Attachment E HUD Provisions.pdf

Federal Labor Standards Provisions U.S. Department of Housing and Urban Development Office of Labor Relations

Applicability

The Project or Program to which the construct ion work covered by th is contract pertains is being ass isted by the

United States of America and the fol lowing Federal Labor

Standards Provisions are inc luded in th is Contract pursuant to the provisions applicab le to such Federal assistance.

A. 1. (i) Minimum Wages. All laborers and mechanics employed or working upon the site of the work, wi l l be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account

(except such payroll deduct ions as are permitted by regulations issued by the Secretary of Labor under the

Copeland Act (29 CFR Part 3), the ful l amount of wages and bona f ide fringe benefits (or cash equivalents thereof) due at t ime of payment computed at rates not less than those contained in the wage determinat ion of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relat ionship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably ant ic ipated for bona f ide fr inge benefits under Sect ion l(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of 29 CFR 5.5(a)(1

)(iv); also, regular contribut ions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs, which cover the part icular weekly period, are deemed to be construct ively made or incurred during such weekly period.

Such laborers and mechanics shall be paid the appropriate wage rate and fr inge benefits on the wage determination for the classification of work actually performed, without regard to ski l l, except as provided in 29 CFR 5. 5(a)(4).

Laborers or mechanics performing work in more than one classif icat ion may be compensated at the rate specif ied for each classification for the t ime actually worked therein:

Provided, That the employer’s payrol l records accurately set forth the t ime spent in each classif icat ion in which work is performed. The wage determinat ion (including any additional c lassif icat ion and wage rates conformed under

29 CFR 5.5(a)(1)(i i ) and the Davis -Bacon poster (WH-1321) shall be posted at al l t imes by the contract or and i ts subcontractors at the site of the work in a prominent and accessible, place where it can be easi ly seen by the workers.

(i i ) (a) Any class of laborers or mechanics which is not l isted in the wage determinat ion and which is to be employed under the contract shal l be classif ied in conformance with the wage determinat ion. HUD shall approve an addit ional c lassif icat ion and wage rate and fringe benefi ts therefor only when the fol lowing cri ter ia have been met:

(1) The work to be performed by the classif icat ion requested is not performed by a classif icat ion in the wage determinat ion; and

(2) The classif icat ion is ut i l ized in the area by the construct ion industry; and

(3) The proposed wage rate, including any bona f ide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determinat ion.

(b) I f the contractor and the laborers and mechanics to be employed in the classif icat ion (if known), or their representat ives, and HUD or i ts designee agree on the classif icat ion and wage rate (including the amount designated for fringe benefi ts where appropriate), a report of the act ion taken shal l be sent by HUD or its designee to the Administrator of the Wage and Hour Divis ion, Employment Standards Administrat ion, U.S. Department of

Labor, Washington, D.C. 20210. The Administrator, or an authorized representative, wi l l approve, modify, or disapprove every addit ional c lassif icat ion act ion within 30 days of receipt and so advise HUD or its designee or wi l l not ify HUD or its designee within the 30-day period that additional t ime is necessary. (Approved by the Off ice of

Management and Budget under OMB control number 1215 -

0140.)

(c) In the event the contractor, the laborers or mechanics to be employed in the classificat ion or their representat ives, and HUD or its designee do not agree on the proposed classif icat ion and wage rate (including the amount designated for fringe benefits, where appropriate), HUD or its designee shal l refer the quest ions, including the views of all interested parties and the recommendation of

HUD or i ts designee, to the Administrator for determinat ion. The Administrator, or an authorized representat ive, wi l l issue a determinat ion within 30 days of receipt and so advise HUD or i ts designee or wi l l not i fy

HUD or i ts designee within the 30-day period that addit ional t ime is necessary. (Approved by the Off ice of

Management and Budget under OMB Control Number

1215-0140.)

(d) The wage rate (inc luding fr inge benefi ts where appropriate) determined pursuant to subparagraphs

(1)(i i ) (b) or (c) of this paragraph, shal l be paid to al l workers performing work in the classif icat ion under th is contract from the f irst day on which work is performed in the classif icat ion.

