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BASIC LABOR POLICIES

the requested overtime be approved in whole or in part, shall, unless a prior authorization is sufficient to cover the overtime requested, request the approval of the appropriate official designated as provided in (e) below and, as expeditiously as possible, modify paragraph (d) of the clause to reflect the approval.

(e) The Procurement Officer or his designees are authorized to approve overtime premiums at Government expense. Such approval may be for an individual contract, project, or program, or for plant, division, or company, as most practicable, and shall ordinarily be prospective, but may be retroactive when justified by the circumstances. Where two or more procurement offices have current contracts at a single facility, and the approval of overtime by one procurement office will affect the performance or cost of contracts of another, the approving official will obtain the concurrence of other appropriate approving officials and seek agreement as to the contracts under which overtime premiums will be approved. If the approving officials do not agree within a reasonable time as to the action to be taken, a decision shall be obtained through normal channels. Ordinarily, in the absence of evidence to the contrary, a procurement office may rely on the contractor's statement that such approval will not affect the performance, or payments in connection with any contract of another procurement office. (For the purpose of this requirement, the term "or his designees" shall mean the individuals authorized by the Procurement Officer to approve overtime. Such authorization shall be in writing and shall not be delegated beyond the first level of supervision below the Procurement Officer.)

12.102-5 Contract Administration.

(a) The cost of overtime premiums under the clause set forth in 12.1026, and all overtime premiums under cost-reimbursement type contracts which do not contain the clause set forth in 12.102-6, shall be allowed only to the extent the amount thereof is reasonable and properly allocable to the work under the contract, in accordance with 15.201.

(b) In administration of contracts under which overtime has been approved pursuant to 12.102-4, the contracting officer and the cognizant audit activity shall review periodically the use of such overtime to assure that it is reasonable and properly allocable to work under the contract. 12.102-6 Payment of Overtime Premiums Clause. The following clause shall be used when required by 12.102-4 (a).

PAYMENT FOR OVERTIME PREMIUMS (AUGUST 1969)

(a) Allowable cost shall not include any amount on account of overtime premiums except when

(i) specified in (d) below or

(ii) paid for work: (A) necessary to cope with emergencies such as those resulting from accidents, natural disasters, breakdowns of production equipment, or occasional production bottlenecks of a sporadic nature;

(B) by indirect labor employees such as those performing duties in connection with administration, protection,transportation, maintenance, standby plant protection, operation of utilities, or accounting;

(C) in the performance of tests, industrial processes, laboratory procedures, loading or unloading of transportation media, and operations in flight or afloat, which are continuous in nature and cannot reasonably be interrupted or otherwise completed; or

(D) which will result in lower overall cost to the Government.

NASA PROCUREMENT REGULATION

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(b) The cost of overtime premiums otherwise allowable under (a) above shall be allowed only to the extent the amount thereof is reasonable and properly allocable to the work under this contract.

(c) Any request for overtime, in addition to any amount specified in (d) below, will be for all overtime which can be estimated with reasonable certainty shall be used for the remainder of the contract, and shall contain the following:

(i) identification of the work unit, such as the department or section in which the requested overtime will be used, together with present workload, manning and other data of the affected unit, sufficient to permit an evaluation by the Contracting Officer of the necessity for the overtime;

(ii) the effect that denial of the request will have on the delivery or performance schedule of the contract;

(iii) reasons why the required work cannot be performed on the basis of utilizing multishift operations or by the employment of additional personnel; and

(iv) the extent to which approval of overtime would affect the performance or payments in connection with any other Government contracts, together with any identification of such affected contracts.

(d) The Contractor is authorized to perform overtime, in addition to that performed under (a)(ii), to the extent that the overtime premium does not exceed *.

(*Insert the amount, in dollars, agreed to during negotiations as representing the overtime premiums applicable to overtime not reimbursable under the exceptions contained in (a)(ii) of the clause. If it was agreed that the contract could be performed without the use of additional overtime, insert “Zero.")

12.103 Federal and State Labor Requirements.

12.103-1 Policy. It is the policy of NASA to cooperate with and to require contractors to cooperate to the fullest extent possible with Federal and State agencies responsible for enforcing labor requirements with respect to such matters as safety, health, and sanitation, maximum hours and minimum wages, equal pay for women, and child and convict labor.

12.103-2 Administration.

(a) NASA will not initiate applications to State agencies or officials for the suspension or relaxation of State labor standards.

