(a) The term Secretary includes the Secretary of Labor, the Deputy
Under Secretary for Employment Standards, and their authorized
representatives.
(b) The term Administrator means the Administrator of the Wage and
Hour Division, Employment Standards Administration, U.S. Department of
Labor, or authorized representative.
(c) The term Federal agency means the agency or instrumentality of
the United States which enters into the contract or provides assistance
through loan, grant, loan guarantee or insurance, or otherwise, to the
project subject to a statute listed in Sec. 5.1.
(d) The term Agency Head means the principal official of the Federal
agency and includes those persons duly authorized to act in the behalf
of the Agency Head.
(e) The term Contracting Officer means the individual, a duly
appointed successor, or authorized representative who is designated and
authorized to enter into contracts on behalf of the Federal agency.
(f) The term labor standards as used in this part means the
requirements of the Davis-Bacon Act, the Contract Work Hours and Safety
Standards Act (other than those relating to safety and health), the
Copeland Act, and the prevailing wage provisions of the other statutes
listed in Sec. 5.1, and the regulations in parts 1 and 3 of this
subtitle and this part.
(g) The term United States or the District of Columbia means the
United States, the District of Columbia, and all executive departments,
independent establishments, administrative agencies, and
instrumentalities of the United States and of the District of Columbia,
including corporations, all or substantially all of the stock of which
is beneficially owned by the United States, by the foregoing
departments, establishments, agencies, instrumentalities, and including
nonappropriated fund instrumentalities.
(h) The term contract means any prime contract which is subject
wholly or in part to the labor standards provisions of any of the acts
listed in Sec. 5.1 and any subcontract of any tier thereunder, let under
the prime contract. A State or local Government is not regarded as a
contractor under statutes providing loans, grants, or other Federal
assistance in situations where construction is performed by its own
employees. However, under statutes requiring payment of prevailing wages
to all laborers and mechanics employed on the assisted project, such as
the U.S. Housing Act of 1937, State and local recipients of Federal-aid
must pay these employees according to Davis-Bacon labor standards.
(i) The terms building or work generally include construction
activity as
distinguished from manufacturing, furnishing of materials, or servicing
and maintenance work. The terms include without limitation, buildings,
structures, and improvements of all types, such as bridges, dams,
plants, highways, parkways, streets, subways, tunnels, sewers, mains,
power lines, pumping stations, heavy generators, railways, airports,
terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties,
breakwaters, levees, canals, dredging, shoring, rehabilitation and
reactivation of plants, scaffolding, drilling, blasting, excavating,
clearing, and landscaping. The manufacture or furnishing of materials,
articles, supplies or equipment (whether or not a Federal or State
agency acquires title to such materials, articles, supplies, or
equipment during the course of the manufacture or furnishing, or owns
the materials from which they are manufactured or furnished) is not a
building or work within the meaning of the regulations in this part
unless conducted in connection with and at the site of such a building
or work as is described in the foregoing sentence, or under the United
States Housing Act of 1937 and the Housing Act of 1949 in the
construction or development of the project.
(j) The terms construction, prosecution, completion, or repair mean
the following:
(1) All types of work done on a particular building or work at the
site thereof, including work at a facility which is deemed a part of
the site of the work within the meaning of (paragraph (l) of this
section by laborers and mechanics employed by a construction contractor
or construction subcontractor (or, under the United States Housing Act
of 1937; the Housing Act of 1949; and the Native American Housing
Assistance and Self-Determination Act of 1996, all work done in the
construction or development of the project), including without
limitation--
(i) Altering, remodeling, installation (where appropriate) on the
site of the work of items fabricated off-site;
(ii) Painting and decorating;
(iii) Manufacturing or furnishing of materials, articles, supplies
or equipment on the site of the building or work (or, under the United
States Housing Act of 1937; the Housing Act of 1949; and the Native
American Housing Assistance and Self-Determination Act of 1996 in the
construction or development of the project);
(iv)(A) Transportation between the site of the work within the
meaning of paragraph (l)(1) of this section and a facility which is
dedicated to the construction of the building or work and deemed a part
of the site of the work within the meaning of paragraph (l)(2) of this
section; and
(B) Transportation of portion(s) of the building or work between a
site where a significant portion of such building or work is
constructed, which is a part of the site of the work within the meaning
of paragraph (l)(1) of this section, and the physical place or places
where the building or work will remain.
(2) Except for laborers and mechanics employed in the construction
or development of the project under the United States Housing Act of
1937; the Housing Act of 1949; and the Native American Housing
Assistance and Self-Determination Act of 1996, and except as provided
in paragraph (j)(1)(iv)(A) of this section, the transportation of
materials or supplies to or from the site of the work by employees of
the construction contractor or a construction subcontractor is not
``construction, prosecution, completion, or repair'' (see Building and
Construction Trades Department, AFL-CIO v. United States Department of
Labor Wage Appeals Board (Midway Excavators, Inc.), 932 F.2d 985 (D.C.
Cir. 1991)).
