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$ 12.501 Safety and health regulations.

The Secretary of Labor has promulgated Safety and Health Regulations for Ship Repairing and Shipbuilding pursuant to the authority of Public Law 85– 742, 72 Stat. 835 (approved August 23, 1958) amending section 41 of the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 941). These regulations are set forth in Title 29, Code of Federal Regulations, Subtitle B, Part 1501 and Part 1502. (29 F.R. 14835, Oct. 31, 1964) $ 12.502 Applicability.

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. $ 12.504 Administration and enforce

ment. 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. § 12.602 Applicability. $ 12.602-1 General.

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. 132 F.R. 16407, Nov. 30, 1967) f 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 regula

tions 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 regular dealer is a person who owns, opfrom the Department of Labor Regional erates, or maintains a store, warehouse, Ofices listed in § 12.607. In addition to or other establishment in which mathe interpretations stated in that doc- terials, supplies, articles, or equipment ument, attention is directed to an opin- of the general character described by the ion of the Department of Labor that con- specifications and required under the tracts which are originally $10,000 or contract are bought, kept in stock, and less, but are subsequently modified to in sold to the public in the usual course of crease the price to an amount in excess business. In order to qualify as a reguof $10,000, are subject to the Walsh lar dealer, a bidder must be able to show Healey Act; and that contracts in an before the award: amount exceeding $10,000, which are (1) That he has an establishment or subsequently modified to a figure of leased or assigned space in which he $10,000 or less, are not subject to said regularly maintains a stock of goods in Act with respect to work performed after which he claims to be a dealer; if the such modification if modification is ef space is in a public warehouse, it must fected by mutual agreement. Also, in the be maintained on a continuing, and not case of a basic ordering agreement or on a demand basis; blanket purchase agreement, such (2) That the stock maintained is a amount shall be the aggregate amount of true inventory from which sales are all orders estimated to be placed there made; the requirement is not satisfied by under for 1 year after the effective date a stock of sample or display goods, or of the agreement. If a basic ordering by a stock consisting of surplus goods agreement continues or is extended, such remaining from prior orders, or by a estimate shall be made annually for each

stock unrelated to the supplies which year after the first and the agreement are the subject of the bid, or by a stock modified accordingly.

maintained primarily for the purpose of (32 F.R. 16407, Nov. 30, 1967)

token compliance with the Act from

which few, if any, sales are made; $ 12.603 Determinations of eligibility as

(3) That the goods stocked are of the manufacturer or regular dealer.

same general character as the goods to & 12.603-1 Manufacturer.

be supplied under the contract; to be of As used in $ 12.501, a manufacturer is

the same general character, the items a person who owns, operates, or main

to be supplied must be either identical tains a factory or establishment that

with those in stock or be goods for which produces on the premises the materials,

dealers in the same line of business supplies, articles, or equipment required

would be an obvious source; under the contract and of the general

(4) That sales are made regularly character described by the specifications.

from stock on a recurring basis; they In order to qualify as a manufacturer, a

cannot be only occasional and constitute bidder must be able to show before the

an exception to the usual operations of award that he is (a) an established man

the business; the proportion of sales ufacturer of the particular goods or goods

from stock that will satisfy the requireof the general character sought by the

ments will depend upon the character

of the business; Government, and (b) if he is newly entering into such manufacturing activity,

(5) That sales are made regularly in that he has made all necessary prior ar

the usual course of business to the public, rangements for space, equipment and

i.e., to purchasers other than Federal, personnel to perform the manufacturing

State, or local government agencies; this

requirement is not satisfied if the conoperations required for the fulfillment

tractor merely seeks to sell to the public of the contract. A new firm which, prior

but has not yet made such sales; if govto the award of the contract, has made

ernment agencies are the sole purchasers, such definite commitments in order to

the bidder will not qualify as a regular enter a manufacturing business which

dealer; the number and amount of sales will later qualify it, shall not be barred which must be made to the public will from receiving the award because it has necessarily vary with the amount of total not yet done any manufacturing.

sales and the nature of the business; and

(6) That his business is an established § 12.603–2 Regular dealer.

and going concern; it is not sufficient to (a) Except as set forth in paragraph show that arrangements have been made (b) of this section, as used in § 12.601 a to set up such business.

