LABOR STANDARDS IN CONSTRUCTION CONTRACTS related to the original work, both in nature and in timing, that it cannot reasonably be regarded as a separate and distinct undertaking.) a. Fixed-Price Contracts (Formally Advertised or Negotiated). Once a contract is awarded, the wage rates contained in the specifications are the minimum rates that can be paid by the contractor or his subcontractors during the life of the contract. b. Cost-Reimbursement Type, Time and Material, and Labor-Hour Contracts and Subcontracts. The wage rates established for and included in cost-reimbursement type prime or subcontracts (including time and material contracts and labor-hour contracts), according to the DavisBacon Act, are the minimum rates that can be paid during the life of the contract. Reimbursement to contractors and subcontractors holding the foregoing types of contracts for wages paid to laborers and mechanics are based on this wage schedule; all applications of prime and subcontractors to use higher wage rates require specific approval by the contracting officer. The contracting officer's approval shall be based upon substantiating data in support of the contractor's request, such as: proposed wage rates were established as a result of bona fide collective bargaining in which the contractor participated or to which he adheres as a general practice or as a result of membership in contractor's organizations; proposed wage rates have approval of any existing wage-stabilizing body established pursuant to Federal law; or payment or wages at higher rates is required to man the job. Subcontracts awarded pursuant to a costreimbursement type, time and material, or labor-hour contract shall include wage rates prevailing at the time of the subcontract award, except where the subcontracted work is included in the specifications of the prime contract and is a part of the particular work for which the wage rate determination attached to the prime contract was obtained. (e) Modification and Superseding Determinations. During the 120-day life of a determination, the Department of Labor may issue a modification thereto, changing the wage rate for one or more classifications or adding or deleting a classification; or the Department of Labor may issue a new determination which entirely supersedes the original determination for the duration of the 120-day period. The word "modification" as used in this paragraph 12.404 includes new or superseding wage determinations. Modifications do not change the expiration date of the original determination. Modifications by the Secretary of Labor of an original wage determination shall be made part of the proposed contract if received prior to the award of the contract, provided that, in a formally advertised procurement, any modification received less than 10 calendar days before the opening of bids may be disregarded. (f) Posting. The contracting officer shall ascertain that a copy of the wage determination is kept posted at the site of the work in a prominent place where it can be easily seen by the workers. 12.404-3 Additional Classifications. If any laborers or mechanics not listed in the wage determination attached to the contract are to be employed, their classifications and minimum wage rates shall be established by the contractor or subcontractor, with the approval of the contracting officer, conformably to the attached wage determination. A report of any such determination shall be transmitted to the Secretary of Labor. If the interested parties cannot agree upon any such additional classification and wage rate, the matter accompanied by the recommendation of the NASA PROCUREMENT REGULATION 12.404-3 LABOR contracting officer shall be referred via the Assistant Administrator for Procurement to the Secretary of Labor for final determination. 12.404-4 Apprentices. (a) In accordance with Section 5.5(a)(4) of the Department of Labor Regulations (29 CFR Part 5) as implemented by Memorandum No. 59 issued on June 24, 1964 from the Office of the Solicitor, the Labor Department will no longer list apprentice rates on wage determinations under the Davis-Bacon Act and related acts. Future determinations will contain the following notation: "Before using apprentices on the job, the contractor shall present to the Contracting Officer written evidence of registration of such employees in a program of a State apprenticeship and training agency approved and recognized by the U.S. Bureau of Apprenticeship and Training. In the absence of such a State agency, the contractor shall submit evidence of approval and registration by the U.S. Bureau of Apprenticeship and Training. "The contractor shall submit to the Contracting Officer written evidence of the established apprentice-journeyman ratios and wage rates in the project area, which will be the basis for establishing such ratios and rates for the project under the applicable contract provisions." (November 1964) (b) Any employee of a contractor listed on a payroll at an apprentice wage rate, who is not registered as an apprentice and within an established apprentice-journeyman ratio, as provided in (a) above, shall be paid the wage rate determined by the Secretary of Labor for the classification of work he actually performed. 