ized to produce a commodity or provide a service under the Act must continue to meet the requirements of a "workshop for the blind" or "workshop for the other severely handicapped" as defined in § 51-1.2 (h) and (i) respectively and shall complete and submit an annual workshop certification to its central nonprofit agency by November 15 for the fiscal year ending the preceding September 30.

[38 FR 16318, June 21, 1973, as amended at 41 FR 11515, Mar. 19, 1976; 41 FR 45566, Oct. 15, 1976]

§ 51-4.3 Responsibilities.

(a) Each

workshop participating under the Act shall:

(1) Furnish commodities or services in strict accordance with the allocation and Government orders.

(2) Make its records available for inspection at any reasonable time to representatives of the Committee or the central nonprofit agency representing the workshop.

(3) Maintain records of direct labor hours performed in the workshop by each worker.

(4) Submit to its central nonprofit agency by November 15 the appropriate annual workshop certificate and the information required by the central nonprofit agency to prepare its annual report both covering the fiscal year ending the preceding September 30.

(5) Comply with applicable occupational health and safety standards prescribed by the Secretary of Labor.

a

(6) Maintain a file on each blind individual which includes written report prepared by a licensed physician reflecting visual acuity and field of vision of each eye with and without glasses.

(7) Maintain a file on each blind and other severely handicapped individual which includes reports of preadmission evaluation, and annual reevaluations of the individual's capability for normal competitive employment, prepared by a person or persons qualified by training and experience to evaluate the work potential, interests, aptitudes and abilities of handicapped persons.

(8) Maintain an ongoing placement program that includes staff assigned

evaluation duties and liaison responsibilities with appropriate community services such as the State employment service, employer groups, and others; and list with one or more of these services those individuals whose most recent evaluations show them to be capable of normal competitive employment.

(b) Each workshop for other severely handicapped participating under the Act shall, in addition to the requirements of paragraph (a) of this section, maintain a file for each other severely handicapped individual which includes a written report prepared by a licensed physician, psychiatrist, and/ or qualified psychologist, reflecting the nature and extent of the disability or disabilities that cause such person to qualify as severely handicapped.

[38 FR 16318, June 21, 1973, as amended at 41 FR 45566, Oct. 15, 1976]

§ 51-4.4 Subcontracting.

(a) Workshops shall seek broad competition in the purchase of raw materials and components used in the commodities and services provided the Government under the Act. Workshops shall inform the Committee before entering into multiyear contracts for raw materials or components used in the commodities and services provided the Government under the Act.

(b) Each workshop shall accomplish the maximum amount of subcontracting to small business concerns that the workshop finds to be consistent with efficient performance in producing commodities providing services under the Act.

or

§ 51-4.5 Production.

In the production of commodities under the Act, a workshop shall make an appreciable contribution to the reforming of raw materials or the assembly of components or a combination thereof.

§ 51-4.6 Violations.

Any alleged violations of these regulations by a workshop shall be investigated by the appropriate central nonprofit agency which shall notify the workshop concerned and afford it an

fy as a manufacturer. Furthermore, a bidder proposing to purchase a hose and a clamp and place the clamp on the hose to make a “hose assembly," and then package and ship the item, is not a manufacturer within the intent of the Act. (See also Decision of the Comptroller General, B-164770, September 3, 1968 (not officially published).)

§ 50-206.53 Regular dealer.

(a) A bidder may qualify as a regular dealer under 41 CFR 50-201.101(b) if it owns, operates, or maintains a store, warehouse, or other establishment in which the commodities or goods 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. The storage of goods in a public warehouse will not in itself satisfy the place of business requirements of this definition unless there is a continuing right (i.e. bona fide written lease agreement) to a specified, identified amount of space in the warehouse. A bidder who desires to qualify for award as a regular dealer must show to the satisfaction of the contracting agency prior to any award that it is engaged in an established, regular business meeting all the criteria of 41 CFR 50-201.101(a)(2). It is not enough in the case of a regular dealer to show only that arrangements have been made to set up such a business; before an ard can be made, it is essential that it shows an already established business regularly dealing in the particular goods or goods of the general character offered to the Government.