(k) The term public building or public work includes building or
work, the construction, prosecution, completion, or repair of which, as
defined above, is carried on directly by authority of or with funds of a
Federal agency to serve the interest of the general public regardless of
whether title thereof is in a Federal agency.
(l) The term site of the work is defined as follows:
(1) The site of the work is the physical place or places where the
building or work called for in the contract will remain; and any other
site where a significant portion of the building or work is
constructed, provided that such site is established specifically for
the performance of the contract or project;
(2) Except as provided in paragraph (l)(3) of this section, job
headquarters, tool yards, batch plants, borrow pits, etc., are part of
the site of the work, provided they are dedicated exclusively, or
nearly so, to performance of the contract or project, and provided they
are adjacent or virtually adjacent to the site of the work as defined
in paragraph (l)(1) of this section;
(3) Not included in the site of the work are permanent home
offices, branch plant establishments, fabrication plants, tool yards,
etc., of a contractor or subcontractor whose location and continuance
in operation are determined wholly without regard to a particular
Federal or federally assisted contract or project. In addition,
fabrication plants, batch plants, borrow pits, job headquarters, tool
yards, etc., of a commercial or material supplier, which are
established by a supplier of materials for the project before opening
of bids and not on the site of the work as stated in paragraph (l)(1)
of this section, are not included in the site of the work. Such
permanent, previously established facilities are not part of the site
of the work, even where the operations for a period of time may be
dedicated exclusively, or nearly so, to the performance of a contract.
(m) The term laborer or mechanic includes at least those workers
whose duties are manual or physical in nature (including those workers
who use tools or who are performing the work of a trade), as
distinguished from mental or managerial. The term laborer or mechanic
includes apprentices, trainees, helpers, and, in the case of contracts
subject to the Contract Work Hours and Safety Standards Act, watchmen or
guards. The term does not apply to workers whose duties are primarily
administrative, executive, or clerical, rather than manual. Persons
employed in a bona fide executive, administrative, or professional
capacity as defined in part 541 of this title are not deemed to be
laborers or mechanics. Working foremen who devote more than 20 percent
of their time during a workweek to mechanic or laborer duties, and who
do not meet the criteria of part 541, are laborers and mechanics for the
time so spent.
(n) The terms apprentice, trainee, and helper are defined as
follows:
(1) Apprentice means (i) a person employed 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 Bureau, or (ii) a person in the 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;
(2) Trainee means a person registered and receiving on-the-job
training in a construction occupation under a program which has been
approved in advance by the U.S. Department of Labor, Employment and
Training Administration, as meeting its standards for on-the-job
training programs and which has been so certified by that
Administration.
(3) These provisions do not apply to apprentices and trainees
employed on projects subject to 23 U.S.C. 113 who are enrolled in
programs which have been certified by the Secretary of Transportation in
accordance with 23 U.S.C. 113(c).
(4) A distinct classification of ``helper'' will be issued in wage
determinations applicable to work performed on construction projects
covered by the labor standards provisions of the Davis-Bacon and
Related Acts only where:
(i) The duties of the helper are clearly defined and distinct from
those of any other classification on the wage determination;
(ii) The use of such helpers is an established prevailing practice
in the area; and
(iii) The helper is not employed as a trainee in an informal
training program. A ``helper'' classification will be added to wage
determinations pursuant to Sec. 5.5(a)(1)(ii)(A) only where, in
addition, the work to be performed by the helper is not performed by a
classification in the wage determination.
(o) Every person performing the duties of a laborer or mechanic in
the construction, prosecution, completion, or repair of a public
building or public work, or building or work financed in whole or in
part by loans, grants, or guarantees from the United States is employed
regardless of any contractual relationship alleged to exist between the
contractor and such person.
(p) The term wages means the basic hourly rate of pay; any
contribution irrevocably made by a contractor or subcontractor to a
trustee or to a third person pursuant to a bona fide fringe benefit
fund, plan, or program; and the rate of costs to the contractor or
subcontractor which may be reasonably
anticipated in providing bona fide fringe benefits to laborers and
mechanics pursuant to an enforceable commitment to carry out a
financially responsible plan of program, which was communicated in
writing to the laborers and mechanics affected. The fringe benefits
enumerated in the Davis-Bacon Act include medical or hospital care,
pensions on retirement or death, compensation for injuries or illness
resulting from occupational activity, or insurance to provide any of the
foregoing; unemployment benefits; life insurance, disability insurance,
sickness insurance, or accident insurance; vacation or holiday pay;
defraying costs of apprenticeship or other similar programs; or other
bona fide fringe benefits. Fringe benefits do not include benefits
required by other Federal, State, or local law.
(q) The term wage determination includes the original decision and
any subsequent decisions modifying, superseding, correcting, or
otherwise changing the provisions of the original decision. The
application of the wage determination shall be in accordance with the
provisions of Sec. 1.6 of this title.
[48 FR 19541, Apr. 29, 1983, as amended at 48 FR 50313, Nov. 1, 1983; 55
FR 50149, Dec. 4, 1990; 57 FR 19206, May 4, 1992; 65 FR 69674, Nov. 20, 2000;
65 FR 80267, Dec. 20, 2000]