(i i i ) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fr inge benefi t which is not expressed as an hourly rate, the contractor shal l either pay the benefi t as stated in the wage determinat ion or shal l pay another bona fide fr inge benefit or an hourly cash equivalent thereof.

( iv) I f the contractor does not make payments to a trustee or other third person, the contractor may consider as part form HUD-4010 (06/2009) Previous editions are obsolete Page 1 of 5 ref. Handbook 1344.1

ATTACHMENT E: HUD Federal Labor Standards Provisions of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona f ide fr inge benefits under a plan or program, Provided, That the

Secretary of Labor has found, upon the writ ten request of the contractor, that the applicable standards of the Davis -

Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obl igat ions under the plan or program. (Approved by the Office of Management and

Budget under OMB Control Number 1215-0140.)

2. Withholding. HUD or i ts designee shal l upon i ts own act ion or upon writ ten request of an authorized representat ive of the Department of Labor wi thhold or cause to be withheld f rom the contractor under th is contract or any other Federal contract with the same pr ime contractor, or any other Federal ly -assisted contract subject to Davis -Bacon prevai l ing wage requirements, which is held by the same pr ime contractor so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, inc luding apprent ices, t rainees and helpers, employed by the contractor or any subcontractor the ful l amount of wag es required by the contract In the event of fai lure to pay any laborer or mechanic, including any apprent ice, t ra inee or helper, employed or work ing on the site of the work, al l or part of the wages required by the contract, HUD or i ts des ignee may, af ter wr i t ten not ice to the contractor, sponsor, appl icant, or owner, take such act ion as may be necessary to cause the suspension of any further payment , advance, or guarantee of funds unt i l such violat ions have ceased. HUD or i ts designee may, after wr i t ten not ice to the contractor, disburse such amounts wi thheld for and on account of the contractor or subcontractor to the respect ive employees to whom they are due. The Comptrol ler General shal l make such disbursements in the case of d i rect Davis -Bacon Act contracts.

3. (i) Payrolls and basic records. Payrol ls and basic records relat ing thereto shal l be maintained by the contractor during the course of the work preserved for a period of three years thereafter for al l laborers and mechanics working at the site of the work. Such records shal l contain the name, address, and social secur ity number of each such worker, his or her correct c lassif icat ion, hourly rates of wages paid (including rates of contribut ions or costs ant ic ipated for bona f ide fr inge benefi ts or cash equivalents thereof of the types described in Sect ion l(b)(2)(B) of the Davis -bacon Act), dai ly and weekly number of hours worked, deduct ions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5 (a)(1 )(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably ant ic ipated in providing benefi ts under a plan or program described in Sect ion l(b)(2)(B) of the Davis -

Bacon Act, the contractor shal l maintain records which show that the commitment to provide such benefi ts is enforceable, that the plan or program is f inancial ly responsible, and that the plan or program has been communicated in writ ing to the laborers or mechanics affected, and records which show the costs ant ic ipated or the actual cost incurred in providing such benefi ts.

Contractors employing apprent ices or trainees under approved programs shal l maintain writ ten evidence of the registrat ion of apprent iceship programs and cert i f icat ion of trainee programs, the registrat ion of the appre nt ices and trainees, and the rat ios and wage rates prescribed in the applicable programs. (Approved by the Off ice of

Management and Budget under OMB Control Numbers

1215-0140 and 1215-0017.)

(i i ) (a) The contractor shal l submit weekly for each week in which any contract work is performed a copy of al l payrol ls to HUD or its designee if the agency is a party to the contract, but if the agency is not such a party, the contractor wi l l submit the payrol ls to the applicant sponsor, or owner, as the case may be, for transmission to HUD or i ts designee. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i) except that ful l social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shal l only need to include an individual ly ident ifying number for each employee (e.g., the last four digits of the employee’s social security number). The required weekly payrol l information may be submitted in any form desired. Optional

Form WH-347 is avai lable for this purpose from the Wage and Hour Divis ion Web site at http:/ /www.dol.gov/esa/whd/forms/wh347instr.htm or i ts successor site. The prime contractor is responsible for the submission of copies of payrol ls by al l subcontractors.

