[Federal Register: December 23, 2003 (Volume 68, Number 246)]
[Proposed Rules]
[Page 74403-74409]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23de03-30]
[[Page 74403]]
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Part V
Department of Defense
General Services Administration
National Aeronautics and Space Administration
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48 CFR Parts 22, 52, and 53
Federal Acquisition Regulation; Labor Standards for Contracts Involving
Construction; Proposed Rule
[[Page 74404]]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 22, 52, and 53
[FAR Case 2002-004]
RIN 9000-AJ79
Federal Acquisition Regulation; Labor Standards for Contracts
Involving Construction
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to implement the revised
definitions of ``Construction'' and ``site of the work'' in the
Department of Labor (DoL) regulations. In addition, the Councils are
proposing to clarify several definitions relating to labor standards
for contracts involving construction and make requirements for flow
down of labor clauses more precise.
DATES: Interested parties should submit comments in writing on or
before February 23, 2004, to be considered in the formulation of a
final rule.
ADDRESSES: Submit written comments to--General Services Administration,
FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, ATTN: Laurie
Duarte, Washington, DC 20405. Submit electronic comments via the
Internet to-- farcase.2002-004@gsa.gov. Please submit comments only and
cite FAR case 2002-004 in all correspondence related to this case.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755
for information pertaining to status or publication schedules. For
clarification of content, contact Ms. Linda Nelson, Procurement
Analyst, at (202) 501-1900. Please cite FAR case 2002-004.
SUPPLEMENTARY INFORMATION:
A. Background
The Department of Labor (DoL) published a final rule at 65 FR
80268, December 20, 2000, revising the terms ``construction,
prosecution, completion, or repair'' (29 CFR 5.2(j)) and ``site of the
work'' (29 CFR 5.2(l)). The DoL rule became effective on January 19,
2001. The DOL changes were made to conform the regulations with Federal
appellate court decisions and subsequent decisions of DoL's
Administrative Review Board regarding the transportation of supplies
and materials to or from the construction site. In addition, the DoL
rule revised the definition of the ``site of the work'' to include
secondary sites, other than the project's final resting place, which
have been established specifically for the performance of the Davis-
Bacon covered contract and at which a significant portion of the public
building or work called for by the contract is constructed. The
Councils propose revisions to the definitions of ``construction,
alteration, or repair'' and ``site of the work'' in 22.401, to reflect
the changes in the DoL regulations. A new provision at 52.222-XX,
Davis-Bacon Act--Secondary Site of the Work, is proposed to regulate
potential situations where an offeror intends to perform significant
portions of the building or work at a secondary site outside the
primary site of the work and for which the wage determination provided
by the Government for work at the primary site is not applicable.
The proposed revision to the Davis-Bacon Act clause at FAR 52.222-6
mandates that any subsequent incorporation to the contract of a wage
determination for a secondary site shall become retroactively effective
from the first day work under the contract was performed at that site,
without any adjustment in contract price or estimated cost. This is
based on the premise that secondary sites are initiatives of the
offeror that can be instituted before or after contract award. The
proposed rule also specifies that whenever there is transportation of
portions of the building or work between the secondary site and the
primary site of the work, the applicable wage determination that would
prevail shall be for the primary site of the work. This decision was
made in accordance with the DoL's administrative determination as
outlined in the Federal Register at 65 FR 80276.
The Councils also proposed to revise the Davis-Bacon Act clause to
establish that any wage determination for a secondary site shall be
posted both at the primary site of the work and at the secondary site
of the work. The Councils are proposing to include DoL's revised
definition of ``site of the work'' in the Davis-Bacon Act clause.
In addition, the Councils are proposing editorial changes to other
definitions in this section. Specifically, the definitions of
``apprentice'' and ``trainee'' have been listed separately in the
alphabetical list of definitions rather than as a subcategory of
``laborer and mechanic.'' Also the terms ``building or work'' and
``public building or public work'' have been combined into a single
term of ``building or work'' and ``public building or public work'' for
definitional purposes. No substantive change is intended with these
editorial changes.
The Councils propose revisions to the clause at 52.222-11,
Subcontracts (Labor Standards), to clarify that it flows down only to
subcontracts for construction within the United States, and that the
clause entitled ``Contract Work Hours and Safety Standards Act--
Overtime Compensation'' does not flow down unless included in the
contract. This change is necessary because the coverage threshold for
the Contract Work Hours and Safety Standards Act is $100,000 and the
threshold for the Davis-Bacon Act is $2,000. Thus for construction
contracts of $100,000 or less, the Contract Work Hours and Safety
Standards Act clause is not included in the contract and therefore
would not flow down to any subcontract. If the construction contract is
in excess of $100,000, then the clause flows down to subcontracts that
may require or involve the employment of laborers and mechanics
including watchmen and guards without regard to the value of the
subcontract. The clause at 52.222-4 is being revised to reflect this
principle.
