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PART 50-201-GENERAL

REGULATIONS

Sec. 50-201.1 Insertion of stipulations. 50-201.2 Statutory exemptions. 50-201.101 Manufacturer or regular dealer. 50-201.102 Employees affected. 50-201.103 Overtime. 50-201.104 Dealer as agent of undisclosed

principal. 50-201.105 Protection against unintention

al employment of underage minors. 50-201.106 Hours worked. 50-201.201 Breach of stipulations. 50-201.301 Agency regulations. 50-201.501 Records of employment. 50-201.502 Record of injuries. 50-201.601 Requests for exceptions and ex

emptions. 50-201.602 Decisions concerning exceptions

and exemptions. 50-201.603 Full administrative exemptions. 50-201.604 Partial administrative exemp

tions. 50-201.701 Definition of “person.” 50-201.1101 Minimum wages. 50-201.1102 Tolerance for apprentices, stu

dent-learners, and handicapped workers. 50-201.1201 Reports of contracts awarded. 50-201.1202 Complaints. 50-201.1203 Other contracts.

AUTHORITY: Sec. 4, 49 Stat. 2038; 41 U.S.C. 38. Interpret or apply sec. 6, 49 Stat. 2038, as amended; 41 U.S.C. 40, unless otherwise noted.

materials, supplies, articles, or equipment used in the performance of the contract will be paid, without subsequent deduction or rebate on any account, not less than the minimum wages as determined by the Secretary of Labor to be the prevailing minimum wages for persons employed on similar work or in the particular or similar industries or groups of industries currently operating in the locality in which the materials, supplies, articles, or equipment are to be manufactured or furnished under the contract.

(c) No person employed by the contractor in the manufacture or furnishing of the materials, supplies, articles, or equipment used in the performance of the contract shall be permitted to work in excess of 8 hours in any 1 day or in excess of 40 hours in any 1 week unless such person is paid such applicable overtime rate as has been set by the Secretary of Labor: Provided, however, That the provisions of this stipulation shall not apply to any employer who shall have entered into an agreement with his employees pursuant to the provisions of paragraphs 1 or 2 of subsection (b) of section 7 of an act entitled “The Fair Labor Standards Act of 1938”: Provided, further, That in the case of such an employer, during the life of the agreement referred to the applicable overtime rate set by the Secretary of Labor shall be paid for hours in excess of 12 in any 1 day or in excess of 56 in any 1 week and if zuch overtime is not paid, the employer shall be required to compensate his employees during that week at the applicable overtime rate set by the Secretary of Labor for hours in excess of 8 in any 1 day or in excess of 40 in any 1 week.

(d) No person under 16 years of age and no convict labor will be employed by the contractor in the manufacture or production or furnishing of any of the materials, supplies, articles, or equipment included in the contract.

(e) No part of the contract will be performed nor will any of the materials, supplies, articles, or equipment to be manufactured or furnished under said contract be manufactured or fabricated in any plants, factories, buildings, or surroundings or under working conditions which are unsani. tary or hazardous or dangerous to the health and safety of employees engaged in the performance of the contract. Compli. ance with the safety, sanitary, and factory inspection laws of the State in which the work or part thereof is to be performed shall be prima facie evidence of compliance with this paragraph.

(f) Any breach or violation of any of the foregoing representations and stipulations shall render the party responsible therefor liable to the United States of America for liquidated damages, in addition to damages for any other breach of the contract, in the sum of $10 per day for each person under 16

8 50–201.1 Insertion of stipulations.

Except as hereinafter directed, in every contract made and entered into by an executive department, independent establishment, or other agency or instrumentality of the United States, or by the District of Columbia, or by any corporation all the stock of which is beneficially owned by the United States, for the manufacture or furnishing of materials, supplies, articles, and equipment, the contracting officer shall cause to be inserted or incorporated by reference in such invitation or the specifications and in such contract, the following stipulations:

REPRESENTATIONS AND STIPULATIONS PURSUANT TO PUBLIC LAW 846, 74TH CONGRESS

(a) The contractor is the manufacturer of or a regular dealer in the materials, supplies, articles, or equipment to be manufactured or used in the performance of the contract.