(b) For certain specific products (iii) That if, after review of the evi(lumber and timber products, machine dence submitted by the bidder or offeror, tools, hay, grain, feed or straw. raw cote the contracting officer has not changed ton, green coffee, petroleum, agricultural his position, he will forward the bidder liming materials, tea, and raw or un or offeror's protest, together with all permanufactured cotton linters), there are tinent material, to the Administrator of alternative definitions of regular dealers. the Wage and Hour and Public ConThe qualifications required under the tracts Divisions of the Department of alternative definitions are listed in the Labor for a final determination, and so regulations of the Secretary of Labor (41 notify the bidder or offeror. CFR 50–201.101(b)).

(3) When another bidder or offeror § 12.603-3

challenges the eligibility of the apparCoal dealers.

ently successful bidder or offeror prior Coal dealers are exempt from the reg to award: ular dealer requirements if they meet the (i) The contracting officer shall notify terms and conditions set forth by the the protestor promptly in writing: Secretary of Labor in his regulation (41 (a) That he may submit evidence conCFR 50–201.604(a)). If these terms cerning the noneligibility to the conand conditons are not met, coal dealers tracting officer; must meet the requirements set forth (b) That after review of such eviin § 12.603-2 in order to be considered dence, the contracting officer will make a regular dealers.

decision thereon and if the decision is 8 12.603–4 Agents.

unfavorable to the protester forward the

protest, together with all pertinent mateA manufacturer or regular dealer may

rial, to the Administrator of the Wage bid, negotiate, and contract through an

and Hour and Public Contracts Divisions authorized agent if the agency disclosed,

for a final determination; and the agent acts and contracts in the (ii) The contracting officer shall name of his principal. In this connec notify the apparently successful bidder tion, see the clause entitled "Covenant

or offeror promptly in writing that his Against Contingent Fees” set forth in eligibility under the Walsh-Healey Act $ 7.103–20 of this chapter and the pro

has been challenged and: cedures prescribed for obtaining infor (a) That he may submit evidence conmation concerning contingent or other

cerning the matter to the contracting fees, as set forth in Subpart E, Part 1

officer; of this chapter.

(b) That after review of such evi$ 12.604 Eligibility of a bidder or

dence, the contracting officer will make a offeror.

decision thereon and if adverse to the (a) Determination of eligibility and

protester, forward the protest, together

with all pertinent material, to the Adprotests concerning. (1) The initial re

ministrator of the Wage and Hour and sponsibility for applying the eligibility

Public Contracts Divisions for a final requirements set forth in § 12.601 and

determination. $ 12.603 rests with the procuring con

(4) Notification to other bidders or tracting officer. The Department of Labor

offerors: Bidders or offerors whose bids or does not conduct preaward investigations offers might become eligible for award or render final determinations until the should be notified of the protest when procuring contracting officer has initially an award is to be held up under subparadetermined whether the eligibility re- graph (2) or (3) of this paragraph, quirements have been met.

and requested to extend their acceptance (2) When the procuring contracting

period, if needed. officer has determined that an apparently

(5) If the contracting officer forwards successful bidder or offeror is ineligible,

the case to the Department of Labor for he shall notify him promptly in writing

review of eligibility under the Walsh

Healey Act, award will be held in abeyand inform him:

ance until the contracting officer receives (i) That he does not meet the eligibility

a final determination from the Departrequirements, and the reason therefor;

ment of Labor or the contracting officer (ii) That if he wishes to protest such determines that award should be made determination, he may submit evidence because: concerning his eligibility to the contract (i) The items to be procured are uring officer;

gently required; or

(ii) Delivery or performance will be $10,000 and is otherwise subject to the unduly delayed by failure to make

Walsh-Healey Public Contracts Act, as award promptly; or

amended (41 U.S.C. 35-45), there are hereby

incorporated by reference all representations (iii) A prompt award will otherwise be

and stipulations required by said Act and advantageous to the Government.

regulations issued thereunder by the SecreIf the contracting officer decides to pro

tary of Labor, such representations and stip

ulations being subject to all applicable rulceed with the award, he shall give written

ings and interpretations of the Secretary of notice of the decision to proceed to the

Labor which are now or may hereafter be in protester and as appropriate to others

effect. concerned.

