These regulations apply to ship repair and shipbuilding or related work, as defined therein, performed within the Federal maritime jurisdiction on the navigable waters of the United States, including any dry dock or marine railway. § 12.503 Contract clause. The Master Contract for the Repair and Alteration of Vessels (DD ASPR Form 731) includes a clause entitled "U.S. Department of Labor Safety and Health Regulations for Ship Repairing" directing the attention of the contractor to the applicability of these regulations. Similar clauses should be included in shipbuilding and ship conversion contracts. The responsibility for compliance with the U.S. Department of Labor Regulations is placed upon employers, any of whose employees are engaged in any ship repair, shipbuilding, or related employment aboard any vessel upon the navigable waters of the United States, including any dry dock or marine railway. Consequently, prime contractors or subcontractors, or both, may be responsible for compliance with these regulations. Insofar as the Government is concerned, the responsibility for the administration and enforcement of these regulations is with the U.S. Department of Labor. Contractors or employees who inquire concerning applicability or interpretation of the foregoing regulations shall be advised that rulings concerning such matters fall within the jurisdiction of the U.S. Department of Labor and shall be given the address of the appropriate field office of the Bureau of Labor Standards of the U.S. Department of Labor. Subpart F-Walsh-Healey Public Contracts Act SOURCE: The provisions of this Subpart F appear at 27 F.R. 11660, Nov. 27, 1962, unless otherwise noted. § 12.601 Statutory requirement. In accordance with the requirements of the Walsh-Healey Public Contracts Act (41 U.S.C. 35-45), all contracts subject to said Act entered into by any Department for the manufacture or furnishing of supplies in any amount exceeding $10,000 (a) will be with manufacturers or regular dealers, and (b) shall incorporate by reference the representations and stipulations required by said Act pertaining to such matters as minimum wages, maximum hours, child labor, convict labor, and safe and sanitary working conditions. The requirement set forth in § 12.601 applies to contracts (including, for this purpose, basic ordering agreements and blanket purchase agreements (see §§ 3.410-2 and 3.605 of this chapter)) for the manufacture or furnishing of "materials, supplies, articles, and equipment" which are to be performed within the United States, Puerto Rico, or the Virgin Islands, and which exceed or may exceed $10,000 in amount unless exempt pursuant to § 12.602-2. [32 F.R. 16407, Nov. 30, 1967] § 12.602-2 Exemptions. The following transactions are exempt from the Walsh-Healey Act: (a) Purchases of generally available commercial items, negotiated pursuant to the authority set forth in § 3.202 of this chapter; (b) Purchases of perishables including dairy, livestock, and nursery products; and (c) Purchases of agricultural or farm products processed for first sale by the original producers. § 12.602-3 Department of Labor regulations and interpretations. Pursuant to the Walsh-Healey Act, the Secretary of Labor has issued detailed regulations and interpretations as to the coverage of said Act, and exemptions and procedures thereunder. These regulations and interpretations are compiled in a document entitled "Walsh-Healey Public Contracts Act, Rulings and In terpretations," which may be obtained from the Department of Labor Regional Offices listed in § 12.607. In addition to the interpretations stated in that document, attention is directed to an opinion of the Department of Labor that contracts which are originally $10,000 or less, but are subsequently modified to increase the price to an amount in excess of $10,000, are subject to the WalshHealey Act; and that contracts in an amount exceeding $10,000, which are subsequently modified to a figure of $10,000 or less, are not subject to said Act with respect to work performed after such modification if modification is effected by mutual agreement. Also, 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. 16407, Nov. 30, 1967] § 12.603 Determinations of eligibility as manufacturer or regular dealer. § 12.603-1 Manufacturer. As used in § 12.601, 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. In order to qualify as a manufacturer, a bidder must be able to show before the award that he is (a) an established manufacturer of the particular goods or goods of the general character sought by the Government, and (b) if he is newly entering into such manufacturing activity, that he has made all necessary prior arrangements for space, equipment and personnel to perform the manufacturing operations required for the fulfillment of the contract. A new firm which, prior to the award of the contract, has made such definite commitments in order to enter a manufacturing business which will later qualify it, shall not be barred from receiving the award because it has not yet done any manufacturing. § 12.603-2 Regular dealer. (a) Except as set forth in paragraph (b) of this section, as used in § 12.601 a regular dealer is a person who owns, operates, or maintains a store, warehouse, or other establishment in which 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. In order to qualify as a regular dealer, a bidder must be able to show before the award: (1) That he has an establishment