The Councils have also proposed changes to the Standard Form 1413,
Statement and Acknowledgment, to require that the contractor state
whether its contract contains the clause entitled ``Contract Work Hours
and Safety Standards Act--Overtime Compensation,'' so that the
subcontractor certification will only cover this clause if the
contractor has indicated that the clause is in its contract. In
addition, the Councils have proposed corrections to two of the clause
titles and added to the list the clause entitled ``Compliance with
Davis-Bacon and Related Act Regulations,'' which is one of the clauses
for which certification is required (29 CFR 5.6(a)).
A correction is proposed to FAR 22.406-9(c). That section was
incorrectly changed by FAR Case 1999-003, published in the Federal
Register at 65 FR 46064, July 26, 2000, by redirecting the transfer of
withheld funds under the Davis-Bacon to the Secretary of the Treasury
instead of the Comptroller General of the General Accounting Office
(GAO). Section 3(a) of the Davis-Bacon Act specifically, provides that
``the Comptroller General of the United States is authorized and
directed to pay directly to laborers and mechanics from any accrued
payments
[[Page 74405]]
withheld under the terms of the contract any wages found to be due
laborers and mechanics pursuant to this Act.'' The proposed revision
would restore the appropriate FAR language to that which existed prior
to the aforementioned FAR case.
The Councils endorsed the proposal to selectively insert in FAR
parts 22.404-3 through 22.404-7, ``for the primary site of the work,''
to provide clarity when the requirements do not apply to the wage
determination for the secondary site of the work.
Finally, the Councils have proposed plain language changes to the
clause prescriptions at FAR 22.407, and the clause at 52.222-l1.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Councils do not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because this rule only implements DoL regulation or clarifies the
existing requirements. The Councils agree with the Department of
Labor's (DoL) December 20, 2000, determination that its regulation
would not have a significant economic impact on a substantial number of
small entities (see Federal Register at 65 FR 80277). DoL stated that
the rule primarily implements modifications resulting from court
decisions interpreting statutory language, which would reduce the
coverage of Davis-Bacon prevailing wage requirements as applied to
construction contractors and subcontractors, both large and small, on
Davis-Bacon and Related Act covered contracts. In addition, the rule
makes a limited amendment to the site of the work definition to address
an issue not contemplated under the current regulatory language--those
instances where significant portions of buildings or works may be
constructed at secondary sites which are not in the vicinity of the
project's final resting place. DoL believes that such instances will be
rare, and that any increased costs, which may arise on such projects,
would be offset by the savings due to the other limitations on coverage
provided by the rule. An Initial Regulatory Flexibility Analysis has,
therefore, not been performed. We invite comments from small businesses
and other interested parties. The Councils will consider comments from
small entities concerning the affected FAR parts 22, 52, and 53 in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 601, et seq. (FAR case
2002-004), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Pub. L. 104-13) applies, but the
Councils estimate that the current burden is unaffected by the
revisions to the form. The form is being revised for clarification. The
form (OMB Control Number 9000-0014) is currently approved by the Office
of Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 22, 52, and 53
Government procurement.
Dated: December 15, 2003.
Laura Auletta,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 22, 52,
and 53 as set forth below:
1. The authority citation for 48 CFR parts 22, 52, and 53 is
revised to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
2. Amend section 22.401 by--
a. Adding, in alphabetical order, the definitions ``Apprentice''
and ``Trainee'';
b. Removing from the first sentence of the definition ``Building or
work generally'' and removing from the third sentence ``building or
work'' and adding ``building or work'' in both places;
c. Revising the definitions ``Construction, alteration, or
repair'', ``Laborers or mechanics'' and ``Site of the work''; and
d. Amending the definition ``Public building or public work'' by
removing ``building or public work'' and adding ``building or public
work'' in its place.
The added and revised text reads as follows:
Sec. 22.401 Definitions.
* * * * *
Apprentice means a person--
(1) 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 (OATELS), or with a State
Apprenticeship Agency recognized by OATELS; or
(2) Who is in the first 90 days of probationary employment as an
apprentice in an apprenticeship program, and is not individually
registered in the program, but who has been certified by the OATELS or
a State Apprenticeship Agency (where appropriate) to be eligible for
probationary employment as an apprentice.