Contractors and subcontractors shal l maintain the ful l social security number and current address of each covered worker, and shal l provide them upon request to

HUD or its designee i f the agency is a party to the contract, but i f the agency is not such a party, the contractor wi l l submit the payrolls to the applicant sponsor, or owner, as the case may be, for transmission to HUD or its designee, the contractor, or the Wage and Hour Divis ion of the

Department of Labor for purposes of an investigation or audit of compliance with prevai l ing wage requirements. It is not a violat ion of this subparagraph for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for i ts own records, without weekly submission to HUD or its designee. (Approved by the Office of

Management and Budget under OMB Control Number 1215-

0149.)

(b) Each payroll submitted shal l be accompanied by a

“Statement of Compliance,” s igned by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall cert ify the fol lowing:

(1) That the payrol l for the payrol l period contains the information required to be provided under 29 CFR 5.5

(a)(3)(i i ), the appropriate information is being maintained under 29 CFR 5.5(a)(3)(i), and that such information is correct and complete;

Previous editions are obsolete form HUD-4010 (06/2009) Page 2 of 5 ref. Handbook 1344.1

ATTACHMENT E: HUD Federal Labor Standards Provisions http://www.dol.gov/esa/whd/forms/wh347instr.htm

(2) That each laborer or mechanic (including each helper, apprent ice, and trainee) employed on the contract during the payrol l period has been paid the ful l weekly wages earned, without rebate, either directly or indirect ly, and that no deduct ions have been made either directly or indirectly from the ful l wages earned, other than permissible deduct ions as set forth in 29 CFR Part 3;

(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefi ts or cash equivalents for the classif icat ion of work performed, as specif ied in the applicable wage determination incorporated into the contract.

(c) The weekly submission of a properly executed cert i f icat ion set forth on the reverse side of Optional Form

WH-347 shal l sat isfy the requirement for submission of the

“Statement of Compliance” required by subparagraph A. 3.

( i i )(b).

(d) The fals if ication of any of the above cert if icat ions may subject the contractor or subcontractor to civi l or criminal prosecution under Section 1001 of Tit le 18 and Sect ion 231 of Tit le 31 of the United States Code.

(i ii ) The contractor or subcontractor shal l make the record s required under subparagraph A.3.(i) avai lable for inspect ion, copying, or transcript ion by authorized representat ives of HUD or its designee or the Department of Labor, and shal l permit such representat ives to interview employees during working hours on the job. I f the contractor or subcontractor fai ls to submit the required records or to make them avai lable, HUD or i ts designee may, after writ ten not ice to the contractor, sponsor, appl icant or owner, take such act ion as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, fai lure to submit the required records upon request or to make such records avai lable may be grounds for debarment act ion pursuant to

29 CFR 5.12.

4. Apprentices and Trainees.

(i) Apprentices. Apprentices wil l be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individual ly registered in a bona f ide apprent iceship program registered with the U.S. Department of Labor, Employment and Training Administrat ion, Off ice of

Apprent iceship Training, Employer and Labor Services, or with a State Apprent iceship Agency recognized by the

Off ice, or i f a person is employed in his or her f irst 90 days of probationary employment as an apprent ice in such an apprent iceship program, who is not individual ly registered in the program, but who has been cert i f ied by the Off ice of Apprent iceship Training, Employer and Labor

Services or a State Apprent iceship Agency (where appropriate) to be el igible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shal l be paid not less than the applicable wage rate on the wage determinat ion for the classif icat ion of work act ual ly performed. In addit ion, any apprent ice performing work on the job site in excess of the rat io permitted under the registered program shall be paid not less than the applicable wage rate on the wage determinat ion for the work actual ly performed. Where a contractor is performing construct ion on a project in a local i ty other than that in which i ts program is registered, the rat ios and wage rates

