Attachment_E2_-_Title_29_CFR_5.5_Davis_Bacon_Provision.pdf

29 CFR Subtitle A (7–1–24 Edition) §§ 5.3–5.4

Wages. The term ‘‘wages’’ means the basic hourly rate of pay; any contribu-tion 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 reason-ably anticipated in providing bona fide fringe benefits to laborers and mechan-ics pursuant to an enforceable commit-ment to carry out a financially respon-sible plan or program, which was com-municated 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 re-sulting from occupational activity, or insurance to provide any of the fore-going; unemployment benefits; life in-surance, disability insurance, sickness insurance, or accident insurance; vaca-tion or holiday pay; defraying costs of apprenticeship or other similar pro-grams; or other bona fide fringe bene-fits. Fringe benefits do not include ben-efits required by other Federal, State, or local law.

Wage determination. The term ‘‘wage determination’’ includes the original decision and any subsequent decisions revising, modifying, superseding, cor-recting, or otherwise changing the pro-visions of the original decision. The ap-plication of the wage determination must be in accordance with the provi-sions of § 1.6 of this subtitle.

[88 FR 57731, Aug. 23, 2023]

§§ 5.3–5.4 [Reserved]

§ 5.5 Contract provisions and related matters.

(a) Required contract clauses. The Agency head will cause or require the contracting officer to require the con-tracting officer to insert in full, or (for contracts covered by the Federal Ac-quisition Regulation (48 CFR chapter 1)) by reference, in any contract in ex-cess of $2,000 which is entered into for the actual construction, alteration and/or repair, including painting and decorating, of a public building or pub-lic work, or building or work financed in whole or in part from Federal funds or in accordance with guarantees of a

Federal agency or financed from funds obtained by pledge of any contract of a Federal agency to make a loan, grant or annual contribution (except where a different meaning is expressly indi-cated), and which is subject to the labor standards provisions of any of the laws referenced by § 5.1, the following clauses (or any modifications thereof to meet the particular needs of the agency, Provided, That such modifica-tions are first approved by the Depart-ment of Labor):

(1) Minimum wages—(i) Wage rates and fringe benefits. All laborers and mechan-ics employed or working upon the site of the work (or otherwise working in construction or development of the project under a development statute), will be paid unconditionally and not less often than once a week, and with-out subsequent deduction or rebate on any account (except such payroll de-ductions as are permitted by regula-tions issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of basic hourly wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage de-termination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contrac-tual relationship which may be alleged to exist between the contractor and such laborers and mechanics. As pro-vided in paragraphs (d) and (e) of this section, the appropriate wage deter-minations are effective by operation of law even if they have not been at-tached to the contract. Contributions made or costs reasonably anticipated for bona fide fringe benefits under the Davis-Bacon Act (40 U.S.C. 3141(2)(B)) on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (a)(1)(v) of this section;

also, regular contributions made or costs incurred for more than a weekly period (but not less often than quar-terly) under plans, funds, or programs which cover the particular weekly pe-riod, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics must be paid the appropriate wage rate

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Office of the Secretary of Labor § 5.5 and fringe benefits on the wage deter-mination for the classification(s) of work actually performed, without re-gard to skill, except as provided in paragraph (a)(4) of this section. Labor-ers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actu-ally worked therein: Provided, That the employer’s payroll records accurately set forth the time spent in each classi-fication in which work is performed.

The wage determination (including any additional classifications and wage rates conformed under paragraph (a)(1)(iii) of this section) and the Davis- Bacon poster (WH–1321) must be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers.

(ii) Frequently recurring classifications.

(A) In addition to wage and fringe ben-efit rates that have been determined to be prevailing under the procedures set forth in 29 CFR part 1, a wage deter-mination may contain, pursuant to § 1.3(f), wage and fringe benefit rates for classifications of laborers and mechan-ics for which conformance requests are regularly submitted pursuant to para-graph (a)(1)(iii) of this section, pro-vided that:

(1) The work performed by the classi-fication is not performed by a classi-fication in the wage determination for which a prevailing wage rate has been determined;

(2) The classification is used in the area by the construction industry; and

(3) The wage rate for the classifica-tion bears a reasonable relationship to the prevailing wage rates contained in the wage determination.