or leased or assigned space in which he regularly maintains a stock of goods in which he 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 a 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 be 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 (6) That his business is an established and going concern; it is not sufficient to show that arrangements have been made to set up such business. (a) Determination of eligibility and protests concerning. (1) The initial responsibility for applying the eligibility requirements set forth in § 12.601 and § 12.603 rests with the procuring contracting officer. The Department of Labor does not conduct preaward investigations or render final determinations until the procuring contracting officer has initially determined whether the eligibility requirements have been met. (2) When the procuring contracting officer has determined that an apparently successful bidder or offeror is ineligible, he shall notify him promptly in writing and inform him: (i) That he does not meet the eligibility requirements, and the reason therefor; (ii) That if he wishes to protest such determination, he may submit evidence concerning his eligibility to the contracting officer; (iii) That if, after review of the evidence submitted by the bidder or offeror, the contracting officer has not changed his position, he will forward the bidder or offeror's protest, together with all pertinent material, to the Administrator of the Wage and Hour and Public Contracts Divisions of the Department of Labor for a final determination, and so notify the bidder or offeror. (3) When another bidder or offeror challenges the eligibility of the apparently successful bidder or offeror prior to award: (i) The contracting officer shall notify the protestor promptly in writing: (a) That he may submit evidence concerning the noneligibility to the contracting officer; (b) That after review of such evidence, the contracting officer will make a decision thereon and if the decision is unfavorable to the protester forward the protest, together with all pertinent material, to the Administrator of the Wage and Hour and Public Contracts Divisions for a final determination; (ii) The contracting officer shall notify the apparently successful bidder or offeror promptly in writing that his eligibility under the Walsh-Healey Act has been challenged and: (a) That he may submit evidence concerning the matter to the contracting officer; (b) That after review of such evidence, the contracting officer will make a decision thereon and if adverse to the protester, forward the protest, together with all pertinent material, to the Administrator of the Wage and Hour and Public Contracts Divisions for a final determination. (4) Notification to other bidders or offerors: Bidders or offerors whose bids or offers might become eligible for award should be notified of the protest when an award is to be held up under subparagraph (2) or (3) of this paragraph, and requested to extend their acceptance period, if needed. (5) If the contracting officer forwards the case to the Department of Labor for review of eligibility under the WalshHealey Act, award will be held in abeyance until the contracting officer receives a final determination from the Department of Labor or the contracting officer determines that award should be made because: (i) The items to be procured are urgently required; or (ii) Delivery or performance will be unduly delayed by failure to make award promptly; or (iii) A prompt award will otherwise be advantageous to the Government. If the contracting officer decides to proceed with the award, he shall give written notice of the decision to proceed to the protester and as appropriate to others concerned. (6) If an award is made under subparagraph (5) of this paragraph, the contracting officer shall document the file to explain the need for making an award prior to the receipt of a determination from the Department of Labor. (7) Protests after award: A protest received after award shall be forwarded to the Department of Labor if the contract has not been completed, and the protester so notified. If the contract has been completed, the protester shall be notified that no action will be taken in the protest. (b) Additional responsibilities of contracting officers. When the Walsh-Healey Public Contracts Act is applicable and pursuant to regulations or instructions issued by the Secretary of Labor and in accordance with procedures prescribed by each respective Military Department: (i) The procuring contracting officer shall: (a) Inform prospective contractors of the applicability of minimum wage determinations; and (b) Report promptly to the ACO any violation of the representation or stipulation required by the Walsh-Healey Act that he becomes aware of. (ii) The administrative contracting officer shall: (a) Furnish to the contractor a poster (Form PC-13) and a form letter (Form PC-12) explaining the Walsh-Healey Act (forms are available through normal publication supply channels); and (b) Report to the Department of Labor any violation of the representations or stipulations required by the Walsh-Healey Act. [35 F.R. 8437, May 29, 1970] § 12.605 Contract clause. The contract clause required by this subpart shall be as follows: WALSH-HEALEY PUBLIC CONTRACTS ACT If this contract is for the manufacture of materials, supplies, articles, or equipment in an amount which exceeds or may exceed the as $10,000 and is otherwise subject