required, such as for installation of heavy generators and large refrigerator systems or for plant modification or rearrangement, the labor standards for construction contracts apply to the construction work at the site.

(2) Contracts for maintenance or service are not ordinarily subject to the requirements of this subpart. Maintenance includes the routine, recurring type of work necessary to keep a facility in such condition that it may be continuously used at an established capacity and efficiency for its intended purpose. However, if such maintenance or service contracts call for substantial and segregable items of construction, alteration, or repair, the labor standards provisions for construction contracts will be applicable to those items. All contracts in excess of $2,000 for painting of any public building or public work, whether performed in connection with the original construction or as regular maintenance, are subject to the labor standards provisions for construction contracts.

8 1-18.702-2 Copeland Act.

The Copeland (“Anti-kickback”) Act (18 U.S.C. 874 and 40 U.S.C. 2760) makes it unlawful to induce, by force or otherwise, any person employed in the construction, prosecution, completion, or repair of public buildings, public works, or buildings, or works including those financed in whole or in part by loans or grants from the United States, to give up any part of the compensation to which he is entitled under his contract of employment. In accordance with regulations of the Secretary of Labor issued pursuant to the Copeland Act, certain contracts entered into by any executive agency shall contain a provision (see § 1-18.703-1(e)) to the effect that the contractors and any subcontractor shall comply with the regulations of the Secretary of Labor under the Act.

§ 1-18.702 Statutory and regulatory re

quirements.

8 1-18.702-1 Davis-Bacon Act.

The Davis-Bacon Act (Act of March 3, 1931, as amended (40 U.S.C. 276a276a-7)), provides that certain contracts over $2,000 entered into by any executive agency for construction, alteration, or repair (including painting and decorating) of public buildings or public works within the United States shall contain a provision (see § 118.703-1(a)) to the effect that no laborer or mechanic employed directly upon the site of the work contemplated by the contract shall receive less than the prevailing rates of wages as determined by the Secretary of Labor. The term “wages” as used in the Davis-Bacon Act includes the basic hourly rate of pay, the rate of contribution irrevocably made by an employer pursuant to a fund, plan, or program, and the rate of costs to the employer which may be reasonably anticipated in providing certain bona fide fringe benefits.

§ 1-18.702-3 Contract Work Hours and

Safety Standards Act. In accordance with the requirements of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327333), certain contracts entered into by any executive agency must contain a clause (see $ 1-18.703-1(b) to the effect that no laborer or mechanic doing any part of the work contemplated by the contract shall be required or permitted to work more than 8 hours in any one calendar day or 40 hours in any workweek unless such laborer or mechanic is compensated at not less than one and one-half times his basic rate of pay for all hours worked in excess of 8 hours in any one calendar day or 40 hours in any workweek. The workmen will be paid according to the calculation which represents the greater number of overtime hours.

§ 1-18.702-4 Department of Labor regula

tions. Pursuant to the statutes referred to in this § 1-18.702 and Reorganization Plan No. 14 of 1950 (3 CFR, 1949-53 Comp., p. 1007), the Secretary of Labor has issued regulations in Parts 1, 3, 5, 5a, and 7 of Title 29, Subtitle A, Code of Federal Regulations, providing for the administration and enforcement of those statutes in con

struction contracts. The Secretary's regulations cover the following wage determination procedures: Duties of contractors on Government-financed public buildings; labor standards for construction contracts; standards for ratios of apprentices and trainees to journeymen; and wage determination review procedures.

§ 1-18.703 Contract clauses.

§ 1-18.703-1 Clauses for general use.1

Except as provided in § 1-18.703-2, every construction contract in excess of $2,000 (or of such other amount as may be specifically indicated) for work within the United States shall include the following clauses:

(a) Davis-Bacon Act (40 U.S.C. 276a276a-7).

