(a) The Agency head shall cause or require the contracting officer
to insert in full in any contract in excess of $2,000 which is entered
into for the actual construction, alteration and/or repair, including
painting and decorating, of a public building or public work, or
building or work financed in whole or in part from Federal funds or in
accordance with guarantees of a Federal agency or financed from funds
obtained by pledge of any contract of a Federal agency to make a loan,
grant or annual contribution (except where a different meaning is
expressly indicated), and which is subject to the labor standards
provisions of any of the acts listed in Sec. 5.1, the following clauses
(or any modifications thereof to meet the particular needs of the
agency, Provided, That such modifications are first approved by the
Department of Labor):
(1) Minimum wages. (i) All laborers and mechanics employed or
working upon the site of the work (or under the United States Housing
Act of 1937 or under the Housing Act of 1949 in the construction or
development of the project), will be paid unconditionally and not less
often than once a week, and without subsequent deduction or rebate on
any account (except such payroll deductions as are permitted by
regulations issued by the Secretary of Labor under the Copeland Act (29
CFR part 3)), the full amount of wages and bona fide fringe benefits (or
cash equivalents thereof) due at time of payment computed at rates not
less than those contained in the wage determination of the Secretary of
Labor which is attached hereto and made a part hereof, regardless of any
contractual relationship which may be alleged to exist between the
contractor and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe
benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of
laborers or mechanics are considered wages paid to such laborers or
mechanics, subject to the provisions of paragraph (a)(1)(iv) of this
section; also, regular contributions made or costs incurred for more
than a weekly period (but not less often than quarterly) under plans,
funds, or programs which cover the particular weekly period, are deemed
to be constructively made or incurred during such weekly period. Such
laborers and mechanics shall be paid the appropriate wage rate and
fringe benefits on the wage determination for the classification of work
actually performed, without regard to skill, except as provided in
Sec. 5.5(a)(4). Laborers or mechanics performing work in more than one
classification may be compensated at the rate specified for each
classification for the time actually worked therein: Provided, That the
employer's payroll records accurately set forth the time spent in each
classification in which work is performed. The wage determination
(including any additional
classification and wage rates conformed under paragraph (a)(1)(ii) of
this section) and the Davis-Bacon poster (WH-1321) shall be posted at
all times by the contractor and its subcontractors at the site of the
work in a prominent and accessible place where it can be easily seen by
the workers.
(ii)(A) The contracting officer shall require that any class of
laborers or mechanics, including helpers, which is not listed in the
wage determination and which is to be employed under the contract shall
be classified in conformance with the wage determination. The
contracting officer shall approve an additional classification and wage
rate and fringe benefits therefore only when the following criteria have
been met:
(1) The work to be performed by the classification requested is not
performed by a classification in the wage determination; and
(2) The classification is utilized in the area by the construction
industry; and
(3) The proposed wage rate, including any bona fide fringe benefits,
bears a reasonable relationship to the wage rates contained in the wage
determination.
(B) If the contractor and the laborers and mechanics to be employed
in the classification (if known), or their representatives, and the
contracting officer agree on the classification and wage rate (including
the amount designated for fringe benefits where appropriate), a report
of the action taken shall be sent by the contracting officer to the
Administrator of the Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Washington, DC 20210. The
Administrator, or an authorized representative, will approve, modify, or
disapprove every additional classification action within 30 days of
receipt and so advise the contracting officer or will notify the
contracting officer within the 30-day period that additional time is
necessary.
(C) In the event the contractor, the laborers or mechanics to be
employed in the classification or their representatives, and the
contracting officer do not agree on the proposed classification and wage
rate (including the amount designated for fringe benefits, where
appropriate), the contracting officer shall refer the questions,
including the views of all interested parties and the recommendation of
the contracting officer, to the Administrator for determination. The
Administrator, or an authorized representative, will issue a
determination within 30 days of receipt and so advise the contracting
officer or will notify the contracting officer within the 30-day period
that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate)
determined pursuant to paragraphs (a)(1)(ii) (B) or (C) of this section,
shall be paid to all workers performing work in the classification under
this contract from the first day on which work is performed in the
classification.
