(a) Where the contracting officer is authorized by the express language of a statute to purchase "in the open market", or where a purchase of articles, supplies, materials or equipment, either in being or virtually so, is made without advertising for bids under circumstances bringing such purchase within the exception to the General Purchase Statute, R.S. 3709, that is, where immediate delivery is required by the public exigency.

(b) Where the contract relates to perishables, including dairy, livestock, and nursery products ("perishables" covers products subject to decay or spoilage and not products canned, salted, smoked, or otherwise preserved);

(c) Where the contract relates to agricultural or farm products processed for first sale by the original producers;

(d) Where the contract is by the Secretary of Agriculture for the purchase of agricultural commodities or the products thereof;

(e) Where the contract is with a common carrier for carriage of freight or personnel by vessel, airplane, bus, truck, express, or railway line, where published tariff rates are in effect;

(f) Where the contract is for the furnishing of service by radio, telephone, telegraph, or cable companies, subject to the Federal Communications Act of 1934 (48 Stat. 1064 as amended; 47 U.S.C. Chapter 5).

[Regs. 504, 1 F.R. 1626, Sept. 19, 1936, as amended at 9 F.R. 8347, July 22, 1944. Redesignated, 24 F.R. 10952, Dec. 30, 1959]

§ 50-201.101 Manufacturer or regular dealer.

A bidder or contractor shall be deemed to be a "manufacturer" or "regular dealer" within the meaning of the stipulation required by section 1(a) of the act and § 50-201.1(a) if he falls within one of the following categories:

(a) A manufacturer is a person who owns, operates, or maintains 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.

(b) A regular dealer is a person who owns, operates, or maintains a store, warehouse, or other establishment in which the 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.

(1) A regular dealer in lumber and timber products, if a wholesale lumber dealer, may be a person who owns, operates, or maintains a place of business in which the materials, supplies, articles, or equipment of the general character described by the specifications and required under the contract are bought for the account of such person and sold to the public in the usual course of business: Provided, That at least more than 50 percent of his business is such purchase and sale of such materials, supplies, articles, or equipment; And provided further, That upon all orders to manufacturers for direct shipment to the United States he agrees to insert a notice to the manufacturer to the effect that the supplies are purchased for the United States and that the manufacturer is within the terms of § 50-201.104 requiring compliance with the provisions of the Public Contracts Act.

(2) A machine tool dealer may be a person possessing, through contract or agreement with a manufacturer, the responsibility for selling that manufacturer's products, with respect to a specific territory and who is authorized by such manufacturer to offer its products and to negotiate and conclude contracts for the furnishing thereof: Provided, That upon all orders to manufacturers for direct shipment to the United States he agrees to insert a notice to the manufacturer to the effect that the supplies are purchased for the United States and that the manufacturer is within the terms of § 50-201.104 requiring compliance with the provisions of the Public Contracts Act.

(3) A regular dealer in hay, grain, feed, or straw may be a person who owns, operates, or maintains a store, warehouse, or other place of business in which the materials, supplies, articles, or equipment of the general character described by the specifications and required under the contract are bought for the account of such person and sold to the public in the usual course of business, and whose principal business is such purchase and sale of such materials, supplies, articles, or equipment.

(4) A regular dealer in raw cotton may be a person who owns, operates or maintains a store, warehouse, or other place of business in which materials, supplies, articles or equipment of the

general character described by the specifications and required under the contract are bought for the account of such person and sold to the public in the usual course of business, and whose principal business is such purchase and sale of such materials, supplies, articles or equipment.

(5) A regular dealer in green coffee may be a person who owns, operates or maintains a store, warehouse, or other place of business in which materials, supplies, articles or equipment of the general character described by the specifications and required under the contract are bought for the account of such person and sold to the public in the usual course of business, and whose principal business is such purchase and sale of such materials, supplies, articles or equipment.

(6) A regular dealer in petroleum may be a person who owns, operates, or maintains petroleum distribution equipment and a store, warehouse, or other place of business in which petroleum products of the general character described by the specifications and required under the contract are bought for the account of such person and sold to the public in the usual course of business, and whose principal business is such purchase and sale of such petroleum products.

