amount of work (as defined in paragraph (c) of this section) that would otherwise be considered construction alteration and/or repair of a public building or work (see§9-18.750-2(g)).

(3) Contracts for servicing or maintenance work in an existing plant, including installation or movement of machinery or other equipment, and plant rearrangement, which involve only an incidental amount of work (as defined in paragraph (c) of this section) that would otherwise be considered construction, alteration and/or repair (see $9-18.750-2(g)).

(4) Contracts for operational or maintenance activities (e.g. production, research and development, or community services, as distinguished from contracts for construction). In general, these are contracts where performance by the contractor consists primarily of the utilization of existing facilities and the services of personnel to produce materials, conduct research and development, or provide community-type services, and of the use of or maintenance of plant. However, the classification of a contract as a contract for operational or maintenance activities does not necessarily mean that all work and activities at the contract location are not covered, since it may be necessary to separate out work which should be classified as covered. (See $9-18.701-52). As used in connection with "operational activities," the term "produce" means to manufacture, make, or refine special nuclear or other material; to separate material from other substances in which it is contained; or to make new material. The term "materials" includes supplies, articles, or equipment; the term "research and development" means the same as defined in the Atomic Energy Act of 1954, as amended.

(5) Contracts to be performed outside the United States and the District of Columbia. (Does not apply to the Copeland Act.)

(6) Contracts for demolition, except when indispensable and preliminary to scheduled new construction.

(7) Contracts with a State or subdivision thereof (although the requirements do not apply, and the contract must so provide, to a subcontract thereunder with a private person or firm which involves the construction, alteration, and/or repair of public buildings or public works).

(8) Contracts with railroads for construction services to the extent that the services are performed by railroad employees covered by the Railway Labor Act.

(b) It should be noted, however, that the requirements do apply to work performed by laborers, and mechanics employed by a construction contractor or subcontractor at the site of the work under a

contract for the construction, alteration and/or repair, including painting and decorating of public buildings or public works, which is otherwise subject to these Acts whether or not such work would be covered if it were a separate contract.

(c) As used in paragraph (a)(2) and (3) of this section, "an incidental amount of work" is defined to mean work directly related to the installation, movement or rearrangement of equipment or machinery, relatively small in amount, and which does not include changes in a facility affecting its architectural or structural strength, stability, safety, size, or function as a public work.

$9-18.701-52 Administrative controls and criteria for application of the Davis-Bacon Act in operational or maintenance activities.

(a) Particular contracts or work items falling within one or more of the following criteria normally will be classified as noncovered.

(1) Individual work items estimated to cost $2,000 or less. The total dollar amount of the operating contract is not a factor to be considered and bears no relation to individual work items classified as construction, alteration and/or repair, including painting and decorating. However, no item of work, the cost of which is estimated to be in excess of $2,000, shall be artificially divided into portions less than $2,000 for the purpose of avoiding the application of the Act.

(2) Work and services that are a part of operational and maintenance activities or which, being very closely and directly involved therewith, are more in the nature of operational activities than construction, alteration, and/or repair work. This includes work and services which would involve a material risk to continuity of operations, to life or property, or to ERDA operating requirements, if performed by persons other than the operating contractor's regular production and maintenance forces: Provided, however, That any decision that contracts or work items are noncovered for these reasons must be made by the head of the procuring activity and the authority to make such a decision cannot be redelegated.

(3) Work and services, typically of a routine or recurring nature, the purpose of which is to keep facilities in a state of functional usefulness.

(4) Assembly, modification, setup, installation, replacement, removal, rearrangement, connection, testing, adjustment, and calibration of machinery and equipment. It should be noted, however, that

these activities are covered if they are part of or would be a logical part of a contract for the construction of a facility, or if construction type work, other than defined in "incidental" in §9-18.701-51(c) is involved.

(5) Experimental development of equipment, processes and devices, including assembly, fitting, installation, testing, reworking, and disassembly. This refers to equipment, processes and devices which are assembled for the purpose of conducting a test or experiment. The design, may be only conceptual in character, and professional personnel responsible for the experiment participate in the assembly. Specifically excluded from the category of experimental development are buildings, building utility services--as distinguished from temporary connections thereto. Also specifically excluded from this catgory is equipment to be used for continuous testing, e.g., a machine to be continuously used for testing the tensile strength of structural members. (See 9-18.750-2(g) and 2(h)).