12.404-5 Subcontracts. The contracting officer shall obtain a list of all subcontracts, together with a description of the work to be performed thereunder, and such list shall be kept current during the performance of the contract. 12.404-6 Payrolls and Statements. (a) Submission. Within 7 calendar days after the regular payment date of the payroll week covered, the prime contractor will submit and cause all his subcontractors to submit through him to the contracting officer, copies of certified weekly payrolls showing all laborers and mechanics engaged on the contract at the site of the work, including the name and address of each employee, his correct classification, daily and weekly number of hours worked, rate of pay, deductions made, and actual wages paid. Each payroll shall contain or be accompanied by a statement of the contractor (or subcontractor) that he has complied with the labor standards provisions of the contract. The receipt of these payrolls and statements is a condition precedent to final payment under the contract. Contracting officers should encourage contractors to make use of optional payroll Forms SOL-184 and 185, developed by the Department of Labor for voluntary use on Federal construction contracts subject to the DavisBacon Act and related Acts. (b) Payroll Deductions. (1) No payroll deductions are authorized except as follows: (i) where required by Federal, State, or local statute or ordinance to be made by the employer from the wages earned by the employee; (ii) bona fide prepayment of wages without discount or interest; (iii) deductions required by court process, provided that the contractor or subcontractor will not be permitted to make such a deduction in favor 12.404-4 CFR TITLE 41 CHAPTER 18 LABOR STANDARDS IN CONSTRUCTION CONTRACTS of the contractor, subcontractor, or any affiliated person, or where collusion or collaboration exists; and (iv) as permitted by subparagraphs (2), (3), and (4) below. (2) Deductions which meet the standards set forth in (i) through (iv) below are permissible provided the contractor or subcontractor has made written application by registered mail to the Secretary of Labor (copies must be furnished the contracting officer) indicating that: (i) the deduction is not prohibited by law; (ii) the employee has consented voluntarily to the deduction in writing, prior to the payroll period, and the consent is neither a condition for obtaining employment nor for continuation of employment or that the deduction is provided for in a bona fide collective bargaining agreement and is for the benefit of the employee or the labor organization which represents the employee; (iii) no profit, benefit, or payment is obtained directly or indirectly by the contractor, subcontractor, or any affiliated person from the deduction and that no portion of the funds, whether in the form of a commission or otherwise, will be returned to the contractor, subcontractor, or any affiliated person; and (iv) the deduction is for the convenience and in the interests of the employee and that the deductions are customary in this or comparable situations. However, if the Secretary of Labor decides on his own motion or on the motion of an affected person or agency that the deduction does not meet these standards, he will give written notice to the contractor or subcontractor and request additional supporting evidence for the deduction. If, on the basis of such additional evidence, the deduction still does not meet these standards, the deduction will cease to be permissible 7 days after the contractor or subcontractor and NASA have been notified of the Secretary's decision. (3) Upon application to and receipt of written permission from the Secretary of Labor and subject to the standards set forth in (2) (i), (ii), and (iii) above, deductions may be made by a contractor or subcontractor or any affiliated person for membership fees in group benefit or retirement associations, for board and lodging, or for other purposes where the Secretary of Labor concludes the deduction is required by compelling circumstances; provided, however, that the contractor, subcontractor, or any affiliated person does not make a profit or benefit directly or indirectly from the deduction. A copy of the Secretary's decision will be sent to the applicant and NASA. (4) According to and subject to the standards set forth in (2) above, general permission is hereby granted to make payroll duductions for: (i) the payment of the purchase price of United States Savings Stamps and Bonds and United States Tax Savings Notes; (ii) the repayment of loans to or the purchase of shares in credit unions organized and operated according to District of Columbia, Federal, or State credit union statues; (iii) contributions to a Federal Government or quasi-governmental agency; (iv) the payment of dues or premiums to unaffiliated insurance companies or associations for medical or hospitalization insurance where the employer is not required by Federal, State, or local laws to supply such insurance or benefits; NASA PROCUREMENT REGULATION 12.404-6 LABOR (v) contribution to bona fide charities such as the Red Cross or United Givers Fund; and (vi) regular union initiation