DAVIS-BACON ACT (40 U.S.C. 278a-276a-7)

(a) All mechanics and laborers employed or working directly upon the site of the work shall be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by the Copeland Regulations, 29 CFR Part 3), the full amounts due at time of payment computed at wage rates not less than the aggregate of the basic hourly rates and the rates of payments, contributions, or costs for any fringe benefits contained in the wage determination decision of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the Contractor or subcontractor and such laborers and mechanics. A copy of such wage determination decision shall be kept posted by the Contractor at the site of the work in a prominent place where it can be easily seen by the workers. The term "mechanics and laborers" shall be deemed to included apprentices and trainees not covered by an approved program as provided by the Apprentices and Trainees clause of this contract.

(b) The Contractor may discharge his obligation under this clause to workers in any classification for which the wage determination decision contains:

(1) Only a basic hourly rate of pay, by making payment at not less than such basic hourly rate, except as otherwise provided in the Copeland Regulations (29 CFR Part 3);

or

1 See Temporary Regulation 70 in the appendix to Chapter 1 for temporary changes to § 1-18.703-1.

(2) Both a basic hourly rate of pay and fringe benefits payments, by making payment in cash, by irrevocably making contributions pursuant to a fund, plan, or program for, and/or by assuming an enforceable commitment to bear the cost of, bona fide fringe benefits contemplated by the Davis-Bacon Act, or by any combination thereof. Contributions made, or cost assumed, on other than a weekly basis shall be considered as having been constructively made or assumed during a weekly period to the extent that they apply to such period. Where a fringe benefit is expressed in a wage determination in any manner other than as an hourly rate and the Contractor pays a cash equivalent or provides an alternative fringe benefit, he shall furnish information with his payrolls showing how he determined that the cost incurred to make the cash payment or to provide the alternative fringe benefit is equal to the cost of the wage determination fringe benefit. In any case where the Contractor provides a fringe benefit different from any contained in the wage determination he shall similarly show how he arrived at the hourly rate shown therefor. In the event of disagreement between or among the interested parties as to an equivalent of any fringe benefit, the Contracting Officer shall submit the question, together with his recommendation, to the Secretary of Labor for final determination.

(c) The assumption of an enforceable commitment to bear the cost of fringe benefits, or the provision of any fringe benefits not expressly listed in section 1(b)(2) of the Davis-Bacon Act or in the wage determination decision forming a part of the contract, may be considered as payment of wages only with the approval of the Secretary of Labor pursuant to a written request by the Contractor. The Secretary of Labor may require the Contractor to set aside assets, in a separate account, to meet his obligations under any unfunded plan or program.

(d) The Contracting Officer shall require that any class of laborers or mechanics, including apprentices and trainees, which is not listed in the wage determination decision and which is to be employed under the contract shall be classified or reclassified conformably to the wage determination decision, and shall report the action taken to the Secretary of Labor. If the interested parties cannot agree on the propoer classification or reclassification of a particular class of laborers or mechanics, including apprentices and trainees to be used, the Contracting Officer shall submit the question, together with his recommendation, to the Secretary of Labor for final determination. Apprentices and trainees may be added under this clause only where they are employed pursuant to an apprenticeship or

(b) In the event of any violation of the provisions of paragraph (a), the Contractor shall be liable to any affected employee for any amounts due, and to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including an apprentice, trainee, watchman, or guard, employed in violation of the provisions of paragraph (a) in the sum of $10 for each calendar day on which such employee was required or permitted to be employed on such work in excess of 8 hours or in excess of the standard workweek of 40 hours without payment of the overtime wages required by paragraph (a).

trainee program meeting the requirements of the Apprentices and Trainees clause below.

(e) In the event it is found by the Contracting Officer that any laborer or me. chanic, including apprentices and trainees, employed by the Contractor or any subcontractor directly on the site of the work covered by this contract has been or is being paid at a rate of wages less than the rate of wages required by paragraph (a) of this clause, or by the Apprentices and Trainees clause of this contract, the Contrating Officer may (1) by written notice to the Government Prime Contractor terminate his right to proceed with the work, or such part of the work as to which there has been a failure to pay said required wages, and (2) prosecute the work to completion by contract or otherwise, whereupon such Contractor and his sureties shall be liable to the Government for any excess costs occasioned the Government thereby.