(6) Experimental work in connection with peaceful uses of nuclear energy. This refers to equipment, processes and devices which are assembled and/or set in place and interconnected for the purpose of conducting a test or experiment. The nature of the test or experiment is such that professional personnel responsible for the test or experiment and/or data to be derived there from necessarily must participate in the assembly and interconnections. Specifically excluded from experimental work are buildings, building utility services, structural changes, drilling, tunneling, excavation, and backfilling work which can be performed according to customary drawings and specifications, and utility services or modifications to utility services-as distinguished from temporary connections thereto. Work in this category may be performed in mines or in other locations specifically constructed for test or experiments. (See 9-18.750-2(g) and 2(h)).

(7) Emergency work to combat the effects of fire, flood, earthquake, equipment failure, accident or other casualties, and to restart the operational activity following the casualty. Work which is not directly related to restarting the activity and which involves rebuilding or replacement of structure or structural components or equipment is excluded from this category. (See 9-18.750-2(g) and 2(h)).

(8) Decontamination, including washing, scrubbing, and scraping to remove contamination; removal of contaminated soil or other material; and painting or other resurfacing; Provided, That such painting or resurfacing is an intergral part of the decontamination activity and does not include complete replacement of large sections of paved areas or roadways.

ever,

(9)

Burial of contaminated soil waste or contained liquid; howinitial preparatory work readying the burial ground for use (for example, any grading or excavating that is a part of initial site preparation, fencing, drilling wells for continued monitoring of contamination, construction of guard or other office space) is covered. Likewise, work subsequent to burial which involves the placement of concrete or other like activity is covered.

out

(b) The classification of a contract as a contract for operational or maintenance activities does not necessarily mean that all work and activities at the contract location are classifiable as side of Davis-Bacon Act coverage, since it may be necessary to separate out work which should be classified as covered. Therefore, heads of procuring activities shall establish and maintain controls for the careful scrutiny of proposed work assignments under such a contract to assure that:

(1) Contractors whose contracts do not contemplate the performance of covered work with the contractor's own forces are neither asked nor authorized to perform work within the scope of the DavisBacon Act. If the actual work assignments do involve covered work, the contract should be modified to include applicable provisions of the Davis Bacon Act.

(2) Where covered work is peformed by a contractor whose contract contains provisions required by the Davis-Bacon Act, such work is performed as required by law and the contract. After such contractor has been informed, as provided in paragraph (b)(3) of this section, that certain work is covered work, the head of the procuring activity's responsibility to assure compliance is the same as it would be if the work were being performed under a separate construction con

tract.

(3) Controls provided for above include consideration by the head of the procuring activity and the contractor, before work is begun or contracted out, of the relation of the Davis-Bacon Act to (i) the annual programing of work, (ii) the contractor's work orders, and (iii) work contracted out in excess of $2,000. The head of the procuring activity may, if he concludes that it is consistent with ERDA's responsibilities as described in this section, prescribe from time to time classes of work as to which applicability or nonapplicability of the Davis-Bacon Act is clear, for which he will require no further ERDA determination on coverage in advance of the work. For all work, the controls to be established by the head of the procuring activity should provide for notification to the contractor before work is begun as to whether such work is covered.

$9-18.702 Statutory and regulatory requirements.

$9-18.702-50 Department of Labor approval.

The Department of Labor has previously reviewed and approved the criteria, standards, and guides set forth in $9-18.701, §9-18.704, $9-18.750, and the contract clause in 9-50.1804-3.

$9-18.704 Wage determinations.

$9-18.704-3 Procedure for requesting determinations.

The head of the procuring activities are responsible for submitting to the appropriate regional office of the Employment Standards Division, Department of Labor, all ERDA requests for project area or installation wage determinations, or individual determinations, or extensions or modifications thereto. Requests for such determinations shall be made on Standard Form 308 at least 30 calendar days before they are required for use in advertising for bids or requests for proposals.

$9-18.704-50 Use and duration of wage determinations.

In general, the Davis-Bacon Act rates applicable to a contract at the time it is awarded continue in effect during its term regardless of whether it is a fixed-price or cost-type contract. However it should be noted that:

(a) The minimum wage rates that will be paid to laborers and/or mechanics engaged on jobs which are programmed on a fiscal year or shorter basis are those predetermined by the Secretary of Labor to be prevailing as of the date the program is approved by ERDA for performance by the contractor. However, in the event of a substantial addition to the scope of a contract containing a "general or area wage determination, "the current "general or area wage determination," including modifications thereto, shall be made applicable to the additional work. If the contract contains a "project area or installation (54A) determination," or an "individual determination," and a substantial addition to the scope of the contract is made during the fiscal year or shorter basis but more than 120 days from the date of the determination, a new determination is required for the substantial year or shorter basis but more than 120 days from the date of the determination, a new determination is required for the substantial addition. Programed work will be performed by the contractor under the following conditions:

(1) Continuing contracts for minor or miscellaneous construction, alteration and/or repair, including painting and decorating;