(B) The Administrator will establish wage rates for such classifications in accordance with paragraph (a)(1)(iii)(A)(3) of this section. Work performed in such a classification must be paid at no less than the wage and fringe benefit rate listed on the wage determination for such classification.

(iii) Conformance. (A) The contracting officer must require that any class of laborers or mechanics, including help-ers, which is not listed in the wage de-termination and which is to be em-ployed under the contract be classified in conformance with the wage deter-mination. Conformance of an addi-tional classification and wage rate and fringe benefits is appropriate only when the following criteria have been met:

(1) The work to be performed by the classification requested is not per-formed by a classification in the wage determination; and

(2) The classification is used in the area by the construction industry; and

(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determina-tion.

(B) The conformance process may not be used to split, subdivide, or otherwise avoid application of classifications list-ed in the wage determination.

(C) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their rep-resentatives, and the contracting offi-cer agree on the classification and wage rate (including the amount des-ignated for fringe benefits where appro-priate), a report of the action taken will be sent by the contracting officer by email to DBAconformance@dol.gov.

The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classifica-tion action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30–day period that addi-tional time is necessary.

(D) In the event the contractor, the laborers or mechanics to be employed in the classification or their represent-atives, and the contracting officer do not agree on the proposed classifica-tion and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting of-ficer will, by email to DBAconformance@dol.gov, refer the questions, including the views of all in-terested parties and the recommenda-tion of the contracting officer, to the Administrator for determination. The Administrator, or an authorized rep-resentative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30–

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29 CFR Subtitle A (7–1–24 Edition) § 5.5 day period that additional time is nec-essary.

(E) The contracting officer must promptly notify the contractor of the action taken by the Wage and Hour Di-vision under paragraphs (a)(1)(iii)(C) and (D) of this section. The contractor must furnish a written copy of such de-termination to each affected worker or it must be posted as a part of the wage determination. The wage rate (includ-ing fringe benefits where appropriate) determined pursuant to paragraph (a)(1)(iii)(C) or (D) of this section must be paid to all workers performing work in the classification under this con-tract from the first day on which work is performed in the classification.

(iv) Fringe benefits not expressed as an hourly rate. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics in-cludes a fringe benefit which is not ex-pressed as an hourly rate, the con-tractor may either pay the benefit as stated in the wage determination or may pay another bona fide fringe ben-efit or an hourly cash equivalent there-of.

(v) Unfunded plans. If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the con-tractor, in accordance with the criteria set forth in § 5.28, 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 meet-ing of obligations under the plan or program.

(vi) Interest. In the event of a failure to pay all or part of the wages required by the contract, the contractor will be required to pay interest on any under-payment of wages.

(2) Withholding—(i) Withholding re-quirements. The [write in name of Fed-eral agency or the recipient of Federal assistance] may, upon its own action, or must, upon written request of an au-thorized representative of the Depart-ment of Labor, withhold or cause to be withheld from the contractor so much of the accrued payments or advances as may be considered necessary to satisfy the liabilities of the prime contractor or any subcontractor for the full amount of wages and monetary relief, including interest, required by the clauses set forth in paragraph (a) of this section for violations of this con-tract, or to satisfy any such liabilities required by any other Federal con-tract, or federally assisted contract subject to Davis-Bacon labor stand-ards, that is held by the same prime contractor (as defined in § 5.2). The nec-essary funds may be withheld from the contractor under this contract, any other Federal contract with the same prime contractor, or any other feder-ally assisted contract that is subject to Davis-Bacon labor standards require-ments and is held by the same prime contractor, regardless of whether the other contract was awarded or assisted by the same agency, and such funds may be used to satisfy the contractor liability for which the funds were with-held. In the event of a contractor’s fail-ure to pay any laborer or mechanic, in-cluding any apprentice or helper work-ing on the site of the work (or other-wise working in construction or devel-opment of the project under a develop-ment statute) all or part of the wages required by the contract, or upon the contractor’s failure to submit the re-quired records as discussed in para-graph (a)(3)(iv) of this section, the [Agency] may on its own initiative and after written notice to the contractor, sponsor, applicant, owner, or other en-tity, as the case may be, take such ac-tion as may be necessary to cause the suspension of any further payment, ad-vance, or guarantee of funds until such violations have ceased.