(expressed in percentages of the journeyman’s hour ly rate) specif ied in the contractor’s or subcontractor’s re gistered program shall be observed. Every apprent ice must be paid at not less than the rate specif ied in the registered program for the apprent ice’s level of progress, expressed as a percentage of the journeymen hour ly rate specif ied in the applicable wage determinat ion. Apprent ices shal l be paid fr inge benefi ts in accordance with the provisions of the apprent iceship program. I f the apprent iceship program does not specify fr inge benefi ts, apprent ices must be paid the ful l amount of fr inge benefi ts l isted on the wage determinat ion for the applicable class if icat ion. I f the Administ rator determines that a dif ferent pract ice prevai ls for the applicable apprent ice class if icat ion, fr inges shal l be paid in accordance wi th that determinat ion. In the event the Off ice of

Apprent iceship Training, Employer and Labor Services, or a State Apprent iceship Agency recognized by the Of f ice, wi thdraws approval of an apprent iceship program, the contractor wi l l no longer be permit ted to ut i l ize apprent ices at less than the appl ica ble predetermined rate for the work performed unt i l an acceptable program is approved.

( i i ) Trainees. Except as prov ided in 29 CFR 5.16, t ra inees wi l l not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant ‘ , to and indiv idua l l y regis tered in a program which has received pr ior approval , ev idenced by formal cert i f icat ion by the U.S. Department of Labor, Employment and Training Administ rat ion. The rat io of t rainees to journeymen on the job site sha l l not be greater than permitted under the plan approved by the

Employment and Training Administ rat ion. Every t ra inee must be paid at not less than the rate speci f ied in the approved program for the t rainee’s level of progress, expressed as a percentage of the journeyman hour ly rate specif ied in the applicable wage determinat ion. Trainees shal l be paid f r inge benefi ts in accordance with the provisions of the t ra inee program. I f the tra inee program does not mention f r inge benefi ts , t rainees shal l be paid the fu l l amount of f r inge benefi ts l isted on the wage determinat ion unless the Administ rator of the Wage and

Hour Divis ion determines that there is an apprent iceship program associated wi th the corresponding journeyman wage rate on the wage determinat ion whic h provides for less than ful l f r inge benefi ts for apprent ices. Any employee l isted on the payrol l at a t ra inee rate who is not registered and part ic ipat ing in a tra in ing plan approved by

Previous editions are obsolete form HUD-4010 (06/2009) Page 3 of 5 ref. Handbook 1344.1 the Employment and Training Administrat ion shal l be paid not less than the applicable wage rate on the wage determinat ion for the work actual ly performed. In addit ion, any t rainee performing work on the job site in excess of the rat io permitted under the registered prog ram shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

(i ii ) Equal employment opportunity. The ut i l ization of apprent ices, trainees and journeymen under 29 CFR Part 5 shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30.

5. Compliance with Copeland Act requirements. The contractor shal l comply with the requirements of 29 CFR

Part 3 which are incorporated by reference in this contract

6. Subcontracts. The contractor or subcontractor wi l l insert in any subcontracts the c lauses contained in subparagraphs 1 through 11 in this paragraph A and such other clauses as HUD or i ts designee may by appropr iate inst ruct ions require, and a copy of the applicable prevai l ing wage dec ision, and also a clause requiring the subcontractors to inc lude these c lauses in any lower t ier subcontracts. The pr ime contractor shal l be responsible for the compliance by any subcontractor o r lower t ier subcontractor with al l the contract c lauses in th is paragraph.

7 . Cont rac t te rm inat i on ; debarm ent . A b reac h o f the c on t rac t c l aus es i n 29 CFR 5 .5 m ay be g rounds f o r terminat ion of the contract and for debarment as a contractor and a subcontrac tor as provided in 29 CFR

5.12.

8. Compliance with Davis-Bacon and Related Act

Requirements. All rulings and interpretations of the Davis-

Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract

9. Disputes concerning labor standards. Disputes ar is ing out of the labor standards provisions of th is contract shal l not be subject to the general d isputes clause of this contract. Such disputes shal l be resolved in accordance wi th the procedures of the Depa rtment of

Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes wi th in the meaning of th is clause inc lude disputes between the contractor (or any of i ts subcontractors) and

HUD or i ts des ignee, the U.S. Department of Labor, or the employees or their representat ives.