(6) If an award is made under sub- Š 12.606 Procedure for obtaining ex paragraph (5) of this paragraph, the

emptions with respect to stipulations contracting officer shall document the

required by the Act. file to explain the need for making an Section 7 of the Act permits the Secaward prior to the receipt of a deter retary of Labor to make exceptions to mination from the Department of Labor. the requirement that the representations

(7) Protests after award: A protest and stipulations of section 1 of the Act received after award shall be forwarded be included in contracts which are subto the Department of Labor if the con- ject to the Act. Applications for such extract has not been completed, and the ceptions shall be submitted through proprotester so notified. If the contract has curement channels with pertinent data been completed, the protester shall be and recommendation to the Labor Adnotified that no action will be taken visor, OASA (I&L) for the Army; Chief in the protest.

of Naval Material for the Navy; Hq. (b) Additional responsibilities of con USAF (AFSPPDA) for the Air Force; tracting officers. When the Walsh-Healey Directorate, Procurement and ProducPublic Contracts Act is applicable and tion, DSAH-P, for the Defense Supply pursuant to regulations or instructions Agency. issued by the Secretary of Labor and in (34 F.R. 13847, Aug. 29, 1969) accordance with procedures prescribed by each respective Military Department:

$ 12.607 Wage and Hour and Public (i) The procuring contracting officer

Contracts Divisions of the U.S. De

partment of Labor Regional Of. shall:

fices—Geographical Jurisdictions (a) Inform prospective contractors of

and Addresses of Regional Directors. the applicability of minimum wage de

Connecticut, Maine, Massachusetts, New terminations; and

Hampshire, Rhode Island, Vermont John (b) Report promptly to the ACO any

Fitzgerald Kennedy Federal Building, Govviolation of the representation or stipu ernment Center, Boston, Mass. 02203. lation required by the Walsh-Healey Act New Jersey and New York-907 U.S. Parcel that he becomes aware of.

Post Building, 341 Ninth Avenue, New (ii) The administrative contracting York, N.Y. 10001. officer shall:

Delaware, District of Columbia, Maryland,

Pennsylvania-Room 1524, Jefferson Build. (a) Furnish to the contractor a poster

ing, 1015 Chestnut Street, Philadelphia, (Form PC-13) and a form letter (Form

Pa. 19107. PC-12) explaining the Walsh-Healey

Alabama, Arkansas, Louisiana, MississippiAct (forms are available through normal 1931 Ninth Avenue South, Birmingham, publication supply channels); and

Ala. 35205. (6) Report to the Department of Illinois, Indiana, Michigan, Minnesota, Ohio, Labor any violation of the representa

Wisconsin-U.S. Courthouse and Federal tions or stipulations required by the

Office Building, Seventh Floor, 219 South

Dearborn Street, Chicago, Ill. 60604. Walsh-Healey Act.

Colorado, Iowa, Kansas, Missouri, Montana, [35 F.R. 8437, May 29, 1970)

Nebraska, North Dakota, South Dakota, f 12.605 Contract clause.

Utah, Wyoming—2000 Federal Office Build

ing, 911 Walnut Street, Kansas City, Mo. The contract clause required by this 64106. subpart shall be as follows:

New Mexico, Oklahoma, Texas-340 May

flower Building, 411 North Akard Street, WALSH-HEALEY PUBLIC CONTRACTS ACT

Dallas, Tex. 75201. (JAN. 1958)

Alaska, Arizona, California, Hawaii, Idaho, If this contract is for the manufacture of Nevada, Oregon, Washington-Room 10431, materials, supplies, articles, or equipment in 450 Golden Gate Avenue, Box 36018, San an amount which exceeds or may exceed Francisco, Calif. 94102.

Kentucky, Tennessee, Virginia, West Vir

ginia-U.S. Courthouse Building, 801

Broad Street, Nashville, Tenn. 37203. Florida, Georgia, North Carolina, South Caro

lina-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. $ 12.701 Basic statute.

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. $ 12.702 Suits against Government con

tractors. 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).

$ 12.703 Rulings on applicability or in.

terpretation. Contractors or contractor employees who inquire concerning applicability or interpretation of the Fair Labor Standards Act shall be advised that rulings concerning such matters fall within the jurisdiction of the Department of Labor, and shall be given the address of the appropriate Regional Director of the Wage and Hour and Public Contracts Divisions of the Department of Labor. Subpart H-Equal Employment

Opportunity SOURCE: The provisions of this Subpart H appear at 34 F.R. 13847, Aug. 29, 1969, unless otherwise noted. $ 12.800 Scope of subpart.

This subpart sets forth policies and procedures for carrying out the requirements of Executive Order No. 11246 of September 24, 1965 (30 F.R. 12319), Executive Order No. 11375 of October 13, 1967 (32 F.R. 14803), and the rules and regulations of the Secretary of Labor (41 CFR Ch. 60). § 12.801 Policy.

(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.

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