48 C.F.R. PART 222—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Title 48 - Federal Acquisition Regulations System
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
Source: 56 FR 36358, July 31, 1991, unless otherwise noted.
Labor advisor, as used in this part, means the departmental or agency headquarters labor advisor. Follow the procedures at PGI 222.101–1 for referral of labor relations matters to the appropriate authorities. [71 FR 18670, Apr. 12, 2006] Follow the procedures at PGI 222.101–3 for reporting labor disputes. [71 FR 18670, Apr. 12, 2006] (a) Each department and agency shall determine the degree of impact of potential or actual labor disputes on its own programs and requirements. For guidance on determining the degree of impact, see PGI 222.101–3–70(a). (b) Each contracting activity shall obtain and develop data reflecting the impact of a labor dispute on its requirements and programs. Upon determining that the impact of the labor dispute is significant, the head of the contracting activity shall submit a report of findings and recommendations to the labor advisor in accordance with departmental procedures. This reporting requirement is assigned Report Control Symbol DD–AT&L(AR)1153 and must include the information specified at PGI 222.101–3–70(b). [71 FR 18670, Apr. 12, 2006] (a) When a contractor is unable to deliver urgent and critical items because of a work stoppage at its facility, the contracting officer, before removing any items from the facility, shall— (i) Before initiating any action, contact the labor advisor to obtain the opinion of the national office of the Federal Mediation and Conciliation Service or other mediation agency regarding the effect movement of the items would have on labor negotiations. Normally removals will not be made if they will adversely affect labor negotiations. (ii) Upon the recommendation of the labor advisor, provide a written request for removal of the material to the cognizant contract administration office. Include in the request the information specified at PGI 222.101–4(a)(ii). (iii) With the assistance of the labor advisor or the commander of the contract administration office, attempt to have both the management and the labor representatives involved agree to shipment of the material by normal means. (iv) If agreement for removal of the needed items cannot be reached following the procedures in paragraphs (a) (i) through (iii) of this subsection, the commander of the contract administration office, after obtaining approval from the labor advisor, may seek the concurrence of the parties to the dispute to permit movement of the material by military vehicles with military personnel. On receipt of such concurrences, the commander may proceed to make necessary arrangements to move the material. (v) If agreement for removal of the needed items cannot be reached following any of the procedures in paragraphs (a) (i) through (iv) of this subsection, refer the matter to the labor advisor with the information required by 222.101–3–70(b). If the labor advisor is unsuccessful in obtaining concurrence of the parties for the movement of the material and further action to obtain the material is deemed necessary, refer the matter to the agency head. Upon review and verification that the items are urgently or critically needed and cannot be moved with the consent of the parties, the agency head, on a nondelegable basis, may order removal of the items from the facility. [56 FR 36358, July 31, 1991, as amended at 71 FR 18670, Apr. 12, 2006] (a) Use the following procedures only in the order listed when a labor dispute delays performance of a contract for stevedoring services which are urgently needed. (1) Attempt to have management and labor voluntarily agree to exempt military supplies from the labor dispute by continuing the movement of such material. (2) Divert vessels to alternate ports able to provide necessary stevedoring services. (3) Consider contracting with reliable alternative sources of supply within the stevedoring industry. (4) Utilize civil service stevedores to perform the work performed by contract stevedores. (5) Utilize military personnel to handle the cargo which was being handled by contract stevedores prior to the labor dispute. (b) Notify the labor advisor when a deviation from the procedures in paragraph (a) of this subsection is required. (1) Direct all inquiries from contractors or contractor employees regarding the applicability or interpretation of Occupational Safety and Health Act (OSHA) regulations to the Department of Labor. (2) Upon request, provide the address of the appropriate field office of the Occupational Safety and Health Administration of the Department of Labor. (3) Do not initiate any application for the suspension or relaxation of labor requirements without prior coordination with the labor advisor. Any