Page images
PDF
EPUB

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.

(b) All persons employed by the contractor in the manufacture or furnishing of the 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 such 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, surroundings or under working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged in the performance of the contract. Compliance 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

$ 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:

or

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 manufaciured or used in the performance of the conwract.

1962, 27 FR 4556, May 12, 1962; 34 FR 6687, Apr. 19, 1969; 34 FR 7451, May 8, 1969.

or

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 years of age, or each convict laborer knowingly employed in the performance of the contract, and a sum equal to the amount of any deductions, rebates, refunds, or underpayment of wages due to any employee engaged in the performance of the contract; and, in addition, the agency of the United States entering into the contract shall have the right to cancel same and to make openmarket purchases or enter into other contracts for the completion of the original contract, charging any additional cost to the original contractor. Any sums of money due to the United States of America by reason of any violation of any of the representations and stipulations of the contract as set forth herein may be withheld from any amounts due on the contract or may be recovered in a suit brought in the name of the United States of America by the Attorney General thereof. All sums withheld or recovered as deductions, rebates, refunds, or underpayments of wages shall be held in a special deposit account and shall be paid, on order of the Secretary of Labor, directly to the employees who have been paid less than minimum rates of pay as set forth in such contracts and on whose account such sums were withheld or recovered: Provided, That no claims by employees for such payments shall be entertained unless made within 1 year from the date of actual notice to the contractor of the withholding or recovery of such sums by the United States of America.

(g) The contractor shall post a copy of the stipulations in a prominent and readily accessible place at the site of the contract work and shall keep such employment records as are required in the regulations under the act available for inspection by authorized representatives of the Secretary of Labor.

(h) The contractor is not a person who is ineligible to be awarded Government contracts by virtue of sanctions imposed pursuant to the provisions of section 3 of the act.

(i) No part of the contract shall be performed and none of the materials, articles, supplies or equipment manufactured or furnished under the contract shall be manufactured or furnished by any person found by the Secretary of Labor to be ineligible to be awarded Government contracts pursuant to section 3 of the act.

(j) The foregoing stipulations shall be deemed inoperative if this contract is for a definite amount not in excess of $10,000. (7 FR 4494, June 16, 1942, as amended at 7 FR 11086, Dec. 30, 1942, 11 FR 6238, June 8, 1946. Redesignated at 24 FR 10952, Dec. 30, 1959, and amended at 27 FR 306, Jan. 11,

$ 50–201.2 Statutory exemptions.

Inclusion of the stipulations enumerated in $ 50-201.1 is not required in thie following instances:

(a) Where the contracting officer is authorized by the express language of a statute to purchase “in the open market”, or where a purchase of articles, supplies, materials or equipment, either in being or virtually so, is made without advertising for bids under circumstances bringing such purchase within the exception to the General Purchase Statute, R.S. 3709, that is, where immediate delivery is required by the public exigency.

(b) Where the contract relates to perishables, including dairy, livestock, and nursery products (“perishables" covers products subject to decay or spoilage and not products canned, salted, smoked, otherwise preserved);

(c) Where the contract relates to agricultural or farm products processed for first sale by the original producers;

(d) Where the contract is by the Secretary of Agriculture for the purchase of agricultural commodities or the products thereof;

(e) Where the contract is with a common carrier for carriage of freight or personnel by vessel, airplane, bus, truck, express, or railway line, where published tariff rates are in effect;

(f) Where the contract is for the furnishing of service by radio, telephone, telegraph, or cable companies, subject to the Federal Communications Act of 1934 (48 Stat. 1064 as amended; 47 U.S.C. Chapter 5). (Regs. 504, 1 FR 1626, Sept. 19, 1936, as amended at 9 FR 8347, July 22, 1944. Redesignated at 24 FR 10952, Dec. 30, 1959)

[blocks in formation]

(1) A manufacturer is a person who owns, operates, or maintains a factory or establishment that produces on the premises the materials, supplies, articles, or equipment required under the contract and of the general character described by the specifications.

(2) A regular dealer is a person who owns, operates, or maintains a store, warehouse, or other establishment in which the materials, supplies, articles, or equipment of the general character described by the specifications and required under the contract are bought, kept in stock, and sold to the public in the usual course of business.

(i) A regular dealer in lumber and timber products, if a wholesale lumber dealer, may be a person who owns, operates, or maintains a place of business in which the materials, supplies, articles, or equipment of the general character described by the specifications and required under the contract are bought for the account of such person and sold to the public in the usual course of business: Provided, That at least more than 50 percent of his business is such purchase and sale of such materials, supplies, articles, or equipment; And provided further, That upon all orders to manufacturers for direct shipment to the United States he agrees to insert a notice to the manufacturer to the effect that the supplies are purchased for the United States and that the manufacturer is within the terms of $ 50-201.104 requiring compliance with the provisions of the Public Contracts Act.

(ii) A machine tool dealer may be a person possessing, through contract or agreement with a manufacturer, the responsibility for selling that manufacturer's products, with respect to a specific territory and who is authorized by such manufacturer to offer its products and to negotiate and conclude contracts for the furnishing thereof. Provided, That upon all orders to manufacturers for direct shipment to the United States he agrees to insert a notice to the manufacturer to the effect that the supplies are purchased for the United States and that the manufacturer is within the terms of $ 50-201.104 requiring

compliance with the provisions of the Public Contracts Act.

