## Change Request Number: 00-70 Date Received: 8/1/00

**Title: Replace Term "Handicap"**

# NAME: Elizabeth Moore

BRANCH: ASU-140

PHONE: 267-8870

TYPE OF CHANGE REQUEST: Guidance

DESCRIPTION OF REQUEST: These changes would replace the words "handicap"
and "handicapped" with the words "disability" and "disabled" in various
portions of the AMS.

REASON FOR CHANGE: The word "handicap" and "handicapped" are considered
derogatory terms for disabled people.

EXTENT OF DEVELOPMENT & REVIEW: These changes in wording have been
initiated by ASU-140 and concurred with by ASU-110.

TARGET AUDIENCE: No one specifically; it would be an awareness item for
all readers.

APPROVAL LEVELS OBTAINED: N/A

BUDGET IMPACT: N/A

POTENTIAL FAST LINKS: Real estate space guidance refers to the Uniform
Federal Accessibility Standards (11. Negotiation n.). It would be great
to great a link to the Access Board so that the reader could have those
standards in front of them when reading this section. The link is
http://www.access-board.gov/

ATTACHMENTS: Language of change.

### Briefing Planned: No

**ASAG Responsibilities: None**

  ----------------------- -------------------------------------------------------- --------------------
                          Issue Date (revision): September2000 (rev. 3)            

  [Section]{.underline}   [Topics in the Section]{.underline}                      [Page]{.underline}

  **A**                   **Labor-Related Laws**                                   1

  1                       General                                                  1

  2                       Contract Work Hours and Safety Standards Act             4

  3                       Construction Contracts/Davis-Bacon Act                   5

  4                       Procedures for Construction Contracts                    9

  5                       Walsh-Healey Public Contracts Act                        17

  6                       Fair Labor Standards Act                                 24

  7                       Service Contracts/Service Contract Act                   24

  8                       Procedures for Service Contracts                         26

  9                       SCA Blanket Wage Determinations                          34

  10                      Professional Employee Compensation                       35

  11                      Dismantling, Demolition, or Removal of Improvements      35

  12                      Convict Labor                                            35

  13                      Equal Employment Opportunity ~Revised\ 11/1999~          36

  14                      Special Disabled and Vietnam Era Veterans                38

  15                      Employment of the Disabled                               40

  **B**                   **Clauses**                                              41

  **C**                   **Forms**                                                41

  **D**                   **Attachment**                                           41
  ----------------------- -------------------------------------------------------- --------------------

**A. LABOR-RELATED LAWS**

**1. GENERAL**

a\. The FAA remains subject to acquisition-specific and general labor
laws and applicable implementing regulations.

b\. The FAA is responsible for ensuring full and impartial
administration of labor standards in contracts, and for ensuring
contractors and subcontractors are informed of their obligations under
labor standards.

c\. Integrated product teams (IPTs) should:

\(1\) Maintain sound relations with industry and labor, and show no
preference for either union or non-union contractors.

\(2\) Remain impartial concerning any dispute between labor and
contractor management and should not attempt conciliation, mediation, or
arbitration of a labor dispute. IPTs should notify the agency
responsible for conciliation, mediation, arbitration, e.g. the National
Labor Relations Board, of a potential or actual labor dispute affecting,
or threatening to affect, FAA programs.

\(3\) When appropriate, require contractors to notify the FAA of
potential or actual labor disputes that could, or will, delay contract
performance.

d\. *Labor Disputes Causing Strikes or Delays.*

\(1\) Labor disputes may cause strikes or delays which delay contract
performance. Contractors are responsible for any reasonably avoidable
delays in performance. However, a delay caused by a strike may be
excusable if the strike was unforseeable at time of award and the
contractor or its subcontractors acted in good faith, diligently, and in
a lawful manner to end the strike, such as seeking injunctive relief in
court or engaging in private mediation or arbitration.

\(2\) IPT's should determine whether it is in the FAA's interest to
remove products or materials from facilities in which the contractor is
unable to deliver because of the strike. Two main factors to be
considered are the criticality of need and the possibility/practicality
of performance by another source. The Contracting Officer, after
consulting with legal counsel, should first notify the contractor in
writing to request removal of the products or materials from the
facility.

\(a\) If the contractor agrees, and FAA personnel remove the items,
extreme care should be taken to avoid the use or appearance of force and
prevent incidents that might detrimentally affect labor-management
relations.

\(b\) If the contractor disagrees, and the items are still critical, the
IPT should seek advice from legal counsel on the next action to be
taken.

e\. *Referral to Department of Labor.*

\(1\) The IPT should promptly refer, in writing, the following to the
Department of Labor (DOL):

\(a\) Complaints alleging violations of labor-related laws;

\(b\) Apparent violations which have a significant impact;

\(c\) Any recurring violations; and

\(d\) Any failures to promptly correct identified violations.

\(2\) The Contracting Officer should seek advice from DOL when there is
a question of whether a contractor\'s actions violate a labor-related
law. Additionally, the Contracting Officer should not directly discuss
with the contractor any employee complaints received.

f\. *Overtime.* For cost-type (excluding incentive fee), time and
materials, and labor hour contracts, the Contracting Officer should
determine the extent an offer is based on the payment of overtime and
shift premiums, and negotiate contracts without the use of overtime or
premiums. However, overtime may be occasionally necessary to meet urgent
or unforeseen program needs. In those instances, the contractor should
be required to submit requests for overtime in advance of incurring the
cost for overtime. The Contracting Officer should review and approve
contractor requests for overtime. Approval of overtime should be
prospective, but if justified by emergency circumstances, approval may
be retroactive.

g\. *Department of Labor Implementing Regulations.*

\(1\) Pertinent acquisition-related labor laws are implemented in
detailed regulations promulgated by DOL at Titles 29 and 41 of the Code
of Federal Regulations (CFR) summarized as follows. Additional
information may be obtained from the DOL web site at
http://www.dol.gov/.

\(a\) Davis-Bacon Act (29 CFR Parts 1, 5, 6, and 7)

\(b\) Copeland Anti-Kickback Act (29 CFR Parts 3, 5, 6, and 7)

\(c\) Contract Work Hours and Safety Standards Act (29 CFR Parts 5, 6,
and 7)

\(d\) Walsh-Healey Public Contracts Act (41 CFR Chapter 50)

\(e\) Fair Labor Standards Act (29 CFR Chapter V, Parts 500 - 794)

\(f\) Service Contract Act (29 CFR Parts 4, 6, 8, 541, and 1925)

\(g\) Equal Employment Opportunity Act (41 CFR Chapter 60)

\(h\) Special Disabled and Vietnam Era Veterans (41 CFR Chapter 60)

\(i\) Employment of the Disabled (41 CFR Chapter 60)

\(j\) Occupational Safety and Health Act (29 CFR Parts 6 and 1925; 41
CFR Chapter 50)

\(2\) DOL also promulgates "All Agency Memoranda" which provide
interpretations and explanations of various labor-related laws and
regulations.

\(3\) *Variations, Tolerances, and Exemptions*. The Secretary of Labor,
or designee if applicable, may make variations, tolerances, and
exemptions from many regulatory requirements if such action is necessary
and proper in the public interest or to prevent injustice and undue
hardship. When applicable, DOL implementing regulations prescribe
procedures for requesting variations, and tolerances, and exemptions
(exemption procedures are summarized in sections that follow).

**2. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT**

a\. The Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333)
applies to all contracts that may require or involve laborers or
mechanics (the term "laborers or mechanics" includes apprentices,
trainees, helpers, watchmen, guards, firefighters, fireguards, and
workmen who perform services in connection with dredging or rock
excavation in rivers or harbors, but does not include seaman). The
Contract Work Hours and Safety Standards Act (CWHSSA) requires that
laborers or mechanics cannot be required, or permitted, to work more
than 40 hours in any workweek unless paid overtime at not less than 1
1/2 times the basic rate of pay.

b\. *Liquidated Damages and Overtime Pay.*

\(1\) When overtime computations disclose under-payments, the contractor
and any subcontractor is liable to the affected employee for the
employee\'s unpaid wages and is also liable to the Government for
liquidated damages. The Contracting Officer will compute liquidated
damages for each affected employee in the sum of \$10 for each calendar
day that the employee was required, or permitted, to work in excess of
the standard workweek of 40 hours without payment of overtime.

\(2\) If the contractor or any subcontractor fails or refuses to comply
with overtime pay requirements and if the funds withheld by the FAA for
labor standards violations are not sufficient to pay both the unpaid
wages and the liquidated damages, the withheld funds will be used first
to pay unpaid wages (or an equitable portion when the funds are not
adequate for this purpose); and the balance, if any, used to pay
liquidated damages.

\(3\) If the liquidated damages computation was incorrect or if the
contractor or subcontractor inadvertently violated the provisions of the
CHWSSA, the Contracting Officer may:

\(a\) Make an adjustment in, or release the contractor or subcontractor
from the liability for, liquidated damages of \$500 or less; or

\(b\) Make a recommendation to DOL for an adjustment in, or release
from, the liability when the liquidated damages are over \$500.

\(4\) If the contractor is entitled to funds withheld or collected for
liquidated damages, the Contracting Officer should instruct the
cognizant accounting office to pay the contractor the amount due. If the
FAA is entitled to retain the funds, the Contracting Officer should
obtain instructions from the cognizant accounting office.

c\. *Administration and Enforcement.* The same procedures and reports
required for construction contract labor standards also apply to
investigations of alleged violations of the CHWSSA when the contract is
for other than a construction.

**3. CONSTRUCTION CONTRACTS/DAVIS-BACON ACT**

a\. *Davis-Bacon Act.* The Davis Bacon Act (40 U.S.C. 276a-278a-7)
provides that contracts of \$2,000 or more to which the U.S. or the
District of Columbia are a party for construction, alteration, or repair
(including painting and decorating) of public buildings or public works
within the U.S., will require that no laborer or mechanic employed
directly upon the site of the work will receive less than the prevailing
wage rates as determined by DOL.

b\. *Related Laws.*

\(1\) The Copeland (\"Anti-Kickback\") Act (18 U.S.C. 874 and 40 U.S.C.
276c) makes it unlawful to induce, by force, intimidation, threat of
dismissal, or otherwise, any person employed in the construction or
repair of public buildings or public works, to give up any part of the
compensation to which the person is entitled under a contract of
employment. Contracts subject to the Copeland Act will include a clause
requiring contractors and subcontractors to comply with regulations
issued by DOL. Additionally, the Copeland Act requires each contractor
or subcontractor to furnish weekly statements of compliance regarding
wages paid to each employee.

\(2\) The Contract Work Hours and Safety Standards Act applies to
construction contracts involving laborers or mechanics.

c\. *Applicability.*

\(1\) The Davis-Bacon Act and related laws apply to:

\(a\) Construction work to be performed by laborers and mechanics on a
public building or public work site;

\(b\) Dismantling, demolition, or removal of improvements if
construction at that site is anticipated under the same or a separate
contract;

\(c\) Manufacture or fabrication of construction materials and
components to be incorporated into the work when manufacture or
fabrication is performed at the construction site;

\(d\) Painting of public buildings or public works, whether performed in
connection with the original construction or as alteration or repair of
an existing structure; and

\(e\) Hazardous waste cleanup contracts that require elaborate
landscaping activities or substantial excavation and reclamation work
(see DOL Memorandum No. 155, March 25, 1991).

