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the products or services within the pe- $ 12.104 Meeting manpower require riod of time delivery is required;

ments. - (4) There is no practicable possibility

The Department of Defense shall coof taking remedial action (such as re

operate with and encourage contractors cruiting, training, and more effective

to utilize to the fullest extent practicable utilization of manpower) as an alterna

the United States Employment Service tive to relaxation of applicable Govern

(USES) and its affiliated Local State mental labor requirements:

Employment Service Offices in meeting (5) The apparent supply of labor, and

contractor's manpower (labor supply) in particular of critical skills, is limited,

requirements to staff new or expanding and it is not practicable to set up new

plant facilities, including the recruitproduction lines or to use additional

ment of workers in all occupations and facilities as an alternative to the relief

skills both from local labor market areas requested; and

and through the Federal-State man(6) The granting of the application

power clearance system. Local State will not result in an excessive increase

Employment Offices are operated in hours or work, an unreasonable cur

throughout the United States, Puerto tailment of rest and lunch periods, an,

Rico, Guam, and the Virgin Islands. In undesirable impairment of working con

addition to providing recruitment asditions, or otherwise adversely affect the

sistance to contractors who need and productivity of the facility involved.

desire it, cooperation with the Local (b) Requests for authority to support

State Employment Service Offices will an application on behalf of a contractor

further the national program of mainor supplier shall be submitted to the

taining continuous assessment of manLabor Advisor, OASA (I&L) for the

power requirements and resources on a Army; Chief of Naval Material for the

national and local basis. Navy; HQUSAF (AFSPPMA) for the Air

(30 F.R. 6006, Apr. 29, 1965) Force; and Directorate, Procurement and Production DSAH-P, for the Defense $ 12.106 Supply, services, or mainteSupply Agency. Such requests shall con

nance contracts involving constructain the following information:

tion work. (1) The facilities and services involved

The requirements of statutes, regulaand affected;

tions, and determinations establishing (2) Provision(s) of law which require construction labor standards are set relaxation;

forth in Subpart G, Part 18 of this chap(3) Criticality or relative scarcity of

ter. In many instances, construction the material;

items under supply, service, maintenance, (4) Circumstances necessitating the

research and development, and other relaxation (for example, a shortage in

nonconstruction contracts are not subthe local supply of skilled labor);

ject to the requirements of Subpart G, (5) Remedial action being taken by

Part 18, of this chapter, although this the manufacturer (e.g., training, recruit

is not necessarily always the case simply ing, more effective utilization of

because the construction work is to be manpower);

performed under a contract which also (6) The most limited relaxation of the

calls for nonconstruction work. This requirement necessary for completion of section governs the applicability of those the specific work; and

requirements to contracts involving both (7) The approximate period of time construction and nonconstruction work. required for completion of the work. (32 F.R. 538, Jan. 18, 1967)

(c) Consistent with the limitations of $ 12.106-1 When construction labor security and the foregoing requirements, standards and clauses are applicable. contract Information may be furnished

(a) Contracts involving both conto the appropriate governmental official,

struction and nonconstruction work are upon his request, in connection with an

in general subject to the requirements of application of a contractor or supplier

Subpart G, Part 18 of this chapter, and for relaxation of a labor requirement must include the appropriate clauses of as to the execution of a contract in pur § 18.703 if: suance of a military procurement (1) The contract contains specific reprogram.

quirements for substantial amounts of [30 F.R. 6005, Apr. 29, 1965, as amended at construction work, or it is ascertainable 36 F.R. 7949, Apr. 28, 1971)

at the contract date that a substantial

and

amount of construction work will be relations advisor of the Headquarters necessary for the performance of the concerned not later than 25 days after contract (the word “substantial" relates the close of the reporting period. Within to the type and quantity of construction the next 5 days a report will be submitted work to be performed and not merely to by the Headquarters to the Administrathe total value of construction work as tor, Wage and Hour Division, Workplace compared to the total value of the con Standards Administration, U.S. Departtract); and

ment of Labor, Washington, D.C. 20210. (2) The construction work is physi (b) The report shall contain the folcally or functionally separate from, and lowing information which shall be stated as a practical matter is capable of being separately, as applicable, in two performed on a segregated basis from columns—one column for construction the other work called for by the contract; work subject to the Davis-Bacon Act and

Contract Work Hours Standards Act and (3) The requirements are otherwise the other column for nonconstruction applicable to the contract (see § 18.701). work subject to the Contract Work