(ii) Priority to withheld funds. The De-partment has priority to funds with-held or to be withheld in accordance with paragraph (a)(2)(i) or (b)(3)(i) of this section, or both, over claims to those funds by:

(A) A contractor’s surety(ies), includ-ing without limitation performance bond sureties and payment bond sure-ties;

(B) A contracting agency for its re-procurement costs;

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(C) A trustee(s) (either a court-ap-pointed trustee or a U.S. trustee, or both) in bankruptcy of a contractor, or a contractor’s bankruptcy estate;

(D) A contractor’s assignee(s);

(E) A contractor’s successor(s); or

(F) A claim asserted under the

Prompt Payment Act, 31 U.S.C. 3901– 3907.

(3) Records and certified payrolls—(i) Basic record requirements—(A) Length of record retention. All regular payrolls and other basic records must be main-tained by the contractor and any sub-contractor during the course of the work and preserved for all laborers and mechanics working at the site of the work (or otherwise working in con-struction or development of the project under a development statute) for a pe-riod of at least 3 years after all the work on the prime contract is com-pleted.

(B) Information required. Such records must contain the name; Social Secu-rity number; last known address, tele-phone number, and email address of each such worker; each worker’s cor-rect classification(s) of work actually performed; hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in 40 U.S.C.

3141(2)(B) of the Davis-Bacon Act);

daily and weekly number of hours ac-tually worked in total and on each cov-ered contract; deductions made; and actual wages paid.

(C) Additional records relating to fringe benefits. Whenever the Secretary of Labor has found under paragraph (a)(1)(v) of this section that the wages of any laborer or mechanic include the amount of any costs reasonably antici-pated in providing benefits under a plan or program described in 40 U.S.C.

3141(2)(B) of the Davis-Bacon Act, the contractor must maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or pro-gram has been communicated in writ-ing to the laborers or mechanics af-fected, and records which show the costs anticipated or the actual cost in-curred in providing such benefits.

(D) Additional records relating to ap-prenticeship. Contractors with appren-tices working under approved programs must maintain written evidence of the registration of apprenticeship pro-grams, the registration of the appren-tices, and the ratios and wage rates prescribed in the applicable programs.

(ii) Certified payroll requirements—(A) Frequency and method of submission. The contractor or subcontractor must sub-mit weekly, for each week in which any DBA- or Related Acts-covered work is performed, certified payrolls to the [write in name of appropriate Fed-eral agency] if the agency is a party to the contract, but if the agency is not such a party, the contractor will sub-mit the certified payrolls to the appli-cant, sponsor, owner, or other entity, as the case may be, that maintains such records, for transmission to the [write in name of agency]. The prime contractor is responsible for the sub-mission of all certified payrolls by all subcontractors. A contracting agency or prime contractor may permit or re-quire contractors to submit certified payrolls through an electronic system, as long as the electronic system re-quires a legally valid electronic signa-ture; the system allows the contractor, the contracting agency, and the De-partment of Labor to access the cer-tified payrolls upon request for at least 3 years after the work on the prime contract has been completed; and the contracting agency or prime con-tractor permits other methods of sub-mission in situations where the con-tractor is unable or limited in its abil-ity to use or access the electronic sys-tem.

