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pursuant to § 18-12.602-2 or exempted by the Secretary of Labor (see § 18-12. 602-3).

§ 18-12.602-2

Statutory exemptions.

The following transactions are exempt from the Walsh-Healey Public Contracts Act:

(a) Purchases of generally available commercial items, negotiated pursuant to the authority set forth in § 18-3.202; (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.

§ 18-12.602-3 Department of Labor regulations and interpretations.

Pursuant to the Walsh-Healey Public Contracts 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 Interpretations," which may be obtained from the Department of Labor Regional Offices listed in § 1812.607. In addition to the interpretations stated in that document, attention is directed to an opinion of the Department of Labor that contracts which are originally $10,000 or less, but are subsequently modified to increase the price to an amount in excess of $10,000, are subject to the Walsh-Healey Public Contracts Act after date of such modifications; and the contracts in an amount exceeding $10,000 which are subsequently modified to a figure of $10,000 or less, are not subject to said Act with respect to work performed after such modification if modification is effected by mutual agreement. Also, in the case of a basic ordering agreement or blanket purchase agreement, such amount shall be the aggregate amount of all orders estimated to be placed thereunder for 1 year after the effective date of the agreement. If a basic ordering agreement continues or is extended, such estimate shall be made annually for each year after the first and the agreement modified accordingly. § 18-12.603 Determinations of eligibility as manufacturer or regular dealer. § 18-12.603-1 Manufacturer.

As used in § 18-12.601, a manufacturer is a person who owns, operates, or main

tains a factory or establishment that produces on the premises the materials, supplies, articles, or equipment required under the contract and of the general character described by the specifications. In order to qualify as a manufacturer, a bidder must be able to show before the award that he is (a) an established manufacturer of the particular goods or goods of the general character sought by the Government, and (b) if he is newly entering into such manufacturing activity, that he has made all necessary prior arrangements for space, equipment and personnel to perform the manufacturing operations required for the fulfillment of the contract. A new firm which, prior to the award of the contract, has made such definite commitments in order to enter a manufacturing business which will later qualify it, shall not be barred from receiving the award because it has not yet done any manufacturing; however, this interpretation is not intended to qualify a firm whose arrangements to use space, equipment or personnel are contingent upon the award of a Government contract.

§ 18-12.603-2 Regular dealer.

(a) Except as set forth in paragraph (b) of this section, as used in § 1812.601 a regular dealer is a person who owns, operates, or maintains a store, warehouse, or other establishment in which materials, supplies, articles, or equipment of the general character described by the specifications and required under the contract are bought, kept in stock, and sold to the public in the usual course of business. In order to qualify as a regular dealer, a bidder must be able to show before the award:

(1) That he has an establishment or leased or assigned space in which he regularly maintains a stock of goods in which he claims to be a dealer; if the space is in a public warehouse, it must be maintained on a continuing, and not on a demand basis;

(2) That the stock maintained is a true inventory from which sales are made; the requirement is not satisfied by a stock of sample or display goods, or by a stock consisting of surplus goods remaining from prior orders, or by a stock unrelated to the supplies which are the subject of the bid, or by a stock maintained primarily for the purpose of token compliance with the Act from which few, if any, sales are made;

(3) That the goods stocked are of the same general character as the goods to

be supplied under the contract; to be of the same general character, the items to be supplied must be either identical with those in stock or be goods for which dealers in the same line of business would be an obvious source;

(4) That sales are made regularly from stock on a recurring basis; they cannot be only occasional and constitute an exception to the usual operations of the business; the proportion of sales from stock that will satisfy the requirements will depend upon the character of the business;

(5) That sales are made regularly in the usual course of business to the public, i.e., to purchasers other than Federal, State, or local government agencies; this requirement is not satisfied if the contractor merely seeks to sell to the public but has not yet made such sales; if government agencies are the sole purchasers, the bidder will not qualify as a regular dealer; the number and amount of sales which must be made to the public will necessarily vary with the amount of total sales and the nature of the business; and

(6) That his business is an established and going concern; it is not sufficient to show that arrangements have been made to set up such a business.