(b) Even though the contract contains Hours Standards Act: construction labor clauses pursuant to (1) Period covered; paragraph (a) of this section, the non (2) Number of prime contracts construction work under the contract is awarded; not subject to those clauses, because they (3) Total dollar amount of prime conprovide that they are applicable to the tracts awarded; contract work only to the extent that the (4) Number of contractors/subconwork is subject to the labor standards tractors against whom complaints were statutes involved.

received (32 F.R. 538, Jan. 18, 1967)

(i) Prime,

(ii) Subcontractors; $ 12.106–2 When construction labor

(5) Number of investigationsstandards and clauses are not appli

(i) Undertaken, cable.

(ii) Completed; Construction work is exempt from the (6) Number of contractors/subconrequirements of Subpart G, Part 18 of tractors found in violationthis chapter, when (a) it is to be per (i) Prime, formed in support of nonconstruction

(ii) Subcontractors; work, such as manufacturing and fur

(7) Amount of wage restitution found nishing of supplies, and (b) in the cir

duecumstances of the particular case the

(i) Davis-Bacon Act. construction work is so merged with the

(ii) Contract Work Hours Standards nonconstruction work, or so fragmented

Act; in terms of the locations or time spans in

(8) Number of employees due wage which it is to be performed, that it cannot

restitution underbe segregated as a separate contractual

(i) Davis-Bacon Act. requirement for construction. Accord

(ii) Contract Work Hours Standards ingly, contracts involving both noncon

Act; struction work and this type of construc- (9) Amount of liquidated damages astion work are not subject to the require

sessed under the Contract Work Hours ments of Subpart G, Part 18 of this Standards Actchapter.

(i) Number of contracts involved; [35 F.R. 6835, Apr. 30, 1970)

(10) Number of complaints received $ 12.107 Labor standards enforcement

from

(i) Labor unions, report.

(ii) Individual employees, (a) A semiannual report is required

(iii) Department of Labor, and on compliance with and enforcement of

(iv) Others, including Congressional; the labor standards provisions of the

(11) Number of employees and the Davis-Bacon Act and Contract Work

total amount paid or withheld underHours Standards Act. The reporting pe

(i) Davis-Bacon Act, riods are 1 January through 30 June and

(ii) Contract Work Hours Standards 1 July through 31 December. The reports Act, shall be prepared by the contract ad (iii) Copeland Act; ministration office and will be submitted (12) Prework activitiesthrough channels so as to reach the labor (i) Number of conferences held,

(ii) Letters sent;

(13) Number of compliance checks performed;

(14) Number of employees interviewed. [36 F.R. 21153, Nov. 4, 1971)

Subpart B-Convict Labor SOURCE: The provisions of this Subpart B appear at 25 F.R. 14269, Dec. 31, 1960, unless otherwise noted. $ 12.201 Basic requirement.

Pursuant to the policy set forth in the Act of February 23, 1887 (18 U.S. Code 436), and in accordance with the requirements of Executive Order No. 325A of May 18, 1905, all contracts entered into by any Department involving the employment of labor within the United States, shall, unless otherwise provided by law, contain a clause prohibiting the employment of persons, undergoing sentences of imprisonment at hard labor imposed by State or municipal criminal courts. $ 12.202 Applicability.

The requirement set forth in $ 12.201 applies, except as stated below, to all contracts involving the employment of labor within the United States. The requirement does not prohibit the employment of persons on parole or probation, Federal prisoners authorized by the Attorney General under 18 U.S.C. 4082(c) (2) to work at paid employment during the term of their imprisonment, or persons who have been pardoned or who have served their terms. Furthermore, the requirement does not apply to the following kinds of contracts:

(a) Any contracts subject to the provisions of the Walsh-Healey Public Contracts Act (see Subpart F of this part), which contains its own requirement that "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 such contract";

(b) Any contract (1) for the purchase of supplies or services from Federal Prison Industries, Inc., or (2) for the purchase from any State prison of finished supplies which may be secured in the open market or from existing stocks as distinguished from supplies requiring special fabrication. [25 F.R. 14269, Dec. 31, 1960, as amended at 32 F.R. 12100, Aug. 23, 1967)

§ 12.203 Contract clause.

The contract clause required by this subpart shall be as follows:

CONVICT LABOR In connection with the performance of work under this contract, the Contractor agrees not to employ any person undergoing sentence of imprisonment at hard labor. Subpart C-Work Hours Act of 1962

(Other Than Construction Contracts) $ 12.300 Scope of subpart.