(B) Information required. The certified payrolls submitted must set out accu-rately and completely all of the infor-mation required to be maintained under paragraph (a)(3)(i)(B) of this sec-tion, except that full Social Security numbers and last known addresses, telephone numbers, and email address-es must not be included on weekly transmittals. Instead, the certified payrolls need only include an individ-ually identifying number for each worker (e.g., the last four digits of the worker’s Social Security number). The

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C required weekly certified payroll infor-mation may be submitted using Op-tional Form WH–347 or in any other format desired. Optional Form WH–347 is available for this purpose from the Wage and Hour Division website at https://www.dol.gov/sites/dolgov/files/ WHD/legacy/files/wh347/.pdf or its suc-cessor website. It is not a violation of this section for a prime contractor to require a subcontractor to provide full Social Security numbers and last known addresses, telephone numbers, and email addresses to the prime con-tractor for its own records, without weekly submission by the subcon-tractor to the sponsoring government agency (or the applicant, sponsor, owner, or other entity, as the case may be, that maintains such records).

(C) Statement of Compliance. Each cer-tified payroll submitted must be ac-companied by a ‘‘Statement of Compli-ance,’’ signed by the contractor or sub-contractor, or the contractor’s or sub-contractor’s agent who pays or super-vises the payment of the persons work-ing on the contract, and must certify the following:

(1) That the certified payroll for the payroll period contains the informa-tion required to be provided under paragraph (a)(3)(ii) of this section, the appropriate information and basic records are being maintained under paragraph (a)(3)(i) of this section, and such information and records are cor-rect and complete;

(2) That each laborer or mechanic (including each helper and apprentice) working on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in 29 CFR part 3; and

(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification(s) of work actually performed, as specified in the applicable wage determination incorporated into the contract.

(D) Use of Optional Form WH–347. The weekly submission of a properly exe-cuted certification set forth on the re-verse side of Optional Form WH–347 will satisfy the requirement for sub-mission of the ‘‘Statement of Compli-ance’’ required by paragraph (a)(3)(ii)(C) of this section.

(E) Signature. The signature by the contractor, subcontractor, or the con-tractor’s or subcontractor’s agent must be an original handwritten signature or a legally valid electronic signature.

(F) Falsification. The falsification of any of the above certifications may subject the contractor or subcon-tractor to civil or criminal prosecution under 18 U.S.C. 1001 and 31 U.S.C. 3729.

(G) Length of certified payroll reten-tion. The contractor or subcontractor must preserve all certified payrolls during the course of the work and for a period of 3 years after all the work on the prime contract is completed.

(iii) Contracts, subcontracts, and re-lated documents. The contractor or sub-contractor must maintain this con-tract or subcontract and related docu-ments including, without limitation, bids, proposals, amendments, modifica-tions, and extensions. The contractor or subcontractor must preserve these contracts, subcontracts, and related documents during the course of the work and for a period of 3 years after all the work on the prime contract is completed.

(iv) Required disclosures and access—

(A) Required record disclosures and access to workers. The contractor or subcon-tractor must make the records re-quired under paragraphs (a)(3)(i) through (iii) of this section, and any other documents that the [write the name of the agency] or the Department of Labor deems necessary to determine compliance with the labor standards provisions of any of the applicable stat-utes referenced by § 5.1, available for inspection, copying, or transcription by authorized representatives of the [write the name of the agency] or the Department of Labor, and must permit such representatives to interview workers during working hours on the job.

(B) Sanctions for non-compliance with records and worker access requirements. If the contractor or subcontractor fails to submit the required records or to make them available, or refuses to permit worker interviews during working

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C hours on the job, the Federal agency may, after written notice to the con-tractor, sponsor, applicant, owner, or other entity, as the case may be, that maintains such records or that em-ploys such workers, take such action as may be necessary to cause the sus-pension of any further payment, ad-vance, or guarantee of funds. Further-more, failure to submit the required records upon request or to make such records available, or to permit worker interviews during working hours on the job, may be grounds for debarment ac-tion pursuant to § 5.12. In addition, any contractor or other person that fails to submit the required records or make those records available to WHD within the time WHD requests that the records be produced will be precluded from introducing as evidence in an ad-ministrative proceeding under 29 CFR part 6 any of the required records that were not provided or made available to WHD. WHD will take into consider-ation a reasonable request from the contractor or person for an extension of the time for submission of records.