(b) All persons employed by the contractor in the manufacture or furnishing of the

years of age, or each convict laborer know. 850–201.2 Statutory exemptions.
ingly employed in the performance of the
contract, and a sum equal to the amount of

Inclusion of the stipulations enuany deductions, rebates, refunds, or under merated in $ 50-201.1 is not required in pay

nent of wages due to any employee en the following instances: gaged in the performance of the contract; (a) Where the contracting officer is and, in addition, the agency of the United authorized by the express language of States entering into the contract shall have a statute to purchase "in the open the right to cancel same and to make open market”, or where a purchase of artimarket purchases or enter into other con

cles, supplies, materials or equipment, tracts for the completion of the original

either in being or virtually so, is made contract, charging any additional cost to the

without advertising for bids under ciroriginal contractor. Any sums of money due

cumstances bringing such purchase to the United States of America by reason

within the exception to the General of any violation of any of the representations and stipulations of the contract as set

Purchase Statute, R.S. 3709, that is, forth herein may be withheld from any

where immediate delivery is required amounts due on the contract or may be re

by the public exigency. covered in a suit brought in the name of the (b) Where the contract relates to United States of America by the Attorney perishables, including dairy, livestock, General thereof. All sums withheld or re and nursery products (“perishables” covered as deductions, rebates, refunds, or covers products subject to decay or underpayments of wages shall be held in a spoilage and not products canned, special deposit account and shall be paid, on salted, smoked, or otherwise preorder of the Secretary of Labor, directly to

served); the employees who have been paid less than

(c) Where the contract relates to agminimum rates of pay as set forth in such

ricultural or farm products processed contracts and on whose account such sums were withheld or recovered: Provided, That

for first sale by the original producers; no claims by employees for such payments

(d) Where the contract is by the Secshall be entertained unless made within 1 retary of Agriculture for the purchase year from the date of actual notice to the of agricultural commodities or the contractor of the withholding or recovery of products thereof; such sums by the United States of America. (e) Where the contract is with a

(g) The contractor shall post a copy of the common carrier for carriage of freight stipulations in a prominent and readily ac or personnel by vessel, airplane, bus, cessible place at the site of the contract truck, express, or railway line, where work and shall keep such employment rec

published tariff rates are in effect; ords as are required in the regulations

(f) Where the contract is for the furunder the act available for inspection by au

nishing of service by radio, telephone, thorized representatives of the Secretary of Labor.

telegraph, or cable companies, subject (h) The contractor is not a person who is

to the Federal Communications Act of ineligible to be awarded Government con- 1934

1934 (48 Stat. 1064 as amended; 47 tracts by virtue of sanctions imposed pursu

U.S.C. Chapter 5). ant to the provisions of section 3 of the act.

(Regs. 504, 1 FR 1626, Sept. 19, 1936, as (i) No part of the contract shall be per

amended at 9 FR 8347, July 22, 1944. Redesformed and none of the materials, articles,

ignated at 24 FR 10952, Dec. 30, 1959) supplies or equipment manufactured or furnished under the contract shall be manufac $ 50–201.101 Manufacturer or regular tured or furnished by any person found by

dealer. the Secretary of Labor to be ineligible to be awarded Government contracts pursuant to

(a) Definitions. A bidder or contracsection 3 of the act.

tor shall be deemed to be a "manufac(j) The foregoing stipulations shall be turer” or “regular dealer" within the deemed inoperative if this contract is for a meaning of the stipulation required by definite amount not in excess of $10,000. section 1(a) of the act and $ 50

201.1(a) if he falls within one of the [7 FR 4494, June 16, 1942, as amended at 7 FR 11086, Dec. 30, 1942; 11 FR 6238, June 8,

following categories: 1946. Redesignated at 24 FR 10952, Dec. 30,

(1) A manufacturer is a person who 1959, and amended at 27 FR 306, Jan. 11, owns, operates, or maintains a factory 1962; 27 FR 4556, May 12, 1962; 34 FR 6687, or establishment that produces on the Apr. 19, 1969; 34 FR 7451, May 8, 1969)

premises the materials, supplies, arti

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cles, or equipment required under the in which the materials, supplies, articontract and of the general character cles, or equipment of the general chardescribed by the specifications.

acter described by the specifications (2) A regular dealer is a person who and required under the contract are owns, operates, or maintains a store, bought for the account of such person warehouse, or other establishment in and sold to the public in the usual which the materials, supplies, articles, course of business, and whose princior equipment of the general character pal business is such purchase and sale described by the specifications and re- of such materials, supplies, articles, or quired under the contract are bought, equipment. kept in stock, and sold to the public in (iv) A regular dealer in raw cotton the usual course of business.