This subpart deals with the requirements of the Contract Work Hours Standards Act (40 U.S.C. 327-330) applicable to contracts other than construction contracts as defined and covered in Subpart G, Part 18 of this chapter. [32 F.R. 539, Jan. 18, 1967) $ 12.301 Statutory requirement.

In accordance with the requirement of the Contract Work Hours Standards Act (40 U.S. Code 327-330), certain contracts entered into by any Department shall contain a clause 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 eight hours in any one calendar day or 40 hours in any work week unless such laborer or mechanic is compensated for all hours worked in excess of eight hours in any one calendar day or 40 hours in any work week at not less than one and one-half times the basic rate of pay. (30 F.R. 6006, Apr. 29, 1965) $ 12.302 Applicability.

The requirement set forth in $ 12.301 applies, except as stated below, to all contracts (including, for this purpose, basic ordering agreements and blanket purchase agreements (see $ $ 3.410-2 and 3.605 of this chapter)) which may require or involve the employment of laborers or mechanics, including guards and watchmen, either by a contractor or by any subcontractor. The requirement does not apply to the following kinds of contracts:

(a) Contracts (or portions thereof) to be performed in a foreign country or within territory under the jurisdiction of the United States other than the following: a State of the United States, the

128 F.R. 2582, Mar. 16, 1963.

District of Columbia, Puerto Rico, the Virgin Islands Outer Continental shelf Lands defined in the Outer Continental Shelf Lands Act, American Samoa, Guam, Wake Island, Eniwetok Atoll, Kwajalein Atoll, Johnston Island and the Canal Zone, to the extent that such contracts (or portions thereof) may require or involve the employment of laborers or mechanics there;

(b) Contracts (or portions thereof) for supplies in connection with which any required services are merely incidental to the sale and do not require substantial employment of laborers or mechanics;

(c) Contracts (or portions thereof) for materials or articles (other than armor or armor plate) usually bought in the open market (although the requirement does apply, and the contract must so provide, with respect to any contract involving the performance of any class work which is ordinarily, and not merely occasionally or to a limited extent, performed by the Government);

(d) Contracts (or portions thereof) subject to the provisions of the WalshHealey Public Contracts Act (see Subpart F of this part); and

(e) Contracts of $2,500 or less in aggregate amount. In arriving at the aggregate amount involved, there must be included all property and services which would normally be grouped together in a single transaction. In the case of a basic ordering agreement or blanket purchase agreement, such amount shall be the aggregate amount of all orders estimated to be placed thereunder for 1 year after the effective date of the agreement. If a basic ordering agreement continues or is extended, such estimate shall be made annually for each year after the first and the agreement modified accordingly. 132 F.R. 5509, Apr. 4, 1967, as amended at 32 F.R. 12101, Aug. 23, 1967; 32 F.R. 16407, Nov. 30, 1967) $ 12.303 Contract clause.

The contract clause required by this subpart shall be as follows: CONTRACT WORK HOURS STANDARD ACT-OVER

TIME COMPENSATION (JUNE 1964) This contract, to the extent that it is of & character specified in the Contract Work Hours Standards Act (40 U.S.C. 327-330), is subject to the following provisions and to all other applicable provisions and exceptions of such Act and the regulations of the Secretary of Labor thereunder.

(a) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any laborer or mechanic in any workweek in which he is employed on such work to work in excess of 8 hours in any calendar day or in excess of 40 hours in such workweek or work subject to the provisions of the Contract Work Hours Standards Act unless such laborer or mechanic 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.

(b) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the provisions of paragraph (a), the Contractor and any subcontractor responsible therefor shall be liable to any affected employee for his unpaid wages. In addition, such Contractor and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic 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 his standard workweek of 40 hours without payment of the overtime wages required by paragraph (a).

(c) Withholding for unpaid wages and liquidated damages. The contracting Officer may withhold from the Government Prime Contractor, from any moneys payable on account of work performed by the Contractor or subcontractor, such sums as may administratively be determined to be necessary to satisfy any liabilities of such Contractor or subcontractor for unpaid wages and liquidated damages as provided in the provisions of paragraph (b).

(d) Subcontracts. The Contractor shall insert paragraphs (a) through (d) of this clause in all subcontracts, and shall require their inclusion in all subcontracts of any tier.