WHD will determine the reasonableness of the request and may consider, among other things, the location of the records and the volume of production.

(C) Required information disclosures.

Contractors and subcontractors must maintain the full Social Security num-ber and last known address, telephone number, and email address of each cov-ered worker, and must provide them upon request to the [write in name of appropriate Federal agency] if the agency is a party to the contract, or to the Wage and Hour Division of the De-partment of Labor. If the Federal agen-cy is not such a party to the contract, the contractor, subcontractor, or both, must, upon request, provide the full Social Security number and last known address, telephone number, and email address of each covered worker to the applicant, sponsor, owner, or other en-tity, as the case may be, that main-tains such records, for transmission to the [write in name of agency], the con-tractor, or the Wage and Hour Division of the Department of Labor for pur-poses of an investigation or other com-pliance action.

(4) Apprentices and equal employment opportunity—(i) Apprentices—(A) Rate of pay. Apprentices will be permitted to work at less than the predetermined rate for the work they perform when they are employed pursuant to and in-dividually registered in a bona fide ap-prenticeship program registered with the U.S. Department of Labor, Employ-ment and Training Administration, Of-fice of Apprenticeship (OA), or with a State Apprenticeship Agency recog-nized by the OA. A person who is not individually registered in the program, but who has been certified by the OA or a State Apprenticeship Agency (where appropriate) to be eligible for proba-tionary employment as an apprentice, will be permitted to work at less than the predetermined rate for the work they perform in the first 90 days of pro-bationary employment as an appren-tice in such a program. In the event the OA or a State Apprenticeship Agency recognized by the OA with-draws approval of an apprenticeship program, the contractor will no longer be permitted to use apprentices at less than the applicable predetermined rate for the work performed until an accept-able program is approved.

(B) Fringe benefits. Apprentices must be paid fringe benefits in accordance with the provisions of the apprentice-ship program. If the apprenticeship program does not specify fringe bene-fits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator de-termines that a different practice pre-vails for the applicable apprentice clas-sification, fringe benefits must be paid in accordance with that determination.

(C) Apprenticeship ratio. The allowable ratio of apprentices to journeyworkers on the job site in any craft classifica-tion must not be greater than the ratio permitted to the contractor as to the entire work force under the registered program or the ratio applicable to the locality of the project pursuant to paragraph (a)(4)(i)(D) of this section.

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C must be paid not less than the applica-ble wage rate on the wage determina-tion for the classification of work actu-ally performed. In addition, any ap-prentice performing work on the job site in excess of the ratio permitted under this section must be paid not less than the applicable wage rate on the wage determination for the work actually performed.

(D) Reciprocity of ratios and wage rates. Where a contractor is performing construction on a project in a locality other than the locality in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyworker’s hourly rate) appli-cable within the locality in which the construction is being performed must be observed. If there is no applicable ratio or wage rate for the locality of the project, the ratio and wage rate specified in the contractor’s registered program must be observed.

(ii) Equal employment opportunity. The use of apprentices and journeyworkers under this part must be in conformity with the equal employment oppor-tunity requirements of Executive Order 11246, as amended, and 29 CFR part 30.

(5) Compliance with Copeland Act re-quirements. The contractor shall com-ply with the requirements of 29 CFR part 3, which are incorporated by ref-erence in this contract.

(6) Subcontracts. The contractor or subcontractor must insert in any sub-contracts the clauses contained in paragraphs (a)(1) through (11) of this section, along with the applicable wage determination(s) and such other clauses or contract modifications as the [write in the name of the Federal agency] may by appropriate instruc-tions require, and a clause requiring the subcontractors to include these clauses and wage determination(s) in any lower tier subcontracts. The prime contractor is responsible for the com-pliance by any subcontractor or lower tier subcontractor with all the con-tract clauses in this section. In the event of any violations of these clauses, the prime contractor and any subcontractor(s) responsible will be lia-ble for any unpaid wages and monetary relief, including interest from the date of the underpayment or loss, due to any workers of lower-tier subcontrac-tors, and may be subject to debarment, as appropriate.