requests for variances or alternative means of compliance with OSHA requirements must be approved by the Occupational Safety and Health Administration of the Department of Labor. [71 FR 18670, Apr. 12, 2006] (a) The department/agency approving official shall— (i) Obtain the concurrence of other appropriate approving officials; and (ii) Seek agreement as to the contracts under which overtime premiums will be approved when— (A) Two or more contracting offices have current contracts at the same contractor facility; and (B) The approval of overtime by one contracting office will affect the performance or cost of contracts of another office. In the absence of evidence to the contrary, a contracting officer may rely on a contractor's statement that approval of overtime premium pay for one contract will not affect performance or payments under any other contract. Upon receipt of notification of Contract Work Hours and Safety Standards Act violations, the contracting officer shall— (1) Immediately withhold such funds as are available; (2) Give the contractor written notification of the withholding and a statement of the basis for the liquidated damages assessment. The written notification shall also inform the contractor of its 60 days right to appeal the assessment, through the contracting officer, to the agency official responsible for acting on such appeals; and (3) If funds available for withholding are insufficient to cover liquidated damages, ask the contractor to pay voluntarily such funds as are necessary to cover the total liquidated damage assessment. (d)(i) The assessment shall become the final administrative determination of contractor liability for liquidated damages when— (A) The contractor fails to appeal to the contracting agency within 60 days from the date of the withholding of funds; (B) The department agency, following the contractor's appeals, issues a final order which affirms the assessment of liquidated damages or waives damages of $500 or less; or (C) The Secretary of Labor takes final action on a recommendation of the agency head to waive or adjust liquidated damages in excess of $500. (ii) Upon final administrative determination of the contractor's liability for liquidated damages, the contracting officer shall transmit withheld or collected funds determined to be owed the Government as liquidated damages to the servicing finance and accounting officer for crediting to the appropriate Government Treasury account. The contracting officer shall return any excess withheld funds to the contractor. (a) Apply both the Service Contract Act (SCA) and the Davis-Bacon Act (DBA) to installation support contracts if— (1) The contract is principally for services but also requires a substantial and segregable amount of construction, alteration, renovation, painting, or repair work; and (2) The aggregate dollar value of such construction work exceeds or is expected to exceed $2,000. (b) SCA coverage under the contract. Contract installation support requirements, such as plant operation and installation services (i.e., custodial, snow removal, etc.) are subject to the SCA. Apply SCA clauses and minimum wage and fringe benefit requirements to all contract service calls or orders for such maintenance and support work. (c) DBA coverage under the contract. Contract construction, alteration, renovation, painting, and repair requirements (i.e., roof shingling, building structural repair, paving repairs, etc.) are subject to the DBA. Apply DBA clauses and minimum wage requirements to all contract service calls or orders for construction, alteration, renovation, painting, or repairs to buildings or other works. (d) Repairs versus maintenance. Some contract work may be characterized as either DBA painting/repairs or SCA maintenance. For example, replacing broken windows, spot painting, or minor patching of a wall could be covered by either the DBA or the SCA. In those instances where a contract service call or order requires construction trade skills (i.e., carpenter, plumber, painter, etc.), but it is unclear whether the work required is SCA maintenance or DBA painting/repairs, apply the following rules— (1) Individual service calls or orders which will require a total of 32 or more work-hours to perform shall be considered to be repair work subject to the DBA. (2) Individual service calls or orders which will require less than 32 work-hours to perform shall be considered to be maintenance subject to the SCA. (3) Painting work of 200 square feet or more to be performed under an individual service call or order shall be considered to be subject to the DBA regardless of the total work-hours required. (e) The determination of labor standards application shall be made at the time the solicitation is prepared in those cases where requirements can be identified. Otherwise, the determination shall be made at the