the products or services within the period of time delivery is required;

(4) There is no practicable possibility of taking remedial action (such as recruiting, training, and more effective utilization of manpower) as an alternative to relaxation of applicable Governmental labor requirements;

(5) The apparent supply of labor, and in particular of critical skills, is limited, and it is not practicable to set up new production lines or to use additional facilities as an alternative to the relief requested; and

(6) The granting of the application will not result in an excessive increase in hours or work, an unreasonable curtailment of rest and lunch periods, an undesirable impairment of working conditions, or otherwise adversely affect the productivity of the facility involved.

(b) Requests for authority to support an application on behalf of a contractor or supplier shall be submitted to the Labor Advisor, OASA (I&L) for the Army; Chief of Naval Material for the Navy; HQUSAF (AFSPPMA) for the Air Force; and Directorate, Procurement and Production DSAH-P, for the Defense Supply Agency. Such requests shall contain the following information:

(1) The facilities and services involved and affected;

(2) Provision(s) of law which require relaxation;

(3) Criticality or relative scarcity of the material;

(4) Circumstances necessitating the relaxation (for example, a shortage in the local supply of skilled labor);

(5) Remedial action being taken by the manufacturer (e.g., training, recruiting, more effective utilization of manpower);

(6) The most limited relaxation of the requirement necessary for completion of the specific work; and

(7) The approximate period of time required for completion of the work.

(c) Consistent with the limitations of security and the foregoing requirements, contract information may be furnished to the appropriate governmental official, upon his request, in connection with an application of a contractor or supplier for relaxation of a labor requirement as to the execution of a contract in purof a military procurement

suance program.

[30 F.R. 6005, Apr. 29, 1965, as amended at 36 F.R. 7949, Apr. 28, 1971]

§ 12.104 Meeting manpower require

ments.

The Department of Defense shall cooperate with and encourage contractors to utilize to the fullest extent practicable the United States Employment Service (USES) and its affiliated Local State Employment Service Offices in meeting contractor's manpower (labor supply) requirements to staff new or expanding plant facilities, including the recruitment of workers in all occupations and skills both from local labor market areas and through the Federal-State manpower clearance system. Local State Employment Offices are operated throughout the United States, Puerto Rico, Guam, and the Virgin Islands. In addition to providing recruitment assistance to contractors who need and desire it, cooperation with the Local State Employment Service Offices will further the national program of maintaining continuous assessment of manpower requirements and resources on a national and local basis.

[30 F.R. 6006, Apr. 29, 1965]

§ 12.106 Supply, services, or maintenance contracts involving construction work.

The requirements of statutes, regulations, and determinations establishing construction labor standards are set forth in Subpart G, Part 18 of this chapter. In many instances, construction items under supply, service, maintenance, research and development, and other nonconstruction contracts are not subject to the requirements of Subpart G, Part 18, of this chapter, although this is not necessarily always the case simply because the construction work is to be performed under a contract which also calls for nonconstruction work. This section governs the applicability of those requirements to contracts involving both construction and nonconstruction work. [32 F.R. 538, Jan. 18, 1967]

§ 12.106-1 When construction labor standards and clauses are applicable. (a) Contracts involving both construction and nonconstruction work are in general subject to the requirements of Subpart G, Part 18 of this chapter, and must include the appropriate clauses of § 18.703 if:

(1) The contract contains specific requirements for substantial amounts of construction work, or it is ascertainable at the contract date that a substantial

amount of construction work will be necessary for the performance of the contract (the word "substantial” relates to the type and quantity of construction work to be performed and not merely to the total value of construction work as compared to the total value of the contract); and

(2) The construction work is physically or functionally separate from, and as a practical matter is capable of being performed on a segregated basis from, the other work called for by the contract; and

(3) The requirements are otherwise applicable to the contract (see § 18.701).

(b) Even though the contract contains construction labor clauses pursuant to paragraph (a) of this section, the nonconstruction work under the contract is not subject to those clauses, because they provide that they are applicable to the contract work only to the extent that the work is subject to the labor standards statutes involved.

[32 F.R. 538, Jan. 18, 1967]

§ 12.106-2 When construction labor standards and clauses are not applicable.

Construction work is exempt from the requirements of Subpart G, Part 18 of this chapter, when (a) it is to be performed in support of nonconstruction work, such as manufacturing and furnishing of supplies, and (b) in the circumstances of the particular case the construction work is so merged with the nonconstruction work, or so fragmented in terms of the locations or time spans in which it is to be performed, that it cannot be segregated as a separate contractual requirement for construction. Accordingly, contracts involving both nonconstruction work and this type of construction work are not subject to the requirements of Subpart G, Part 18 of this chapter.

[35 F.R. 6835, Apr. 30, 1970]

§ 12.107 Labor standards enforcement report.

(a) A semiannual report is required on compliance with and enforcement of the labor standards provisions of the Davis-Bacon Act and Contract Work Hours Standards Act. The reporting periods are 1 January through 30 June and 1 July through 31 December. The reports shall be prepared by the contract administration office and will be submitted through channels so as to reach the labor

relations advisor of the Headquarters concerned not later than 25 days after the close of the reporting period. Within the next 5 days a report will be submitted by the Headquarters to the Administrator, Wage and Hour Division, Workplace Standards Administration, U.S. Department of Labor, Washington, D.C. 20210.

(b) The report shall contain the following information which shall be stated separately, as applicable, in two columns-one column for construction work subject to the Davis-Bacon Act and Contract Work Hours Standards Act and the other column for nonconstruction work subject to the Contract Work Hours Standards Act:

(1) Period covered; (2) Number of prime awarded;

contracts

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)1 § 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. [32 F.R. 5509, Apr. 4, 1967, as amended at 32 F.R. 12101, Aug. 23, 1967; 32 F.R. 16407, Nov. 30, 1967]

(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.

[32 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

are

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 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

ment.

Administration and enforce

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.

[32 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 recurring 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 employment of firefighters or fireguards under the following conditions:

(1) Where such employment is under a 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

(ii) If the use of such alternate 24-hour day has been agreed upon between the employer and such employees or their authorized representatives before performance of the work; and

(lii) 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 different from the hour when such agreed 24hour 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 hours per week of laborers and mechanics engaged in work on contracts subject 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, so 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 (§§ 12.400-12.40412) 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.