(f) Paragraphs (a) through (e) of the clause shall apply to this contract to the extent that it is (1) a prime contract with the Government subject to the Davis-Bacon Act, or (2) a subcontract also subject to the Davis-Bacon Act under such prime contract.

(b) Contract Work Hours and Safety Standards Act-Overtime Compensation (40 U.S.C. 327-333).

(c) Apprentices and Trainees.

APPRENTICES AND TRAINEES

CONTRACT WORK HOURS AND SAFETY STAND

ARDS ACT-OVERTIME COMPENSATION (40 U.S.C. 327-333)

This contract is subject to the Contract Work Hours and Safety Standards Act and to the applicable rules, regulations, and interpretations of the Secretary of Labor.

(a) The Contractor shall not require or permit any laborer or mechanic, including apprentices, trainees, watchmen, and guards, in any workweek in which he is employed on any work under this contract to work in excess of 8 hours in any calendar day or in excess of 40 hours in such workweek on work subject to the provisions of the Contract Work Hours and Safety Standards Act unless such laborer or mechanic, including apprentices, trainees, watchmen, and guards, receives compensation at a rate not less than one and one-half times his basic rate of pay for all such hours worked in excess of 8 hours in any calendar day or in excess of 40 hours in such workweek, whichever is the greater number of overtime hours. The "basic rate of pay," as used in this clause, shall be the amount paid per hour, exclusive of the Contractor's contribution or cost for fringe benefits, and any cash payment made in lieu of providing fringe benefits, or the basic hourly rate contained in the wage determination, whichever is greater.

(a) Apprentices shall be permitted to work at less than the predetermined rate for the work they performed (1) when they are employed and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau, or (2) if a person is employed in his first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of apprenticeship and Training or State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen in any craft classification shall not be greater than the ratio permitted to the Contrator as to his entire work force under the registered program. Any employee listed on a payroll at an apprentice wage rate, who is not a trainee as defined in paragraph (b) of this clause or who is not registered or otherwise employed as stated above, shall be paid the wage rate determined by the Secretary of Labor for the classification of work he actually performed. The Contractor or subcontractor shall furnish to the Contracting Of. ficer written evidence of the registration of his program and apprentices as well as the appropriate ratios and wage rates (expressed in percentages of the journeymen hourly rates) for the area of construction, prior to using any apprentices on the contract work. The wage rate paid apprentices shall be not less than the appropriate percentage of the journeymen's rate contained in the applicable wage determination.

(b) Trainees shall be permitted to work at less than the predetermined rate for the work performed when they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification, by the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training. The term "trainee" means a person registered and receiving onthe-job training in a construction occupation under a program which has been approved in advance by the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, as meeting its standards for onthe-job training programs and which has been so certified by the Bureau. The ratio of trainees to journeymen on this contract shall not be greater than the ratio permitted under the plan approved by the Bureau of Apprenticeship and Training. Every trainee must be paid at not less than the rate specified in the approved program for his level of progress. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Bureau of Apprenticeship and Training shall be paid not less than the wage rate determined by the Secretary of Labor for the classification of work he actually performed. The Contractor or subcontractor shall furnish the Contracting Officer written evidence of the certification of his program, the registration of the trainees, and the ratios and wage rates prescribed in that program. In the event the Bureau of Apprenticeship and Training withdraws approval of a training program, the Contractor shall no longer utilize trainees at less than the applicable predetermined rate for work performed until an acceptable program is approved.

(c) The utilization of apprentices, trainees, and journeymen under this clause shall be in conformity with the equal employment opportunity requirements of this contract.

(d) If at any time the Bureau of Apprenticeship and Training determines, after opportunity for a hearing, that the standards of a training program have not been complied with, or that such a program fails to provide adequate training for participants, the Contractor shall not utilize trainees at less than the predetermined rate for the classification of work actually performed until an acceptable program is approved. If the Contractor brings an appeal pursuant to 29 CFR 5.17 within 30 days of his receipt of a certified letter withdrawing the Bureau of Apprenticeship and Training's approval, the effect of the withdrawal of approval of the program will be delayed until a decision is rendered on the appeal pursuant to 29 CFR 5.17.