may be a person who owns, operates or (i) A regular dealer in lumber and maintains a store, warehouse, or other timber products, if a wholesale lumber place of business in which materials, dealer, may be a person who owns, op- supplies, articles or equipment of the erates, or maintains a place of business general character described by the in which the materials, supplies, arti specifications and required under the cles, or equipment of the general char contract are bought for the account of acter described by the specifications such person and sold to the public in and required under the contract are the usual course of business, and bought for the account of such person whose principal business is such purand sold to the public in the usual chase and sale of such materials, supcourse of business: Provided, That at plies, articles or equipment. least more than 50 percent of his busi. (v) A regular dealer in green coffee ness is such purchase and sale of such may be a person who owns, operates or materials, supplies, articles, or equip maintains a store, warehouse, or other ment; And provided further, That place of business in which materials, upon all orders to manufacturers for supplies, articles or equipment of the direct shipment to the United States general character described by the he agrees to insert a notice to the specifications and required under the manufacturer to the effect that the contract are bought for the account of supplies are purchased for the United such person and sold to the public in States and that the manufacturer is the usual course of business, and within the terms of $ 50-201.104 re whose principal business is such purquiring compliance with the provisions chase and sale of such materials, supof the Public Contracts Act.

plies, articles or equipment. (ii) A machine tool dealer may be a (vi) A regular dealer in petroleum person possessing, through contract or may be a person who owns, operates, agreement with a manufacturer, the or maintains petroleum distribution responsibility for selling that manu equipment and a store, warehouse, or facturer's products, with respect to a other place of business in which petrospecific territory and who is author- leum products of the general characized by such manufacturer to offer its ter described by the specifications and products and to negotiate and con- required under the contract are clude contracts for the furnishing bought for the account of such person thereof. Provided, That upon all and sold to the public in the usual orders to manufacturers for direct course of business, and whose princishipment to the United States he pal business is such purchase and sale agrees to insert a notice to the manu- of such petroleum products. facturer to the effect that the supplies (vii) A regular dealer in agricultural are purchased for the United States liming materials may be a person who and that the manufacturer is within owns or controls the necessary equipthe terms of $ 50-201.104 requiring ment customarily required for delivercompliance with the provisions of the ing agricultural liming materials to Public Contracts Act.

farms or for spreading such materials (iii) A regular dealer in hay, grain, on fields, who has made arrangements feed, or straw may be a person who to purchase liming materials of the owns, operates, or maintains a store, general character described by the warehouse, or other place of business specifications and required under the contract from a manufacturer, and contractor. Lack of good faith should who offers such material for sale to be judged on the basis of all facts in the public in the usual course of busi- the case. ness.

(ii) Whenever justice and the public (viii) A regular dealer in tea may be interest will be served, bids for a conan importer who owns, operates, or tract or class of contracts will be maintains a store, warehouse, or other exempted from the foregoing requireplace of business in which materials, ment by the Secretary of Labor upon supplies, articles or equipment of the the request of the head of the congeneral character described by the tracting agency or department when specifications and required under the accompanied by his finding of fact contract are bought for the account of that it will be so difficult to obtain satsuch person and sold to the public in isfactory bids for the contract or class the usual course of business.

of contracts under the stipulated re(ix) A regular dealer in raw or un strictions, that the conduct of the manufactured cotton linters may be a Government business will be seriously person who owns, operates or main impaired. tains a store, warehouse, or other (b) Determination of eligibility. (1) place of business in which materials, The responsibility for applying the supplies, articles, or equipment of the stated eligibility requirements in order general character described in the to determine whether or not a bidder specifications and required under the is qualified as a manufacturer or regucontract are bought for the account of lar dealer before award rests in the such person and sold to the public in first instance with the contracting the usual course of business, and agency pursuant to authority delegatwhose principal business is such pur ed by the Secretary of Labor in acchase and sale of such materials, sup- cordance with section 4 of the Act. plies, articles, or equipment.

(Circular Letter 8-61.) Contracting (x) A regular dealer in used automat- agencies shall obtain and consider all ic data processing equipment may be a available factual evidence essential to person who owns or controls previous- eligibility determinations for all bidly owned or used items, materials, sup- ders in line for award of contracts subplies, articles, or equipment of the ject to the Act. general character described in the (2) Any decision of the contracting specifications and required under the agency is subject to review by the Decontract and who offers such items for partment of Labor according to the sale to the public in the usual course procedures outlined below. The deciof business and whose principal busi- sion of the Department of Labor shall ness is the purchase and sale of such be final with respect to the procureitems, materials, supplies, articles, or ment or procurements at issue. equipment.

