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(A) unless notice is given as provided in this subsection;
and
(B) more than one year after the day on which notice
is given.
(d) WAIVER OF BONDS FOR CONTRACTS PERFORMED IN FOREIGN
COUNTRIES.—A contracting officer may waive the requirement of
a performance bond and payment bond for work under a contract
that is to be performed in a foreign country if the officer finds
that it is impracticable for the contractor to furnish the bonds.
(e) AUTHORITY TO REQUIRE ADDITIONAL BONDS.—This section does
not limit the authority of a contracting officer to require a perform-
ance bond or other security in addition to those, or in cases other
than the cases, specified in subsection (b).
§ 3132. Alternatives to payment bonds provided by Federal
Acquisition Regulation
(a) IN GENERAL.—The Federal Acquisition Regulation shall pro-
vide alternatives to payment bonds as payment protections for
suppliers of labor and materials under contracts referred to in
section 3131(a) of this title that are more than $25,000 and not
more than $100,000.
(b) RESPONSIBILITIES OF CONTRACTING OFFICER.—The contracting
officer for a contract shall—
(1) select, from among the payment protections provided for
in the Federal Acquisition Regulation pursuant to subsection
(a), one or more payment protections which the offeror awarded
the contract is to submit to the Federal Government for the
protection of suppliers of labor and materials for the contract;
and
(2) specify in the solicitation of offers for the contract the
payment protections selected.
§ 3133. Rights of persons furnishing labor or material
(a) RIGHT OF PERSON FURNISHING LABOR OR MATERIAL TO COPY
OF BOND.—The department secretary or agency head of the con-
tracting agency shall furnish a certified copy of a payment bond
and the contract for which it was given to any person applying
for a copy who submits an affidavit that the person has supplied
labor or material for work described in the contract and payment
for the work has not been made or that the person is being sued
on the bond. The copy is prima facie evidence of the contents,
execution, and delivery of the original. Applicants shall pay any
fees the department secretary or agency head of the contracting
agency fixes to cover the cost of preparing the certified copy.
(b) RIGHT TO BRING A CIVIL ACTION.—
(1) IN GENERAL.—Every person that has furnished labor or
material in carrying out work provided for in a contract for
which a payment bond is furnished under section 3131 of
this title and that has not been paid in full within 90 days
after the day on which the person did or performed the last
of the labor or furnished or supplied the material for which
the claim is made may bring a civil action on the payment
bond for the amount unpaid at the time the civil action is
brought and may prosecute the action to final execution and
judgment for the amount due.
H. R. 2068—88
(2) PERSON HAVING DIRECT CONTRACTUAL RELATIONSHIP WITH
A SUBCONTRACTOR.—A person having a direct contractual rela-
tionship with a subcontractor but no contractual relationship,
express or implied, with the contractor furnishing the payment
bond may bring a civil action on the payment bond on giving
written notice to the contractor within 90 days from the date
on which the person did or performed the last of the labor
or furnished or supplied the last of the material for which
the claim is made. The action must state with substantial
accuracy the amount claimed and the name of the party to
whom the material was furnished or supplied or for whom
the labor was done or performed. The notice shall be served—
(A) by any means that provides written, third-party
verification of delivery to the contractor at any place the
contractor maintains an office or conducts business or at
the contractor’s residence; or
(B) in any manner in which the United States marshal
of the district in which the public improvement is situated
by law may serve summons.
(3) VENUE.—A civil action brought under this subsection must
be brought—
(A) in the name of the United States for the use of
the person bringing the action; and
(B) in the United States District Court for any district
in which the contract was to be performed and executed,
regardless of the amount in controversy.
(4) PERIOD IN WHICH ACTION MUST BE BROUGHT.—An action
brought under this subsection must be brought no later than
one year after the day on which the last of the labor was
performed or material was supplied by the person bringing
the action.
(5) LIABILITY OF FEDERAL GOVERNMENT.—The Government
is not liable for the payment of any costs or expenses of any
civil action brought under this subsection.
(c) A waiver of the right to bring a civil action on a payment
bond required under this subchapter is void unless the waiver
is—
(1) in writing;
(2) signed by the person whose right is waived; and
(3) executed after the person whose right is waived has
furnished labor or material for use in the performance of the
contract.
§ 3134. Waivers for certain contracts
(a) MILITARY.—The Secretary of the Army, the Secretary of the
Navy, the Secretary of the Air Force, or the Secretary of Transpor-
tation may waive this subchapter with respect to cost-plus-a-fixed
fee and other cost-type contracts for the construction, alteration,
or repair of any public building or public work of the Federal
Government and with respect to contracts for manufacturing, pro-
ducing, furnishing, constructing, altering, repairing, processing, or
assembling vessels, aircraft, munitions, materiel, or supplies for
the Army, Navy, Air Force, or Coast Guard, respectively, regardless
of the terms of the contracts as to payment or title.
(b) TRANSPORTATION.—The Secretary of Transportation may
waive this subchapter with respect to contracts for the construction,
alteration, or repair of vessels when the contract is made under
H. R. 2068—89
sections 1535 and 1536 of title 31, the Merchant Marine Act,
1936 (46 App. U.S.C. 1101 et seq.), or the Merchant Ship Sales
Act of 1946 (50 App. U.S.C. 1735 et seq.), regardless of the terms
of the contracts as to payment or title.