* * * * *
Construction, alteration, or repair means all types of work done by
laborers and mechanics employed by the construction contractor or
construction subcontractor on a particular building or work at the site
thereof, including without limitations--
(l) Altering, remodeling, installation (if appropriate) on the site
of the work of items fabricated off-site;
(2) Painting and decorating;
(3) Manufacturing or furnishing of materials, articles, supplies,
or equipment on the site of the building or work;
(4) Transportation of materials and supplies between the site of
the work within the meaning of paragraphs (l)(i) and (ii) of the ``site
of the work'' definition and a facility which is dedicated to the
construction of the building or work and is deemed part of the site of
the work within the meaning of paragraph (l)(iii) of the ``site of
work'' definition; and
(5) Transportation of portions of the building or work between a
secondary site where a significant portion of the building or work is
constructed, which is part of the ``site of the work'' definition in
paragraph (l)(ii), and the physical place or places where the building
or work will remain (paragraph (l)(i) in the ``site of the work''
definition).
Laborers or mechanics--(1) Means--
(i) Workers, utilized by a contractor or subcontractor at any tier,
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;
(ii) Apprentices, trainees, helpers, and, in the case of contracts
subject to the Contract Work Hours and Safety Standards Act, watchmen
and guards.
(iii) Working foremen who devote more than 20 percent of their time
during a workweek performing duties of a laborer or mechanic, and who
do not meet the criteria of 29 CFR part 541, for the time so spent; and
(iv) Every person performing the duties of a laborer or mechanic,
[[Page 74406]]
regardless of any contractual relationship alleged to exist between the
contractor and those individuals.
(2) Does not include workers whose duties are primarily executive,
supervisory (except as provided in paragraph (1)(iii) of this
definition), administrative, or clerical, rather than manual. Persons
employed in a bona fide executive, administrative, or professional
capacity as defined in 29 CFR part 541 are not deemed to be laborers or
mechanics.
* * * * *
Site of the work--(1) Means--
(i) The physical place or places where the construction called for
in the contract will remain when work on it is completed (primary site
of the work);
(ii) Any secondary 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; and
(iii) Except as provided in paragraph (2) of this definition,
fabrication plants, mobile factories, batch plants, borrow pits, job
headquarters, tool yards, etc., 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 paragraphs (1)(i) or (ii) of this definition;
(2) Does not include permanent home offices, branch plant
establishments, fabrication plants, or tool yards of a contractor or
subcontractor whose locations and continuance in operation are
determined wholly without regard to a particular Federal contract or
project. In addition, fabrication plants, batch plants, borrow pits,
job headquarters, 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 project site, are not included in the
``site of the work.'' Such permanent, previously established facilities
are not a part of the ``site of the work'', even if the operations for
a period of time may be dedicated exclusively, or nearly so, to the
performance of a contract.
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. Amend section 22.404-3 by revising paragraph (c) to read as
follows:
22.404-3 Procedures for requesting wage determinations.
* * * * *
(c) Time for submission of requests. (1) The time required by the
Department of Labor for processing requests for project wage
determinations varies according to the facts and circumstances in each
case. An agency should expect the processing to take at least 30 days.
Accordingly, agencies should submit requests for project wage
determinations for the primary site of the work to the Department of
Labor at least 45 days (60 days if possible) before issuing the
solicitation or exercising an option to extend the term of a contract.
(2) Agencies should promptly submit to the Department of Labor an
offeror's request for a project wage determination for a secondary site
of the work. The Contracting Officer shall not extend the due date for
receipt of offers as a result of such a request.
* * * * *
22.404-4 [Amended]
4. Amend section 22.404-4 by revising the section heading as set
forth below; and amending paragraphs (a), (b), and (c) by adding ``for
the primary site of the work'' after determination'' each time it
appears.
22.404-4 Solicitations issued without wage determinations for the
primary site of the work.
* * * * *
5. Amend section 22.404-5 by--
a. Revising the first sentence of paragraphs (b)(1), (b)(2)
introductory text, and (b)(2)(i);
b. Revising paragraph (b)(2)(ii);
c. Revising the first sentence of paragraphs (c)(2) and (c)(3); and
d. Revising paragraph (c)(4).
The revised text reads as follows:
22.404-5 Expiration of project wage determinations.
