the Regional Attorney, Department of Labor. In those instances where funds are transmitted on Standard Form 1093 to the General Accounting Office, no report to higher authority is required. Standard Form 1093 (Schedule of Deductions from Payments to Contractors) should contain a statement that the contracting officer or investigating officer has determined that this is not a proper case for placing on the Comptroller General's list of ineligible persons or firms. § 1212.404-9

Suspensions and deduc

tions of contract payments.

(a) When he learns of a violation, the contracting officer shall withhold from payments due the contractor an amount equal to the estimated restitution due the contractor's employees. Such an amount shall continue to be withheld until (1) action as set forth in paragraph (b) of this section is taken, (2) the contractor voluntarily makes restitution of the full amount that is allegedly due his employees, or (3) the contracting officer if informed, through channels, that the Department of Labor has ruled that the funds withheld may be released to the contractor. If the contractor does not make voluntary restitution, the funds withheld for payment of monies due employees under the Davis-Bacon Act shall be transferred to the General Accounting Office via the disbursing officer. Standard Form 1093 should be used for recording information concerning underpayments under the Davis-Bacon Act. Withheld funds representing underpayment of premium rates (Eight-Hour Law) will not be transferred to the General Accounting Office where contracts are written on Standard Form 23-A (General Provisions Construction Contracts), but will be retained by the disbursing officer in his Deposit Funds Suspense Account.

(b) (1) When investigation reveals that restitution is due to the contractor's employees because of violation of the Davis-Bacon Act, the contracting officer shall forward to the disbursing officer who normally makes disbursement to the contractor, Standard Form 1093, listing the name and last known address of each employee involved, the amount due each employee, and a brief statement of reason for restitution. Employee to whom restitution is due shall be advised that, upon approval of the withholding by the

Department of Labor, they will be paid on application to the General Accounting Office, which will hold funds withheld from the contractor for restitution to workers in a special account for this purpose. Employee applications for payment may be forwarded with the forms required by this section; such applications should include the employee's name, address, and classification; the name of the employer; and a statement identifying the contract involved. Withholding must be accomplished even though an employee cannot be located in order to complete restitution.

(2) When investigation reveals that restitution is due the contractor's employees because of violation of the EightHour Law, such funds as have been withheld under paragraph (a) of this section may not be paid over to the employees. Instead, when it is clear that the contractor will not make restitution, the contracting officer shall inform the disbursing officer who normally makes disbursment under the contract and the appropriate fiscal officer of this fact, specifying the amount of restitution owed to each employee, so that the funds. withheld may be deobligated up to the total of such amounts.

(c) When notified of a violation,. which would render the contractor liable to the United States for penalties. the contracting officer should withhold from payments due the contractor a sum sufficient to cover the estimated penalties: due the United States should the allegation prove true. Such an amount should continue to be withheld until (1) action set forth in paragraph (d) of this sec-. tion is taken, or (2) the contractor voluntarily pays the full amount of the penalties allegedly due, or (3) the contracting officer is informed, through channels, that the Department of Labor has ruled that the funds may be released to the contractor.

(d) When investigation discloses that penalties are due the United States, the contracting officer shall forward to the disbursing officer who normally makes: disbursement to the contractor a voucher indicating the amount due the contractor, the amount to be paid to the United States as penalties, and sufficient information to make clear the purpose of the withholding. The voucher used should be separate from that used to withhold any restitution that may be due the con

(a) When it appears that restitution may be due employees of a contractor or subcontractor, the contracting officer and the investigating officer shall seek to have the contractor or subcontractor make restitution voluntarily. Computation of back wages may be made by the contracting officer, or the contractor may be requested to do so, subject to verification by the contracting officer. Upon completion of computations, a summary sheet listing names, addresses and the unpaid amounts payable to the employees involved should be prepared by the contractor and a copy furnished the contracting officer. The contracting officer shall advise the contractor of the procedure which will satisfy him conclusively that proper restitution has been made, particularly the witnessing of cash payments or the furnishing of canceled checks.

(b) When a contractor wishes to make voluntary restitution but some worker or workers to whom such restitution is due cannot be located, the contracting officer shall collect the amount of restitution due and forward it to the disbursing officer for forwarding to the General Accounting Office, accompanied by a list of such workers, their last known addresses, and the amount due each employee and a brief statement of reason for restitution. Voluntary restitution cannot be considered completed as to workers who cannot be located until this procedure has been followed.

§ 1212.404-11 Contract terminations.

Whenever a contract is terminated for violation of labor standards provisions, a report containing the information set forth in this section shall be forwarded by the contracting officer, through channels, to the Labor Advisor, DSA. This report shall be accompanied by a report of the investigations of the violations resulting in termination setting forth the information required by § 1212.404-7(c). If such investigation has not been completed, an interim report, setting forth as much of the information required by

§ 1212.404-7(c) as is currently available, shall accompany the report of termination, and the complete report shall be forwarded when available.

§ 1212.404-50 Nonassessment of eighthour law penalty.

