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 apprer.tice-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) of this section, shall be paid the wage rate determined by the Secretary of Labor for the classification of work he actually performed. [31 F.R. 654, Jan. 18, 1966] § 18-12.404-5 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. § 18-12.404-6 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) of this paragraph. (2) Deductions which meet the standards set forth in subparagraphs (i) through (iv) of this paragraph 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; (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 subparagraph (2) (i), (ii), and (iii) of this paragraph, 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 subparagraph (2) of this paragraph, general permission is hereby granted to make payroll deductions 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 exercise of good faith, should have known did not meet the standards in subparagraph (2) (i) through (iv) of this paragraph. 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. Certified payrolls (c) Preservation. 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. § 18-12.404-7 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. (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. § 18-12.404-8 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 Labor Relations Office (Code KL), as soon as practicable, a detailed enforcement report. Such reports shall include a statement or 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 § 1812.404-8 (c).) (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 exFressly requested that the investigation be made. In the latter case, the contracting officer shall submit through the NASA Labor Relations Office (Code KL), a factual summary report in accordance with 29 CFR 5.7(a) (1). (c) Where there is 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. 31, (d) (1) The Department of Labor Regulation (29 CFR 5) as implemented by Memorandum No. 60, issued on June 25, 1964, by the Solicitor of Labor, requires that semiannual enforcement reports on compliance with and enforcement of the labor standards provisions of the Davis-Bacon Act and related acts be submitted covering the periods of January 1 through June 30 and July 1 through December respectively. These reports shall cover contracts awarded directly by NASA and shall be submitted, in duplicate, by January 10 and July 10 of each year to the Office of Procurement, Code KDM, for consolidation and submission to the Department of Labor. The first report is due in the Office of Procurement by January 10, 1965, covering the period July 1 through December 31, 1964. Negative reports are required. (2) The reports shall be prepared in accordance with the following format: 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 totalling of those 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 statements on file.) -; under c. Amount of wage restitution made under Davis-Bacon and related acts Contract Work Hours Standards Act $-. ("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 $‒‒‒‒‒. f. Number of complaints received alleging violations of the contract labor standards requirements (This item refers to complaints and inquiries from all sources, including employees, unions, the agency's Washington headquarters, the Department of Labor, or members 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, District, or Regional Offices of agency to review labor standards compliance program ("Visit" as referred to in Items III a. 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: (Signed) [31 F.R. 654, Jan. 18, 1966] § 18-12.404-9 (Name) (Title) (Installation) 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 in this § 18-12.404. 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. 276a) (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. 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. § 18-12.404–12 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. § 18-12.404-13 Reporting construction contract awards. The contracting officer shall promptly report all construction contract awards of $25,000 and over subject to the DavisBacon Act to the Bureau of the Census, Department of Commerce, on Census Bureau Form 16-19 (Construction Contract Award Notification). Subpart 18-12.6-Walsh-Healey § 18-12.601 Statutory requirements. In accordance with the requirements of the Walsh-Healey Public Contracts Act (Act of June 30, 1936, as amended, 41 U.S.C. 35-45), all contracts subject to said Act entered into by NASA for the manufacture or furnishing of supplies in any amount exceeding $10,000: (a) Shall be with manufacturers or regular dealers (§§ 18-1.218 and 181.228); and (b) Shall incorporate by reference the representations and stipulations required by said Act pertaining to such matters as minimum wages, maximum hours, child labor, convict labor, and safe and sanitary working conditions. § 18-12.602 Applicability. § 18-12.602-1 General. The requirement set forth in § 1812.601 applies to contracts for the manufacture or furnishing of "materials, supplies, articles, and equipment" which are to be performed within the United States, Puerto Rico, the Virgin Islands, or the District of Columbia, and which exceed or may exceed $10,000 in amount. § 18-12.602-2 Department of Labor regulations and interpretations. Pursuant to the Walsh-Healey Act, the Secretary of Labor has issued detailed regulations and interpretations as to the coverage of the Act, and exemptions and procedures thereunder. These regulations and interpretations are compiled in a document entitled "Walsh-Healey Public Contracts Act, Rulings and Interpretations." In addition to the interpretations stated in the document, attention is directed to an opinion of the Department of Labor that contracts which are originally $10,000 or less, but are subsequently modified to increase the price to an amount in excess of $10,000, are subject to the Walsh-Healey Act; and that contracts in an amount exceeding $10,000, which are subsequently modified to a figure of $10,000 or less, are not subject to the said Act with respect to work performed after such modification if the modification is effected by mutual agreement. § 18-12.602-3 Procedure for obtaining exemptions with respect to stipulations required by the act. Section 6 of the Walsh-Healey Public Contracts Act permits the Secretary of Labor to make exceptions to the requirement that the representations and stipulations of Section 1 of the Act be included in proposals or contracts which are subject to the Act. All requests of present or prospective contractors for exceptions under Section 6 of the Act will be addressed to the Director of Procurement. Such requests shall be in writing, shall be transmitted through the contracting officer, and shall set forth all pertinent information, including the nature of the requested exception, the need therefor, and any action already taken by the contractor to avoid the necessity for the exception. § 18-12.603 Responsibility of contracting officers. Whenever the Walsh-Healey Public Contracts Act is applicable, the contracting officer, pursuant to regulations or instructions issued by the Secretary of Labor, shall: (a) Inform prospective contractors of the possible applicability of minimum wage determinations; (b) Furnish to the contractor a poster (Form PC 13); (c) Furnish to the contractor a form letter (Form WH 12) explaining application of the Walsh-Healey Public Contracts Act and giving instructions for display of the poster; (d) Prepare and transmit to the Department of Labor 3 copies of Standard Form 99 (Notice of Award of Contract) immediately upon award of contract; and (e) Report to the Department of Labor any violation of the representations or stipulations required by the WalshHealey Public Contracts Act. [31 F.R. 655, Jan. 18, 1966] § 18-12.604 Contract clause. The contract clause required by this Subpart 18-12.6 is as follows: WALSH-HEALEY PUBLIC CONTRACTS ACT (SEPTEMBER 1962) If this contract is for the manufacture or furnishing of materials, supplies, articles, or equipment in an amount which exceeds or may exceed $10,000 and is otherwise subject to the Walsh-Healey Public Contracts Act, as amended (41 U.S.C. 35-45), there are hereby incorporated by reference all representations and stipulations required by said Act and regulations issued thereunder by the Secretary of Labor, such representations and stipulations being subject to all applicable rulings and interpretations of the Secretary of Labor which are now or may hereafter be in effect. Subpart 18-12.7—Fair Labor Standards Act of 1938 § 18-12.701 Basic statute. The Fair Labor Standards Act of 1938 (Act of June 30, 1938; 29 U.S.C. 201219), as amended, provides for the establishment of minimum wage and maximum hour standards, creates a Wage and Hour Division in the Department of Labor for purposes of interpretation and enforcement (including investigations and inspections of Government contractors), and prohibits oppressive child labor. The Fair Labor Standards Act applies to all employees, unless otherwise exempted, who are engaged in (a) interstate commerce or foreign commerce, (b) the production of goods for such commerce, or (c) any closely related process or occupation essential to such production. |