(7) Contract termination: debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termi-nation of the contract, and for debar-ment as a contractor and a subcon-tractor 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 arising out of the labor stand-ards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its sub-contractors) and the contracting agen-cy, the U.S. Department of Labor, or the employees or their representatives.

(10) Certification of eligibility. (i) By entering into this contract, the con-tractor certifies that neither it nor any person or firm who has an interest in the contractor’s firm is a person or firm ineligible to be awarded Govern-ment contracts by virtue of 40 U.S.C.

3144(b) or § 5.12(a).

(ii) No part of this contract shall be subcontracted to any person or firm in-eligible for award of a Government contract by virtue of 40 U.S.C. 3144(b) or § 5.12(a).

(iii) The penalty for making false statements is prescribed in the U.S.

Code, Title 18 Crimes and Criminal Procedure, 18 U.S.C. 1001.

(11) Anti-retaliation. It is unlawful for any person to discharge, demote, in-timidate, threaten, restrain, coerce, blacklist, harass, or in any other man-ner discriminate against, or to cause any person to discharge, demote, in-timidate, threaten, restrain, coerce, blacklist, harass, or in any other man-ner discriminate against, any worker or job applicant for:

(i) Notifying any contractor of any conduct which the worker reasonably believes constitutes a violation of the

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DBA, Related Acts, this part, or 29 CFR part 1 or 3;

(ii) Filing any complaint, initiating or causing to be initiated any pro-ceeding, or otherwise asserting or seek-ing to assert on behalf of themselves or others any right or protection under the DBA, Related Acts, this part, or 29 CFR part 1 or 3;

(iii) Cooperating in any investigation or other compliance action, or testi-fying in any proceeding under the DBA, Related Acts, this part, or 29 CFR part 1 or 3; or

(iv) Informing any other person about their rights under the DBA, Re-lated Acts, this part, or 29 CFR part 1 or 3.

(b) Contract Work Hours and Safety Standards Act (CWHSSA). The Agency Head must cause or require the con-tracting officer to insert the following clauses set forth in paragraphs (b)(1) through (5) of this section in full, or (for contracts covered by the Federal Acquisition Regulation) by reference, in any contract in an amount in excess of $100,000 and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses must be inserted in addition to the clauses required by paragraph (a) of this section or 29 CFR 4.6. As used in this paragraph (b), the terms ‘‘laborers and mechanics’’ include watchpersons and guards.

(1) Overtime requirements. No con-tractor or subcontractor contracting for any part of the conract work which may require or involve the employ-ment of laborers or mechanics shall re-quire or permit any such laborer or me-chanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such work-week 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 forty hours in such work-week.

(2) Violation; liability for unpaid wages;

liquidated damages. In the event of any violation of the clause set forth in paragraph (b)(1) of this section the con-tractor and any subcontractor respon-sible therefor shall be liable for the un-paid wages and interest from the date of the underpayment. 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 District or to such territory), for liquidated damages. Such liquidated damages shall be computed with re-spect to each individual laborer or me-chanic, including watchpersons and guards, employed in violation of the clause set forth in paragraph (b)(1) of this section, in the sum of $32 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (b)(1).

(3) Withholding for unpaid wages and liquidated damages—(i) Withholding process. The [write in the name of the Federal agency or the recipient of Fed-eral assistance] may, upon its own ac-tion, or must, upon written request of an authorized representative of the De-partment of Labor, withhold or cause to be withheld from the contractor so much of the accrued payments or ad-vances as may be considered necessary to satisfy the liabilities of the prime contractor or any subcontractor for any unpaid wages; monetary relief, in-cluding interest; and liquidated dam-ages required by the clauses set forth in this paragraph (b) on this contract, any other Federal contract with the same prime contractor, or any other federally assisted contract subject to the Contract Work Hours and Safety Standards Act that is held by the same prime contractor (as defined in § 5.2).