\(2\) Davis-Bacon Act and related laws do not apply to:

\(a\) The manufacturing or fabrication of components or materials off
the construction site, or their subsequent delivery to the site by the
manufacturer or fabricator, unless the manufacturing or fabrication
facility is operated solely in support of the construction project;

\(b\) Contracts requiring construction work that is so closely related
to research, experiment, and development that it cannot be performed
separately, or that is itself the subject of research, experiment, or
development;

\(c\) Employees of railroads operating under collective bargaining
agreements that are subject to the Railway Labor Act; or

\(d\) Employees who work at the contractors\' or subcontractors\'
permanent home offices, fabrication shops, or tool yards not located at
the site of the work. However, when employees go to the work site and
perform construction activities there, the requirements of the
Davis-Bacon Act and related laws are applicable for the actual time so
spent, not including travel unless the employees transport materials or
supplies to and from the site of the work.

d\. *Non-construction Contracts Involving Some Construction*.

\(1\) The Davis-Bacon Act and related laws apply to construction work to
be performed as part of contracts other than construction (supply,
service, research and development, etc.) if:

\(a\) The construction work is to be performed on a public building or
public work;

\(b\) The contract contains a substantial amount of construction work
exceeding \$2,000 in value (the word \"substantial\" relates to the
construction work considered on its own rather than merely a value
comparison of the construction work as compared to the total value of
the contract); and

\(c\) The construction work is physically or functionally separate from,
and is capable of being performed on a segregated basis from, the other
work required by the contract.

\(2\) The Davis-Bacon Act and related laws do not apply if:

\(a\) The construction work is incidental to the furnishing of supplies,
equipment, or services; and

\(b\) The construction work is so merged with non-construction work, or
so fragmented in terms of the locations or time spans within which it is
to be performed, that it cannot be segregated as a separate contractual
requirement.

e\. *Definitions*.

\(1\) "Building" or "work," generally means 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,
powerlines, pumping stations, heavy generators, railways, airports,
terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties,
breakwaters, levees, canals, dredging shoring rehabilitation and
activation 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
"building" or "work" unless conducted in connection with and at the site
of such building or work as 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.

\(2\) "Construction, alteration, or repair," means all types of work
done on a particular building or work at the site thereof, including
without limitation, altering, remodeling, installation (if appropriate)
on the site of the work of items fabricated off-site, painting and
decorating, the transporting of materials and supplies to or from the
building or work by the employees of the construction contractor or
construction subcontractor, and the manufacturing or furnishing of
materials, articles, supplies or equipment of the site of the building
or work by persons employed by the contractor or subcontractor.

\(3\) \"Laborers or mechanics\" includes:

\(a\) Those workers, utilized by a contractor or subcontractor at any
tier, whose duties are manual or physical in nature, as distinguished
from mental or managerial;

\(b\) Apprentices, trainees, helpers, and in the case of contracts
subject to the Contract Work Hours and Safety Standards Act, watchmen
and guards;

\(c\) 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

\(d\) Every person performing the duties of a laborer or mechanic,
regardless of any contractual relationship alleged to exist between the
contractor and those individuals. The terms exclude workers whose duties
are primarily executive, supervisory, (except as provided in this
section) 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.

\(4\) \"Public building\" or \"public work,\" means building or work,
the construction, prosecution, completion, or repair of which, as
defined in this section, 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.

\(5\) \"Site of the work,\" is defined as follows:

\(a\) The \"site of the work\" is limited to the physical place or
places where the construction called for in the contract will remain
when work on it is completed, and nearby property, as described in
subparagraph (5)(b) below, used by the contractor or subcontractor
during construction that, because of proximity, can reasonably be
included in the \"site.\"

\(b\) Except as provided in subparagraph (5)(c) below, fabrication
plants, mobile factories, batch plants, borrow pits, job headquarters,
tool yards, etc., are parts of the \"site of the work\"; provided they
are dedicated exclusively, or nearly so, to performance of the contract
or project, and are so located in proximity to the actual construction
location that it would be reasonable to include them.

\(c\) The \"site of work\" 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 vendor or
material handler which are established by a vendor of materials for the
project before proposal are received and are not on the project site,
are not included in the \"site of work.\" Such permanent,
previously‑established facilities are not a part of the \"site of the
work,\" even if their operations may for a period of time, be dedicated
exclusively, or nearly so, to the performance of a contract.

\(6\) "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 or 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.

\(7\) "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, Bureau
of Apprenticeship and Training, 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 as
been certified by the Bureau of Apprenticeship and Training or a State
Apprenticeship Agency (where appropriate) to be eligible for
probationary employment as an apprentice.

\(8\) "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.

**4. Procedures for Construction Contracts**

a\. *Davis‑Bacon Act Wage Determinations*.

\(1\) DOL is responsible for issuing wage rate determinations for
construction reflecting prevailing wage and fringe benefits. The wage
determinations apply to those laborers and mechanics employed by a
contractor at the site of the work, including drivers who transport
materials and equipment to and from the site. Wage determinations are
issued for different types of construction, such as building, heavy,
highway, and residential (referred to as rate schedules), and apply only
to the types of construction designated in the determination.

\(a\) *General Wage Determination.* General wage determinations contain
prevailing wage rates for the types of construction designated in the
determination, and are used in contracts performed within a specified
geographical area. They contain no expiration date and remain valid
until modified, superseded, or canceled by a notice in the Federal
Register by DOL. Once incorporated in a contract, a wage determination
normally remains effective for the life of the contract. Modifications
which may be issued do not apply to ongoing contracts unless
specifically directed by DOL.

\(i\) *Written Media*. Determinations are published weekly in the
Government Printing Office (GPO) document titled \"General Wage
Determinations Issued Under the Davis-Bacon and Related Acts.\" Notices
of General Wage Determinations are published by DOL in the Federal
Register. On or about January 1 of each year, DOL will issue an annual
edition of general wage determinations (divided into 3 volumes\--east,
central, and west) which contains all current general wage
determinations. Subscriptions, which includes updates throughout the
year, may be obtained through the Superintendent of Documents,
Government Printing Office, Washington DC 20402.

\(ii\) *Electronic Media*. General wage determinations are also
available on-line, by subscription, from the U.S. Department of
Commerce, National Technical Information Service, Springfield, VA 22161,
(703) 487-4630.

\(2\) *Project Wage Determination.* When a general wage determination
does not exist for a particular area, DOL will issue a project wage
determination if requested by the Contracting Officer. A project wage
determination is effective for 180 days and applies to specific
contracts within that time period. Once incorporated into the contract,
a project wage determination remains effective for the life of the
contract unless directed otherwise by DOL.

b\. *General Requirements*.

\(1\) The Contracting Officer should ensure that only the appropriate
wage determinations are incorporated in screening information requests
(SIR's) and contracts. When multiple sites are included, or only a
portion of the contract is for construction, the Contracting Officer
should indicate the work to which each wage determination or part
thereof applies.

\(2\) If the wage determination contains more than one rate schedule,
the Contracting Officer should either include only the rate schedules
that apply to the specific types of construction (building, heavy,
highway, etc.) or include the entire wage determination and clearly
indicate the parts of the work to which each rate schedule should be
applied.

\(3\) The Contracting Officer should use the following general
guidelines in selecting the proper schedule(s) of wage rates:

\(a\) *Building* construction is generally the construction of sheltered
enclosures with walk‑in access, machinery, equipment, or supplies. It
typically includes all construction of such structures, installation of
utilities and equipment (both above and below grade level), as well as
incidental grading, utilities and paving, unless there is an established
area practice to the contrary.

\(b\) *Residential* construction is generally the construction,
alteration, or repair of single-family houses or apartment buildings of
no more than four stories in height, and typically includes incidental
items such as site work, parking areas, utilities, streets and
sidewalks, unless there is an established area practice to the contrary.

\(c\) *Highway* construction is generally the construction, alteration,
or repair of roads, streets, highways, runways, taxiways, alleys,
parking areas, and other similar projects that are not incidental to
"building," "residential," or "heavy" construction.

\(d\) *Heavy* construction includes those projects that are not properly
classified as either "building," "residential," or "highway," and is of
a catch‑all nature. Construction of FAA substations, transmission lines
and access roads. Such heavy projects may sometimes be distinguished on
the basis of their individual characteristics, and separate schedules
issued (e.g., "dredging," "water and sewer line", "dams," "flood
control," etc.).

\(e\) When the nature of a project is not clear, it is necessary to look
at additional factors, with primary consideration given to
locally-established area practices. If there is any doubt as to the
proper application of wage rate schedules to the type or types of
construction involved, the Contracting Officer should contact DOL for
guidance (further examples are contained in DOL Memoranda Numbers 130
and 131).

c\. *Requesting Wage Determinations.*

\(1\) *General Wage Determination.* The Contracting Officer may
incorporate general wage determinations without notifying DOL.

\(2\) *Project Wage Determination.* To request a project wage
determination, the Contracting Officer will submit a Standard Form (SF)
308 to DOL, Wage and Hour Division, Branch of Construction Contract Wage
Determinations, Washington, DC. The request should be made at least 30
days prior to release of the SIR.

d\. The published wage determinations, with their most current
modification received by the Contracting Officer, will be incorporated
into applicable SIR's. Incorporation by reference is not permitted.

e\. *SIR's Issued without Wage Determinations.* The Contracting Officer
should include a notice in the SIR that wage determinations have been
requested and that the SIR will be amended to incorporate any wage
determination when received.

f\. *Modifications of Wage Determinations.* If the Contracting Officer
has a wage determination for a particular acquisition, wage
determination modifications received by the Contracting Officer or
published in the Federal Register less than 10 days prior to receipt of
offers are not required to be incorporated if the Contracting Officer
determines there is not reasonable time to incorporate the modification.
Modifications received after award are not effective and need not be
incorporated in the contract.

g\. *Award of Contract Without Required Wage Determination.* If DOL
discovers after award that the wrong wage determination or rate schedule
was specified, the Contracting Officer will modify the contract to
incorporate the corrected wage determination (retroactive to the date of
award), or terminate the contract. If appropriate, the Contracting
Officer should equitably adjust the contract price.

h\. *Posting Wage Determinations and Notice*. The contractor is required
to keep a copy of the wage determination (and any approved additional
classifications) posted at the worksite in a prominent place. The
Contracting Officer should furnish to the contractor DOL Form WH-1321,
"Notice to Employees Working on Federal and Federally Financed
Construction Projects," to be posted with the wage rates. The poster
should include the name, address, and telephone number of the FAA person
responsible for the administration of the contract, to inform workers to
whom they may submit complaints or raise questions concerning labor
standards.

i\. *Wage Determination Appeals*. The Secretary of Labor has established
a Wage Appeals Board which decides appeals of final decisions made by
DOL concerning Davis-Bacon Act wage determinations. The FAA, or other
interested parties, may file a petition for review under the procedures
in 29 CFR Part 7 if reconsideration by DOL has been sought pursuant to
29 CFR 1.8 and denied.

j\. *Satisfying Wage, Fringe Benefit, and Overtime Requirements.*

\(1\) Contractors are required to pay laborers and mechanics at least
the combined hourly wage and fringe benefit amount specified in the wage
determinations. In computing wages paid to laborers or mechanics, the
contractor may include only the amounts paid in cash and contributions
to bona fide benefit plans.

