(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 performed as a phase of a covered construction project or when subsequent construction activity at the site being cleared is contemplated. (7) Contracts with a State or subdivision thereof. (See FPR 1-18.703–2).

(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 DOE 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) 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 as “incidental” in §9–18.701–51(c) is involved.

(4) 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 and building utility services—as distinguished from temporary connections thereto. Also specifically excluded from this category 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)).

(5) 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 therefrom 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 servicesas 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 §9-18.7502(g) and 2(h)).

(6) 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 or 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)).

(7) 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 integral part of the decontamination activity and does not include complete replacement of large sections of paved areas or roadways.

(8) Burial of contaminated soil waste or contained liquid; however, initial 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.

(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 outside 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 Davis-Bacon 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 contract.

(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 DOE's responsibilities as described in this section, prescribe from time to time classes of work as to which applicability or nonapplicability of the DavisBacon Act is clear, for which he will require no further DOE 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 Reserved.

$9-18.704 Wage determinations.

$9-18.704-3 Procedure for requesting determinations.

The Heads of the Procuring Activities are responsible for submitting to the Wage and Hour Division, Employment Standards Administration, Department of Labor, Washington DC 20210, all DOE 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 DOE 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 addition. Programmed 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; or

(2) Contracts for operation and maintenance under which the contractor will perform miscellaneous covered work with his own forces;

(b) The minimum wage rates that will be paid to laborers and/or mechanics engaged on subcontracts let by an operating contractor will be those in the wage determination decision of the Secretary of Labor which is current as of the date the contractor enters into such subcontract.

(c) See FPR 1-18.704 for types of wage determinations procedures for requesting same, and review of the FEDERAL REGISTER on general or area wage determinations.

$9-18.705 Administration and enforcement.

$9-18.705-50 Responsibilities.

(a) The statutes and regulations cited and summarized in FPR 1-18.702 and the requirements in FPR 1-18.705, impose direct responsibilities for administration and enforcement upon DOE. Therefore, Heads of Procuring Activities and others, consistent with their assignments of responsibilities and delegations of authority, shall assure that DOE contract activities are carried out consistent with these laws and regulations.

(b) Heads of Procuring Activities shall submit to the Office of Contractor Industrial Relations required reports, recommendations, and requests for rulings and interpretations as required in FPR 1-18.705.

§9-18.750 Decisions and other guides in difficult areas.

89-18.750-1 General.

Section 9-18.701-52 necessarily uses general language and in some cases the application of the criteria discussed therein to particular situations may not be clear. Therefore, this subsection covers more specifically some of the areas of particular concern to DOE and is promulgated to clarify the application of the criteria.

§9-18.750-2 Specific examples.

The following are applications of the regulations to particular situations. Additional narrative statements describing items of work and applicabilty of the Davis-Bacon Act will be developed from time to time and added to this subsection.

(a) Land-based prototypes. The Labor Department has held that the construction of a fullscale operating prototype of one reactor compartment and of all necessary nuclear power components, systems, and propulsion equipment for a submarine is covered.

In another ship prototype situation, the Department has held that assembling and fitting the components of nuclear steam propulsion units into the hull sections, including installation of the pressure vessels, turbo-generator sets, heat exchangers, control wiring, etc., is covered. A later decision involving the same prototype indicates that the earlier rulings should not be construed as intended to cover all equipment assemblies irrespective of the status of construction and other pertinent factors.

(b) Paving. The construction of roads, including grading, and their repair-where such repair includes work on roadbeds before resurfacing, building up shoulders, forming ditches, culverts and bridges, and on the actual resurfacing of roads-is covered. However, recurringtype maintenance work, such as patching surface, filling chuck holes, patching shoulders, and resurfacing railroad crossings is noncovered. Similarly, patch and maintenance work on a parking lot the replacement of bumper stops, and the repainting of parking deviders is non-covered.

(c) Stationary boilers. The construction, alteration and/or repair, including installation and rebuilding, of stationary boilers costing in excess of $2,000 for labor and materials is covered. In contrast, inspection may reveal need for replacement of pieces of insulation, individual tubes, or other defective parts. Such minor maintenance, necessary to keep the boiler in safe operating condition, is non-covered.