(iii) A regular dealer in hay, grain, feed, or straw may be a person who owns, operates, or maintains a store, warehouse, or other place of business ir, which the materials, supplies, articles, or equipment of the general character described by the specifications and required under the contract are bought for the account of such person and sold to the public in the usual course of business, and whose principal business is such purchase and sale of such materials, supplies, articles, or equipment.

(iv) A regular dealer in raw cotton may be a person who owns, operates or maintains a store, warehouse, or other place of business in which materials, supplies, articles or equipment of the general character described by the specifications and required under the contract are bought for the account of such person and sold to the public in the usual course of business, and whose principal business is such purchase and sale of such materials, supplies, articles or equipment.

(V) A regular dealer in green coffee may be a person who owns, operates or maintains a store, warehouse, or other place of business in which materials, supplies, articles or equipment of the general character described by the specifications and required under the contract are bought for the account of such person and sold to the public in the usual course of business, anii whose principal business is such purchase and sale of such materials, supplies, articles or equipment.

(vi) A regular dealer in petroleum may be a person who owns, operates, or maintains petroleum distribution equipment and a store, warehouse, or other place of business in which petroleum products of the general character described by the specifications and required under the contract are bought for the account of such person and sold to the public in the usual course of business, and whose principal business is such purchase and sale of such petroleum products.

(vii) A regular dealer in agricultural liming materials may be a person who owns or controls the necessary equipment customarily required for delivering agricultural liming materials to farms or for spreading such materials on fields, who has made arrangements to purchase liming materials of the general character described by the specifications and required under the contract from a manufacturer, and who offers such material for sale to the public in the usual course of business.

(viii) A regular dealer in tea may be an importer who owns, operates, or maintains a store, warehouse, or other place of business in which materials, supplies, articles or equipment of the general character described by the specifications and required under the contract are bought for the account of such person and sold to the public in the usual course of business.

(ix) A regular dealer in raw or unmanufactured cotton linters may be a person who owns, operates or maintains a store, warehouse, or other place of business in which materials, supplies, articles, or equipment of the general character described in the specifications and required under the contract are bought for the account of such person and sold to the public in the usual course of business, and whose principal business is such purchase and sale of such materials, supplies, articles, or equipment.

(x) A regular dealer in used automatic data processing equipment may be a person who owns or controls previously owned or used items, materials, supplies, articles, or equipment of the general character described in the specifications and required under the contract and who offers such items for sale to the public in the usual course of business and whose principal business is the purchase and sale of such items, materials, supplies, articles, or equipment.

(3)(i)(A) Except as hereinafter provided, every bid received from any bidder who does not fall within one of the foregoing categories shall be rejected by the contracting officer.

(B) If it is discovered after an award that the bidder did not act in good faith in representing that it was a manufacturer or regular dealer within the meaning of the stipulations as in

terpreted in this Chapter 50, the contracting officer, immediately upon such discovery, may exercise his/her right to terminate the contract and to make open market purchases or to enter into her contracts for the completion of the original contract, charging any additional cost to the original contractor. Lack of good faith should be judged on the basis of all facts in the case.

(ii) Whenever justice and the public interest will be served, bids for a contract or class of contracts will be exempted from the foregoing requirement by the Secretary of Labor upon the request of the head of the contracting agency or department when accompanied by his finding of fact that it will be so difficult to obtain satisfactory bids for the contract or class of contracts under the stipulated restrictions, that the conduct of the Government business will be seriously impaired.

(b) Determination of eligibility. (1) The responsibility for applying the stated eligibility requirements in order to determine whether or not a bidder is qualified as a manufacturer or regular dealer before award rests in the first instance with the contracting agency pursuant to authority delegated by the Secretary of Labor in accordance with section 4 of the Act. (Circular Letter 8-61.) Contracting agencies shall obtain and consider all available factual evidence essential to eligibility determinations for all bidders in line for award of contracts subject to the Act.

(2) Any decision of the contracting agency is subject to review by the Department of Labor according to the procedures outlined below. The decision of the Department of Labor shall be final with respect to the procurement or procurements at issue.

(3) The Department of Labor shall give great weight to the technical knowledge and expertise of the contracting agencies and the Department of Labor shall uphold the contracting agencies' initial determinations unless the determinations are found to be arbitrary, capricious or otherwise not in accordance with the evidence presented or with the law.

a

/

(4) The Department of Labor may determine the qualifications of bidder in the first instance in the absence of any decision by the contracting agency.

(5) The contracting agency shall investigate and determine the WalshHealey eligibility status of a bidder in 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 contract 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 performance 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 contracting 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 contracting officer's determination and the reasons therefor. If the bidder or offeror still disagrees with the finding,

the bidder's or offeror's protest, together 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, the protest and all pertinent evidence will be forwarded to the Administrator of the Small Business Administration and the bidder or offeror 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 offeror 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

« PreviousContinue »