\(2\) Laborer and mechanic's overtime pay is based on 1 1/2 times the
basic hourly rate of pay. When computing the basic hourly rate of pay,
the contractor must use the hourly rate in the wage determination or the
employee's actual rate, if higher. The basic rate of pay includes
employee contributions to fringe benefits, but excludes the contractor's
contribution to fringe benefits.

k\. *Additional Classifications*.

\(1\) If any laborer or mechanic is to be employed in a classification
that is not listed in the wage determination applicable to the contract,
the Contracting Officer will require the contractor submit Standard Form
(SF) 1444, "Request for Authorization of Additional Classification and
Rate" to the Contracting Officer. Along with other pertinent data, this
form contains the proposed additional classification and minimum wage
rate including any fringe benefits payments. Upon receipt of the SF
1444, the Contracting Officer should review the request to determine
whether it meets the following criteria:

\(a\) The classification is appropriate and the work to be performed by
the classification is not performed by any classification contained in
the applicable wage determination.

\(b\) The classification is utilized in the area by the construction
industry.

\(c\) The proposed wage rate, including any fringe benefits, bears a
reasonable relationship to the wage races in the wage determination in
the contract.

\(2\) If the criteria in subparagraphs (a) - (c) above are met and the
contractor and the laborers or mechanics to be employed in the
additional classification (if known) or their representatives agree to
the proposed additional classification, and the Contracting Officer
approves, the Contracting Officer will submit a report (including a copy
of SF 1444) of that action to DOL, Wage and Hour Division, for approval,
modification, or disapproval of the additional classification and wage
rate (including any amount designated for fringe benefits); or

\(3\) If 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 additional classification, or if the criteria
are not met, the Contracting Officer will submit a report (including a
copy of SF 1444) giving the views of all interested parties and the
Contracting Officer\'s recommendation to DOL, Wage and Hour Division,
for determination of appropriate classification and wage rate.

\(4\) Within 30 days of receipt of the report, DOL, Wage and Hour
Division, will advise the Contracting Officer of appropriate action, or
will notify the Contracting Officer that additional time is necessary.

\(5\) Upon receipt of DOL\'s decision, the Contracting Officer should
forward a copy of the action to the contractor, directing that the
classification and wage rate be posted in accordance with paragraph (a)
of the clause "Davis Bacon Act," and that workers in the affected
classification receive no less than the minimum rate indicated from the
first day on which work under the contract was performed in the
classification.

l\. *Apprentices and Trainees*. The Contracting Officer, or Contracting
Officer's Technical Representative (COTR), will review the contractor\'s
employment and payment records for apprentices and trainees to ensure
that the contractor has complied with the clause "Apprentices and
Trainees." If a contractor has classified employees as apprentices or
trainees without complying with the requirements of clause, the
Contracting Officer will reject the classification and require the
contractor to pay the affected employees at the rates applicable to the
classification of the work actually performed.

m\. *Subcontracts.* In accordance with the clause "Subcontracts (Labor
Standards), the contractor and subcontractors at any tier are required
to submit a fully executed SF 1413, "Statement and Acknowledgment, upon
award of each subcontract. The Contracting Officer will provide a copy
of the SF 1413 to the prime contractor at contract award.

n\. *Payrolls and Statements*.

\(1\) *Submission.* In accordance with the clause "Payrolls and Basic
Records," the contractor must submit, within 7 calendar days after the
regular payroll week covered, for the contractor and each subcontractor:
(a) copies of weekly payrolls applicable to the contract, and (b) weekly
payroll statements of compliance. The contractor may use DOL Form
WH-347, "Payroll (For Contractor's Optional Use)," or a similar form and
identical representation.

\(2\) *Withholding for Non-submission.* If the contractors fail to
submit copies of its, or its subcontractors payrolls promptly, the
Contracting Officer will withhold from any payment due to the
contractor, approval of an amount that the Contracting Officer
considered necessary to protect the FAA's interests and the employees.

\(3\) *Examination.* The Contracting Officer, or COTR, will examine the
payrolls and payroll statements to ensure compliance with the contract
and any statutory or regulatory requirements. Particular attention
should be given to:

\(a\) The correctness of classifications and rates;

\(b\) Fringe benefits payments;

\(c\) Hours worked;

\(d\) Deductions; and

\(e\) Disproportionate employment ratios of laborers, apprentices,
trainees, and journeymen.

\(4\) Fringe benefits payments, contributions made or costs incurred on
other than a weekly basis will be considered as a part of weekly
payments to the extent they are creditable to the particular weekly
period involved.

\(5\) *Preservation.* The FAA will retain payrolls and statements of
compliance for 3 years after completion of the contract and make them
available for DOL if requested. Payrolls will not be returned to the
contractor.

\(6\) *Disclosure Of Payroll Records.* Contractor payroll records in
FAA's possession must be carefully protected from any public disclosure
which is not required by law since payroll records may contain
information in which the contractors employees have a privacy interest
as well as information in which the contractor may have a proprietary
interest that the FAA may be obliged to protect. Questions concerning
release of this information may involve the Freedom of Information Act
(FOIA).

o\. *Site Compliance Checking*.

\(1\) The Contracting Officer or COTR will investigate as necessary to
ensure compliance with the labor standards requirements of the contract.

\(2\) *Regular Compliance Checks.* Compliance checks should include the
following:

\(a\) Employee interviews to determine correctness of classifications
and rates of pay, fringe benefits payments, and hours worked (see SF
1445).

\(b\) On‑site inspections to check type of work performed, number and
classification of workers, and fulfillment of posting requirements.

\(c\) Payroll reviews of prime contractors and subcontractors to ensure
that the payrolls submitted are on time and complete, as well as in
compliance with contract requirements.

\(d\) Comparison of the information in this paragraph (b) with available
data, including daily inspector\'s report and daily logs of
construction, to ensure consistency.

p\. *Investigations*. The FAA is responsible for conducting labor
standards investigations when available information indicates such
action is warranted. In addition, DOL may conduct an investigation or
request the FAA to do so.

\(1\) The FAA should conduct an investigation if a compliance check
indicates that violations that are substantial in amount, willful, or
uncorrected may have occurred. The investigation should include all
aspects of the contractor\'s compliance with contract labor standards
requirements, and should not be limited to specific areas raised in a
complaint or uncovered during compliance checks. The investigation
should be made by personnel familiar with labor laws and their
application to contracts. If oral or written statements are taken from
employees during an investigation, the statements, or excerpts or
summaries thereof, should not be divulged to anyone other than
authorized Government officials without the prior signed consent of the
employee. Investigators may use the investigation and enforcement
instructions issued by, and available upon written request from, DOL
Wage and Hour Division. Any available DOL files pertinent to an
investigation may be obtained upon written request to DOL, Wage and Hour
Division. None of the material obtained from DOL files, other than
computations of back wages and liquidated damages and summaries of back
wages due, may be disclosed in any manner to anyone other than
responsible federal officials charged with administering the contract,
without obtaining the permission of DOL.

\(2\) The Contracting Officer will review the investigation report upon
receipt and make preliminary findings regarding the contractor. Adverse
findings normally that are not supported by other evidence will not
normally be based solely on employee statements that have not been
authorized for disclosure by the employee and will require more
corroborating evidence than unauthorized employee statements. However,
if the investigation establishes a pattern of possible violations based
on employees\' statements that have not been authorized for disclosure,
the pattern itself may constitute a suitable basis for a finding of
noncompliance.

\(3\) *Notification to the Contractor.* The Contracting Officer will
take the following actions upon completing the review:

\(a\) Provide written notice to the contractor concerning the
preliminary findings and proposed corrective actions, along with a
statement of the contractor\'s right to request that the basis for the
findings be made available, and to submit written rebuttal information
within a reasonable period of time.

\(b\) Upon request from the contractor, make the basis for the findings
available. However, the contractor will not be permitted to examine the
investigation report. Also, the Contracting Officer will not disclose
the identity of any employee who filed a complaint or who was
interviewed, without the prior consent of that employee.

\(c\) If the contractor submits a rebuttal, reconsider the preliminary
findings based on the information it contains and notify the contractor
of the final findings. If no rebuttal is submitted within a reasonable
time, the preliminary findings will be considered final.

\(d\) Request the contractor to make restitution for underpaid wages and
liquidated damages determined by the Contracting Officer to be due,
whether or not the violation is considered willful. If the request
includes liquidated damages, it will also contain a written statement
that the contractor may within 60 days request relief from such
assessment.

\(4\) *Contracting Officer's Report.* After implementing those actions
prescribed above, the Contracting Officer will prepare and forward a
report of violations, including findings and supporting evidence, to
DOL. Standard Form 1446, Labor Standards Investigation Summary Sheet,
will be completed and attached as the first page of the report. The
Contracting Officer will forward a copy of the report to DOL within 60
days if: (a) underpayments exceeded \$1,000; (b) violations were willful
or aggravated; (c) no restitution was made; or (d) future compliance has
not been assured. If violations are willful and criminal, the report
should be forwarded to the Department of Justice and DOL.

q\. *Withholding from or Suspension of Contract Payments*.

\(1\) *Suspension Of Contract Payments*. If a contractor or
subcontractor fails or refuses to comply with the labor standards
clauses of the Davis-Bacon Act and Related Statutes, the FAA may suspend
or cause to be suspended any further payment, advance, or guarantee of
funds until, upon its own action or acting upon a written request from
DOL, the violations are discontinued or until sufficient funds are
withheld to compensate employees for the wages to which they are
entitled and to cover any liquidated damages which may be due.

\(2\) Upon final administrative determination, if restitution has not
been made by the contractor or subcontractor, the Contracting Officer
will forward to Accounts Payable Standard Form (SF) 1093, Schedule of
Withholdings Under the Davis‑Bacon Act and/or Contract Work Hours and
Safety Standards Act. The Contracting Officer should include with the
SF 1093 a listing of the name, social security number, and last known
address of each affected employee; the amount due each employee;
employee claims, if feasible; and a brief statement of the reason for
requiring restitution. Also, the Contracting Officer should indicate if
restitution was not made because the employee could not be located.
Underpaid employees may be assisted in the preparation of their claims.
The accounting office will submit the SF 1093 with attached additional
data, and effect payment to the Comptroller General (Claims Division) in
accordance with their procedures.

\(3\) *Returning of Withheld Funds to Contractor.* When funds withheld
are no longer necessary or exceed the amount required to satisfy
validated wage underpayments and assessed liquidated damages, these
funds will be paid the contractor in an expeditious manner.

\(4\) *Limitation on Forwarding or Returning Funds.* If the withholding
was requested by DOL or if the findings are disputed, the Contracting
Officer should not forward the funds to the Comptroller General, Claims
Division, or return them to the contractor without approval by DOL.

r\. *Disposition of Disputes Concerning Contract Labor Standards
Enforcement*.