(d) Start-up of operating activity after fire or other catastrophe. Rebuilding of plant following a catastrophe, such as replacement of structural members, roof trusses, walls, roof, utility services, and process piping is covered. However, where process equipment can be restarted and/or operational activities resumed prior to such rebuilding, the actual work of start-up, including preliminary activity, e.g., cleaning, drying, checking, adjustment, temporary services, and temporary weather protection of equipment, essential to such resumption of operational activity, is noncovered.

(e) Rehabilitation of facilities. By contrast with emergency services needed to restore or maintain functional usefulness, as above described, rehabilitation (e.g., painting, change-out, rearrangement and installation of equipment, replacement or repair of damaged parts of a structure or of building services or equipment) of a facility is covered. In such rehabilitation, the startup of equipment by operating employees is noncovered.

(f) Painting. Although painting and decorating are specifically mentioned in the Act, painting which is closely integrated within operation and maintenance activities and such repainting as color coding of process lines and service piping (including valves and directional arrows),

is noncovered; likewise, application of various materials for localizing contamination, painting of machine tools to identify degree of contamination, and preventive maintenance such as repainting of machine tools, equipment and plant structures are noncovered when performed with a stable work force employed by the operating contractor. When painting involves more than touch up to structures or facilities the work would be covered by Davis Bacon.

(g) Installation, rearrangement or adjustment of equipment. (See also paragraph (h). Experimental installations, of this section.)

(1) During construction. In the construction of a new facility—whether it is a production plant, a laboratory, or supporting facilities, such as shops and warehouses—an integral part of a construction project is the installation of equipment (including mechanical equipment, building services, instruments, etc.) which permits the facility to be utilized for the purpose for which it was intended. Normally, the initial installation, arrangement, adjustment, balancing, calibration, and checking of such equipment is a logical part of the construction contract(s) for completion of the facility and, whether or not included within the scope of such contract(s), is covered. (2) Plant start-up. At the time of the turnover of a DOE facility (which frequently differs in many respects from other facilities), from construction to operation activities, if the facility is turned over a section at a time, some problems of coverage may arise. It is extremely difficult, if not impossible, to write rules or criteria that can be practically applied in all situations. Usually, it is essential that final checkout of a plant prior to the start-up of plant operations be performed by personnel of the operating contractor and, as such, is not covered. The important thing is to work out a practical plan that will assure: (i) safe and effective startup of the facility, (ii) the fulfillment of obligations under applicable statutes, and (iii) continuing construction at the facility.

(3) Equipment and equipment assemblies. While the current construction status of a public building or public work is not controlling as to coverage of supply-installation-type contracts, this is a factor to be considered in judging the applicability of the Davis-Bacon Act. The Labor Department has ruled (Walsh-Healey Rulings and Interpretations No. 3, section 6(b)) that while contracts in excess of $10,000 for equipment, including erection or installation, are subject to the Walsh-Healy Act, they may be also covered under the Davis-Bacon Act where more than an incidental amount (see §9-18.701-51(c)) of work is involved. Examples given in this ruling include furnishing and installation of mechanical equipment such as elevators or of generators requiring prepared foundations or housing. In a specific situation, the Department has indicated that a contract for furnishing the initial installation of piping, wiring, gas exhaust fans, plumbing, sheet metal work, and related activities to install kitchen baking equipment was comparable to the basic plumbing, wiring, and heating contracts and was covered.

While this situation involves an initial installation, alteration or rearrangement of existing facilities involving such work to accommodate new or different equipment is also covered. Conversely, it follows that where the test of more than an incidental amount of construction is not met, and where the installation, rearrangement or adjustment of equipment is not a logical part of any current related construction project, it is noncovered.

(4) Telephone and utility systems. Contracts involving the installation of telephone systems or utilities are not covered when the work is performed by employees of the telephone or utility company supplying the services, and the material and equipment installed is owned by the telephone or utility company. Such installation is considered to be an extension of the utility's services. However, a contract for a telephone central system to be installed by the manufacturer and owned by the United States has been held to be covered. In addition, relocation of utility lines to accommodate construction of a public work is covered.