time the service call or order is placed against the contract. The service call or order shall identify the labor standards law and contract wage determination which will apply to the work required. (f) Contracting officers may not avoid application of the DBA by splitting individual tasks between orders or contracts. Direct all questions regarding Department of Labor regulations to the labor advisor. Not later than April 1 of each year, each department and agency shall furnish the Administrator, Wage and Hour Division, with a general outline of its proposed construction program for the coming fiscal year. The Department of Labor uses this information to determine where general wage determination surveys will be conducted. (1) Indicate by individual project of $500,000 or more— (i) The anticipated type of construction; (ii) The estimated dollar value; and (iii) The location in which the work is to be performed (city, town, village, county, or other civil subdivision of the state). (2) The report format is contained in Department of Labor All Agency Memo 144, December 27, 1985. (3) The report control number is 1671–DOL-AN. (a) General. The program shall also include— (i) Training appropriate contract administration, labor relations, inspection, and other labor standards enforcement personnel in their responsibilities; and (ii) Periodic review of field enforcement activities to ensure compliance with applicable regulations and instructions. (b) Preconstruction letters and conferences. (1) Promptly after award of the contract, the contracting officer shall provide a preconstruction letter to the prime contractor. This letter should accomplish the following, as appropriate— (A) Indicate that the labor standards requirements contained in the contract are based on the following statutes and regulations— (1) Davis-Bacon Act; (2) Contract Work Hours and Safety Standards Act; (3) Copeland (Anti-Kickback) Act; (4) Parts 3 and 5 of the Secretary of Labor's Regulations (parts 3 and 5, subtitle A, title 29, CFR); and (5) Executive Order 11246 (Equal Employment Opportunity); (B) Call attention to the labor standards requirements in the contract which relate to— (1) Employment of foremen, laborers, mechanics, and others; (2) Wages and fringe benefits payments, payrolls, and statements; (3) Differentiation between subcontractors and suppliers; (4) Additional classifications; (5) Benefits to be realized by contractors and subcontractors in keeping complete work records; (6) Penalties and sanctions for violations of the labor standards provisions; and (7) The applicable provisions of FAR 22.403; and (C) Ensure that the contractor sends a copy of the preconstruction letter to each subcontractor. (2) Before construction begins, the contracting officer shall confer with the prime contractor and any subcontractor designated by the prime to emphasize their labor standards obligations under the contract when— (A) The prime contractor has not performed previous Government contracts; (B) The prime contractor experienced difficulty in complying with labor standards requirements on previous contracts; or (C) It is necessary to determine whether the contractor and its subcontractors intend to pay any required fringe benefits in the manner specified in the wage determination or to elect a different method of payment. If the latter, inform the contractor of the requirements of FAR 22.406–2. (a) Submission. Contractors who do not use Department of Labor Form WH 347 or its equivalent must submit a DD Form 879, Statement of Compliance, with each payroll report. (a) Before beginning an investigation, the investigator shall inform the contractor of the general scope of the investigation, and that the investigation will include examining pertinent records and interviewing employees. In conducting the investigation, follow the procedures at PGI 222.406–8(a). (c) Contractor notification. (4)(A) Notify the contractor by certified mail of any finding that it is liable for liquidated damages under the Contract Work Hours and Safety Standards Act (CWHSSA). The notification shall inform the contractor that— (1) It has 60 days after receipt of the notice to appeal the assessment of liquidated damages; and (2) The appeal must demonstrate either that the alleged violations did not occur at all, occurred inadvertently notwithstanding the exercise of due care, or the assessment was computed improperly. (B) If an appeal is received, the contracting officer shall process the appeal in accordance with department or agency regulations. (d) Contracting officer's report. Forward a detailed enforcement report or summary report to the agency head in accordance with agency procedures. Include in the report, as a minimum, the information specified at PGI 222.406–8(d). [56 FR 36358, July 31, 1991, as amended at 71 FR 18670, Apr. 12, 2006] (a) Withholding from