(7) A regular dealer in agricultural liming materials may be a person who owns or controls the necessary equipment customarily required for delivering agricultural liming materials to farms or for spreading such materials on fields, who has made arrangements to purchase liming materials of the general character described by the specifications and required under the contract from a manufacturer, and who offers such material for sale to the public in the usual course of business.

(8) A regular dealer in tea may be an importer who owns, operates, or maintains a store, warehouse, or other place of business in which materials, supplies, articles or equipment of the general character described by the specifications and required under the contract are bought for the account of such person and sold to the public in the usual course of business.

(9) A regular dealer in raw or unmanufactured cotton linters may be a person who owns, operates or maintains a store, warehouse, or other place of

business in which materials, supplies, articles, or equipment of the general character described in the specifications and required under the contract are bought for the account of such person and sold to the public in the usual course of business, and whose principal business is such purchase and sale of such materials, supplies, articles, or equipment.

(10) A regular dealer in used automatic data processing equipment may be a person who owns or controls previously owned or used items, materials, supplies, articles, or equipment of the general character described in the specifications and required under the contract and who offers such items for sale to the public in the usual course of business and whose principal business is the purchase and sale of such items, materials, supplies, articles, or equipment.

(c) (1) Except as hereinafter provided, every bid received from any bidder who does not fall within one of the foregoing categories shall be rejected by the contracting officer.

(2) Whenever justice and the public interest will be served, bids for a contract or class of contracts will be exempted from the foregoing requirement by the Secretary of Labor upon the request of the head of the contracting agency or department when accompanied by his finding of fact that it will be so difficult to obtain satisfactory bids for the contract or class of contracts under the stipulated restrictions, that the conduct of the Government business will be seriously impaired.

[Regs. 504, 1 F.R. 1626, Sept. 19, 1936, as amended at 4 F.R. 1614, Apr. 14, 1939, 14 F.R. 295, Jan. 20, 1949, 17 F.R. 6417, July 15, 1952, 18 F.R. 1471, Mar. 14, 1953, 18 F.R. 2294, Apr. 21, 1953, 20 F.R. 4820, July 7, 1955, 21 F.R. 1718, Mar. 20, 1956, 24 F.R. 8067, Oct. 6, 1959. Redesignated, 24 F.R. 10952, Dec. 30, 1959 and amended at 40 FR 57806, Dec. 12, 1975]

§ 50-201.102 Employees affected.

(a) Employees engaged in or connected with the manufacture, fabrication, assembling, handling, supervision, or shipment of materials, supplies, articles, or equipment used in the performance of the contract may be employed in excess of 8 hours in any one day or in excess of 40 hours in any one week: Provided, Such persons shall be paid for any hours in excess of such limits the overtime rate of pay which has been set therefor by the Secretary of Labor.

(b) Until otherwise set by the Secretary of Labor the rate of pay for such overtime shall be one and one-half times the basic hourly rate received by the employee. The "basic hourly rate" means an hourly rate equivalent to the rate upon which time-and-one-half overtime compensation may be computed and paid under section 7 of the Fair Labor Standards Act of 1938, as amended. The basic hourly rate may, in no case, be less than the applicable minimum wage.

(c) If in any one week or part thereof an employee is engaged in work covered by the contractor's stipulations, his overtime shall be computed after 8 hours in any one day or after 40 hours in any one week during which no single daily total of employment may be in excess of 8 hours without payment of the overtime rate.

(d) The overtime pay requirements of this section shall be deemed to be complied with in the case of any employee employed as provided in section 7(b) of the Fair Labor Standards Act of 1938, as amended, pursuant to the provisions of paragraph (1) or (2) of that section.

[7 F.R. 4494, June 16, 1942, as amended at 18 FR. 1832, Apr. 2, 1953. Redesignated, 24 F.R. 10952, Dec. 80, 1959]

850-201.104 Dealer as agent of undis

closed principal.