fees and membership dues where a collective bargaining agreement provides for such deductions. This does not include work permits or special assignments. (5) When the employee does not have full and actual freedom of disposition of his wage payment, whether made in cash or by check, any restricted payment made to the employee is considered a deduction under this Subpart. (6) Nothing herein will be construed to permit any deduction which the contractor or subcontractor knew or, in the exercise of good faith, should have known did not meet the standards in (2) (i) through (iv) above. The Secretary of Labor may notify the contractor or subcontractor that a deduction will be permitted only if certain conditions with respect thereto are observed. The contractor or subcontractor or any affiliated persons will comply with such general rules and regulations concerning the deductions as the Secretary of Labor will make from time to time, notice of which will have been given to the contractor or subcontractor or any affiliated person making the deduction and to NASA either directly or through publication in the Federal Register. (c) Preservation. Certified payrolls and statements shall be preserved by the installation concerned for a period of 3 years from completion of the contract and shall be produced at the request of the Secretarty of Labor at any time during such period. 12.404-7 Investigations. (a) Investigations necessary to assure compliance with contract, statutory, and regulatory requirements shall be made. If feasible, contracts of 6 months or less duration shall be investigated before final payment is made. Contracts of longer duration shall be investigated as frequently as may be necessary. Such investigations shall include interviews of employees on a sampling basis. (b) Special investigations in detail shall be made when required by complaints or other evidence of violations. Complaints of violations shall be given priority. (c) Statements, written or oral, made by an employee shall be treated as confidential and shall not be disclosed to the employer without the consent of the employee. 12.404-8 Enforcement Reports. (a) Where underpayments total $500 or more, or are willful, the contracting officer concerned shall furnish to the Department of Labor, through the NASA Office of Industrial Relations (Code L), as soon as practicable, a detailed enforcement report. Such reports shall include a statement of the findings as to the violations and information as to restitution made, payment deductions, contract terminations, and the names and addresses of the workers, contractors and subcontractors concerned. (For willful violations of a criminal statute, see 12.404-8(c) below.) (b) Where underpayments total less than $500 and are nonwillful, and where restitution has been effected and future compliance assured, no report need be furnished the Department of Labor, unless the Department of Labor has expressly requested that the investigation be made. In the latter case, the contracting officer shall submit through the NASA Office of Industrial Relations (Code L), a factual summary report in accordance with 29 C.F.R. 5.7(a)(1). 12.404-7 CFR TITLE 41 CHAPTER 18 LABOR STANDARDS IN CONSTRUCTION CONTRACTS substantial (c) where there is a evidence that violations are willful and in breach of the False Affidavits Act (18 U.S. C. 1001) or other criminal statute, the matter shall be forwarded to the Attorney General for prosecution, and the Secretary of Labor shall be informed of such action. (d) (1) The Department of Labor Regulation (Part 5 of Title 29, Code of Federal Regulations) as implemented by Memorandum No. 60 issued on June 25, 1964, and Memorandum No. 126 issued on October 20, 1976, by the Solicitor of Labor, required that semiannual enforcement reports on compliance with and enforcement of the labor standards provisions of the Davis-Bacon Act and related acts be submitted covering the periods of October 1 through March 31 and April 1 through September 30, respectively. These reports shall cover contracts awarded directly by NASA and shall be submitted, in duplicate, by April 10 and October 10 of I Each year to the office of Procurement, NASA Headquarters (Code HP-1), for consolidation and submission to the Department of Labor. Negative reports are required. (2) The reports shall be prepared in accordance with the following format: Semiannual Labor Compliance Report to the Section 5.7 (b) of Regulations, Part 5 I. a. Number of standards statutes contracts awarded subject to labor (Include contracts awarded during the period, all or part of which were subject to the coverage of any of the statutes listed in 29 CFR 5.1, except for contracts awarded for NASA by other Government agencies, e.g., the Corps of Engineers). b. Number of contracts letters were sent ..... c. Number of contracts conferences were held ..... on which preconstruction on which preconstruction d. Number of contracts on which letters of notice were sent to contractors emphasizing importance of future compliance II. a. Total gross payroll amount $...... (Total gross payroll amount is the sum of all gross payments made to laborers and mechanics during the reporting NASA PROCUREMENT REGULATION |