contract payments. The contracting officer shall contact the labor advisor for assistance when payments due a contractor are not available to satisfy that contractor's liability for Davis-Bacon or CWHSSA wage underpayments or liquidated damages. (c) Disposition of contract payments withheld or suspended. (3) Limitation on forwarding or returning funds. When disposition of withheld funds remains the final action necessary to close out a contract, the Department of Labor has given blanket approval to forward withheld funds to the Comptroller General pending completion of an investigation or other administrative proceedings. (4) Liquidated damages. (A) The agency head may adjust liquidated damages of $500 or less when the amount assessed is incorrect or waive the assessment when the violations— (1) Were nonwillful or inadvertent; and (2) Occurred notwithstanding the exercise of due care by the contractor, its subcontractor, or their agents. (B) The agency head may recommend to the Administrator, Wage and Hour Division, that the liquidated damages over $500 be adjusted because the amount assessed is incorrect. The agency head may also recommend the assessment be waived when the violations— (1) Were nonwillful or inadvertent; and (2) Occurred notwithstanding the exercise of due care by the contractor, the subcontractor, or their agents. (d) Forward the contracting officer's findings and the contractor's statement through the labor advisor. Forward these reports through the head of the contracting activity to the labor advisor within 15 days following the end of the reporting period. These reports shall not include information from investigations conducted by the Department of Labor. These reports shall contain the following information, as applicable, for construction work subject to the Davis-Bacon Act and the CWHSSA— (1) Period covered; (2) Number of prime contracts awarded; (3) Total dollar amount of prime contracts awarded; (4) Number of contractors/subcontractors against whom complaints were received; (5) Number of investigations conducted; (6) Number of contractors/subcontractors found in violation; (7) Amount of wage restitution found due under— (i) Davis-Bacon Act (ii) CWHSSA; (8) Number of employees due wage restitution under— (i) Davis-Bacon Act (ii) CWHSSA; (9) Amount of liquidated damages assessed under the CWHSSA— (i) Total amount (ii) Number of contracts involved; (10) Number of employees and amount paid/withheld under— (i) Davis-Bacon Act (ii) CWHSSA (iii) Copeland Act; and (11) Preconstruction activities— (i) Number of compliance checks performed (ii) Preconstruction letters sent. (b) Submit all applications for such exemptions through contracting channels to the labor advisor. [56 FR 36358, July 31, 1991, as amended at 65 FR 14398, Mar. 16, 2000] (b) Refer inquiries through the labor advisor. (c) Follow the procedures at PGI 222.807(c) when submitting a request for an exemption. [71 FR 18670, Apr. 12, 2006] For contracts having a substantial amount of construction, alteration, renovation, painting, or repair work, see 222.402–70. Follow the procedures at PGI 222.1008–2 regarding use of the Service Contract Act Directory of Occupations when preparing the SF 98a. [71 FR 18670, Apr. 12, 2006] (d) Submit requests for immediate wage determination responses for emergency acquisitions through the labor advisor. If the request is justified, the labor advisor will contact Department of Labor headquarters officials. Follow the procedures at PGI 222.1014 for submission of update requests to the Wage and Hour Division. [71 FR 18670, Apr. 12, 2006] Source: 71 FR 18670, Apr. 12, 2006, unless otherwise noted.
(c) Follow the procedures at PGI 222.1305(c) for submission of waiver requests. The contracting officer shall— (1) Forward each complaint received as indicated in FAR 22.1308; and (2) Notify the complainant of the referral. The contractor in question shall 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. (a)(1) Use of the clause at FAR 52.222–35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans, with its paragraph (c), Listing Openings, also satisfies the requirement of 10 U.S.C. 2410k. (c) The contracting officer shall submit a waiver request through contracting channels to the labor advisor. If the request is justified, the labor advisor will endorse the request and forward it for action to— (i) The agency head for waivers under FAR 22.1403(a). For the defense agencies, waivers must be approved by the Under Secretary of Defense for Acquisition. (ii) The Secretary of Defense, without the power of redelegation, for waivers under FAR 22.1403(b). The contracting officer shall notify the complainant of such referral. The contractor in question shall 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. [71 FR 18671, Apr. 12, 2006] Source: 65 FR 14403, Mar. 16, 2000, unless otherwise noted.