\(1\) The areas of possible differences of opinion between Contracting
Officers and contractors pertaining to construction contract labor
standards enforcement include:

\(a\) Misclassification of workers;

\(b\) Hours of work;

\(c\) Wage rates and payment;

\(d\) Payment of overtime;

\(e\) Withholding practices; and

\(f\) The applicability of the labor standards requirements under
varying circumstances.

\(2\) Generally, these differences are settled administratively at the
project level by the FAA. If necessary, these differences may be settled
with assistance from DOL.

\(3\) When requesting the contractor to take corrective action in labor
violation cases, the Contracting Officer should inform the contractor of
the following:

\(a\) Disputes concerning the labor standards requirements of the
contract are to be resolved by DOL, not by the Disputes clause of the
contract.

\(b\) The contractor may appeal the Contracting Officer's findings or
part thereof by furnishing the Contracting Officer a complete statement
of the reasons for the disagreement with the findings.

\(4\) The Contracting Officer should promptly transmit the Contracting
Officer\'s findings and the contractor\'s statement to DOL, Wage and
Hour Division.

\(5\) The DOL, Wage and Hour Division, will respond directly to the
contractor or subcontractor, with a copy to the FAA. The contractor or
subcontractor may then appeal the DOL\'s findings in accordance with the
procedures outlined in DOL regulations.

\(6\) DOL, Wage and Hour Division, may institute debarment proceedings
against the contractor or subcontractor if DOL finds reasonable cause to
believe that the contractor or subcontractor has committed willful or
aggravated violations of the Contract Work Hours and Safety Standards
Act or the Copeland (Anti-Kickback) Act or any of the applicable
statutes listed in 29 CFR 5.1 other than the Davis-Bacon Act, or has
committed violations of the Davis-Bacon Act that constitute a disregard
of its obligations to employees or subcontractors under section 3(a) of
that Act.

s\. *Contract Termination.*

If a contract or subcontract is terminated for violation of the labor
standards clauses, the Contracting Officer should submit a report to
DOL, Wage and Hour Division, DOL, and the Comptroller General. The
report will include:

\(1\) The number of the terminated contract;

\(2\) The name and address of the terminated contractor or
subcontractor;

\(3\) The name and address of the contractor or subcontractor, if any,
who is to complete the work;

\(4\) The amount and number of the replacement contract, if any; and

t\. *Semi-Annual Enforcement Reports*. A semi-annual report on
compliance with and enforcement of construction labor standards is
required by DOL within 30 days after the reporting periods of October 1
through March 31 and April 1 through September 30 of each year.

**5. WALSH-HEALEY PUBLIC CONTRACTS ACT**

a\. The Walsh-Healey Public Contracts Act (41 U.S.C. 35-45) requires all
contracts, which will be performed within the U.S., Puerto Rico, or the
Virgin Islands and exceed \$10,000, for materials, supplies, articles,
and equipment entered into by the U.S. or District of Columbia
Government for the manufacture or furnishing of supplies must be with a
regular dealer or manufacturer of those supplies and contracts must
include requirements for representations, minimum wages, maximum hours,
child labor, convict labor, and safe and sanitary working conditions.

b\. Contracts for the following are exempt from the Walsh-Healey Act:

\(1\) Items under express statutory authority to purchase "in the open
market," such as commercial items;

\(2\) Items under emergency, single source circumstances;

\(3\) Perishable or agricultural products;

\(4\) Public utilities;

\(5\) Supplies manufactured outside of the U.S., Puerto Rico, or Virgin
Islands;

\(6\) Purchases against the account of a defaulting contractor where the
Walsh-Healey clauses were not included in the defaulted contract;

\(7\) Newspapers, magazines, or periodicals, contracted for with sales
agents or publisher representatives, which are to be delivered by the
publishers;

\(8\) Contract with certain coal dealers (partially exempt; see 41 CFR
50-201.604)

\(9\) Certain commodity exchange contracts (partially exempt; see 41 CFR
50-201.604)).

\(10\) Contracts with certain export merchants (partially exempt; see 41
CFR 50-201.604).

\(11\) Contracts with small business defense production pools and small
business R&D pools (partially exempt; see 41 CFR 50-201.604); and

\(12\) Contracts with public utilities for certain uranium products
(partially exempt; see 41 CFR 50-201.604).

c\. *Request for Exemption.* Upon request, DOL may exempt specific
contracts or classes of contracts from the inclusion or application of
one or more of Walsh-Healey's stipulations.

\(1\) The Contracting Officer may request partial or complete exemption.
The request should state the reasons why the conduct of the FAA's
business will be seriously impaired unless the exemption is granted.

\(2\) Requests for exemptions relating solely to safety and health
standards should be transmitted to the Assistant Secretary for
Occupational Safety and Health, U.S. Department of Labor, Washington,
DC, 202l0. All other requests will be transmitted to the Administrator
of the Wage and Hour Division, U.S. Department of Labor, Washington, DC,
202l0.

d\. Rulings and interpretations of the Act are found at 41 CFR 50-206.
The substance of certain rulings and interpretations is as follows:

\(1\) If a contract for \$10,000 or less is subsequently modified to
exceed \$10,000, the contract becomes subject to Walsh-Healey for work
performed after the date of the modification.

\(2\) If a contract for more than \$10,000 is subsequently modified by
mutual agreement to \$10,000 or less, the contract is not subject to
Walsh-Healey for work performed after the date of the modification.

\(3\) If a contract awarded to a prime contractor contains a provision
whereby the prime contractor is made an agent of the FAA, the prime
contractor is required to include Walsh Healey provisions in contracts
in excess of \$10,000 awarded for and on behalf of the FAA for products
that are to be used in the construction and equipment of FAA facilities.

\(4\) If a contract subject to Walsh-Healey is awarded to a contractor
operating FAA-owned facilities, Walsh-Healey affects the employees of
that contractor the same as employees of contractors operating privately
owned facilities.

\(5\) Indefinite-delivery contracts, including basic ordering agreements
and blanket purchase agreements, are subject to Walsh-Healey unless it
can be determined in advance that the aggregate amount of all orders
estimated to be placed against the contract/agreement for one year after
the effective date of the agreement will not exceed \$10,000. A
determination should be made annually thereafter if the contract or
agreement is extended, and the contract or agreement modified if
necessary.

e\. *Eligibility As A Manufacturer Or Regular Dealer.*

\(1\) *Manufacturer*. An offeror qualifies as a manufacturer if it shows
before award that it is:

\(a\) *Established*. An offeror that is an established manufacturer of
the particular products of the general character sought by the
Government and has a plant, equipment, and personnel to manufacture on
the premises the products called for under the contract.

\(b\) *Newly entering*. An offeror that is newly entering into a
manufacturing activity and has made all necessary arrangements and
commitments for manufacturing space, equipment, and personnel to perform
on its own premises the manufacturing operations required for the
fulfillment of the contract. To be eligible for this status,
manufacturers must show that it:

\(i\) Has made written, legally binding arrangements or commitments
before award to enter a manufacturing business. Contracting Officerss
should not bar an offeror from receiving award because it has not yet
done any manufacturing, even if the arrangements and commitments are
contingent upon the award of the Government contract;

\(ii\) Has not set up solely to produce on a Government contract and
that its operations will not terminate upon completion of that contract;

\(c\) Every offeror must qualify as a manufacturer in its own right. The
use, rent, or sharing of the manufacturing or producing establishment of
another legal entity; i.e., arrangements for equipment, personnel, or
space on a time-and-material or \"as needed\" basis, does not meet this
requirement. Arrangements or definite commitments must be in the name of
the offeror.

\(d\) An offeror that performs assembly operations may be considered a
manufacturer, if it performs more than minimal operations, such as
packaging only, upon the end product. Offerors may also be considered a
manufacturer if it has the facilities to produce a significant portion
of the component parts needed for the end product even if it only
performs assembly operations under a particular acquisition

\(e\) An offeror\'s prior eligibility status as a prime contractor or a
subcontractor on other contracts subject to Walsh-Healey is not evidence
of the offeror\'s present eligibility as a manufacturer.

\(2\) *Regular Dealer.*

\(a\) *Qualifications*. An offeror qualifies as a regular dealer if it
shows before award that it deals in the particular products of the
general character (products either identical with those in stock or be
products for which dealers in the same line of business would be an
obvious source) offered to the Government. Regular dealers cannot
qualify by showing that arrangements have been made to set up a
business. Qualifying criteria include:

\(i\) *Space.* It has an establishment, or a leased or assigned space,
where it regularly maintains a stock of products in which it claims to
be a dealer. If the space is in a public warehouse, it must be
maintained on a continuing and not on a demand basis.

\(ii\) *Inventory.* The stock maintained is a true inventory from which
sales are made. This requirement is not satisfied by a stock of sample
or display items, stock consisting of surplus items remaining from prior
orders, stock unrelated to the supplies offered, or stock maintained
primarily for the purpose of token compliance with the Act from which
few, if any, sales are made.

\(iii\) *Sales*. Sales are made regularly from stock, are not
occasional, or are an exception to usual operations. Sales are made to
the public and not just Federal, State, or local Government agencies.
This requirement is not satisfied if the contractor merely seeks to sell
to the public but has not yet made the sales. The number and amount of
sales that must be made to the public will necessarily vary with the
amount of total sales and the nature of the business.

\(b\) *Alternative qualifications*. For certain specific products
(lumber and timber products, machine tools, petroleum, agricultural
liming materials, raw or unmanufactured cotton linters, certain uranium
products, used automatic data processing equipment, specialty
advertising products, and products provided by information systems
integrators), there are alternate qualifications for where the dealer
need not physically maintain a stock. The requirements under this
alternative are set forth at 41 CFR 50-201.101(a)(2) and 50-201.604.

f\. *Determination Of Eligibility*.

\(1\) The responsibility for applying the eligibility requirements
begins with the Contracting Officer.

\(2\) The Contracting Officer should investigate and determine the
eligibility of the offeror and not rely on the offeror\'s attestation
that it is a manufacturer or regular dealer when:

\(a\) The Contracting Officer doubts the validity of the attestation;

\(b\) A protest has been lodged;

\(c\) This would be the first award to the otherwise successful offeror
subject to Walsh-Healey by the individual acquisition office; or

\(d\) The IPT is conducting a pre-award survey to determine
responsibility or to prequalify a vendor, the IPT should, while on site,
confirm the offeror's eligibility under Walsh-Healey.

\(3\) When the Contracting Officer cannot accept the offeror\'s
attestation, the Contracting Officer will make a determination as to
whether all of the applicable eligibility requirements have been met by
obtaining/considering all available factual evidence including:

\(a\) Pre-award surveys;

\(b\) Experience of other acquisition offices;

\(c\) Information available from the cognizant contract administration
office;

\(d\) Information provided directly by the offeror; and

\(e\) Other factual evidence that may be necessary to determine whether
all of the applicable eligibility requirements have been met, including
evidence obtained through an on site survey conducted specifically for
that purpose.