(b) A bidder must be able to show before award:

(1) That the bidder has an establishment or leased or assigned space in which it regularly maintains a stock of goods in which it claims to be a dealer; if the space is in a public warehouse, it must be maintained on a continuing, and not on a demand, basis;

(2) That the stock maintained is a true inventory from which sales are made; the requirement is not satisfied by a stock of sample or display goods, or by a stock consisting of surplus

goods remaining from prior orders, or by stock unrelated to the supplies which are the subject of the bid, or by a stock maintained primarily for the purpose of token compliance with the Act from which few, if any, sales are made;

(3) That the goods stocked are of the same general character as the goods to be supplied under the contract; to be of the same general character, the items to be supplied must be either identical with those in stock or goods for which dealers in the same line of business would be an obvious source;

(4) That sales are made regularly from stock on a recurring basis; they cannot be only occasional and constitute an exception to the usual operations of the business; the proportion of sales from stock that will satisfy the requirements will depend upon the character of the business;

(5) That sales are made regularly in the usual course of business to the public, i.e., to purchasers other than Federal, State, or local Government agencies; this requirement is not satisfied if the contractor merely seeks to sell to the public but has not yet made such sales; if Government agencies are the sole purchasers, the bidder will not qualify as a regular dealer; the number and amount of sales which must be made to the public will necessarily vary with the amount of total sales and the nature of the business; and

(c) With regard to the test in paragraphs (b) (5) and (6) of this section, as stated in the Decision of the Administrator, "In re Herbert Co." (9 WH Cases 561, 562 (1950)): “It is plain that the Act and Regulations intended to bar from receipt of Government contracts those persons whose regular method of operation is to secure contracts and thereafter buy elsewhere the goods necessary to fill the contract. While it was not contemplated by the regulations that every Government contract awarded to a dealer be filled from stock on hand, it was the

intention to require that Government contracts should be awarded only to those dealers who maintain a stock of goods of the general character required under the Government contract in question, and who, as a regular course of business dealings, make sales from such stocks. It is not sufficient for a dealer to show that some sales are made from stock, or that sales from stock are not unusual in his business; rather he must show that in the usual course of his business a very substantial amount of his sales are made from stocks on hand" (emphasis added).

(d) Coal dealers are exempted from the regular dealer requirements of the Act on certain express terms and conditions which are set forth in 41 CFR 50-201.604(a). The exemption will be applicable only if these conditions are complied with. If they are not, the general definition of regular dealers contained in 41 CFR 50-201.101(a)(2) of the regulations would be applicable. § 50-206.54 Regular dealer in particular products.

In addition to the exemptions from the requirements of section 1(a) of the Act which have been granted for certain types of contracts as set forth in 41 CFR 50-201.604, special alternate qualifications have been prescribed for hay, grain, feed, or straw; raw cotton; lumber and timber products; machine tools; green coffee, petroleum; agricultural liming materials; tea; raw or unmanufactured cotton linters; certain uranium products and used automated data processing (ADP) equipment in recognition of existing industrial and commercial practices in those industries. These special qualifications may be found in 41 CFR 50-201.101(a)(2) and 41 CFR 50-201.604. Characteristic of these alternative qualifications is the absence of a requirement that the dealer physically maintain a stock.

§ 50-206.55 Agents.

A "manufacturer" or "regular dealer" within the meaning of the Act and regulations may bid, negotiate, and contract through an authorized agent if the agency is disclosed and the agent bids and contracts in the

name of the principal. Brokers from whom foreign-made goods consigned directly to the Government are purchased need not qualify as regular dealers under 41 CFR 50-201.101(a)(2) since the contract itself is not subject tc the Act.

§ 50-206.56 Administrative exemptions.

Sections 50-201.101(a)(3)(ii) and 50201.601 of Regulations 41 CFR Part 50-201, provide for the granting of exceptions and exemptions from the application of section 1(a) of the Act upon request by the head of the contracting agency to the Administrator, Wage and Hour Division. Such request should contain all pertinent information enabling the Administrator to determine if such exemption is necessary to avoid the serious impairment of the conduct of Government business. Any such request will be published in the FEDERAL REGISTER as a proposal with time for public comment.

PART 50-210-STATEMENTS OF GENERAL POLICY AND INTERPRETATION NOT DIRECTLY RELATED TO REGULATIONS

Sec.

50-210.0 General enforcement policy. 50-210.1 Coverage under the Walsh-Healey Public Contracts Act of truck drivers employed by oil dealers.

§ 50-210.0 General enforcement policy.

(a) In order to clarify at this time the practices and policies which will guide the administration and enforcement of the Fair Labor Standards Act of 1938 (52 Stat 1060, as amended, 29 U.S.C. 201-219), and the Walsh-Healey Public Contracts Act (49 Stat. 2036, as amended; 41 U.S.C. 35-45), as affected by the Portal-to-Portal Act of 1947 (Pub. Law 49, 80th Cong.), the following policy is announced effective June 30, 1947:

(b) The investigation, inspection and enforcement activities of all officers and agencies of the Department of Labor as they relate to the Fair Labor Standards Act (52 Stat. 1060, as amended, 29 U.S.C. 201-219) and the Walsh-Healey Public Contracts Act of June 30, 1936 (49 Stat. 2036, as amend