The Department of Labor has announced that in appropriate cases where an employer acting in good faith has failed to pay the daily overtime compensation required by the Eight-Hour Law, and subsequently makes delayed payment of the extra amount due his employees, said employer shall be considered in compliance with the EightHour Law and shall not be subject to the 5-dollar-per-day penalty for its violation. A case is appropriate for such nonassessment of the penalty when failure to pay at the regular pay period was inadvertent, but not when it was willful, negligent, or without reasonable excuse. If the investigating officer believes nonassessment may be appropriate, he shall transmit, through channels, to the Labor Advisor, DSA, the report called for by § 1212.404-7(c), plus a recommendation as to nonassessment of the penalty, and his reasons therefor, with special reference to whether the original nonpayment was inadvertent and not negligent. § 1212.450

reports.

Construction labor standards

(a) Contracting officers. Each contracting officer shall submit semiannually to the Head of his procuring activity, on the form set forth in paragraph (b) of this section, a report on the enforcement of labor standards applicable to contracts in excess of $2,000 involving construction, alteration or repair of public buildings or public works. Contracting officers will complete only items 1 through 6 of the form. Reports shall cover the 6 month periods ending June 30 and December 31.

(b) Heads of procuring activities. The head of each procuring activity shall submit semiannually to the Labor Advisor, DSA, a consolidation of the individual reports received pursuant to paragraph (a) of this section. The consolidated reports shall include competition of items 7, 8, and 9. The reports will be dispatched by August 10 and February 10, respectively. Negative reports need not be submitted.

9. Remarks..

10. Typed name and title of preparing individual. (Typed name, grade, and title of authenticating official)

(c) Reproduction of form. The form set forth in paragraph (b) of this section will be reproduced locally on 8 by 101⁄2 inch paper.

Subpart E-U.S. Department of Labor
Safety and Health Regulations for
Ship Repairing [Reserved]
Subpart F-Walsh-Healey Public
Contracts Acts

§ 1212.602 Applicability.

The publication "Walsh-Healey Public Contracts Act, Rulings and Interpretations No. 2," with amendments, may be obtained from the Department of Labor Regional Offices listed in § 1212.703-50. § 1212.603 Responsibilities of contracting officers.

(a) In the absence of a determination by the Department of Labor, contracting officers are responsible for determining initially that contractors are "manufacturers" or "regular dealers" within the meaning of the Walsh-Healey Public Contracts Act when it is applicable. When doubt exists as to whether a bidder is a "manufacturer" or "regular

Signature..

Number

dealer" a request for determination by the Department of Labor may be made by the Head of the Procuring Activity. A determination by the Department of Labor that a bidder is a "manufacturer" or "regular dealer" is conclusive. Such qualification, however, does not relieve the contracting officer of the duty to determine the responsibility of the bidder.

(b) When the Walsh-Healey Act is applicable, contracting officers will be responsible for keeping the contractor at the place of manufacture supplied with Department of Labor Forms PC 12 and PC 13. It is not required that new forms be forwarded upon award of each contract to a contractor after he has received an initial supply. These forms may be requisitioned through normal publication supply channels.

§ 1212.650 Exceptions not stated in the publications furnished contracting officers.

Certain of the exceptions stated in the publications furnished contracting officers which contain no specific expiration date may have been rescinded by the Secretary of Labor since date of publication. In case of doubt, inquiry may be directed to the appropriate Regional Di

rector, Wage and Hour and Public Contracts Divisions, Department of Labor indicated in § 1212.703-50.

§ 1212.651 Procedure for obtaining exemptions with respect to stipulations required by the Act.

Section 6 of the Act permits the Secretary of Labor to make exceptions to the requirement concerning representations and stipulations of section 1 of the Act. Requests for exception will be forwarded by Heads of procuring activities to the Labor Advisor, DSA.

Subpart G-Fair Labor Standards Act of 1938

§ 1212.702 Suits against Government

contractors.

Cost-plus-a-fixed-fee contractors and subcontractors should be advised that immediately upon receipt of process in any legal action filed against them they must furnish a copy of all papers to the contracting officer. An immediate report of the legal action will be made direct to the Counsel, DSA.

§ 1212.703 Rulings on applicability or interpretation.

§ 1212.703-50 Wage and hour and public contracts divisions of the United States Department of Labor regional offices geographical jurisdictions and addresses of regional directors. Region I-Massachusetts, New Hampshire, Maine, Vermont, Connecticut, Rhode Island-18 Oliver St., Boston 10, Mass.. Region II-New York and New Jersey-U.S. Parcel Post Bldg., 341 Ninth Ave., New York 1, N.Y. Region III-Delaware, Maryland, Pennsylvania, District of Columbia-Wols Ave. and Commerce St., Chambersburg, Pa. Region IV-Alabama, Florida, Georgia, Mississippi, South Carolina-American Liberty Insurance Bldg., 1401 South 20th St., Birmingham 5, Ala.

Region V-Michigan, Ohio-Engineers' Bldg., 1365 Ontario St., Cleveland 14, Ohio. Region VI-Illinois, Indiana, Minnesota, Wisconsin-105 West Adams St., Chicago 3,

Ill.