\(4\) If the Contracting Officer determines that an otherwise successful
offeror is ineligible, the Contracting Officer will follow the
procedures listed below:

\(a\) The offeror will be notified in writing that:

\(i\) It does not meet the eligibility requirements and the specific
reasons therefore; and it may protest the determination by submitting
evidence concerning its eligibility to the Contracting Officer within 10
working days.

\(ii\) If, after review of the offeror\'s evidence, the Contracting
Officer\'s position has not changed, the offeror\'s protest and all
pertinent material will be forwarded to DOL, Administrator of the Wage
and Hour Division, for a final determination.

\(A\) DOL does not conduct prewar investigations nor render final
determinations of eligibility until the Contracting Officer initially
has determined whether the requirements have been met.

\(B\) If the Contracting Officer forwards the case to DOL for review of
eligibility, the award should normally be held in abeyance until the
Contracting Officer receives a final determination from DOL. However,
award may be made pending a DOL decision if the Contracting Officer
determines the supplies are urgently needed or delay in award will
result in substantial hardship to the Government (DOL, the protester,
and any other concerned parties must be notified of the award decision).

\(b\) The Contracting Officer will notify other offerors whose offers
might become eligible for award when an award is being held in abeyance,
and request them to extend their acceptance period, if necessary.

g\. *Pre-award protests against eligibility.*

\(1\) When, before award, an unsuccessful offeror challenges the
eligibility of the apparent successful offeror, the Contracting Officer
will:

\(a\) Promptly notify the apparent successful offeror of the protest;

\(b\) Notify both the protester and the apparent successful offeror in
writing that eligibility evidence may be submitted to the Contracting
Officer within 10 working days;

\(c\) Notify offerors whose offers might become eligible for award that
the award is to be held up because of a protest, and request them to
extend their acceptance period, if necessary;

\(d\) Make a determination based on the evidence as provided in
paragraph f.(4) above; and

\(e\) Notify the protester and the apparent successful offeror of the
determination and the procedure to be followed if either party disagrees
with the decision.

\(2\) If either party disagrees with the determination, the Contracting
Officer will forward the determination and entire record to DOL,
Administrator of the Wage and Hour Division, for a final determination
and notify the parties accordingly.

h\. *Award pending final determination.*

\(1\) Award may be made immediately if the Contracting Officer certifies
in writing that:

\(a\) The products to be acquired are an emergency requirement; or

\(b\) Delay of delivery or performance by failure to make the award
promptly will result in substantial hardship to the Government.

\(2\) The Contracting Officer will give prompt written notice of the
decision to award to DOL, the protester, and other concerned parties.

i\. *Award*. The Contracting Officer will mail a copy of DOL Publication
WH-1313, "Notice to Employees Working on Government Contracts," along
with the executed contract. Copies of the poster may be obtained in
writing to the DOL, 200 Constitution Avenue NW, Washington, DC, 20210,
ATTN: Wage and Hour-ESA, Room S3018.

j\. *Postaward.*

\(1\) *Protests*.

\(a\) If a protest is received after award, but before final contract
completion, the Contracting Officer will follow the procedures paragraph
f. (4) above.

\(b\) If the contract has been completed before receipt of the protest,
the Contracting Officer will notify the protester that no action can be
taken on the protest.

\(2\) *Award Made to an Ineligible Offeror*. If the Contracting Officer
discovers after an award that the offeror did not act in good faith in
representing that it was a manufacturer or regular dealer of the
supplies offered, the Contracting Officer, immediately upon discovery,
may exercise the right to:

\(a\) Terminate the contract;

\(b\) Make open market purchases or enter into other contracts for
completing the original contract; and

\(c\) Charge any additional cost to the original contractor.

\(3\) *Breach of Stipulation*. If a contractor violates a stipulation
under Walsh-Healey, the Contracting Officer will submit a written notice
to the appropriate regional office of DOL, Wage and Hour Division,
listed in paragraph l. below, and furnish any available information.

k\. *Regional Jurisdictions of DOL, Wage And Hour Division*. Geographic
jurisdictions of the Regional Offices of DOL's, Wage and Hour Division,
are to be contacted by Contracting Officers, unless otherwise specified.
The address and phone numbers for the DOL Regional Offices by geographic
jurisdictions are attached.

l\. *Definitions.*

\(1\) \"Assembly,\" as used in this part, means the piecing or bringing
together of various interdependent or interrelated parts or components
to make an operable whole or unit.

\(2\) \"Manufacturer,\" as used in this subpart, means a person that
owns, operates, or maintains a factory or establishment that produces on
the premises the materials, products, articles, or equipment required
under the contract and of the general character described by the
specifications.

\(3\) \"Person,\" as used in this subpart, includes associations,
corporations, legal representatives, trustees, trustees in bankruptcy,
or receivers.

\(4\) \"Regular dealer,\" as used in this subpart, means a person that
owns, operates, or maintains a store, warehouse, or other establishment
in which the materials, products, 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.

**6. FAIR LABOR STANDARDS ACT**

No contractor or subcontractor holding a service contract for any dollar
amount will pay any of its employees working on the contract less than
the nationally established minimum hourly wage (as specified in section
6(a)(1) of the Fair Labor Standards Act (29 U.S.C. 206))

**7. SERVICE CONTRACTS/SERVICE CONTRACT ACT**

a\. *General.* The Service Contract Act of 1965, (41 U.S.C. 351, et
seq.), selected provisions of the Fair Labor Standards Act of 1938, as
amended (29 U.S.C. 201, et seq.), and related Department of Labor
regulations (29 CFR Parts 4, 6, 8, 541, and 1925) apply to service
contracts.

b\. *Service Contract Act.* The Service Contract Act (SCA) applies to
contracts if the principal purpose is to furnish services in the U.S.
through the use of service employees, unless exempted. Service contracts
over \$2,500 must contain mandatory provisions regarding minimum wages
and fringe benefits, safe and sanitary working conditions, notification
to employees of the minimum allowed compensation, and a statement of
equivalent Federal employee classifications and wage rates.
Additionally, the SCA limits the term of service contracts to 5 years
(41 U.S.C. 353(d)).

c\. *Exemptions from SCA.* The SCA does not apply to:

\(1\) Contracts performed outside of the U.S.;

\(2\) Contracts less that \$2,500;

\(3\) Construction, alteration, or repair of public buildings or public
works, including painting and decorating;

\(4\) Dismantling, demolition or removal of improvements when part of a
construction contract;

\(5\) Work performed by a regular dealer or manufacturer (in accordance
with the Walsh-Healey Public Contracts Act). Service contracts for
remanufacturing of equipment may be subject to Walsh-Healey Public
Contracts Act, rather than the SCA, if the work is so extensive as to be
equivalent to manufacturing. Remanufacturing is considered to be major
overhaul or modification of equipment, material, or an item which
involves: (a) complete or substantial teardown to the component level;
(b) substantially all of the parts are reworked and/or replaced, or
outmoded parts are replaced; (c) the equipment is reassembled; and (d)
the work is performed at a facility operated by the contractor.
Remanufacturing does not include repair of damaged equipment or routine
maintenance unless there is complete teardown, rework, and reassembly;

\(6\) Transporting freight or personnel by vessel, aircraft, bus, truck,
express, railroad, or oil or gas pipeline where published tariff rates
are in effect;

\(7\) Contracts for furnishing of services by radio, telephone,
telegraph, or cable companies subject to the Communications Act of 1934;

\(8\) Public utility services;

\(9\) Employment contracts with an individual(s) (rather than a firm
with multiple employees);

\(10\) Contracts with common carriers for the carriage of mail by rail,
air (except air star routes), bus, and ocean vessel, where such carriage
is performed on regularly‑scheduled runs of the trains, airplanes,
buses, and vessels over regularly­ established routes and accounts for a
substantial portion of the carrier\'s revenues;

\(11\) Carriage of freight or personnel if subject to regulated rates in
section 10721 of the Interstate Commerce Act;

\(12\) Contracts principally for maintenance, calibration, or repair of
automated data processing equipment, office information/word processing
systems, scientific and medical equipment, and office/business equipment
(if services are performed by the manufacturer or supplier of the
equipment), subject to the following: (a) the equipment is commercially
available; (b) the price of services is based on established catalog or
market prices; (c) employees used for Government contracts and
commercial contracts are under the same overall compensation plan; and
(d) the contractor certifies in the contract to the aforementioned
conditions; or

\(13\) *Employees* who are bona fide executive, administrative or
professional employees (as defined and implemented in 29 CFR 541). Some
support service contracts involve professional employees who may be
exempt from SCA requirements. Professionals are those employees having
recognizable status based on acquiring professional knowledge through
prolonged study, such as accountancy, actuarial computation,
architecture, dentistry, engineering, law, medicine, nursing, pharmacy,
the sciences (such as biology, chemistry, physics, and teaching). To be
a professional employee, a person must be involved essentially in
discharging professional duties and exercising judgment.

d\. *Examples of Contracts Covered by SCA*

The following examples, while not definitive or exclusive, illustrate
some of the types of services that have been found to be covered by the
SCA (see 29 CFR 4.130 for additional examples):

\(1\) Motor pool operation, parking, taxicab, and ambulance services;

\(2\) Packing, crating, and storage;

\(3\) Custodial, janitorial, housekeeping, and guard services;

\(4\) Food service and lodging;

\(5\) Snow, trash, and garbage removal;

\(6\) Some support services at Government installations, including
grounds maintenance and landscaping;

\(9\) Certain specialized services requiring specific skills, such as
drafting, illustrating, graphic arts, stenographic reporting, or
mortuary services;

\(10\) Electronic equipment maintenance and operation and engineering
support services;

\(11\) Maintenance and repair of all types of equipment, for example,
aircraft, engines, electrical motors, vehicles, and electronic,
telecommunication, office and related business and construction
equipment;

\(12\) Operation, maintenance, or logistics support of a Government
facility;

\(13\) Data collection, processing and analysis services;

d\. *Determining SCA Applicability.* Prior to issuing a screening
information request, the Contracting Officer should determine SCA
applicability to the particular acquisition and anticipated categories
of contractor employees. If the SCA applies to any anticipated
categories of employees, the Contracting Officer will request a wage
determination from DOL.

**8. PROCEDURES FOR SERVICE CONTRACTS**

*a. DOL Wage Determinations.* For contracts subject to the SCA, DOL will
determine the hourly wage and fringe benefits to be paid employees. DOL
wage determinations can be based on either that which prevails for a
given locality or can be based on collective bargaining agreements (CBA)
between employees and contractors. In certain instances, a DOL wage
determination will not apply; in those cases, employees must be paid at
least the nationally established minimum wage in the Fair Labor
Standards Act.