(a) This subpart implements Section 8071 of the Fiscal Year 2000 Defense Appropriations Act, Public Law 106–79, and similar sections in subsequent Defense Appropriations Acts. (b) This subpart applies only— (1) To construction and service contracts to be performed in whole or in part within a noncontiguous State; and (2) When the unemployment rate in the noncontiguous State is in excess of the national average rate of unemployment as determined by the Secretary of Labor. “Noncontiguous State,” as used in this subpart, means Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Island. [65 FR 50151, Aug. 17, 2000] A contractor awarded a contract subject to this subpart must employ, for the purpose of performing that portion of the contract work within the noncontiguous State, individuals who are residents of that noncontiguous State and who, in the case of any craft or trade, possess or would be able to acquire promptly the necessary skills to perform this contract. The head of the agency may waive the requirements of 222.7002 on a case-by-case basis in the interest of national security. [65 FR 50151, Aug. 17, 2000] Use the clause at 252.222–7000, Restrictions on Employment of Personnel, in all solicitations and contracts subject to this subpart. Insert the name of the appropriate noncontiguous State in paragraph (a) of the clause. Source: 57 FR 52593, Nov. 4, 1992, unless otherwise noted.
(a) DoD policy is to minimize the adverse impact on civil service employees affected by the closure of military installations. One means of implementing this policy is to give employees adversely affected by closure of a military installation the right of first refusal for jobs created by award of contracts arising from the closure effort that the employee is qualified to fill. (b) Closure efforts include the acquisitions for preparing the installation for closure (such as environmental restoration and utilities modification) and maintaining the property after closure (such as security and fire prevention services). Use the clause at 252.222–7001, Right of First Refusal of Employment—Closure of Military Installations, in all solicitations and contracts arising from the closure of the military installation where the contract will be performed. (a) Use the clause at 252.222–7002, Compliance with Local Labor Laws (Overseas), in solicitations and contracts for services or construction to be performed outside the United States and its outlying areas. (b) Use the clause at 252.222–7003, Permit from Italian Inspectorate of Labor, in solicitations and contracts for porter, janitorial, or ordinary facility and equipment maintenance services to be performed in Italy. (c) Use the clause at 252.222–7004, Compliance with Spanish Social Security Laws and Regulations, in solicitations and contracts for services or construction to be performed in Spain. [62 FR 34122, June 24, 1997, as amended at 70 FR 35545, June 21, 2005] Source: 64 FR 52672, Sept. 30, 1999, unless otherwise noted.
(a) This subpart implements— (1) 10 U.S.C. 2864; and (2) Section 390 of the National Defense Authorization Act for Fiscal Year 1998 (Public Law 105–85). (b) This subpart applies to— (1) Contracts for military construction projects on Guam; and (2) Contracts for base operations support on Guam that— (i) Are awarded as a result of a competition conducted under OMB Circular A–76; and (ii) Are entered into or modified on or after November 18, 1997. (a) Any alien who is issued a visa or otherwise provided nonimmigrant status under Section 101(a)(15)(H)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)) is prohibited from performing work under a contract for— (1) A military construction project on Guam; or (2) Base operations support on Guam. (b) Lawfully admitted citizens of the freely associated states of the Republic of the Marshall Islands, the Federated States of Micronesia, or the Republic of Palau are not subject to the prohibition in paragraph (a) of this section. The prohibition in 222.7301(a)(1) does not apply to a military construction project if— (a) There is no acceptable offer in response to a solicitation for the project; (b) The Secretary concerned makes a determination that the prohibition is a significant deterrent to obtaining offers on the project; and (c) Another solicitation is issued for the project. Use the clause at 252.222–7005, Prohibition on Use of Nonimmigrant Aliens-Guam, in solicitations and contracts subject to this subpart, except those issued in accordance with 222.7302.
Title 48: Federal Acquisition Regulations System
PART 222—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Section Contents
222.001 Definition.
222.101 Labor relations.
222.101-1 General.
222.101-3 Reporting labor disputes.
222.101-3-70 Impact of labor disputes on defense programs.
222.101-4 Removal of items from contractors' facilities affected by work stoppages.
222.101-70 Acquisition of stevedoring services during labor disputes.
222.102 Federal and State labor requirements.
222.102-1 Policy.
222.103 Overtime.
222.103-4 Approvals.
222.302 Liquidated damages and overtime pay.
222.402 Applicability.
222.402-70 Installation support contracts.
222.403 Statutory and regulatory requirements.
222.403-4 Department of Labor regulations.
222.404 Davis-Bacon Act wage determinations.
222.406 Administration and enforcement.
222.406-1 Policy.