The necessary funds may be withheld from the contractor under this con-tract, any other Federal contract with the same prime contractor, or any other federally assisted contract that is subject to the Contract Work Hours and Safety Standards Act and is held by the same prime contractor, regard-less of whether the other contract was awarded or assisted by the same agen-cy, and such funds may be used to sat-isfy the contractor liability for which the funds were withheld.

(ii) Priority to withheld funds. The De-partment has priority to funds with-held or to be withheld in accordance with paragraph (a)(2)(i) or (b)(3)(i) of

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(A) A contractor’s surety(ies), includ-ing without limitation performance bond sureties and payment bond sure-ties;

(B) A contracting agency for its re-procurement costs;

(C) A trustee(s) (either a court-ap-pointed trustee or a U.S. trustee, or both) in bankruptcy of a contractor, or a contractor’s bankruptcy estate;

(D) A contractor’s assignee(s);

(E) A contractor’s successor(s); or

(F) A claim asserted under the

Prompt Payment Act, 31 U.S.C. 3901– 3907.

(4) Subcontracts. The contractor or subcontractor must insert in any sub-contracts the clauses set forth in para-graphs (b)(1) through (5) of this section and a clause requiring the subcontrac-tors to include these clauses in any lower tier subcontracts. The prime con-tractor is responsible for compliance by any subcontractor or lower tier sub-contractor with the clauses set forth in paragraphs (b)(1) through (5). In the event of any violations of these clauses, the prime contractor and any subcontractor(s) responsible will be lia-ble for any unpaid wages and monetary relief, including interest from the date of the underpayment or loss, due to any workers of lower-tier subcontrac-tors, and associated liquidated dam-ages and may be subject to debarment, as appropriate.

(5) Anti-retaliation. It is unlawful for any person to discharge, demote, in-timidate, threaten, restrain, coerce, blacklist, harass, or in any other man-ner discriminate against, or to cause any person to discharge, demote, in-timidate, threaten, restrain, coerce, blacklist, harass, or in any other man-ner discriminate against, any worker or job applicant for:

(i) Notifying any contractor of any conduct which the worker reasonably believes constitutes a violation of the Contract Work Hours and Safety Standards Act (CWHSSA) or its imple-menting regulations in this part;

(ii) Filing any complaint, initiating or causing to be initiated any pro-ceeding, or otherwise asserting or seek-ing to assert on behalf of themselves or others any right or protection under CWHSSA or this part;

(iii) Cooperating in any investigation or other compliance action, or testi-fying in any proceeding under CWHSSA or this part; or

(iv) Informing any other person about their rights under CWHSSA or this part.

(c) CWHSSA required records clause. In addition to the clauses contained in paragraph (b) of this section, in any contract subject only to the Contract Work Hours and Safety Standards Act and not to any of the other laws ref-erenced by § 5.1, the Agency Head must cause or require the contracting officer to insert a clause requiring that the contractor or subcontractor must maintain regular payrolls and other basic records during the course of the work and must preserve them for a pe-riod of 3 years after all the work on the prime contract is completed for all la-borers and mechanics, including guards and watchpersons, working on the con-tract. Such records must contain the name; last known address, telephone number, and email address; and social security number of each such worker;

each worker’s correct classification(s) of work actually performed; hourly rates of wages paid; daily and weekly number of hours actually worked; de-ductions made; and actual wages paid.

Further, the Agency Head must cause or require the contracting officer to in-sert in any such contract a clause pro-viding that the records to be main-tained under this paragraph must be made available by the contractor or subcontractor for inspection, copying, or transcription by authorized rep-resentatives of the (write the name of agency) and the Department of Labor, and the contractor or subcontractor will permit such representatives to interview workers during working hours on the job.

(d) Incorporation of contract clauses and wage determinations by reference. Al-though agencies are required to insert the contract clauses set forth in this section, along with appropriate wage determinations, in full into covered contracts, and contractors and sub-contractors are required to insert them

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Office of the Secretary of Labor § 5.6 in any lower-tier subcontracts, the in-corporation by reference of the re-quired contract clauses and appro-priate wage determinations will be given the same force and effect as if they were inserted in full text.