(iii) Whenever the minimum wage rate prescribed in the contract for
a class of laborers or mechanics includes a fringe benefit which is not
expressed as an hourly rate, the contractor shall either pay the benefit
as stated in the wage determination or shall pay another bona fide
fringe benefit or an hourly cash equivalent thereof.
(iv) If the contractor does not make payments to a trustee or other
third person, the contractor may consider as part of the wages of any
laborer or mechanic the amount of any costs reasonably anticipated in
providing bona fide fringe benefits under a plan or program, Provided,
That the Secretary of Labor has found, upon the written request of the
contractor, that the applicable standards of the Davis-Bacon Act have
been met. The Secretary of Labor may require the contractor to set aside
in a separate account assets for the meeting of obligations under the
plan or program.
(2) Withholding. The (write in name of Federal Agency or the loan or
grant recipient) shall upon its own action or upon written request of an
authorized representative of the Department of Labor withhold or cause
to be withheld from the contractor under this contract or any other
Federal contract with the same prime contractor, or any other federally-
assisted contract subject to Davis-Bacon prevailing wage requirements,
which is held by the same prime contractor, so much of the accrued
payments or advances as may be considered necessary to pay laborers and
mechanics, including apprentices, trainees, and helpers, employed by the
contractor or any subcontractor the full amount of wages required by the
contract. In the event of failure to pay any laborer or mechanic,
including any apprentice, trainee, or helper, employed or working on the
site of the work (or under the United States Housing Act of 1937 or
under the Housing Act of 1949 in the construction or development of the
project), all or part of the wages required by the contract, the
(Agency) may, after written notice to the contractor, sponsor,
applicant, or owner, take such action as may be necessary to cause the
suspension of any further payment, advance, or guarantee of funds until
such violations have ceased.
(3) Payrolls and basic records. (i) Payrolls and basic records
relating thereto shall be maintained by the contractor during the course
of the work and preserved for a period of three years thereafter for all
laborers and mechanics working at the site of the work (or under the
United States Housing Act of 1937, or under the Housing Act of 1949, in
the construction or development of the project). Such records shall
contain the name, address, and social security number of each such
worker, his or her correct classification, hourly rates of wages paid
(including rates of contributions or costs anticipated for bona fide
fringe benefits or cash equivalents thereof of the types described in
section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of
hours
worked, deductions made and actual wages paid. Whenever the Secretary of
Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer
or mechanic include the amount of any costs reasonably anticipated in
providing benefits under a plan or program described in section
1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records
which show that the commitment to provide such benefits is enforceable,
that the plan or program is financially responsible, and that the plan
or program has been communicated in writing to the laborers or mechanics
affected, and records which show the costs anticipated or the actual
cost incurred in providing such benefits. Contractors employing
apprentices or trainees under approved programs shall maintain written
evidence of the registration of apprenticeship programs and
certification of trainee programs, the registration of the apprentices
and trainees, and the ratios and wage rates prescribed in the applicable
programs.
(ii)(A) The contractor shall submit weekly for each week in which
any contract work is performed a copy of all payrolls to the (write in
name of appropriate Federal agency) if the agency is a party to the
contract, but if the agency is not such a party, the contractor will
submit the payrolls to the applicant, sponsor, or owner, as the case may
be, for transmission to the (write in name of agency). The payrolls
submitted shall set out accurately and completely all of the information
required to be maintained under Sec. 5.5(a)(3)(i) of Regulations, 29 CFR
part 5. This information may be submitted in any form desired. Optional
Form WH-347 is available for this purpose and may be purchased from the
Superintendent of Documents (Federal Stock Number 029-005-00014-1), U.S.
Government Printing Office, Washington, DC 20402. The prime contractor
is responsible for the submission of copies of payrolls by all
subcontractors.
