ever,

(9) Burial of contaminated soil waste or contained liquid; howinitial preparatory work readying the burial ground for use (for example, any grading or excavating that is a part of initial site preparation, fencing, drilling wells for continued monitoring of contamination, construction of guard or other office space) is covered. Likewise, work subsequent to burial which involves the placement of concrete or other like activity is covered.

(b) The classification of a contract as a contract for operational or maintenance activities does not necessarily mean that all work and activities at the contract location are classifiable as outside of Davis-Bacon Act coverage, since it may be necessary to separate out work which should be classified as covered. Therefore, heads of procuring activities shall establish and maintain controls for the careful scrutiny of proposed work assignments under such a contract to assure that:

(1) Contractors whose contracts do not contemplate the performance of covered work with the contractor's own forces are neither asked nor authorized to perform work within the scope of the DavisBacon Act. If the actual work assignments do involve covered work, the contract should be modified to include applicable provisions of the Davis Bacon Act.

(2) Where covered work is peformed by a contractor whose contract contains provisions required by the Davis-Bacon Act, such work is performed as required by law and the contract. After such contractor has been informed, as provided in paragraph (b)(3) of this section, that certain work is covered work, the head of the procuring activity's responsibility to assure compliance is the same as it would be if the work were being performed under a separate construction con

tract.

(3) Controls provided for above include consideration by the head of the procuring activity and the contractor, before work is begun or contracted out, of the relation of the Davis-Bacon Act to (i) the annual programing of work, (ii) the contractor's work orders, and (iii) work contracted out in excess of $2,000. The head of the procuring activity may, if he concludes that it is consistent with ERDA's responsibilities as described in this section, prescribe from time to time classes of work as to which applicability or nonapplicability of the Davis-Bacon Act is clear, for which he will require no further ERDA determination on coverage in advance of the work. For all work, the controls to be established by the head of the procuring activity should provide for notification to the contractor before work is begun as to whether such work is covered.

$9-18.702 Statutory and regulatory requirements.

$9-18.702-50 Department of Labor approval.

The Department of Labor has previously reviewed and approved the criteria, standards, and guides set forth in §9-18.701, §9-18.704, $9-18.750, and the contract clause in 9-50.1804-3.

$9-18.704 Wage determinations.

$9-18.704-3 Procedure for requesting determinations.

The head of the procuring activities are responsible for submitting to the appropriate regional office of the Employment Standards Division, Department of Labor, all ERDA requests for project area or installation wage determinations, or individual determinations, or extensions or modifications thereto. Requests for such determinations shall be made on Standard Form 308 at least 30 calendar days before they are required for use in advertising for bids or requests for proposals.

$9-18.704-50 Use and duration of wage determinations.

In general, the Davis-Bacon Act rates applicable to a contract at the time it is awarded continue in effect during its term regardless of whether it is a fixed-price or cost-type contract. However it should be noted that:

(a) The minimum wage rates that will be paid to laborers and/or mechanics engaged on jobs which are programmed on a fiscal year or shorter basis are those predetermined by the Secretary of Labor to be prevailing as of the date the program is approved by ERDA for performance by the contractor. However, in the event of a substantial addition to the scope of a contract containing a "general or area wage determination," the current "general or area wage determination," including modifications thereto, shall be made applicable to the additional work. If the contract contains a "project area or installation (54A) determination," or an "individual determination," and a substantial addition to the scope of the contract is made during the fiscal year or shorter basis but more than 120 days from the date of the determination, a new determination is required for the substantial year or shorter basis but more than 120 days from the date of the determination, a new determination is required for the substantial addition. Programed work will be performed by the contractor under the following conditions:

(1) Continuing contracts for minor or miscellaneous construction, alteration and/or repair, including painting and decorating;

(2) Contracts for operation and maintenance under which the contractor will perform miscellaneous covered work with his own forces.

(b) The minimum wage rates that will be paid to laborers and/or mechanics engaged on subcontracts let by an operating contractor will be those in the wage determination decision of the Secretary of Labor which is current as of the date the contractor enters into such subcontract.

(c) See FPR 1-18.704 for types of wage determinations procedures for requesting same, and FEDERAL REGISTER review on general or area wage determinations.

$9-18.705 Administration and enforcement.

$9-18.705-50 Responsibilities.

(a) The statutes and regulations cited and summarized in FPR 1-18.702 and the requirements in FPR 1-18.705 impose direct responsibilities for administration and enforcement upon ERDA. Therefore, heads of procuring activities and others, consistent with their assignments of responsibilities and delegations of authority, shall assure that ERDA contract activities are carried out consistent with these laws and regulations.