\(1\) *Wage Determination Based on Collective Bargaining Agreement*.
Follow-on (successor) contractors performing substantially the same
services in the same locality must pay wage and fringe benefits
(including accrued wages and benefits and prospective increases) at
least equal to those contained in any bona fide CBA entered into under
the incumbent's (predecessor) contract. However, this requirement will
not apply if DOL determines, as a result of a hearing, that the CBA
wages and fringe benefits are substantially at variance with those which
prevail for services of a similar character in the locality, or that
they have not been reached as a result of arm\'s length negotiations.

b\. R*equirement to Submit SF 98/SF 98a.* When the SCA applies to a
particular acquisition, the Contracting Officer will submit a request
to, and obtain a response from, DOL regarding the minimum wage and
fringe benefits applicable to the acquisition. The Contracting Officer
will submit Standard Form (SF) 98 and SF 98a, "Notice of Intention to
Make a Service Contract and Response to Notice" and "Attachment A,"
together with any required supplemental information to DOL, Wage and
Hour Division, Employment Standards Administration, U.S. Department of
Labor, Washington, DC, 20210, for the following:

\(1\) Each new screening information request (SIR) and contract over
\$2,500;

\(2\) Each contract modification which brings the contract value above
\$2,500, and­

\(i\) Extends the existing contract pursuant to an option clause or
otherwise; or

\(ii\) Changes the scope of the contract whereby labor requirements are
affected significantly.

\(3\) Each multiple‑year contract over \$2,500 upon:

\(i\) annual anniversary date if the contract is subject to annual
appropriations; or

\(ii\) biennial anniversary date if the contract is not subject to
annual appropriations and its proposed term exceeds 2 years (unless
otherwise advised by DOL).

d\. *Preparation of SF 98 and 98a*. The Contracting Officer should
follow the instructions provided on the reverse of the form. The DOL
publication "Service Contract Act Directory of Occupations" should be
used as an aide in completing the information on the form.

e\. *Collective Bargaining Agreements*.

\(1\) Early in the acquisition cycle, the Contracting Officer should
determine whether an existing CBA will affect the planned acquisition.
The Contracting Officer should determine whether there is an existing
(predecessor) contract and, if so, whether the incumbent prime
contractor, or subcontractors, and any of their employees have a CBA.

\(2\) Section 4(c) of the SCA provides that a follow-on (successor)
contractor must pay wages and fringe benefits (including accrued wages
and benefits and prospective increases) to service employees at least
equal to those agreed upon by an incumbent contractor.

\(3\) Section 4(c) of the SCA is subject to the following limitations:

\(a\) It will not apply if the incumbent contractor enters into a CBA
for the first time and the CBA does not become effective until after the
expiration of the incumbent\'s contract.

\(b\) If the incumbent contractor enters into a new or revised CBA
during the period of the incumbent\'s performance on the current
contract, the terms of the new or revised agreement will not be
effective for the purposes of section 4(c) of the SCA if:

\(i\) the FAA receives notice of the terms of the CBA after follow-on
contract award, provided that the start of performance is within 30 days
of award; and

\(ii\) The Contracting Officer has given both the incumbent contractor
and its employees\' collective bargaining agent timely written
notification of the applicable acquisition dates.

\(4\) If section 4(c) of the SCA applies, the Contracting Officer will
obtain a copy of any CBA between an incumbent contractor, or
subcontractor, and its employees (the clause "Service Contract Act"
requires the incumbent prime contractor to furnish the Contracting
Officer a copy of each CBA.) The Contracting Officer will submit with
the SF 98 a copy of each CBA together with any related documents
specifying the wage rates and fringe benefits currently or prospectively
payable under each CBA.

\(5\) If the services are being furnished at more than one location and
the collectively bargained wage rates and fringe benefits are different
at different locations or do not apply to one or more locations, the
Contracting Officer will identify the locations to which the agreements
apply.

\(7\) If the CBA does not apply to all service employees under the
contract, the Contracting Officer will separately list on the SF 98a the
service employee classifications: (a) subject to the CBA, and (b) not
subject to any CBA.

c\. *Notification to Interested Parties Under Collective Bargaining
Agreements.*

\(1\) The Contracting Officer should determine whether the incumbent
prime contractor\'s, or its subcontractors\', service employees
performing on the current contract are represented by a collective
bargaining agent. If there is a collective bargaining agent, the
Contracting Officer will give both the incumbent contractor and its
employees\' collective bargaining agent written notification of:

\(a\) The forthcoming follow-on contract and the applicable acquisition
dates (issuance of SIR, receipt of offers, commencement of
communication, award of contract, or start of performance, as
applicable); or

\(b\) The forthcoming contract modification and applicable acquisition
dates (exercise of option, extension of contract, change in scope, or
start of performance, as applicable); or

\(c\) The forthcoming multiple‑year contract anniversary date (annual
anniversary date or biennial date, as applicable).

\(2\) The Contracting Officer will give written notification at least 30
days in advance of the earliest applicable acquisition date or the
applicable option exercise date in order for the time-of-receipt
limitations to apply. The Contracting Officer will retain a copy of the
notification in the contract file.

e\. *Required Time for Submission of SF 98*

\(1\) If the contract is for a known, recurring requirement, the
Contracting Officer will submit the SF 98 at least 60 (but not more than
120 days) before issuing the screening information request, commencement
of communications, issuance of the modification for exercise of an
option or extension; annual anniversary date of a contract if subject to
annual appropriations; or biennial anniversary if not subject to annual
appropriations (unless otherwise directed by DOL).

\(2\) If the contract is for a nonrecurring or unknown requirement and
is an urgent request, the Contracting Officer should contact the Wage
and Hour Division for guidance before submitting the SF 98.

f\. *Place of Performance Unknown.* The Contracting Officer should
identify in the SF 98 all possible places of performance, even though
the actual place of performance will not be known until the successful
offeror is chosen. The Contracting Officer should contact DOL for
guidance if there are a substantial number of possible places of
performances. Should the Contracting Officer subsequently learn of
additional possible places of performance after the SF 98 has been
submitted, the Contracting Officer should submit another SF 98 listing
the additional locations.

e\. *Department of Labor Action*. The Wage and Hour Division will mark,
date, and sign the section of the SF 98 titled "Response to Notice" and
return the signed original together with appropriate additional material
(wage determination, position/classification descriptions, etc.). The
Wage and Hour Division will take one of the following actions:

\(1\) Issue and attach applicable wage determination(s); or

\(2\) Indicate that no wage determination is in effect for the locality
of contract performance; or

\(3\) Indicate that the SCA is not applicable based on information
submitted; or

\(4\) Return the SF 98 for additional information.

f\. *Late DOL Response to a Timely SF 98.*

\(1\) *SF 98 Not Involving a CBA.* A late response by DOL to a timely
submission of SF 98 not involving a CBA will be handled as follows:

\(a\) If the Contracting Officer has not received a response from DOL
within 60 days (or 30 days if a non‑recurring or unknown requirement),
the Contracting Officer should contact the Wage and Hour Division to
determine when the wage determination, or revision to a wage
determination, can be expected.

\(b\) When the Contracting Officer has received a wage determination and
DOL subsequently issues a wage determination revision, the revision will
not be effective if the Contracting Officer receives it less than 10
days before receipt of offers and the Contracting Officer determines
there is not reasonable time to incorporate the revision into the
screening information request. If DOL issues a revision after contract
award or modification award , the revision will not be effective,
provided that contractor performance starts within 30 days of the
contract award or modification. If the contract does not specify a start
of performance date within 30 days of the award or modification, the
Contracting Officer will notify DOL and any revision received by the
Contracting Officer not less than 10 days before commencement of the
work will be effective.

\(2\) *SF 98 Involving a CBA*. A late response by DOL to a timely
submitted SF 98 involving a CBA will be handled as follows:

\(a\) A wage determination or revision based on a new or changed CBA
will not be effective if notice of the terms of the new or changed CBA
is received by the Contracting Officer less than 10 days before receipt
of offers and the Contracting Officer determines there is not reasonable
time to incorporate the new or revised CBA into the SIR. If DOL issues a
wage determination revision after follow-on contract award or
modification, the revision will not be effective, provided that the
contract start of performance is within 30 days of the award of the
contract or of the specified modification. If the contract does not
specify a start of performance date which is within 30 days of the award
of the contract or of the specified modification, or if contract
performance does not commence within 30 days of the award of the
contract or of the specified modification, any notice of the terms of a
new or changed CBA received by the Contracting Officer not less than 10
days before commencement of the work will be effective for purposes of
the successor contract under section 4(c) of the SCA.

\(3\) If DOL is unable to provide the wage determination or revision by
the latest date needed to maintain the acquisition schedule, the
SIR/contract action should proceed according to the following
instructions:

\(a\) If a successorship/same locality/incumbent CBA situation exists,
the Contracting Officer will incorporate in the SIR/contract the wage
and fringe benefit terms of the CBA, or the CBA itself. The Contracting
Officer may incorporate the wage and fringe benefit terms of the CBA in
other contract actions, such as exercise of options, in order to
facilitate price adjustments for options in fixed price contracts.

\(b\) The terms of a new or changed CBA, negotiated by the incumbent
contractor during the period of performance of the predecessor contract,
will not apply to the successor contract under the conditions set forth
in paragraph f.(2)(a) above.

g\. *DOL Response to Late Submission of SF 98*

If the Contracting Officer has not filed a timely SF 98 and the
Contracting Officer has not received a response from DOL, the
Contracting Officer should contact the Wage and Hour Division to
determine when the wage determination or revision can be expected. If
DOL is unable to provide the wage determination or revision by the
latest date needed to maintain the acquisition schedule, the Contracting
Officer should use the latest wage determination or revision, if any,
incorporated in the existing contract. If a CBA exists, the Contracting
Officer will incorporate the wage and fringe benefit terms of the CBA,
or the CBA itself. If any new or revised wage determination is received
later in response to the SF 98, the Contracting Officer will incorporate
it in the SIR or contract within 30 days of receipt. When the wage
determination is received after contract award or modification:

\(1\) The Contracting Officer will equitably adjust the contract price
to reflect any changed cost of performance resulting from incorporating
the wage determination or revision when there is no CBA involved. DOL
may require retroactive application of the wage determination for a
contractual action involving more than five service employees; or

\(2\) The Contracting Officer will not equitably adjust the contract
price if a CBA is involved since the wage determination or revision will
be based on the economic terms of the CBA..

i\. *Review of Wage Determination*.

The Contracting Officer should review wage determinations received to
ensure the correct response has been provided. Additionally, the
Contracting Officer should consider the following:

\(1\) *Based on Incumbent CBA*. If wages, fringe benefits, or periodic
increases provided for in a CBA vary substantially from those prevailing
for similar services in the locality, or that the Contracting Officer
believes the CBA was not the result of arm\'s length negotiations, the
Contracting Officer should consider bringing the matter to DOL for a
hearing.

\(2\) *Based on other than Incumbent CBA*. Upon receiving a wage
determination not predicated upon a CBA, the Contracting Officer will
ascertain:

\(i\) Whether the wage determination does not conform with wages and
fringe benefits prevailing for similar services in the locality; or

\(ii\) Whether the wage determination contains significant errors or
omissions.