(b) For certain specific products (lumber and lumber products, machine tools, hay, grain, feed or straw, raw cotton, green coffee, petroleum, agricultural liming materials, tea, and raw or unmanufactured cotton linters), there are alternative definitions of regular dealers. The qualifications required under the alternative definitions are listed in the regulations of the Secretary of Labor (41 CFR 50-201.101 (b)).

§ 18-12.603-3 Coal dealers.

Coal dealers are exempted from the regular dealer requirements if they meet the terms and conditions set forth by the Secretary of Labor in his regulation (41 CFR 50-201.604(a)). If these terms and conditions are not met, coal dealers must meet the requirements set forth in § 18-12.603-2 in order to be considered regular dealers.

§ 18-12.603-4 Agents.

A manufacturer or regular dealer may bid, negotiate, and contract through an authorized agent if the agency is disclosed, and the agent acts and contracts in the name of his principal. In this connection, see the clause entitled "Cove

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(a) The responsibility for applying the eligibility requirements set forth in § 18-12.601 and § 18-12.603 rests, in the first instance, with the contracting officer. The Department of Labor does not conduct preaward investigations, nor render final determinations of eligibility until the contracting officer has initially determined whether the eligibility requirements have been met. When the eligibility of a bidder or offeror is challenged before award, it should be treated in a manner similar to a protest before award (see § 18-2.407-8 and § 18-3.111). The contracting officer should make an initial determination and should process the protest in accordance with applicable procedures for submission to the Department of Labor for a final determination.

(b) Whenever the Walsh-Healey Public Contracts Act is applicable, the contracting officer, pursuant to regulations or instructions issued by the Secretary of Labor, shall:

(1) Inform prospective contractors of the applicability of minimum wage determinations;

(2) Furnish to the contractor Labor Department Form PC-13, a combination Letter and Poster, explaining the application of the Walsh-Healey Public Contracts Act and giving instructions for display of the Poster;

(3) Furnish to the contractor Labor Department Form PC-16, “Minimum Wage Determinations under the WalshHealey Public Contracts Act", for ascertaining the minimum wage determinations applicable to his contract;

(4) Prepare and transmit to the Department of Labor the original and one copy of revised Standard Form 99, "Notice of Award of Contract" immediately upon award of the contract (For detailed instructions on completing and submitting the Form, see U.S. Department of Labor Circular Letter No. 2-65, dated Dec. 10, 1965), and

(5) Report to the Department of Labor any violations of the representations or stipulations required by the WalshHealey Public Contracts Act.

§ 18-12.605 Contract clause.

The contract clause required by this Subpart 18-12.6 is as follows:

WALSH-HEALEY PUBLIC CONTRACTS ACT
(SEPTEMBER 1962)

If this contract is for the manufacture of furnishing of materials, supplies, articles, or equipment in an amount which exceeds or may exceed $10,000 and is otherwise subject to the Walsh-Healey Public Contracts Act, as amended (41 U.S.C. 35-45), there are hereby incorporated by reference all representations and stipulations required by said Act and regulations issued thereunder by the Secretary of Labor, such representations and stipulations being subject to all applicable rulings and interpretations of the Secretary of Labor which are now or may hereafter be in effect.

§ 18-12.606 Procedure for obtaining exemptions with respect to stipulations required by the Act.

Section 6 of the Walsh-Healey Public Contracts Act permits the Secretary of Labor to make exceptions to the requirement that the representations and stipulations of section 1 of the Act be included in contracts which are subject to the Act. Applications for such exceptions shall be submitted in writing through the contracting officer with pertinent data and recommendation to the Director, NASA Labor Relations, NASA Headquarters (Code KL).

§ 18-12.607 Wage and hour and public contracts divisions of the U.S. Department of Labor regional officesGeographical jurisdictions and addresses of regional directors.

Atlanta region. (Florida, Georgia, North Carolina, South Carolina): Room 331, 1371 Peachtree Street NE., Atlanta, Ga. 30309.

Birmingham region. (Alabama, Arkansas, Louisiana, Mississippi): 1931 Ninth Avenue South, Birmingham, AL 35205.

Boston region. (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont): John Fitzgerald Kennedy Federal Building, Government Center, Boston, MA 02203.

Chicago region. (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin): U.S. Courthouse and Federal Office Building, Seventh Floor, 219 South Dearborn Street, Chicago, IL 60604.