(B) Each payroll submitted shall be accompanied by a ``Statement of
Compliance,'' signed by the contractor or subcontractor or his or her
agent who pays or supervises the payment of the persons employed under
the contract and shall certify the following:
(1) That the payroll for the payroll period contains the information
required to be maintained under Sec. 5.5(a)(3)(i) of Regulations, 29 CFR
part 5 and that such information is correct and complete;
(2) That each laborer or mechanic (including each helper,
apprentice, and trainee) employed on the contract during the payroll
period has been paid the full weekly wages earned, without rebate,
either directly or indirectly, and that no deductions have been made
either directly or indirectly from the full wages earned, other than
permissible deductions as set forth in Regulations, 29 CFR part 3;
(3) That each laborer or mechanic has been paid not less than the
applicable wage rates and fringe benefits or cash equivalents for the
classification of work performed, as specified in the applicable wage
determination incorporated into the contract.
(C) The weekly submission of a properly executed certification set
forth on the reverse side of Optional Form WH-347 shall satisfy the
requirement for submission of the ``Statement of Compliance'' required
by paragraph (a)(3)(ii)(B) of this section.
(D) The falsification of any of the above certifications may subject
the contractor or subcontractor to civil or criminal prosecution under
section 1001 of title 18 and section 231 of title 31 of the United
States Code.
(iii) The contractor or subcontractor shall make the records
required under paragraph (a)(3)(i) of this section available for
inspection, copying, or transcription by authorized representatives of
the (write the name of the agency) or the Department of Labor, and shall
permit such representatives to interview employees during working hours
on the job. If the contractor or subcontractor fails to submit the
required records or to make them available, the Federal agency may,
after written notice to the contractor, sponsor, applicant, or owner,
take such action as may be necessary to cause the suspension of any
further payment, advance, or guarantee of funds. Furthermore, failure to
submit the required records upon request or to make such records
available may be grounds for debarment action pursuant to 29 CFR 5.12.
(4) Apprentices and trainees--(i) Apprentices. Apprentices will be
permitted to work at less than the predetermined rate for the work they
performed when they are employed pursuant to and individually registered
in a bona fide apprenticeship program registered with the U.S.
Department of Labor, Employment and Training Administration, Office of
Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency
recognized by the Office, or if a person is employed in his or her first
90 days of probationary employment as an apprentice in such an
apprenticeship program, who is not individually registered in the
program, but who has been certified by the Office of
Apprenticeship Training, Employer and Labor Services
or a State Apprenticeship Agency (where appropriate) to be
eligible for probationary employment as an apprentice. The allowable
ratio of apprentices to journeymen on the job site in any craft
classification shall not be greater than the ratio permitted to the
contractor as to the entire work force under the registered program. Any
worker listed on a payroll at an apprentice wage rate, who is not
registered or otherwise employed as stated above, shall be paid not less
than the applicable wage rate on the wage determination for the
classification of work actually performed. In addition, any apprentice
performing work on the job site in excess of the ratio permitted under
the registered program shall be paid not less than the applicable wage
rate on the wage determination for the work actually performed. Where a
contractor is performing construction on a project in a locality other
than that in which its program is registered, the ratios and wage rates
(expressed in percentages of the journeyman's hourly rate) specified in
the contractor's or subcontractor's registered program shall be
observed. Every apprentice must be paid at not less than the rate
specified in the registered program for the apprentice's level of
progress, expressed as a percentage of the journeymen hourly rate
specified in the applicable wage determination. Apprentices shall be
paid fringe benefits in accordance with the provisions of the
apprenticeship program. If the apprenticeship program does not specify
fringe benefits, apprentices must be paid the full amount of fringe
benefits listed on the wage determination for the applicable
classification. If the Administrator determines that a different
practice prevails for the applicable apprentice classification, fringes
shall be paid in accordance with that determination. In the event the
Office of Apprenticeship Training, Employer and Labor Services, or a
State Apprenticeship Agency
recognized by the Office, withdraws approval of an apprenticeship
program, the contractor will no longer be permitted to utilize
apprentices at less than the applicable predetermined rate for the work
performed until an acceptable program is approved.
(ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not
be permitted to work at less than the predetermined rate for the work
performed unless they are employed pursuant to and individually
registered in a program which has received prior approval, evidenced by
formal certification by the U.S. Department of Labor, Employment and
Training Administration. The ratio of trainees to journeymen on the job
site shall not be greater than permitted under the plan approved by the
Employment and Training Administration. Every trainee must be paid at
not less than the rate specified in the approved program for the
trainee's level of progress, expressed as a percentage of the journeyman
hourly rate specified in the applicable wage determination. Trainees
shall be paid fringe benefits in accordance with the provisions of the
trainee program. If the trainee program does not mention fringe
benefits, trainees shall be paid the full amount of fringe benefits
listed on the wage determination unless the Administrator of the Wage
and Hour Division determines that there is an apprenticeship program
associated with the corresponding journeyman wage rate on the wage
determination which provides for less than full fringe benefits for
apprentices. Any employee listed on the payroll at a trainee rate who is
not registered and participating in a training plan approved by the
Employment and Training Administration shall be paid not less than the
applicable wage rate
on the wage determination for the classification of work actually
performed. In addition, any trainee performing work on the job site in
excess of the ratio permitted under the registered program shall be paid
not less than the applicable wage rate on the wage determination for the
work actually performed. In the event the Employment and Training
Administration withdraws approval of a training program, the contractor
will no longer be permitted to utilize trainees at less than the
applicable predetermined rate for the work performed until an acceptable
program is approved.
(iii) Equal employment opportunity. The utilization of apprentices,
trainees and journeymen under this part shall be in conformity with the
equal employment opportunity requirements of Executive Order 11246, as
amended, and 29 CFR part 30.
(5) Compliance with Copeland Act requirements. The contractor shall
comply with the requirements of 29 CFR part 3, which are incorporated by
reference in this contract.
(6) Subcontracts. The contractor or subcontractor shall insert in
any subcontracts the clauses contained in 29 CFR 5.5(a)(1) through (10)
and such other clauses as the (write in the name of the Federal agency)
may by appropriate instructions require, and also a clause requiring the
subcontractors to include these clauses in any lower tier subcontracts.
The prime contractor shall be responsible for the compliance by any
subcontractor or lower tier subcontractor with all the contract clauses
in 29 CFR 5.5.
(7) Contract termination: debarment. A breach of the contract
clauses in 29 CFR 5.5 may be grounds for termination of the contract,
and for debarment as a contractor and a subcontractor as provided in 29
CFR 5.12.
(8) Compliance with Davis-Bacon and Related Act requirements. All
rulings and interpretations of the Davis-Bacon and Related Acts
contained in 29 CFR parts 1, 3, and 5 are herein incorporated by
reference in this contract.
(9) Disputes concerning labor standards. Disputes arising out of the
labor standards provisions of this contract shall not be subject to the
general disputes clause of this contract. Such disputes shall be
resolved in accordance with the procedures of the Department of Labor
set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of
this clause include disputes between the contractor (or any of its
subcontractors) and the contracting agency, the U.S. Department of
Labor, or the employees or their representatives.
(10) Certification of eligibility. (i) By entering into this
contract, the contractor certifies that neither it (nor he or she) nor
any person or firm who has an interest in the contractor's firm is a
person or firm ineligible to be awarded Government contracts by virtue
of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person
or firm ineligible for award of a Government contract by virtue of
section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(iii) The penalty for making false statements is prescribed in the
U.S. Criminal Code, 18 U.S.C. 1001.
(b) Contract Work Hours and Safety Standards Act. The Agency Head
shall cause or require the contracting officer to insert the following
clauses set forth in paragraphs (b)(1), (2), (3), and (4) of this
section in full in any contract in an amount in excess of $100,000 and
subject to the overtime provisions of the Contract Work Hours and Safety
Standards Act. These clauses shall be inserted in addition to the
clauses required by Sec. 5.5(a) or 4.6 of part 4 of this title. As used
in this paragraph, the terms laborers and mechanics include watchmen and
guards.