\(iii\) If either is (i) or (ii) is evident, the Contracting Officer
will contact DOL to determine appropriate action.

c\. *Request for Hearing.* The FAA or other interested parties may
request a hearing on an issue involving the review of a wage
determination. To obtain a hearing, the Contracting Officer should
submit a request to the DOL, Wage and Hour Division, Employment
Standards Administration, U.S. Department of Labor, Washington, DC,
20210, with sufficient data to support that the rates at issue vary
substantially from those prevailing for similar services in the same
locality or that a CBA was not the result of arms length negotiations.
The request should also include: (1) the number of the wage
determinations at issue; (2) name of contracting agency; (3) status of
the acquisition and any estimated acquisition dates (e.g., proposal
receipt, award, and commencement of performance); (4) names and
addressees, if known, of interested parties; and (5) a description of
the work..

d\. Unless DOL determines that extraordinary circumstances exist, they
will not consider requests for a hearing unless received before the
commencement date of the contract or the follow‑on option period, as the
case may be.

j\. *Delay of Acquisition Dates Over 60 Days.*

If any award was delayed, for whatever reason, more than 60 days from
the date indicated on the submitted SF 98, the Contracting Officer
should contact the Wage and Hour Division to determine whether the wage
determination issued under the initial submission is still current. Any
revision of a wage determination received by the Contracting Officer as
a result of that communication, or upon discovery by DOL of a delay,
will supersede the earlier response.

k\. *Discovery of Errors by the Department of Labor.*

If DOL determines, either before or after a contract award, that a
Contracting Officer made an erroneous determination that the SCA did not
apply to a particular acquisition or failed to include an appropriate
wage determination in a covered contract, the Contracting Officer within
30 days of notification by DOL will include in the contract the clause
"Service Contract Act", and any applicable wage determination issued by
DOL. DOL may require retroactive application of that wage determination.
The Contracting Officer should equitably adjust the contract price to
reflect any changed cost of performance resulting from incorporating a
wage determination or revision.

*l. Statement of Equivalent Rates for Federal Hires.*

The statement required under clause "Statement of Equivalent Rates for
Federal Hires" will set forth those wage rates and fringe benefits that
would be paid by the FAA to various classes of employees . The rates
listed will be hourly wages for GS step 1 employees or WG step 2 for
non-supervisory or WG step 3 for supervisory wage, as applicable.
Personnel offices can provide assistance in determining the appropriate
Federal job categories and hourly wages.

l\. *Notification to Contractors and Employees*.

\(1\) As soon as possible after contract award, the Contracting Officer
should inform the contractor of the labor standards requirements of the
contract relating to the SCA and of the contractor\'s responsibilities
under these requirements, unless it is clear that the contractor is
fully informed.

\(2\) At the time of award, the Contracting Officer should furnish to
the contractor Department of Labor Publication WH-1313, "Notice to
Employees Working on Government Contracts," for posting. The Contracting
Officer should also attach any applicable wage determination to
Publication WH-1313.

m\. *Additional Classes of Service Employees*.

\(1\) If the Contracting Officer is aware that contract performance
involves classes of service employees not listed in the wage
determination, the Contracting Officer should require the contractor to
prepare and submit Standard Form (SF) 1444, "Request for Authorization
of Additional Classification and Rate" (the form provides instructions
for completing). This "conformance" procedure requires the contractor to
match, as closely as possible, the unlisted job categories to those
which are listed on the wage determination. The Contracting Officer
should review the completed SF 1444 and supporting documentation (which
should also include the agreement or disagreement of the employees\'
representative or the affected employees themselves), add a statement
whether the Contracting Officer concurs with the contractor's job
classification, and forward the package to the Wage and Hour Division.
Within 30 days of receipt of the request, the Wage and Hour Division
will (a) approve, modify, or disapprove the request when the parties are
in agreement, or (b) render a final determination in the event of
disagreement among the parties. The Wage and Hour Division will notify
the Contracting Officer if more than 30 days will be required to act on
the SF 1444.

\(2\) Some wage determinations will list a series of classes within a
job classification family, for example, computer operator level I, II,
and III. Generally, level I is the lowest, entry level, and
establishment of a lower level through conformance is not permissible.
Further, trainee classifications may not be conformed. Helpers in
skilled maintenance trades (for example, electricians, machinists, and
automobile mechanics) may not be conformed, but may be used if listed on
a wage determination. Conformance may not be used to artificially split
or subdivide classifications listed in the wage determination. However,
conforming procedures may be used if the work which an employee performs
under the contract is not within the scope of any classification listed
on the wage determination, regardless of job title. (See 29 CFR 4.152.)

n\. *Seniority Lists*.

If a contract is performed at a Federal facility where incumbent
contractor employees may be hired/retained by a follow-on contractor,
the incumbent prime contractor is required to furnish to the Contracting
Officer, no later than 10 days before contract completion, a certified
list of all service employees on the contractor\'s or subcontractor\'s
payroll during the last month of the contract, together with anniversary
dates of employment for each person. At the commencement of the
follow-on contract, the Contracting Officer should provide a copy of the
list to the follow-on contractor for determining employee eligibility
for vacation or other fringe benefits (which are based upon length of
service, including service with predecessor contractors) if such benefit
is required by an applicable wage determination.

*m. Withholding of Contract Payments*. Any violations of SCA renders
contractors liable for the amount of any deductions, rebates, refunds,
or underpayments, or nonpayment due employees. The Contracting Officer
may withhold, or will withhold or upon written request by DOL at a level
no lower than Assistant Regional Administrator, the amount needed to pay
underpaid employees. The withheld funds should be placed in a deposit
account for later transfer to DOL for disbursement (the Contracting
Officer should consult with the cognizant accounting office).

**9. SCA BLANKET WAGE DETERMINATION**

a\. A blanket wage determination is a SCA wage determination which
covers more than one contract and is used for situations where
efficiency can be gained by avoiding repetitive requests for wage
determinations for single contracts.

b\. The FAA is authorized to participate under the Blanket program
through a Memorandum of Understanding (MOU) with DOL. Based on the terms
of the MOU, each of FAA contracting office may participate after:

\(1\) Notifying the FAA Headquarters, Procurement Management Branch
(ASU-130), of the desire to participate;

\(2\) Designating a Local Blanket Coordinator to process the blanket
wage determination requests; and

\(3\) Ensuring the Local Blanket Coordinator receives training conducted
by either DOL or ASU-130.

c\. *Exclusions.* The use of the Blanket wage determination approach for
some contractual actions has not been authorized by DOL:

\(1\) Service employees of a predecessor (incumbent) contractor subject
to a CBA, or service employees, although not covered by the CBA, subject
to a predecessor's contract pursuant to section 4(c) of the SCA;

\(2\) The place of performance is unknown and may extend beyond a
particular Blanket area;

\(3\) Federal employees displaced by A-76 procedures;

\(4\) Consolidation or reconfiguration of existing service contracts;
and

\(5\) DOL advises that a particular service contract or class of
contracts are to be excluded from Blanket Wage determinations, e.g., air
traffic control services.

d\. The Blanket approach is initiated by the submission of Standard
Forms 98 and 98a as usual, except that the request should specify the
wage rates needed for all contracts to be covered. A separate Blanket
request is required for each geographical area of contract performance
and is resubmitted every year. The specific types of information
required for the Blanket request will be provided to the Contracting
Officers by the Blanket coordinator. Contracting Officers should consult
with the Blanket coordinator prior to requesting individual wage
determinations.

**10. PROFESSIONAL EMPLOYEE COMPENSATION**

The Service Contract Act (SCA) was enacted to ensure contractors fairly
compensate their blue collar and some white collar workers, but the SCA
does not provide coverage for bona fide executive, administrative, or
professional employees. Professional employees should be compensated
fairly and properly. When meaningful numbers of professional employees
will be provided under a planned service contract, the Contracting
Officer may require offerors to submit for evaluation a total
compensation plan setting forth proposed salaries and fringe benefits.
Unrealistically low professional employee compensation should be
evaluated for the potential risk to contract performance.

**11. DISMANTLING, DEMOLITION, OR REMOVAL OF IMPROVEMENTS**

If a contract is solely for dismantling, demolition, or removal of
improvements, the Service Contract Act applies unless further work which
will result in the construction, alteration or repair of a public
building or public work at that location is contemplated. If such
further construction work is intended, even though by separate contract,
then the Davis-Bacon Act applies to the contract for dismantling,
demolition, or removal.

**12. CONVICT LABOR**

a\. The policies and procedures controlling the employment of prison
inmates working on Government contracts are based 18 U.S.C. 4082(c)(2),
Executive Order 11755, dated December 29, 1973, and Executive Order
12943, dated December 13, 1994.

b\. In performing a contract, contractors may employ:

\(1\) persons on parole or probation;

\(2\) persons who have been pardoned or who have served their terms;

\(3\) Federal prisoners; or

\(4\) Nonfederal prisoners authorized by the Attorney General to work at
paid employment in the community if:

\(a\) The worker is paid or is in an approved work training program on a
voluntary basis;

\(b\) Representatives of labor union organizations have been consulted;

\(c\) Paid employment will not (i) displace employed workers; (ii) be
applied to skills in which there is a surplus of labor in the locality;
(iii) impair existing contracts for services; and

\(d\) Pay and other conditions of employment will not be less than those
for work of a similar nature in the locality where the work is being
performed.

**13. EQUAL EMPLOYMENT OPPORTUNITY**

a\. *General*

\(1\) Executive Order 11246, as amended, prohibits contractors and
subcontractors from discriminating against any employee or applicant
because of race, color, religion, sex, or national origin, and to take
affirmative action to ensure these requirements are met regarding any
existing employee.

\(2\) The FAA may not award a contract or modification, or approve a
subcontract, with a contractor found ineligible by DOL's Office of
Federal Contract Compliance Programs (OFCCP) because of noncompliance
with EO 11246.

\(3\) Neither the FAA, nor its contractors, will solicit or contract in
a manner to avoid applicability of the nondiscrimination and affirmative
action or equal opportunity requirements.

\(4\) OFCCP has primary responsibility for administration and
enforcement of affirmative action and equal opportunity requirements.
Contractor disputes related to EO 11246 compliance are to be handled
according to DOL regulations (41 CFR 60-1.1).

b\. *Procedures*.

\(1\) *Other Than Construction*. ~Revised\ 11/1999~

\(a\) The Contracting Officer will obtain a pre-award clearance from the
OFCCP area office for contracts, and subcontracts, totaling \$10,000,000
or more, including options, and for modifications increasing the total
contract value to \$10,000,000 or more. Pre-award clearances remain
valid for a 24-month period from the date of issuance. The Contracting
Officer may make verbal requests if confirmed in writing.

\(b\) The contracting officer does not need to request a pre-award
clearance if --

> \(i\) The specific proposed contractor is listed in OFCCP's National
> Pre-award Registry via the Internet at
> http://www.dol-esa.gov/preaward/

\(ii\) The projected award date is within 24 months of the proposed
contractor's Notice of Compliance completion date in the Registry; and

> \(iii\) The contracting officer documents the Registry review in the
> contract file.

\(c\) The following information should be included in pre-award
clearance request:

> \(i\) Name, address, telephone number and any known corporate
> affiliation of the apparent prime contractor and any known
> subcontractors where their subcontract is expected to exceed
> \$1,000,000;
>
> \(ii\) Whether the prime or first tier subcontractor have held
> previous federal contracts or applicable subcontracts;
>
> \(iii\) The places of contemplated performance; and
>
> \(iv\) The period of performance.