Whenever a dealer, to whom a contract within the act and regulations in this part has been awarded, causes a manufacturer to deliver directly to the

66-014-76—11

Government the materials, supplies, articles, or equipment required under the contract, such dealer will be deemed the agent of the manufacturer in executing the contract. As the principal of such agent the manufacturer will be deemed to have agreed to the stipulations contained in the contract.

[1 F.R. 2359, Nov. 28, 1936. Redesignated, 24 F.R. 10952, Dec. 30, 1959]

§ 50-201.105 Protection against unintentional employment of underage minors.

An employer shall not be deemed to have knowingly employed an underage minor in the performance of contracts subject to the Act if, during the period of the employment of such minor, the employer has on file an unexpired certificate of age issued and held pursuant to regulations issued by the Secretary of Labor under section 3(1) of the Fair Labor Standards Act of 1938 (29 CFR 1500.121), showing that such minor is at least 16 years of age.

[34 F.R. 6687, Apr. 19, 1969]

§ 50-201.106 Hours worked.

In determining the hours for which an employee is employed, there shall be excluded any time which is excluded by section 3 (o) of the Fair Labor Standards Act of 1938, as amended, from the computation of hours worked for purposes of sections 6 and 7 of that act.

[18 F.R. 1832, Apr. 2, 1953. Redesignated, 24 F.R. 10952, Dec. 30, 1959]

§ 50-201.201 Breach of stipulations.

(a) Whenever the Department of Labor notifies the head of a contracting agency that a contractor is liable for liquidated damages by reason of breach of stipulations as provided in section 2 of the act, there shall be withheld from any balance due under the contract such amount as may be necessary to satisfy such liability pending final disposition of the case.

(b) Whenever a final determination of a breach of stipulations is made, the Secretary of Labor will furnish to the contracting agency a copy of the findings and decision with such recommendations as will assist the contracting agency in determining whether or not the contract should be canceled for such breach. [Regs. 504, 1 F.R. 1627, Sept. 19, 1936. Redesignated, 24 F.R. 10952, Dec. 30, 1959]

§ 50-201.501 Records of employment.

Every contractor subject to the provisions of the act and this part shall maintain the following records of employment which shall be available for the inspection and transcription of authorized representatives of the Secretary of Labor:

(a) Name, address, sex, and occupation of each employee covered by the contract stipulations.

(b) Date of birth of each employee under 19 years of age; and if the employer has obtained a certificate of age as provided in § 50-201.105, there shall also be recorded the title and address of the office issuing such certificate, the number of the certificate, if any, the date of its issuance, and the name, address and date of birth of the minor, as the same appears on the certificate of age.

(c) Wage-and-hour records for each such employee including the rate of wages and the amount paid each pay period, the hours worked each day and each week, and the period during which each such employee was engaged on a Government contract with the number of such contract. Compliance with this paragraph shall be deemed complete if wage-and-hour records for all employees in the plant are maintained during the period between the award of any Government contract and the date of delivery of the materials, supplies, articles, or equipment: Provided, That where no separate records for employees engaged on Government contracts are maintained, it shall be presumed until affirmative proof is present to the contrary that all employees in the plant, from the date of award of any such contract until the date of delivery of the materials, supplies, articles or equipment, were engaged on such Government contract.

(d) The records required by paragraphs (a), (b), and (c) of this section shall be kept on file for at least 3 years from their last date of entry;

(e) Basic employment and earnings records: All basic time and earning cards or sheets of the employer on which are entered the daily starting and stopping time of individual employees or of separate work forces, or the individual employees' daily, weekly, or pay period amounts of work accomplished (for example, units produced) when those amounts determine in whole or in part

the pay period earnings or wages of those employees;

(f) Wage rate tables: All tables or schedules of the employer which provide the piece rates or other rates used in computing straight-time earnings, wages or salary, or overtime excess compensation;

(g) Work time schedules: All schedules or tables of the employer which establish the hours and days of employment of individual employees or of separate workforces;

(h) The records required by paragraphs (e), (f), and (g) of this section shall be kept on file at least 2 years from their last date of entry or their last effective date whichever is later.