Dallas region. (New Mexico, Oklahoma, Texas): 340 Mayflower Building, 411 North Akard Street, Dallas, TX 75201.

Kansas City region. (Colorado, Iowa, Kansas, Missouri, Montana, Nebraska, North Dakota, South Dakota, Utah, Wyoming): 2000 Federal Office Building, 911 Walnut Street, Kansas City, MO 64106.

Nashville region. (Kentucky, Tennessee, Virginia, West Virginia): U.S. Court House

Building, 801 Broad Street, Nashville, TN 37203.

New York region. (New Jersey, New York): 907 U.S. Parcel Post Building, 341 Ninth Avenue, New York, NY 10001.

Philadelphia region. (Delaware, District of Columbia, Maryland, Pennsylvania): Room 1524, Jefferson Building, 1015 Chestnut Street, Philadelphia, PA 19107.

San Francisco region. (Alaska, Arizona, California, Hawaii, Idaho, Nevada, Oregon, Washington): Room 10431, 450 Golden Gate Avenue, Box 36018, Sar. Francisco, CA 94102.

Puerto Rico. Seventh Floor, Condominio San Albert Building, 1200 Ponce de Leon Avenue, Stop 17, Santurce, PR 00907.

Subpart 18-12.7-Fair Labor
Standards Act of 1938

§ 18-12.701 Basic statute.

The Fair Labor Standards Act of 1938 (Act of June 30, 1938; 29 U.S.C. 201-219), 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), prohibits oppressive child labor, and under an amendment contained in the Equal Pay Act of 1963 (77 Stat. 56, 29 U.S.C. 206), prohibits discrimination on the basis of sex. The Fair Labor Standards Act applies to all employees, unless otherwise exempted, who are engaged in (a) interstate commerce or foreign commerce, (b) the production of goods for such commerce, or (c) any closely related process or occupation essential to such production.

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tracts and grants to carry out the rules and regulations of the Secretary of Labor. (Nondiscrimination provisions applicable to Government leases are set forth in § 18-1.350.)

§ 18-12.801 Policy.

Parts II and III of Executive Order 11246, dated September 24, 1965, state that discrimination because of race, creed, color, or national origin is contrary to the constitutional principles and policies of the United States, and that it is the plain and positive obligation of the U.S. Government to promote and insure equal opportunity for all qualified persons, without regard to race, creed, color, or national origin, employed by, or seeking employment with, Government contractors. To carry out this policy, the Secretary of Labor was made responsible by Part II of Executive Order 11246 to provide regulations, guidelines, and instructions to Government agencies. The head of each contracting agency was made primarily responsible for obtaining compliance by any contractor or subcontractor with the provisions of the Executive order and the rules, regulations, and orders of the Secretary of Labor. Although initial emphasis for obtaining compliance should be placed upon the methods of conference conciliation, mediation and persuasion, if such measures do not succeed in obtaining the necessary degree of progress, consideration will be given to invoking the appropriate sanctions as set forth in § 18-12.806-7.

§ 18-12.801-1 Definitions.

For the purpose of this Subpart 1812.8 each of the following terms has the meaning set forth below:

(a) "Order" means Executive Order 11246 of September 24, 1965 (30 F.R. 12319).

(b) "Contract" means any Government contract or any federally assisted construction contract.

(c) "Government contract" means any binding legal agreement or modification thereof between the Government and a contractor for supplies or services, including construction, or for the use of Government property, in which the parties, respectively, do not stand in the relationship of employer and employee.

(d) "Federally assisted construction contract" means any binding legal agreement or modification thereof between an applicant and a contractor for construc

tion work which is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to any Federal program involving a grant, loan, insurance or guarantee, or undertaken pursuant to any Federal program involving such grant, loan, insurance, or guarantee; or any approved application or modification thereof for a grant, loan, insurance or guarantee under which the applicant itself performs construction work other than through the permanent work force directly employed by an agency of Government.

(e) "Modification" means any written alteration in the terms and conditions of a contract accomplished by bilateral action of the parties to the contract.

(f) "Subcontract" means any agreement made or purchase order executed by a prime contractor where a material part of the supplies or services covered by such agreement or purchase order is being obtained for use in the performance of a contract.

