harmless the Government, its officers and employees from and against all claims, demands, damages, liabilities, losses, suits and judgments (including all costs and expenses incident thereto) which may be suffered by, accrue against, be charged to or recoverable from the Government, its officers and employees by reason of injury to or death of any person other than officers, agents, or employees of the Government or by reason of damage to property of others of whatsoever kind (other than the property of the Government, its officers, agents or employees) arising out of the operation of the aircraft. In the event the Contractor holds or obtains insurance in support of this covenant, a Certificate of Insurance shall be delivered to the Contracting Officer.

(End of clause)

1252.235-70 [Reserved]

1252.235-71 Recoupment of development costs.

As prescribed in 1235.070 insert the following clause in solicitations and contracts:

RECOUPMENT OF DEVELOPMENT COSTS (APR

1984)

(a) As may be determined by the contracting officer to be fair, reasonable and equitable, the contractor shall pay to the Government up to five percent (5%) of sums hereafter received by or credited to the Contractor or its privies (including subcontractors) on sales or leases (exclusive of sales or leases to the U.S. Government, either directly or indirectly through Government prime contractors or subcontractors) of any product which is substantially the same in design as, or which is directly derived from, that developed by the Contractor or any of its subcontractors in the performance of this contract.

(b) In selling or leasing the product identified in paragraph (a) of this clause, to the Government, either directly or indirectly through Government prime Contractors or subcontractors, the Contractor or its privies (including subcontractors) shall notify the purchaser or lessee in writing that the product was developed under a Department of Transportation contract containing a Recoupment of Development Costs clause and that the purchase or lease price of such product is less than the price of such product when sold or leased to other than the Government by an amount no less than the Government's share under the Recoupment of Development Costs clause. A copy of each such notice shall be sent to the Con