* * * * *
(b) * * *
(1) If a project wage determination for the primary site of the
work expires before bid opening, or if it appears before bid opening
that a project wage determination may expire before award, the
contracting officer shall request a new determination early enough to
ensure its receipt before bid opening. * * *
(2) If a project wage determination for the primary site of the
work expires after bid opening but before award, the contracting
officer shall request an extension of the project wage determination
expiration date from the Administrator, Wage and Hour Division. * * *
(i) If the new determination for the primary site of the work
changes any wage rates for classifications to be used in the contract,
the contracting officer may cancel the solicitation only in accordance
with 14.404-1. * * *
(ii) If the new determination for the primary site of the work does
not change any wage rates, the contracting officer shall award the
contract and modify it to include the number and date of the new
determination. (See 43.103(b)(1).)
(c) * * *
(2) The contracting officer need not delay opening and reviewing
proposals or discussing them with the offerors while a new
determination for the primary site of the work is being obtained. * * *
(3) If the new determination for the primary site of the work
changes any wage rates, the contracting officer shall amend the
solicitation to incorporate the new determination, and furnish the wage
rate information to all prospective offerors that were sent a
solicitation if the closing date for receipt of proposals has not yet
occurred, or to all offerors that submitted proposals if the closing
date has passed. * * *
(4) If the new determination for the primary site of the work does
not change any wage rates, the contracting officer shall amend the
solicitation to include the number and date of the new determination
and award the contract.
6. Amend section 22.404-6 by revising the second sentence of
paragraph (a)(2), the first sentence of paragraph (a)(3), the first
sentence of paragraph (b)(3), and paragraph (b)(4) to read as follows:
22.404-6 Modifications of wage determinations.
(a) * * *
(2) * * * The need to include a modification of a project wage
determination for the primary site of the work in a solicitation is
determined by the time of receipt of the modification by the
contracting agency. * * *
(3) The need for inclusion of the modification of a general wage
determination for the primary site of the work in a solicitation is
determined by the publication date of the notice in the Federal
Register, or by the time of receipt of the modification (annotated with
the date and time immediately upon receipt) by the contracting agency,
whichever occurs first. * * *
(b) * * *
(3) If an effective modification of the wage determination for the
primary site of the work is received by the contracting officer before
bid opening, the contracting officer shall postpone
[[Page 74407]]
the bid opening, if necessary, to allow a reasonable time to amend the
solicitation to incorporate the modification and permit bidders to
amend their bids. * * *
(4) If an effective modification of the wage determination for the
primary site of the work is received by the contracting officer after
bid opening, but before award, the contracting officer shall follow the
procedures in 22.404-5(b)(2)(i) or (ii).
* * * * *
22.404-8 [Amended]
7. Amend section 22.404-8 in paragraphs (b)(1) introductory text,
(b)(2), and (c) by adding ``of an improper wage determination for the
primary site'' after ``notification''.
22.406-9 [Amended]
8. Amend section 22.406-9 by--
a. Removing from the first sentence of paragraph (c)(1) ``Secretary
of the Treasury'' and adding ``Comptroller General'' in its place and
removing from the last sentence of paragraph (c)(1) ``Secretary of the
Treasury'' and adding ``Comptroller General (Claims Section)'' in its
place; and
b. Removing from paragraph (c)(3) ``Secretary of the Treasury'' and
adding ``Comptroller General'' in its place.
9. Amend section 22.407 by--
a. Revising the heading and removing from the introductory text of
paragraph (a) ``The contracting officer shall insert'' and adding
``Insert'' in its place;
b. Removing from paragraphs (a)(1) through (a)(10) ``The clause
at'';
c. Removing from paragraph (b) ``The contracting officer shall
insert'' and adding ``Insert'' in its place;
d. Removing from paragraph (c) ``the contracting officer shall'';
e. Removing from paragraph (d) ``The contracting shall insert'' and
adding ``Insert'' in its place; and
f. Adding paragraph (h) to read as follows:
22.407 Solicitation Provision and Contract clauses.
* * * * *
(h) Insert the provision at 52.222-XX, Davis Bacon Act--Secondary
Site of the Work, in solicitations in excess of $2,000 for construction
within the United States.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
10. Amend section 52.222-4 by revising the date of the clause and
paragraph (e) to read as follows:
52.222-4 Contract Work Hours and Safety Standards Act-- Overtime
Compensation.