(b) Contracting officers may support applications of contractors or suppliers when relaxation of State labor standards does not conflict with applicable Federal Labor Laws, such as the Fair Labor Standards Act of 1938 (29 U.S.C. 201-219), the Walsh-Healey Public Contracts Act (41 U.S.C. 35-45), the Davis-Bacon Act (40 U.S.C. 276a), the Work Hours Act of 1962 (40 U.S.C. 327-330), and when all of the following circumstances are present:

(i) the required products or services are in short supply and failure to meet production schedules for critically needed end items will result unless the suspension or relaxation of State labor standards is approved;

(ii) there are no alternative sources of supply for such products or services available within the required delivery schedule;

(iii) remedial action (such as recruitment, training, and more effective utilization of manpower) is not practicable; and

(iv) the granting of the application will not result in impairment of working conditions to the extent that productivity at the facility will be adversely affected.

(c) NASA letters of support will be addressed to the appropriate State agency and will indicate:

(i) the facilities and services affected; and

12.103

CFR TITLE 41 CHAPTER 18

BASIC LABOR POLICIES

(ii) the extent of relaxation of the particular State labor standard required to complete the specific work in conformity with the procurement schedule.

NASA PROCUREMENT REGULATION

12.104

Subpart 2-Convict Labor

12.200 Scope of Subpart. This Subpart sets forth policies and procedures regarding the employment of prison inmates in the performance of Government contracts.

12.201 General. Executive Order 11755 of December 29, 1973 states: "The development of the occupational and educational skills of prison inmates is essential to their rehabilitation and to their ability to make an effective return to free society. Meaningful employment serves to develop those skills. It is also true, however, that care must be exercised to avoid either the exploitation of convict labor or any unfair competition between convict labor and free labor in the production of goods and services."

12.202 Basic Requirement. Pursuant to the policy set forth in the Act of February 23, 1887 (18 U.S.C. 436), and in accordance with the requirements of Executive Order 11755 of December 29, 1973, all contracts involving the use of appropriated funds entered into by NASA for performance in any State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, or the Trust Territory of the Pacific Islands shall, unless otherwise provided by law, contain a clause prohibiting the employment of persons undergoing sentences of imprisonment which have been imposed by any court of the heretofore cited geographical areas.

12.203 Applicability.

(a) The requirement set forth in 12.202 applies, except as stated in this paragraph 12.203, to all contracts involving the employment of labor which are performed in any state, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, or the Trust Territory of the Pacific Islands.

(b) The requirement does not apply to contracts:

(1) Subject to the provisions of the Walsh-Healey Public Contracts Act (see Part 12, Subpart 6) which contains its own requirement that “no convict labor will be employed by the contractor in the manufacture or production or furnishing of any of the materials, supplies, articles, or equipment included in such contract,"

(2) For the purchase of supplies or services from Federal Prison Industries, Inc.

(3) For the purchase from any State prison of finished supplies which may be secured in the open market or from existing stocks as distinguished from supplies requiring special fabrication.

(c) The clause does not prohibit the employment by a contractor in the performance of such contracts of:

(1) Persons on parole or probation.

(2) Persons who have been pardoned or who have served their terms. (3) Federal prisoners authorized by the Attorney General under 18 U.S.C. 1082(c)(2) to work at paid employment in the community during the term of their imprisonment and non-Federal prisons where the Attorney General has certified that the work-release laws or regulations of the jurisdiction involved are in conformity with the requirements of Executive Order 11755 if:

(i) the worker is paid or is in an approved work training program on a voluntary basis;

(ii) representatives of local union central bodies or similar labor union organizations have been consulted;

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12.203

LABOR

(iii) such paid employment will not result in the displacement of employed workers, or be applied in skills, crafts, or trades in which there is a surplus of available gainful labor in the locality, or impair existing contracts for services; and

(iv) the rates of pay and other conditions of employment will not be less than those paid or provided for work of a similar nature in the locality in which the work is being performed.

(d) With regard to the certification by the Attorney General to employ non-Federal prisoners as cited in subparagraph 12.203(c)(3) above, Executive Order 11755 also provides that after notice and opportunity for hearing, the Attorney General shall revoke any such certification if he finds that the work-release program of the jurisdiction involved is not being conducted in conformity with the requirements of the order or with its intent or purpose.

12.204 Contract Clause. In accordance with this Subpart 2 of Part 12, insert the clause in 7.104-17.

12.204

CFR TITLE 41 CHAPTER 18

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