(e) Records. The Contractor shall maintain payroll records containing the information specified in 29 CFR 516.2(a). Such records shall be preserved for 3 years from the completion of the contract. 132 F.R. 5509, Apr. 4, 1967) § 12.304 Computation of overtime and

liquidated damages. When the hours worked during a single workweek by a laborer or mechanic exceed both 8 per calendar day and 40 per workweek, the number of overtime hours in excess of 8 per day and 40 per workweek shall be computed separately and the method resulting in the greater number of overtime hours shall be used to calculate the overtime compensation due the employee. When such calculation discloses underpayments, the method used to determine the underpayments shall also be used to determine liquidated damages. When underpayments are found and the number of overtime hours in excess of 8 per calendar day equals the number in excess of 40 per workweek, the number of calendar days, during which work in excess of 8 hours was performed, shall be used to compute liquidated damages. (For waiver or adjustment of liquidated damages, see § 18.704-16 of this chapter.) (33 F.R. 10197, July 12, 1968) $ 12.305 Administration and enforce

ment. In investigating allegations of violations of the Contract Work Hours Standards Act on other than construction contracts, the same procedures shall be followed and the same reports made as set forth in $$ 18.704–9, 18.704-10, and 18.704-12 of this chapter. 132 F.R. 5509, Apr. 4, 1967) § 12.306 Variations and tolerances.

(a) Firefighters and fireguards. The following variation in the application of the Contract Work Hours Standards Act to firefighters and fireguards has been authorized by the Solicitor of Labor (see 29 CFR 5.14(d)):

A workday consisting of a fixed and recur. ring 24-hour period commencing at the same time on each calendar day may be used in lieu of the calendar day in applying the daily overtime provisions of the Act to the employ. ment of firefighters or freguards under the following conditions:

(i) Where such employment is under & platoon system requiring such employees to remain at or within the confines of their post of duty in excess of eight hours per day in a standby or on-call status; and

(11) If the use of such alternate 24-hour day has been agreed upon between the em. ployer and such employees or their author. ized representatives before performance of the work; and

(111) Provided, That in determining the daily and weekly overtime requirements of the Act in any particular worksheet of any such employee whose established worksheet begins at an hour of the calendar day dii. ferent from the hour when such agreed 24bour day commences, the hours worked in excess of 8 hours in any such 24-hour day shall be counted in the established workweek (of 168 hours commencing at the same time each week) in which such hours are actually worked.

Contractors employing firefighters and fireguards may therefore satisfy their obligations under the Contract Work Hours Standards Act by employing such employees in compliance with either the express requirements of $ 12.303 or the foregoing variation.

(b) Eniwetok, Kwajalein and Johnston Island. Work performed on Eniwetok Atoll, Kwajalein Atoll and Johnston Island is covered by the following tolerance granted by the Solicitor of Labor by letter dated January 20, 1967, to the Department of Defense.

Beginning February 1, 1967, and ending January 31, 1969, the employment in excess of forty bours per week of laborers and mechanics engaged in work on contracts sublect to the Contract Work Hours Standards Act on Eniwetok Atoll, Kwajalein Atoll, and Johnston Island shall not be deemed to result in any liability for unpaid damages under the Contract Work Hours Standards Act on the part of any contractor or subcontractor employing such employees, 80 long As such employees at work in such locations are paid overtime wages at the required rates for all hours worked on such contracts in any workweek in excess of 8 in any workday or in excess of 44 in the workweek during the period from February 1, 1967, through January 31, 1968, inclusive, and in excess of 8 in any workday or in excess of 42 in the workweek during the period beginning February 1, 1968, and ending January 31, 1969, and provided such employees are paid such overtime compensation as may be required by any other applicable law or collective bargaining agreement. A notice of this tolerance, which constitutes an exception as provided in the $ 12.303 clause shall be included in all solicitations involving affected work. (32 F.R. 12101, Aug. 23, 1967) § 12.307 Labor standards enforcement

report. See $ 12.107. [34 F.R. 17899, Nov. 5, 1969) Subpart D-Labor Standards in

Construction Contracts CROSS REFERENCE: Regulations formerly contained in Subpart D (8$ 12.400—12.404 12) were revoked, 32 F.R. 539, Jan. 18, 1967. See Subpart G, Part 18 of this chapter. Subpart E-U.S. Department of Labor

Safety and Health Regulations for

Ship Repairing and Shipbuilding SOURCE: The provisions of this Subpart E appear at 29 F.R. 2840, Feb. 29, 1964, unless otherwise noted.

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