(1) Overtime requirements. No contractor or subcontractor
contracting for any part of the conract work which may require or
involve the employment of laborers or mechanics shall require or permit
any such laborer or mechanic in any workweek in which he or she is
employed on such work to work in excess of forty hours in such workweek
unless such laborer or mechanic receives compensation at a rate not less
than one and one-half times the basic rate of pay for all hours worked
in excess of forty hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages. In
the event of any violation of the clause set forth in
paragraph (b)(1) of this section the contractor and any subcontractor
responsible therefor shall be liable for the unpaid wages. In addition,
such contractor and subcontractor shall be liable to the United States
(in the case of work done under contract for the District of Columbia or
a territory, to such District or to such territory), for liquidated
damages. Such liquidated damages shall be computed with respect to each
individual laborer or mechanic, including watchmen and guards, employed
in violation of the clause set forth in paragraph (b)(1) of this
section, in the sum of $10 for each calendar day on which such
individual was required or permitted to work in excess of the standard
workweek of forty hours without payment of the overtime wages required
by the clause set forth in paragraph (b)(1) of this section.
(3) Withholding for unpaid wages and liquidated damages. The (write
in the name of the Federal agency or the loan or grant recipient) shall
upon its own action or upon written request of an authorized
representative of the Department of Labor withhold or cause to be
withheld, from any moneys payable on account of work performed by the
contractor or subcontractor under any such contract or any other Federal
contract with the same prime contractor, or any other federally-assisted
contract subject to the Contract Work Hours and Safety Standards Act,
which is held by the same prime contractor, such sums as may be
determined to be necessary to satisfy any liabilities of such contractor
or subcontractor for unpaid wages and liquidated damages as provided in
the clause set forth in paragraph (b)(2) of this section.
(4) Subcontracts. The contractor or subcontractor shall insert in
any subcontracts the clauses set forth in paragraph (b)(1) through (4)
of this section and also a clause requiring the subcontractors to
include these clauses in any lower tier subcontracts. The prime
contractor shall be responsible for compliance by any subcontractor or
lower tier subcontractor with the clauses set forth in paragraphs (b)(1)
through (4) of this section.
(c) In addition to the clauses contained in paragraph (b), in any
contract subject only to the Contract Work Hours and Safety Standards
Act and not to any of the other statutes cited in Sec. 5.1, the Agency
Head shall cause or require the contracting officer to insert a clause
requiring that the contractor or subcontractor shall maintain payrolls
and basic payroll records during the course of the work and shall
preserve them for a period of three years from the completion of the
contract for all laborers and mechanics, including guards and watchmen,
working on the contract. Such records shall contain the name and address
of each such employee, social security number, correct classifications,
hourly rates of wages paid, daily and weekly number of hours worked,
deductions made, and actual wages paid. Further, the Agency Head shall
cause or require the contracting officer to insert in any such contract
a clause providing that the records to be maintained under this
paragraph shall be made available by the contractor or subcontractor for
inspection, copying, or transcription by authorized representatives of
the (write the name of agency) and the Department of Labor, and the
contractor or subcontractor will permit such representatives to
interview employees during working hours on the job.
(The information collection, recordkeeping, and reporting requirements
contained in the following paragraphs of this section were approved by
the Office of Management and Budget:
------------------------------------------------------------------------
OMB Control
Paragraph Number
------------------------------------------------------------------------
(a)(1)(ii)(B).............................................. 1215-0140
(a)(1)(ii)(C).............................................. 1215-0140
(a)(1)(iv)................................................. 1215-0140
(a)(3)(i).................................................. 1215-0140,
1215-0017
(a)(3)(ii)(A).............................................. 1215-0149
(c)........................................................ 1215-0140,
1215-0017
------------------------------------------------------------------------
[48 FR 19540, Apr. 29, 1983, as amended at 51 FR 12265, Apr.
9, 1986; 55 FR 50150, Dec. 4, 1990; 57 FR 28776, June 26, 1992; 58 FR
58955, Nov. 5, 1993; 61 FR 40716, Aug. 5, 1996; 65 FR 69674, Nov. 20, 2000]