(b) Heads of procuring activities shall submit to the Headquarters labor relations element required reports, recommendations, and requests for rulings and interpretations as required in FPR 1-18.705. $9-18.750 Decisions and other guides in difficult areas.

$9-18.750-1 General.

Section 9-18.701-52 necessarily uses general language and in some cases the application of the criteria discussed therein to particular situations may not be clear. Therefore, this subsection covers more specifically some of the areas of particular concern to ERDA and is promulgated to clarify the application of the criteria.

$9-18.750-2 Specific examples.

The following are applications of the regulations to particular situations. Additional narrative statements describing items of work and applicabilty of the Davis-Bacon Act will be developed from time to time and added to this subsection.

(a) Land-based prototypes. The Labor Department has held that the construction of a full-scale operating prototype of one reactor

compartment and of all necessary nuclear power components and systems and propulsion equipment for a submarine is covered.

In another ship prototype situation, the Department has held that assembling and fitting the components of nuclear steam propulsion units into the hull sections, including installation of the pressure vessels, turbo-generator sets, heat exchangers, control wiring, etc., is covered.

A later decision involving the same prototype indicates that the earlier rulings should not be construed as intended to cover all equipment assemblies irrespective of the status of construction and other pertinent factors.

(b) Paving. The construction of roads, including grading, and their repair--where such repair includes work on roadbeds before resurfacing, building up shoulders, forming ditches, culverts and bridges, and on the actual resurfacing of roads--is covered. However, recurring-type maintenance work, such as patching surface, filling chuck holes, patching shoulders, and resurfacing railroad crossings is noncovered. Similarly, patch and maintenance work on a parking lot, the replacement of bumper stops, and the repainting of parking dividers is noncovered.

(c) Stationary boilers. The construction, alteration and/or repair, including installation and rebuilding, of stationary boilers costing in excess of $2,000 for labor and materials is covered. In contrast, inspection may reveal need for replacement of pieces of insulation, individual tubes, or other defective parts. Such maintenance, necessary to keep the boiler in safe operating conduction, is non-covered.

(d) Startup of operating activity after fire or other catastrophe. Rebuilding of plant following a catastrophe, such as replacement of structural members, roof trusses, walls, roof, utility services, and process piping is covered. However, where process equipment can be restarted and/or operational activities resumed prior to such rebuilding, the actual work of startup, including preliminary activity, e.g., cleaning, drying, checking, adjustment, temporary services, and temporary weather protection of equipment, essential to such resumption of operational activity, is noncovered.

(e) Rehabilitation of facilities. By contrast with emergency services needed to restore or maintain functional usefulness, as above described, rehabilitation (e.g., painting, change-out, rearrangement and installation of equipment, replacement or repair of damaged parts of a structure or of building services or equipment) of a nonoperable facility or of significant nonoperable portions of a facility is

90-136 - 77 - 31

covered.

In such rehabilitation, the startup of equipment by operating employee is noncovered.

(f) Painting. Although painting and decorating are specifically mentioned in the Act, painting which is closely integrated within operation and maintenance activities, and such repainting as color coding of process lines and service piping (including valves and directional arrows), is noncovered; likewise, application of various materials for localizing contamination, painting of machine tools to identify degree of contamination, preventive maintenance, repainting of machine tools, equipment and plant structures is noncovered when performed with a stable work force employed by the operating contrac

tor.

(g)

Installation, rearrangement or adjustment of equipment. (See also paragraph (h). Experimental installations, of this section.)

(1) During construction. In the construction of a new facility--whether it is a production plant, a laboratory, or supporting facilities, such as shops and warehouses--an integral part of a construction project is the installation of equipment (including mechanical equipment, building services, instruments, etc.) which permits the facility to be utilized for the purpose for which it was intended. Normally, the initial installation, arrangement, adjustment, balancing, calibration, and checking of such equipment is a logical part of the construction contract(s) for completion of the facility and, whether or not included within the scope of such contract(s), is covered.

(2) Plant startup. At the time of the turnover of an ERDA facility (which frequently differs in many respects from other facilities), from construction to operation activities, if the facility is turned over a section at a time, some problems of coverage may arise. It is extremely difficult, if not impossible, to write rules or criteria that can be practically applied in all situations. Usually, it is essential that final checkout of a plant prior to the startup of plant operations be performed by personnel of the operating contractor and, as such, is not covered. The important thing is to work out a practical plan that will assure: (i) Safe and effective startup of the facility, (ii) the fulfillment of obligations under applicable statutes, and (iii) continuing construction at the facility.

(3) Equipment and equipment assemblies. While the current construction status of a public building or public work is not controlling as to coverage of supply-installation-type contracts, this is a factory to be considered in judging the applicability of the DavisBacon Act. The Labor Department has ruled (Walsh-Healey Rulings and