(e) Incorporation by operation of law.

The contract clauses set forth in this section (or their equivalent under the Federal Acquisition Regulation), along with the correct wage determinations, will be considered to be a part of every prime contract required by the applica-ble statutes referenced by § 5.1 to in-clude such clauses, and will be effective by operation of law, whether or not they are included or incorporated by reference into such contract, unless the Administrator grants a variance, toler-ance, or exemption from the applica-tion of this paragraph. Where the clauses and applicable wage determina-tions are effective by operation of law under this paragraph, the prime con-tractor must be compensated for any resulting increase in wages in accord-ance with applicable law.

(The information collection, recordkeeping, and reporting requirements contained in the following paragraphs of this section were ap-proved by the Office of Management and Budget:

Paragraph OMB Control No.

(a)(1)(ii)(B) ..................................................... 1235–0023 (a)(1)(ii)(C) ..................................................... 1235–0023 (a)(1)(iv) ......................................................... 1235–0023 (a)(3)(i) ........................................................... 1235–0023 (a)(3)(ii)(A) ..................................................... 1235–0023

1235–0008

(c) ................................................................... 1235–0023

[48 FR 19540, Apr. 29, 1983, as amended at 51 FR 12265, Apr. 9, 1986; 55 FR 50150, Dec. 4, 1990; 57 FR 28776, June 26, 1992; 58 FR 58955, Nov. 5, 1993; 61 FR 40716, Aug. 5, 1996; 65 FR 69693, Nov. 20, 2000; 73 FR 77511, Dec. 19, 2008;

81 FR 43450, July 1, 2016; 82 FR 2225, 2226, Jan.

9, 2017; 83 FR 12, Jan 2, 2018; 84 FR 218, Jan.

23, 2019; 87 FR 2334, Jan. 14, 2022; 88 FR 2215, Jan. 13, 2023; 88 FR 57734, Aug. 23, 2023; 89 FR 1815, Jan. 11, 2024]

§ 5.6 Enforcement.

(a) Agency responsibilities. (1)(i) The

Federal agency has the initial responsi-bility to ascertain whether the clauses required by § 5.5 and the appropriate wage determination(s) have been incor-porated into the contracts subject to the labor standards provisions of the laws referenced by § 5.1. Additionally, a Federal agency that provides Federal financial assistance that is subject to the labor standards provisions of the Act must promulgate the necessary regulations or procedures to require the recipient or sub-recipient of the Federal assistance to insert in its con-tracts the provisions of § 5.5. No pay-ment, advance, grant, loan, or guar-antee of funds will be approved by the Federal agency unless it ensures that the clauses required by § 5.5 and the ap-propriate wage determination(s) are in-corporated into such contracts. Fur-thermore, no payment, advance, grant, loan, or guarantee of funds will be ap-proved by the Federal agency after the beginning of construction unless there is on file with the Federal agency a certification by the contractor that the contractor and its subcontractors have complied with the provisions of § 5.5 or unless there is on file with the Federal agency a certification by the con-tractor that there is a substantial dis-pute with respect to the required provi-sions.

(ii) If a contract subject to the labor standards provisions of the applicable statutes referenced by § 5.1 is entered into without the incorporation of the clauses required by § 5.5, the agency must, upon the request of the Adminis-trator or upon its own initiative, either terminate and resolicit the contract with the required contract clauses, or incorporate the required clauses into the contract (or ensure they are so in-corporated) through supplemental agreement, change order, or any and all authority that may be needed.

Where an agency has not entered di-rectly into such a contract but instead has provided Federal financial assist-ance, the agency must ensure that the recipient or sub-recipient of the Fed-eral assistance similarly incorporates the clauses required into its contracts.

The method of incorporation of the correct wage determination, and ad-justment in contract price, where ap-propriate, should be in accordance with applicable law. Additionally, the fol-lowing requirements apply:

(A) Unless the Administrator directs otherwise, the incorporation of the clauses required by § 5.5 must be retro-active to the date of contract award or

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