Contract Work Hours and Safety Standards Act.

(e) Compliance with Copeland Regulations.

CONTRACT TERMINATION-DEBARMENT A breach of the clauses hereof entitled “Davis-Bacon Act," "Contract Work Hours and Safety Standards Act-Overtime Compensation," "Apprentices and Trainees," "Payrolls and Basic Records," "Compliance with Copeland Regulations," "Withholding of Funds," and "Subcontracts" may be grounds for termination of the contract, and for debarment as provided in 29 CFR 5.6.

(i) Disputes concerning labor standards.

COMPLIANCE WITH COPELAND REGULATIONS

The Contractor shall comply with the Co. peland Regulations of the Secretary of Labor (29 CFR Part 3) which are incorporated herein by reference. (f) Withholding of Funds.

WITHHOLDING OF FUNDS (a) The Contracting Officer may withhold or cause to be withheld from the Government Prime Contractor so much of the accrued payments or advances as may be considered necessary (1) to pay laborers and

mechanics, including apprentices, trainees, Į watchmen, and guards employed by the

Contractor or any subcontractor on the I work the full amount of wages required by

the contract, and (2) to satisfy any liability of the Contractor and any subcontractor for liquidatd damages under paragraph (b) of the clause entitled “Contract Work Hours and Safety Standards Act-Overtime Compensation."

(b) If the Contractor or any subcontractor fails to pay any laborer, mechanic, apprentice, trainee, watchman, or guard employed or working on the site of work, all or part of the wages required by the contract, the Contracting Officer may after written notice to the Government Prime Contractor, take such action as may be necessary to cause suspension of any further payments or

advances until such violations have ceased.

DISPUTES CONCERNING LABOR STANDARDS Disputes arising out of the labor standards provisions of this contract shall be subject to the Disputes clause except to the extent such disputes involve the meaning of classifications or wage rates contained in the wage determination decision of the Secretary of Labor or the applicability of the labor provisions of the contract which questions shall be referred to the Secretary of Labor in accordance with the procedures of the Department of Labor. (38 FR 21405, Aug. 8, 1973; 38 FR 23791, Sept. 4, 1973, as amended at 40 FR 48326, Oct. 14, 1975; 44 FR 20692, Apr. 6, 1979)

§ 1-18.703-2 Contracts with a State or po.

litical subdivision. In the case of construction contracts with a State or political subdivision thereof, the contract clauses required by § 1-18.703-1 shall be inserted there. in but shall be prefaced by the following provision:

The Contractor agrees to comply with the requirements of the Contract Work Hours and Safety Standards Act, and to inser the following clauses in all subcontracts hereunder with private persons or firms.

in

(g) Subcontracts.

SUBCONTRACTS The Contractor agrees to insert the clauses hereof entitled “Davis-Bacon Act,” *Contract Work Hours and Safety Standards Act-Overtime Compensation," "Apprentices and Trainees,” “Payrolls and Basic Records," "Compliance with Copeland Regulations," "Withholding of Funds," "Subcontracts," and "Contract Termination-Debarment" in all subcontracts. The term "Contractor" as used in such clauses in

any subcontract shall be deemed to refer to s the subcontractor except in the phrase "Government Prime Contractor."

(h) Contract termination-debarment.

8 1-18.703-3 Overseas contracts.

Every construction contract excess of $2,000 for work outside the United States, but which is nevertheless subject to the Contract Work Hours and Safety Standards Act as set forth in § 1-12.302(d), shall include the clause in § 1-12.303. Standard Form 19-A should not be used in such contracts (see § 1-16.402).

$ 1-18.704 Wage determinations.

§ 1-18.704-1 General.

Wage determinations reflecting the prevailing wages, including fringe ben