Region VII-Colorado, Iowa, Kansas, Missouri, Nebraska, North Dakota, South Dakota, Wyoming-Federal Office Bldg., 911 Walnut St., Kansas City 6, Mo. Region VIII-Arkansas, Louisiana, New Mexico, Oklahoma, Texas-1114 Commerce St., Dallas 2, Tex.

Region IX-Arizona, California, Idaho, Montana, Nevada, Oregon, Utah, Washington, Alaska, Hawaii-329 Appraisers Bldg., 630 Sansome St., San Francisco 11, Calif.

Region X-Kentucky, Tennessee, Virginia, West Virginia-U.S. Courthouse Bldg., 801 Broad St., Nashville 3, Tenn.

North Carolina-Not included in any region. Information may be obtained through North Carolina Department of Labor, Labor Bldg., Post Office Box 1151, Salisbury, and Edenton Sts., Raleigh, N.C. Puerto Rico-7th Floor, Condominio San Alberto Bldg., 1200 Ponce De Leon, Post Office Box 9092, Santurce 29, P.R.

§ 1212.750 Investigations and inspections.

(a) The Act provides that each employer subject to the Act must make and preserve certain records of the persons employed by him and of the wages, hours and other conditions and practices of employment maintained by him. The Act also provides that the Administrator, or his designated representatives, may investigate and gather data regarding the wages, hours, and other conditions and practices of employment in any industry subject to the Act, and may enter and inspect such places and such records, question such employees and investigate such facts, conditions, practices, or matters as he may deem necessary or appropriate to determine whether any person has violated any provision of the Act, or which may aid in the enforcement of the Act.

(b) With respect to cost-plus-a-fixedfee contractors, to the extent consistent with security and other regulations governing admission of visitors to plants and projects, representatives of the Administrator should be accorded access to the facilities and records of DSA contractors for the purpose of making investigations to determine applicability of and compliance with the Act. Investigations will be conducted at such time and in such manner so to interrupt or interfere least with operations. They should be confined whenever possible to the inspection of records in the office of the contractor. Inspections of the areas in the facility where construction or production is in progress will be held to a minimum. Necessary interviewing of employees should, whenever possible, be conducted outside work hours or at such other times as will interfere least with construction or production operations. The administrator has stated that his investigators will advise cost-plus-a-fixed-fee contractors approximately 1 week before they plan to arrive at the project to make an investigation under the Act.

Policy and procedure governing the removal of items from facilities affected by work stoppages prescribe that principal reliance with respect to such removals be placed on cooperative arrangements and voluntary concurrence. In this connection, it is emphasized that the Department of Defense Policy Governing Participation in Industrial Labor Relations Matters Affecting Military Procurement, provides that agencies of the Department shall remain impartial in, and shall refrain from taking a position on the merits of a labor dispute and shall not undertake the mediation of such a dispute. Removal of items by procuring activities will be in accordance with that expressed policy.

§ 1212.1502 Determination of urgency.

Before action leading to the removal of any item is initiated, assurance will be secured that the item in question is urgently needed. Among the factors to be considered in determining urgency are (a) whether the product is in such short supply that unless it is removed there will be a failure to meet schedules for urgently needed military items, and (b) whether there are alternative sources of supply of such products reasonably available to furnish the particular item within the time within which delivery is required.

§ 1212.1503 Administrative procedure. Where urgency is clearly established, procuring activities may seek the removal of military items from facilities affected by a work stoppage in accordance with the following procedures:

(a) An attempt will be made to work on an arrangement with plant manage

ment and the local union involved for the removal of the required items by the shipping means normally used by the company.

(b) If the course prescribed in paragraph (a) of this section is not successful, an effort will be made to obtain the concurrence of both parties to the labor dispute for removal of the items by military vehicles and, if necessary, by military personnel.

(c) If the procedures prescribed in paragraphs (a) and (b) of this section fail, and upon a determination by the head of the procuring activity that additional efforts should be made to accomplish removal of the items in question, the head of the procuring activity will submit the matter to the Labor Advisor, DSA, with appropriate recommendation and comment to insure effective and coordinated action. Such submissions shall include the following information:

(1) Name, address, and telephone number of company from which items are to be removed.

(2) Name, address, telephone number of company official who may be contacted for purposes of effectuating removal.

(3) Identification, address, and telephone number of local union.

(4) Name, address, and telephone number of local union official who may be contacted for purposes of effectuating removal.

(5) Brief statement relating to the necessity for removing the items in question.

(6) Description of items to be removed; nature of items, amount, approximate weight, purchase order number, and shop order number.

(7) Amount of work required preparatory to shipment of items.

(8) Mode of transportation by which items are to be removed.

(9) Destination of items.

(d) All action taken pursuant to paragraphs (a) and (b) of this section, shall be reported, through channels, to the Labor Advisor, DSA.

§ 1212.1504 Coordination.

(a) Where two or more procuring activities are, or may become, involved in the removal of urgent items from a facility affected by a stoppage, efforts will be made by the procuring activities concerned to agree on a single procuring activity, where practicable, to effectuate removal arrangements.