(a) (1) Request for the exception or exemption of a contract or class of contracts from the inclusion or application of one or more of those stipulations required by § 50-201.1 must be made by the head of a contracting agency or department and shall be accompanied with a finding by him setting forth reasons why such inclusion or application will seriously impair the conduct of Government business.

(2) Request for the exception or exemption of a stipulation respecting minimum rates of pay and maximum hours of labor contained in an existing contract must be made jointly by the head of the contracting agency and the contractor and shall be accompanied with a joint finding by them setting forth reasons why such exception or exemption is desired.

(b) All requests for exceptions or exemptions which relate solely to safety and health standards shall be transmitted directly to the Bureau of Labor Standards, WSA, Department of Labor. All other requests for exceptions or exemptions shall be transmitted to the Office of Government Contracts Wage Standards, WSA, of the Department of Labor.

[7 F.R. 4767, June 26, 1942, as amended at 36 FR. 288, Jan. 8, 1971. Redesignated at 24 F.R. 10952, Dec. 30, 1959]

§ 50-201.602 Decisions concerning exceptions and exemptions.

Decisions concerning exceptions and exemptions shall be in writing and approved by the Secretary of Labor or offcer prescribed by him, originals being filed in the Department of Labor, and certified copies shall be transmitted to the department or agency originating the request, to the Comptroller General, and to the Procurement Division of the Treasury. All such decisions shall be promulgated to all contracting agencies by the Office of Government Contracts Wage Standards, WSA, of the Department of Labor.

[36 F.R. 288, Jan. 8, 1971] § 50-201.603

emptions.

Full administrative

ex.

The following classes of contracts have been exempted from the application of § 50-201.1 pursuant to the procedure required under section 6 of the act:

(a) Contracts for public utility services including electric light and power, water, steam, and gas;

(b) Contracts for materials, supplies, articles, or equipment no part of which will be manufactured or furnished within the geographic limits of the States of the United States of America, Puerto Rico, the Virgin Islands, or the District of Columbia: In addition, the representations and stipulations required by the act and this part in any contract for materials, supplies, articles, or equipment to be manufactured or furnished in part within and in part outside such geographic limits shall not be applicable to any work performed under the contract outside such geographic limits;

(c) Contracts covering purchases against the account of a defaulting contractor where the stipulations required in this section were not included in the defaulted contract;

(a) Contracts with a person who regularly buys and sells coal on his own account in lots of not less than a cargo or railroad carload, or with a person who is authorized by one or more persons engaged in mining coal to negotiate and conclude contracts for the furnishing thereof in such lots, are exempt from the requirement of section 1(a) of the act and § 50-201.1 that such person represent that he is a manufacturer or a regular dealer in coal: Provided, however, That all the following terms and conditions are met:

(1) That such person will notify the persons engaged in mining the coal that the purchaser thereof is the United States and that provisions of the Public Contracts Act are applicable; and

(2) That such person, apart from the liability of the mines, shall be liable for the observance in the mines of all the labor standards provided in section 1 of the act; and

(3) That such person notify the contracting agency that he will accept the contract upon the terms and conditions set forth above.

(b) Commodity exchange contracts entered into by the Commodity Credit Corporation under the Commodity Credit Corporation Charter Act (secs. 4(h), 5 (d) and (f), 62 Stat. 1070 and 1072, 15 U.S.C. 714b(h), 714c (d) and (f)), section 416 of the Agricultural Act of 1949 (63 Stat. 1058, 7 U.S.C. 1431), section 103 (a) (2) of the Agricultural Act of 1954 (68 Stat. 898, 7 U.S.C. 1743 (a) (2), or section 303 of the Agricultural Trade Development and Assistance Act of 1954 (68 Stat. 459, 7 U.S.C. 1692), are exempt from the requirement of section 1(a) of the act and of § 50-201.1 that the Government contractor represents that he is the manufacturer of or a regular dealer in the materials, supplies, articles or equipment to be manufactured or used in the performance of the contract.

(c) A contractor who operates and maintains a place of business where he regularly engages in the business of an export merchant, and regularly buys