(3) The Department of Labor shall (3)(i)(A) Except as hereinafter pro- give great weight to the technical vided, every bid received from any knowledge and expertise of the conbidder who does not fall within one of tracting agencies and the Department the foregoing categories shall be re- of Labor shall uphold the contracting jected by the contracting officer.

agencies' initial determinations unless (B) If it is discovered after an award the determinations are found to be arthat the bidder did not act in good bitrary, capricious or otherwise not in faith in representing that it was a accordance with the evidence presentmanufacturer or regular dealer within ed or with the law. the meaning of the stipulations as in- (4) The Department of Labor may terpreted in this Chapter 50, the con- determine the qualifications of a tracting officer, immediately upon bidder in the first instance in the absuch discovery, may exercise his/her sence of any decision by the contractright to terminate the contract and to ing agency. make open market purchases or to (5) The contracting agency shall inenter into other contracts for the com- vestigate and determine the Walshpletion of the original contract, charg- Healey eligibility status of a bidder in ing any additional cost to the original at least the following circumstances

and shall not merely rely on the representation or affirmation of a bidder:

(i) In all cases where the bidder (or bidders) in line for contract award has not previously been awarded a con tract subject to the Act by the individual procuring office and/or where a pre-award investigation or survey of such bidder's operations is otherwise made to determine the technical and production capability, plant facilities and equipment, subcontracting and labor resources of such bidder (or bidders).

(ii) In all cases where there is a protest of a bidder's eligibility; and

(iii) In all cases where a contracting officer may have reason to question a bidder's eligibility, such as where the proposed place of contract perform ance and shipment is other than the location of the bidder's place of business.

(6) The following procedures shall be utilized by the contracting officer in processing an eligibility case:

(i) When the contracting officer has determined that an apparently successful bidder or offeror is ineligible, the contracting officer shall promptly notify the bidder or offeror in writing that:

(A) It does not meet the eligibility requirements, and the specific reason therefor;

(B) If it wishes to protest such determination, it may submit any evidence concerning its eligibility to the con tracting officer within a reasonable time as set by the contracting officer; and

(C) (1) If, after review of the evidence submitted by the bidder or offeror, the contracting officer does not reverse the decision, the bidder or offeror shall be notified of the contract. ing officer's determination and the reasons therefor. If the bidder or of feror still disagrees with the finding, the bidder's or offeror's protest, to gether with all pertinent evidence, will be forwarded to the Administrator of the Wage and Hour Division of the Department of Labor for a final determination, and the bidder or offeror will be so notified.

(2) In the case of a small business concern, all findings of ineligibility and all pertinent evidence will be for

warded to the Administrator of the Small Business Administration, whether or not the small business concern protests the determination, and the bidder or offeror shall be so notified. The Administrator of the Small Business Administration shall review the finding of the contracting officer and shall either dismiss it and certify the small business concern to be eligible for the contract award in question, or if it concurs in the finding, forward the matter to the Administrator of the Wage and Hour Division for a final determination, in which case the Small Business Administration may certify the small business concern only if the Wage and Hour Division finds the small business concern to be eligible. The Small Business Administration is bound by the regulations and interpretations of the Department of Labor in making its determinations of eligibility under the Public Contract Act.

(ii) (A) When another bidder or of. feror challenges the eligibility of the apparently successful bidder or offeror prior to award, the contracting officer shall promptly notify the protestor and the apparently successful bidder or offer in writing:

(1) That they may submit evidence concerning the matter to the contracting officer within a reasonable time as set by the contracting officer; and

(2) That after review of such evidence the contracting officer will direct a preaward survey, if necessary, and reach a decision on all the evidence and notify the protestor and successful bidder of his/her finding. If either party disagrees with the finding, the contracting officer shall then forward the decision and entire record to the Administrator of the Wage and Hour Division for a final determination. However, in the case of a small business concern, the protest and all pertinent evidence will be forwarded to the Administrator of the Small Business Administration, and the procedures set forth in $ 50201.101(b)(6)(i)C)(2) shall be followed.

(iii) (A) If the contracting officer forwards the case to the Department of Labor for review of eligibility under the Act, award will be held in abeyance until the contracting officer receives a final determination from the

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