SUBCHAPTER IV—WAGE RATE REQUIREMENTS
§ 3141. Definitions
In this subchapter, the following definitions apply:
(1) FEDERAL GOVERNMENT.—The term ‘‘Federal Government’’
has the same meaning that the term ‘‘United States’’ had
in the Act of March 3, 1931 (ch. 411, 46 Stat. 1494 (known
as the Davis-Bacon Act).
(2) WAGES, SCALE OF WAGES, WAGE RATES, MINIMUM WAGES,
AND PREVAILING WAGES.—The terms ‘‘wages’’, ‘‘scale of wages’’,
‘‘wage rates’’, ‘‘minimum wages’’, and ‘‘prevailing wages’’
include—
(A) the basic hourly rate of pay; and
(B) for 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
forgoing, for unemployment benefits, life insurance, dis-
ability and sickness insurance, or accident insurance, for
vacation and holiday pay, for defraying the costs of
apprenticeship or other similar programs, or for other bona
fide fringe benefits, but only where the contractor or sub-
contractor is not required by other federal, state, or local
law to provide any of those benefits, the amount of—
(i) the rate of contribution irrevocably made by a
contractor or subcontractor to a trustee or to a third
person under a fund, plan, or program; and
(ii) the rate of costs to the contractor or subcontractor
that may be reasonably anticipated in providing bene-
fits to laborers and mechanics pursuant to an enforce-
able commitment to carry out a financially responsible
plan or program which was communicated in writing
to the laborers and mechanics affected.
§ 3142. Rate of wages for laborers and mechanics
(a) APPLICATION.—The advertised specifications for every contract
in excess of $2,000, to which the Federal Government or the District
of Columbia is a party, for construction, alteration, or repair,
including painting and decorating, of public buildings and public
works of the Government or the District of Columbia that are
located in a State or the District of Columbia and which requires
or involves the employment of mechanics or laborers shall contain
a provision stating the minimum wages to be paid various classes
of laborers and mechanics.
(b) BASED
ON PREVAILING WAGE.—The minimum wages shall
be based on the wages the Secretary of Labor determines to be
prevailing for the corresponding classes of laborers and mechanics
employed on projects of a character similar to the contract work
in the civil subdivision of the State in which the work is to be
performed, or in the District of Columbia if the work is to be
performed there.
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(c) STIPULATIONS REQUIRED IN CONTRACT.—Every contract based
upon the specifications referred to in subsection (a) must contain
stipulations that—
(1) the contractor or subcontractor shall pay all mechanics
and laborers employed directly on the site of the work, uncondi-
tionally and at least once a week, and without subsequent
deduction or rebate on any account, the full amounts accrued
at time of payment, computed at wage rates not less than
those stated in the advertised specifications, regardless of any
contractual relationship which may be alleged to exist between
the contractor or subcontractor and the laborers and mechanics;
(2) the contractor will post the scale of wages to be paid
in a prominent and easily accessible place at the site of the
work; and
(3) there may be withheld from the contractor so much of
accrued payments as the contracting officer considers necessary
to pay to laborers and mechanics employed by the contractor
or any subcontractor on the work the difference between the
rates of wages required by the contract to be paid laborers
and mechanics on the work and the rates of wages received
by the laborers and mechanics and not refunded to the con-
tractor or subcontractors or their agents.
(d) DISCHARGE OF OBLIGATION.—The obligation of a contractor
or subcontractor to make payment in accordance with the prevailing
wage determinations of the Secretary of Labor, under this sub-
chapter and other laws incorporating this subchapter by reference,
may be discharged by making payments in cash, by making con-
tributions described in section 3141(2)(B)(i) of this title, by assuming
an enforceable commitment to bear the costs of a plan or program
referred to in section 3141(2)(B)(ii) of this title, or by any combina-
tion of payment, contribution, and assumption, where the aggregate
of the payments, contributions, and costs is not less than the
basic hourly rate of pay plus the amount referred to in section
3141(2)(B).
(e) OVERTIME PAY.—In determining the overtime pay to which
a laborer or mechanic is entitled under any federal law, the regular
or basic hourly rate of pay (or other alternative rate on which
premium rate of overtime compensation is computed) of the laborer
or mechanic is deemed to be the rate computed under section
3141(2)(A) of this title, except that where the amount of payments,
contributions, or costs incurred with respect to the laborer or
mechanic exceeds the applicable prevailing wage, the regular or
basic hourly rate of pay (or other alternative rate) is the amount
of payments, contributions, or costs actually incurred with respect
to the laborer or mechanic minus the greater of the amount of
contributions or costs of the types described in section 3141(2)(B)
of this title actually incurred with respect to the laborer or mechanic
or the amount determined under section 3141(2)(B) but not actually
paid.
§ 3143. Termination of work on failure to pay agreed wages
Every contract within the scope of this subchapter shall contain
a provision that if the contracting officer finds that any laborer
or mechanic employed by the contractor or any subcontractor
directly on the site of the work covered by the contract has been
or is being paid a rate of wages less than the rate of wages
required by the contract to be paid, the Federal Government by