10. ( i ) Cert i f icat ion of El ig ibi l i ty. By enter ing in to th is cont ract the cont rac tor cer t i f ies that ne i ther i t (nor he or she) nor any person or f i rm who has an interest in the cont ractor ’s f i rm is a person or f i rm inel ig ib le to be awarded Government cont rac ts by v i r tue o f Sec t ion 3(a) o f the Davis -Bacon Act or 29 CFR 5.12(a) (1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR Part 24.

( i i ) No part of this contract shall be subcontracted to any person or f i rm inel igible for award of a Government contract by virtue of Sect ion 3(a) of the Davis -Bacon Act or

29 CFR 5.12(a)(1) or to be awarded HUD contracts or part ic ipate in HUD programs pursuant to 24 CFR Part 24.

( i i i ) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. Additional ly, U.S. Criminal Code, Section 1 01 0, Title 18, U.S.C., “Federal Housing Administrat ion transactions”, provides in part: “Whoever, for the purpose of . . . inf luencing in any way the action of such Administration ......................... makes, utters or publishes any statement knowing the same to be false shall be fined not more than $5,000 or imprisoned not more than two years, or both.”

11. Complaints, Proceedings, or Testimony by

Employees. No laborer or mechanic to whom the wage, salary, or other labor standards provisions of this Contract are appl icable shal l be discharged or in any other manner discriminated against by the Contractor or any subcontractor because such employee has f i led any complaint or inst i tuted or caused to be inst i tuted any proceeding or has test i f ied or is about to test i fy in any proceeding under or relat ing to the labor standards applicable under this Contract to his employer.

B. Contract Work Hours and Safety Standards Act. The provisions of this paragraph B are applicable where the amount of the prime contract exceeds $100,000. As used in this paragraph, the terms

“laborers” and “mechanics” include watchmen and guards.

(1) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which the individual is employed on such work to work in excess of 40 hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of 40 hours in such workweek.

(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in subparagraph (1) of this paragraph, the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of

Columbia or a territory, to such Distric t or to such territory), for l iquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in subparagraph (1) of this paragraph, in the sum of $25 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of 40 hours without payment of the overtime wages required by the clause set forth in sub paragraph (1) of this paragraph.

Previous editions are obsolete form HUD-4010 (06/2009)

Page 4 of 5 ref. Handbook 1344.1

(3) Withholding for unpaid wages and liquidated damages. HUD or i ts designee shall upon i ts own action or upon written request of an authorized representat ive of the

Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contract, or any other Federally-assisted contract subject to the Contract

Work Hours and Safety Standards Act which is held by the same prime contractor such sums as may be determined to be necessary to sat isfy any l iabil it ies of such contractor or subcontractor for unpaid wages and l iquidated damages as provided in the clause set forth in subparagraph (2) of this paragraph.

(4) Subcontracts. The cont rac tor or subcont rac tor sha l l insert in any subcontrac ts the c lauses set fo rth in subparagraph (1) th rough (4) o f th is paragraph and a lso a c lause requ i r ing the subcont ractors to inc lude these clauses in any lower t ier subcontracts. The prime contractor shal l be responsible for compliance by any subcontractor or lower t ier subcontractor with the clauses set forth in subparagraphs (1) through (4) of this paragraph.

C. Health and Safety. The provisions of this paragraph C are applicable where the amount of the prime contract exceeds $100,000.

(1) No laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health and safety as determined under construction safety and health standards promulgated by the Secretary of Labor by regulation.

(2) The Contractor shal l comply with al l regulat ions issued by the Secretary of Labor pursuant to Tit le 29 Part

1926 and fai lure to comply may result in imposit ion of sanct ions pursuant to the Contract Work Hours and Safety

Standards Act, (Public Law 91-54, 83 Stat 96). 40 USC

3701 et seq.

(3) The contractor shal l include the provisions of this paragraph in every subcontract so that such provisions wi l l be binding on each subcontractor. The contractor shal l take such act ion with respect to any subcontracto r as the

Secretary of Housing and Urban Development or the

Secretary of Labor shal l di rect as a means of enforcing such provisions.

Previous editions are obsolete form HUD-4010 (06/2009) Page 5 of 5 ref. Handbook 1344.1