\(d\) The Contracting Officer should allow 30 days for obtaining the
pre-award clearance. If waiting for the pre-award clearance would delay
award of an urgent and critical contract, the Contracting Officer may
proceed with award, subject to concurrence by the head of the
contracting activity (HCA). The Contracting Officer must also
immediately notify the OFCCP area office of the award. If OFCCP
subsequently finds the contractor or subcontract is ineligible for the
award, OFCCP will provide notice of the applicable course of action.

\(2\) *Construction.*

\(a\) Construction contractors are required to meet (i) the contract
terms and conditions which cite affirmative action requirements in
specified geographical areas or projects, and (ii) applicable
requirements of DOL regulations (42 CFR 60-1 and 604).

\(b\) Periodically, OFCCP publishes in the Federal Register goals and
timetables for minority and female utilization in the construction
industry for certain geographic areas. The Contracting Officer may
contact the OFCCP regional office to request current information on
affirmative action goals to be included in the clause "Affirmative
Action for Construction Contracts."

\(c\) Contracting Officer's will give written notice to the appropriate
OFCCP area office within 10 working days of award of a construction
contract subject to these affirmative action requirements. The
notification is to include the name, address, and telephone number of
the contractor; employer identification number; dollar amount of the
contract; estimated starting and completion dates of the contract; the
contract number; and the geographical area in which the contract is to
be performed. When requested by OFCCP, the Contracting Officer is to
arrange a conference among contractor, the FAA\'s contracting personnel
and EEO contract compliance personnel to discuss the contractor\'s
compliance responsibilities.

c\. *Inquiries and Complaints*. The Contracting Officer should refer the
following to the applicable OFCCP area office:

\(1\) An inquiry from a contractor regarding status of its compliance
with Executive Order 11246, or rights of appeal;

\(2\) Labor union inquiries regarding the revision of a collective
bargaining agreement in order to comply with Executive Order 11246;

\(3\) Complaints alleging violation of the "Equal Opportunity" clause.
The Contracting Officer will advise the complainant in writing of the
referral. The prime contractor or subcontractor that is the subject of a
complaint will not be advised in any manner, or for any reason, of the
complainant\'s name, the nature of the complaint, or the fact that the
complaint was received.

d*. Enforcement*. OFCCP will provide written direction to the
Contracting Officer regarding any enforcement actions for contractor
violations of EO 11246, DOL regulations, or the "Equal Opportunity" and
related clauses. The Contracting Officer should take necessary action as
soon as possible after notification to implement any sanctions imposed
by OFCCP for violations.

e\. *Poster.* The Contracting Officer will furnish to the prime
contractor appropriate quantities of OFCCP's Equal Employment
Opportunity posters prior to contract performance.

f\. *Exemptions*. The following are totally or partially exempt from EO
11246:

\(1\) Contracts which agency head determines are necessary for national
security;

\(2\) Contracts specifically exempted by OFCCP;

\(3\) Individual contracts and subcontracts less than \$10,000 (unless
the value of all contracts or subcontracts awarded to that contractor or
subcontractor during any 12 month period will exceed \$10,000);

\(4\) Contracts performed outside of the U.S.;

\(5\) Contracts with state or local governments;

\(6\) Work on or near Indian Reservations;

\(7\) Facilities not connected with contracts;

\(8\) Indefinite quantity contracts if the amount ordered during any
year will, or does, not exceed \$10,000.

g\. *OFCCP Concurrence for Certain Exemptions.* The Contracting Officer
must request and obtain concurrence by the Director of OFCCP for the
exemptions under subparagraphs f.(1), f.(2), and f.(5) above. The
Contracting Officer will prepare a written request delineating the
reasons and authority for the exemption.

**14. SPECIAL DISABLED AND VIETNAM ERA VETERANS**

a\. The Vietnam Era Veterans Readjustment Act of 1972, as amended (38
U.S.C. 2012) and Executive Order 11701 require contractors and
subcontractors, when entering into contracts subject to the Act, to list
all suitable employment openings with the appropriate local employment
service office and take affirmative action to employ, and advance in
employment, qualified special disabled veterans and veterans of the
Vietnam Era without discrimination based on their disability or
veteran\'s status.

b\. *Applicability.* The Act applies to all contracts for supplies,
services, and construction of \$10,000 or more (including contracts with
a State or local government, or any agency, instrumentality, or
subdivision of that government, that does not work on or under the
contract), unless waived by OFCCP.

c\. *Waivers*.

\(1\) Subject to concurrence from the Director of OFCCP, the Contracting
Officer or Chief of Contracting Office (COCO) may waive any or all of
the terms of the clause "Affirmative Action for Special Disabled and
Vietnam Era Veterans," as follows:

\(a\) The Contracting Officer may waive any individual contract if in
the national interest; or

\(b\) The COCO may waive any groups or categories of contracts if in the
national interest.

\(2\) The COCO, with the concurrence of OFCCP, may waive any
implementing requirements of the Act when the COCO determines that the
contract is essential to national security, and award without complying
with such requirements is necessary to national security. The COCO will
notify OFCCP in writing within 30 days of making this determination.

\(3\) The Contracting Officer will prepare a written determination for
waiver, with the appropriate signature level, delineating the reasons
and authority for the waiver.

d\. *Department of Labor Notices and Reports.*

\(1\) The Contracting Officer will furnish notices for posting to the
contractor when they are prescribed by OFCCP.

\(2\) Contractors will submit a report (Standard Form VETS‑100, "Federal
Contractor Veterans\' Employment Report") at least annually to the
Secretary of Labor regarding employment of Vietnam era and special
disabled veterans unless all of the terms of the clauses "Affirmative
Action for Special Disabled and Vietnam Era Veterans," have been waived.

e\. *Collective Bargaining Agreements*. If performance under the Act
could affect a revision of a collective bargaining agreement, the
Contracting Officer should advise the affected labor unions or
management that DOL will give them appropriate opportunity to present
their views.

f\. *Complaint Procedures*. The Contracting Officer should forward any
complaints about administration of the Act to the Veteran\'s Employment
Service of DOL, through the local Veteran\'s Employment Representative
or designee, at the local State employment office. The Director of OFCCP
is primarily responsible for investigating complaints.

g\. *Actions Because of Noncompliance*. The Contracting Officer should
take necessary action as soon as possible after notification to
implement any sanctions imposed on a contractor by DOL for violations of
the clause.

**15. EMPLOYMENT OF THE** **DISABLED**

a\. Section 503 of the Rehabilitation Act of 1973, as amended (29 U.S.C.
793) and Executive Order 11758 require Government contractors and
subcontractors, when entering into contracts subject to the Act, to take
affirmative action to employ, and advance in employment, qualified
disabled individuals without discrimination based on their physical or
mental disability.

b\. *Applicability.* The Rehabilitation Act applies to all contracts for
supplies, services, and construction of \$2,500 or more unless waived by
the Secretary of Labor. The Act does not apply to contracts with a State
or local government (or any agency, instrumentality, or subdivision of
that government) that does not work on or under the contract).

c\. *Waivers*

\(1\) Subject to concurrence from the Director of OFCCP, the Contracting
Officer or Chief of Contracting Office (COCO) may waive any or all of
the terms of the clause "Affirmative Action for Disabled Workers," as
follows:

\(a\) The Contracting Officer may waive any individual contract if
deemed to be in the national interest; or

\(b\) The COCO may waive any groups or categories of contracts if in the
national interest and:

\(i\) It is impracticable to act on each request individually; and

\(ii\) Determined that the waiver will substantially contribute to
convenience in administering the Act.

\(2\) The COCO, with the concurrence of the Director of OFCCP, may waive
any implementing requirements of the Act when the COCO determines that
the contract is essential to national security, and award without
complying with such requirements is necessary to national security. The
COCO will notify the Director of OFCCP in writing within 30 days of
making this determination.

\(3\) The Contracting Officer will prepare a written determination for
waiver, with the appropriate signature level, delineating the reasons
and authority for the waiver.

\(4\) A waiver granted for a particular class of contracts may be
withdrawn for any contract within that class whenever considered
necessary by the Director to achieve the purposes of the Act. The
withdrawal will not apply to contracts awarded before the withdrawal.

d\. *Department of Labor Notices.* The Contracting Officer will furnish
to the contractor appropriate notices that state the contractor\'s
obligations and the disabledindividual\'s rights under the Employment of
the Disabled program. The Contracting Officer may obtain these notices
from the applicable Department of Labor Regional Office, Office of
Federal Contract Compliance Programs, shown in the attached list by
geographic jurisdictions.

e\. *Collective Bargaining Agreements*. If performance under the Act
could affect a revision of a collective bargaining agreement, the
Contracting Officer should advise the affected labor unions or
management that DOL will give them appropriate opportunity to present
their views.

f\. *Complaint Procedures*. The Contracting Officer should forward any
complaints about administration of the Act to the Veteran\'s Employment
Service of DOL, through the local Veteran\'s Employment Representative
or designee, at the local State employment office. The Director of OFCCP
is primarily responsible for investigating complaints.

g\. *Actions Because of Noncompliance*. The Contracting Officer should
take necessary action as soon as possible after notification to
implement any sanctions imposed on a contractor by DOL for violations of
the clause. These sanctions may include:

\(1\) Withholding from payments otherwise due;

\(2\) Termination or suspension of the contract; or

\(3\) Debarment.

**B. CLAUSES**

See FAST Procurement Toolbox for applicable clauses.

**C. FORMS**

See FAST Procurement Toolbox for applicable forms.

**D. ATTACHMENT**

Address list of DOL Regional Offices of Federal Contract Compliance
Programs (OFCCP) by geographic jurisdictions.

**ATTACHMENT - Office of Federal Contract Compliance Programs Regional
Offices**

1\. Boston Region

(Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island,
Vermont)

JFK Federal Building

Boston, MA 02203

\(617\) 565-2055

2\. New York Region

(New Jersey, New York, Puerto Rico, Virgin Islands)

Room 750

New York, NY 10014

\(212\) 337-2007

3\. Philadelphia

(Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West
Virginia)

Gateway Building

3535 Market St.

Philadelphia, PA 19104

\(215\) 596-6168

4\. Atlanta

(Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South
Carolina, Tennessee)

Atlanta Federal Center

61 Forsyth Street, S.W.

Atlanta, GA 30303

\(404\) 562-2424

5\. Chicago

(Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin, Iowa, Kansas,
Missouri, Nebraska)

Kluczynski Federal Building

230 South Dearborn Street

Chicago, IL 60604

\(312\) 353-0335

6\. Dallas

(Arkansas, Louisiana, New Mexico, Oklahoma, Texas, Colorado, Montana,
North Dakota, South Dakota, Utah, Wyoming)

Federal building

525 South Griffin St.

Dallas, TX 75202

\(214\) 767-2804

**Attachment -** **Office of Federal Contract Compliance Programs
Regional Offices (cont)**

7\. San Francisco

(Arizona, California, Guam, Hawaii, Nevada)

71 Stevenson Street

San Francisco, CA 94105

\(415\) 975-4720

8\. Seattle

(Alaska, Idaho, Oregon, Washington)

1111 Third Avenue

Seattle, WA 98101

\(206\) 553-4508