* * * * *
Contract Work Hours and Safety Standards Act--Overtime Compensation
(Date)
* * * * *
(e) Subcontracts. The Contractor shall insert the provisions set
forth in paragraphs (a) through (d) of this clause in subcontracts
that may require or involve the employment of laborers and mechanics
including watchmen and guards and require subcontractors to include
these provisions in any such lower tier subcontracts. The Contractor
shall be responsible for compliance by any subcontractor or lower-
tier subcontractor with the provisions set forth in paragraphs (a)
through (d) of this clause.
(End of clause)
11. Amend section 52.222-6 by--
a. Revising the date of the clause;
b. Redesignating paragraphs (a) through (d) as paragraphs (b)
through (e);
c. Adding a new paragraph (a);
d. Revising the newly designated paragraph (b); and
e. Removing from the newly designated paragraph (c)(4) ``(b)(2)''
and ``(b)(3)'' and adding ``(c)(2)'' and ``(c)(3)'' in their places,
respectively.
The revised and added text reads as follows:
52.222-6 Davis-Bacon Act.
* * * * *
Davis-Bacon Act (Date)
(a) Definition--Site of the work--(1) Means--
(i) The physical place or places where the construction called
for in the contract will remain when work on it is completed
(primary site of the work);
(ii) Any secondary 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; and
(iii) Except as provided in paragraph (2) of this definition,
fabrication plants, mobile factories, batch plants, borrow pits, job
headquarters, tool years, etc., 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 (1)(i) or (ii) of this
definition;
(2) Does not include permanent home offices, branch plant
establishments, fabrication plants, or tool yards of a Contractor or
subcontractor whose locations and continuance in operation are
determined wholly without regard to a particular Federal Contractor
project. In addition, fabrication plants, batch plants, borrow pits,
job headquarters, yards, etc., of a commercial material supplier
which are established by a supplier of materials for the project
before opening of bids and not on the site are not included in the
``site of the work.'' Such permanent, previously established
facilities are not a part of the ``site of the work'' even if the
operations for a period of time may be dedicated exclusively or
nearly so, to the performance of a contract.
(b)(1) All laborers and mechanics employed or working upon the
site of the work 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, or as may be subsequently incorporated for a
secondary site of the work, regardless of any contractual
relationship which may be alleged to exist between the Contractor
and such laborers and mechanics. Any wage determination subsequently
incorporated for a secondary site of the work shall be effective
from the first day on which work under the contract was performed at
that site and shall be incorporated without any adjustment in
contract price or estimated cost. Laborers employed by the
construction Contractor or construction subcontractor that are
transporting portions of the building or work between the secondary
site of the work and the primary site of the work shall be paid in
accordance with the wage determination applicable to the primary
site of the work.
(2) 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 (e) of
this clause; 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 period.
(3) Such laborers and mechanics shall be paid not less than the
appropriate wage rate and fringe benefits in the wage determination
for the classification of work actually performed, without regard to
skill, except as provided in the clause entitled Apprentices and
Trainees. 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.
(4) The wage determination applicable to the respective site of
the work (including any additional classifications and wage rates
conformed under paragraph (c) of this clause) and the Davis-Bacon
poster (WH-1321) shall be posted at all times by the Contractor and
its subcontractors at the primary site of the work and the secondary
site of the work, if any, in a prominent and accessible place where
it can be easily seen by the workers.
* * * * *
12. Amend section 52.222-9 by revising the date of the clause and
paragraph (a) to read as follows:
52.222-9 Apprentices and Trainees.
* * * * *
[[Page 74408]]
Apprentices and Trainees (Date)
(a) Apprentices--(1) An apprentice will be permitted to work at
less than the predetermined rate for the work performed when
employed--
(i) 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 (OATELS) or with a State
Apprenticeship Agency recognized by the OATELS; or
(ii) In the first 90 days of probationary employment as an
apprentice in such an apprenticeship program, even though not
individually registered in the program, if certified by the OATELS
or a State Apprenticeship Agency (where appropriate) to be eligible
for probationary employment as an apprentice.
(2) 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.
(3) Any worker listed on a payroll at an apprentice wage rate,
who is not registered or otherwise employed as stated in paragraph
(a)(1) of this clause, shall be paid not less than the applicable
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.
(4) 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 journeyman hourly rate specified in the
applicable wage determination.
(5) 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.
(6) In the event OATELS, or a State Apprenticeship Agency
recognized by OATELS, 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.
* * * * *
13. Revise section 52.222-11 to read as follows:
52.222-11 Subcontracts (Labor Standards).