to Public Walsh-Healey Contracts Act, amended (41 U.S.C. 35-45), there are hereby incorporated by reference all representations and stipulations required by said Act and regulations issued thereunder by the Secretary of Labor, such representations and stipulations being subject to all applicable rulings and interpretations of the Secretary of Labor which are now or may hereafter be in effect. § 12.606 Procedure for obtaining exemptions with respect to stipulations required by the Act. Section 7 of the Act permits the Secretary of Labor to make exceptions to the requirement that the representations and stipulations of section 1 of the Act be included in contracts which are subject to the Act. Applications for such exceptions shall be submitted through procurement channels with pertinent data and recommendation to the Labor Advisor, OASA (I&L) for the Army; Chief of Naval Material for the Navy; Hq. USAF (AFSPPDA) for the Air Force; Directorate, Procurement and Production, DSAH-P, for the Defense Supply Agency. [34 F.R. 13847, Aug. 29, 1969] § 12.607 Wage and Hour and Public Contracts Divisions of the U.S. Department of Labor Regional Offices-Geographical Jurisdictions and Addresses of Regional Directors. Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont-John Fitzgerald Kennedy Federal Building, Government Center, Boston, Mass. 02203. New Jersey and New York-907 U.S. Parcel Post Building, 341 Ninth Avenue, New York, N.Y. 10001. Delaware, District of Columbia, Maryland, Pennsylvania-Room 1524, Jefferson Building, 1015 Chestnut Street, Philadelphia, Pa. 19107. Alabama, Arkansas, Louisiana, Mississippi1931 Ninth Avenue South, Birmingham, Ala. 35205. Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin-U.S. Courthouse and Federal Office Building, Seventh Floor, 219 South Dearborn Street, Chicago, Ill. 60604. Colorado, Iowa, Kansas, Missouri, Montana, Nebraska, North Dakota, South Dakota, Utah, Wyoming-2000 Federal Office Building, 911 Walnut Street, Kansas City, Mo. 64106. New Mexico, Oklahoma, Texas-340 Mayflower Building, 411 North Akard Street, Dallas, Tex. 75201. Alaska, Arizona, California, Hawaii, Idaho, Nevada, Oregon, Washington-Room 10431, 450 Golden Gate Avenue, Box 36018, San Francisco, Calif. 94102. Kentucky, Tennessee, Virginia, West Virginia-U.S. Courthouse Building, 801 Broad Street, Nashville, Tenn. 37203. Florida, Georgia, North Carolina, South Carolina-Room 331, 1371 Peachtree Street NE., Atlanta, Ga. 30309. Puerto Rico-Seventh Floor, Condominio San Alberto Building, 1200 Ponce de Leon Avenue, Stop 17, Santurce, P.R. 00907. [34 F.R. 13847, Aug. 29, 1969] Subpart G-Fair Labor Standards Act of 1938 SOURCE: The provisions of this Subpart G appear at 25 F.R. 14273, Dec. 31, 1960, unless otherwise noted. The Fair Labor Standards Act of 1938 (Act of June 30, 1938; 29 U.S. Code 201219), as amended, provides for the establishment of minimum wage and maximum hour standards, creates a Wage and Hour Division in the Department of Labor for purposes of interpretation and enforcement (including investigations and inspections of Government contractors), and prohibits oppressive child labor. Said act applies to all employees, unless otherwise exempted, who are engaged in (a) interstate commerce or foreign commerce or (b) the production of goods for such commerce or (c) any closely related process or occupation essential to such production. Payments made pursuant to the provisions of the Fair Labor Standards Act are usually reimbursable under cost or cost-plus-a-fixed-fee contracts. Consequently, each military department has a direct interest in claims and suits under said Act which are made or brought in connection with such contracts. In this connection, procedures have been established, by agreement between the Department of Justice on the one hand and the military departments on the other hand, governing the defense of such Fair Labor Standards Act suits. These procedures in general contemplate the defense of Fair Labor Standards Act suits by private counsel employed by the contractor, the employment of whom is approved by the military department concerned. These procedures must be followed if contractors are to be reimbursed for the amount of any judgment under said Act, or for any litigation expenses (including the reasonable fees of such private counsel). (a) Executive Orders 11246 and 11375 require that all Government contracting agencies shall include the Equal Opportunity clause in all nonexempt Government contracts and shall act to insure compliance with the clause and the regulations of the Secretary of Labor to promote the full realization of equal employment opportunity for all persons, regardless of race, color, religion, sex, or national origin. (b) Disputes related to the Equal Opportunity Program shall be handled pursuant to the provisions of the appropriate Equal Opportunity clause in Government contracts, agreements, and subcontracts, paragraph 4 of which specifies that the contractor shall comply with the rules, regulations, and relevant orders of the Secretary of Labor. Those rules, regulations, and relevant orders prescribe particular procedures for handling disputed matters. (c) No contract or modification thereto involving new procurement shall be entered into and no subcontract shall be approved with a company which has been declared ineligible under, or found to be in noncompliance with, the Equal Opportunity Program, in accordance 136 F.R. 21153, Nov. 4, 1971. |