222.406-6 Payrolls and statements.
222.406-8 Investigations.
222.406-9 Withholding from or suspension of contract payments.
222.406-10 Disposition of disputes concerning construction contract labor standards enforcement.
222.406-13 Semiannual enforcement reports.
222.604 Exemptions.
222.604-2 Regulatory exemptions.
222.806 Inquiries.
222.807 Exemptions.
222.1003 Applicability.
222.1003-1 General.
222.1008 Procedures for preparing and submitting Notice (SF 98/98a).
222.1008-2 Preparation of SF 98a.
222.1008-7 Required time of submission of notice.
222.1014 Delay of acquisition dates over 60 days.
222.1305 Waivers.
222.1308 Complaint procedures.
222.1310 Solicitation provision and contract clauses.
222.1403 Waivers.
222.1406 Complaint procedures.
222.7000 Scope of subpart.
222.7001 Definition.
222.7002 General.
222.7003 Waivers.
222.7004 Contract clause.
222.7101 Policy.
222.7102 Contract clause.
222.7201 Contract clauses.
222.7300 Scope of subpart.
222.7301 Prohibition on use of nonimmigrant aliens.
222.7302 Exception.
222.7303 Contract clause.
222.001 Definition.
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Subpart 222.1—Basic Labor Policies
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222.101 Labor relations.
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222.101-1 General.
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222.101-3 Reporting labor disputes.
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222.101-3-70 Impact of labor disputes on defense programs.
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222.101-4 Removal of items from contractors' facilities affected by work stoppages.
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222.101-70 Acquisition of stevedoring services during labor disputes.
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222.102 Federal and State labor requirements.
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222.102-1 Policy.
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222.103 Overtime.
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222.103-4 Approvals.
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Subpart 222.3—Contract Work Hours and Safety Standards Act
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222.302 Liquidated damages and overtime pay.
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Subpart 222.4—Labor Standards for Contracts Involving Construction
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222.402 Applicability.
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222.402-70 Installation support contracts.
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222.403 Statutory and regulatory requirements.
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222.403-4 Department of Labor regulations.
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222.404 Davis-Bacon Act wage determinations.
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222.406 Administration and enforcement.
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222.406-1 Policy.
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222.406-6 Payrolls and statements.
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222.406-8 Investigations.
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222.406-9 Withholding from or suspension of contract payments.
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222.406-10 Disposition of disputes concerning construction contract labor standards enforcement.
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222.406-13 Semiannual enforcement reports.
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Subpart 222.6—Walsh-Healey Public Contracts Act
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222.604 Exemptions.
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222.604-2 Regulatory exemptions.
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Subpart 222.8—Equal Employment Opportunity
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222.806 Inquiries.
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222.807 Exemptions.
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Subpart 222.10—Service Contract Act of 1965, as Amended
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222.1003 Applicability.
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222.1003-1 General.
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222.1008 Procedures for preparing and submitting Notice (SF 98/98a).
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222.1008-2 Preparation of SF 98a.
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222.1008-7 Required time of submission of notice.
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222.1014 Delay of acquisition dates over 60 days.
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Subpart 222.13—Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans
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222.1305 Waivers.
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222.1308 Complaint procedures.
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222.1310 Solicitation provision and contract clauses.
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Subpart 222.14—Employment of the Handicapped
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222.1403 Waivers.
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222.1406 Complaint procedures.
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Subpart 222.70—Restrictions on the Employment of Personnel for Work on Construction and Service Contracts in Noncontiguous States
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222.7000 Scope of subpart.
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222.7001 Definition.
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222.7002 General.
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222.7003 Waivers.
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222.7004 Contract clause.
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Subpart 222.71—Right of First Refusal of Employment
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222.7101 Policy.
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222.7102 Contract clause.
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Subpart 222.72—Compliance with Labor Laws of Foreign Governments
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222.7201 Contract clauses.
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Subpart 222.73—Limitations Applicable to Contracts Performed on Guam
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222.7300 Scope of subpart.
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222.7301 Prohibition on use of nonimmigrant aliens.
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222.7302 Exception.
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222.7303 Contract clause.
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