(g) "Prime contractor" means any person holding a contract.

(h) "Subcontractor" means any person holding a subcontract. "First-tier subcontractor" refers to a subcontractor holding a subcontract with a prime contractor. "Second-tier subcontractor" refers to a subcontractor holding a subcontract with a first-tier subcontractor.

(i) "Agency" means any contracting or any administering agency.

(j) "Contracting agency" means any department (including the Departments of the Army, Navy, and Air Force), agency and establishment in the Executive Branch of the Government, including any wholly owned Government corporation, which enters into contracts.

(k) "Administering agency" means any department (including the Departments of the Army, Navy, and Air Force), agency and establishment in the Executive Branch of the Government, including any wholly owned Government corporation, which administers a program involving federally assisted construction contracts.

(1) "Applicant" means an applicant for Federal assistance or, as determined by regulation of an administering agency, other program participant, with respect to whom an application for any grant, loan, insurance or guarantee, or change therein, is not finally acted upon prior to July 22, 1963, and it includes

clause"

such an applicant after becoming a recipient of such Federal assistance. (m) "Equal Opportunity means the contract provisions set forth in § 18-12.802-1 or § 18-12.802-2.

(n) "Rules, regulations, and relevant orders" of the Committee as used herein mean rules, regulations and relevant orders issued pursuant to the orders and in effect at the time the particular contract subject to the orders was entered into.

(o) "United States" as used herein shall include Puerto Rico, the Panama Canal Zone and the possessions of the United States.

(p) "Standard commercial supplies" means an article:

(1) Which in the normal course of business is customarily maintained in stock by the manufacturer or any dealer, distributor, or other commercial dealer for the marketing of such article; or

(2) Which is manufactured and sold by two or more persons for general commercial or industrial use or which is identical in every material respect with an article so manufactured and sold.

(q) "Construction work" means the construction, rehabilitation, alteration, conversion, extension, demolition, or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services.

(r) "Site of construction" means the physical location of any building, highway or other change or improvement to real property which is undergoing construction, rehabilitation, alteration, conversion, extension, demolition, or repair and any temporary location or facility established by a contractor or subcontractor specifically to meet the demands of his contract or subcontract.

(s) The term "contracting officer" includes the official signing a grant, or any modification thereof, for the

Government.

(t) "Grantee" is the institution, State, agency, industrial firm, individual or organization receiving a grant from the Federal Government.

(u) "Contracts equal employment opportunity program" means the program required by the rules and regulations of the Secretary of Labor involving Government contractors and their subcontractors, as implemented by these regulations for accomplishing the objectives of Executive Order 11246.

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(a) All references in this Subpart 1812.8 to the "Clause" shall be deemed to refer to the Equal Opportunity clause set forth in § 18-12.802-1, and shall be deemed to include the "Equal Opportunity in Federally Assisted Construction Contracts" clause set forth in § 18-12.802-2, unless not appropriate to the context.

(b) All references in this Subpart 1812.8 to contracts and subcontracts, or to contractors, and subcontractors, shall be deemed to include grants and grantees respectively, when appropriate to the context.

(c) All references to a NASA installation shall be deemed to include any establishment of NASA having a procurement office, regardless of whether the establishment is designated as a laboratory, center, office, or by any other name; and all reference to the head of an installation shall be deemed to inIclude the head of such establishment. (Also see § 18-1.214.)

§ 18-12.802 Clauses for contracts, grants, or other arrangements.

§ 18-12.802-1 NASA contracts.

Except as otherwise provided in § 1812.802-3, all NASA contracts, including bilateral modifications thereof, shall include the Equal Opportunity clause set forth below unless exempt under the provisions of § 18-12.803, or exempted pursuant to § 18-12.804.

EQUAL OPPORTUNITY (NOVEMBER 1967)

(The following clause is applicable unless this contract is exempt under the rules and regulations of the Secretary of Labor issued pursuant to Executive Order 11246 of September 24, 1965.)

During the performance of this contract, the Contractor agrees as follows:

(a) The Contractor will not discriminate against any employee or applicant or employment because of race, creed, color, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, creed, color, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this Equal Opportunity clause.

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