As prescribed in 22.407(a), insert the following clause:
Subcontracts (Labor Standards) (Date)
(a) Definition. Construction, alteration or repair, as used in
this clause, means all types of work done by laborers and mechanics
employed by the construction Contractor or construction
subcontractor on a particular building or work at the site thereof,
including without limitation--
(1) Altering, remodeling, installation (if appropriate) on the
site of the work of items fabricated off-site;
(2) Painting and decorating;
(3) Manufacturing or furnishing of materials, articles,
supplies, or equipment on the site of the building or work;
(4) Transportation of materials and supplies between the site of
the work within the meaning of paragraphs (1)(i) and (ii) of the
``site of the work'' definition and a facility which is dedicated to
the construction of the building or work and is deemed part of the
site of the work within the meaning of paragraph (1)(iii) of the
``site of work'' definition; and
(5) Transportation of portions of the building or work between a
secondary site where a significant portion of the building or work
is constructed, which is part of the ``site of the work'' definition
in paragraph (1)(ii), and the physical place or places where the
building or work will remain (paragraph (1)(i) in the ``site of the
work'' definition).
(b) The Contractor shall insert in any subcontracts for
construction, alterations and repairs within the United States the
clauses entitled--
(1) Davis-Bacon Act;
(2) Contract Work Hours and Safety Standards Act--Overtime
Compensation (if the clause is included in this contract);
(3) Apprentices and Trainees;
(4) Payrolls and Basic Records;
(5) Compliance with Copeland Act Requirements;
(6) Withholding of Funds;
(7) Subcontracts (Labor Standards);
(8) Contract Termination--Debarment;
(9) Disputes Concerning Labor Standards;
(10) Compliance with Davis-Bacon and Related Act Regulations;
and
(11) Certification of Eligibility.
(c) The prime Contractor shall be responsible for compliance by
any subcontractor or lower tier subcontractor performing
construction within the United States with all the contract clauses
cited in this paragraph.
(d)(1) Within 14 days after award of the contract, the
Contractor shall deliver to the Contracting Officer a completed
Statement and Acknowledgment Form (SF 1413) for each subcontract for
construction within the United States, including the subcontractor's
signed and dated acknowledgment that the clauses set forth in
paragraph (a) of this clause have been included in the subcontract.
(2) Within 14 days after the award of any subsequently awarded
subcontract the Contractor shall deliver to the Contracting Officer
an updated completed SF 1413 for such additional subcontract.
(e) The Contractor shall insert the substance of this clause,
including this paragraph (e) in all subcontracts for construction
within the United States.
(End of clause)
52.222-41 [Amended]
14. Amend section 52.222-41 in paragraph (r) by removing ``Bureau
of Apprenticeship and Training, Employment and Training
Administration'' and adding ``Office of Apprenticeship Training,
Employer, and Labor Services (OATELS)'' in its place.
15. Add provision 52.222-XX to read as follows:
52.222-XX Davis-Bacon Act--Secondary Site of the Work.
As prescribed in 22.407(h), insert the following provision:
Davis-Bacon Act--Secondary Site of the Work (Date)
(a) The offeror shall notify the Government if--
(1) The offeror intends to perform work at any secondary site,
as defined in paragraph (a)(1)(ii) of the Davis-Bacon Act clause of
this solicitation; and
(2) The Davis-Bacon Act is applicable to the work at any
secondary site.
(b) If the wage determination provided by the Government for
work at the primary place of performance is not applicable to the
secondary site(s), the offeror shall--
(1) Obtain a general wage determination for the secondary site
via the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.xxx, provide it to the Government for
inclusion in any subsequent contract; or
(2) If a general wage determination is not available for the
secondary site, request the Contracting Officer to obtain a project
wage determination from the Department of Labor. The offeror should
request the project wage determination for the secondary site as
soon as possible. The due date for receipt of offers will not be
extended as a result of an offeror's request for a project wage
determination for a secondary site of the work.
(End of provision)
PART 53--FORMS
53.222 [Amended]
16. Amend section 53.222 in paragraph (e) by removing ``(Rev 6/
89)'' and adding ``(Date)'' in its place, and removing the last
sentence.
17. Amend section 53.301-1413 by revising the form to read as
follows:
52.301-1413 Statement and Acknowledgement.
BILLING CODE 6820-EP-P
[[Page 74409]]
[GRAPHIC] [TIFF OMITTED] TP23DE03.093
[FR Doc. 03-31232 Filed 12-22-03; 8:45 am]