HUD-Federal-Regulations-over-200k.pdf

The Build America, Buy America Act (BABA) The Build America

Buy America Act (BABA) was signed into law as part of the Infrastructure Investment and Jobs Act

(IIJA) as Sections 70901- 52 of Pub. L. No. 117-58. In addition to providing funding for roads, bridges, rails, and high-speed internet access, it created an incentive to increase domestic manufacturing across the country through the inclusion of BABA’s “Buy America Preference”

(BAP). In general, the BAP requires that all iron, steel, manufactured products, and construction materials used in infrastructure projects funded with Federal financial assistance (FFA), as outlined in Section 70914(a) of BABA, must be produced in the United States. Infrastructure is described in 2 CFR 184.4(c) and encompasses public infrastructure projects in the United States, which includes, at a minimum: the structures, facilities, and equipment for roads, highways, and bridges; public transportation; dams, ports, harbors, and other 6 maritime facilities; intercity passenger and freight railroads; freight and intermodal facilities; airports; water systems, including drinking water and wastewater systems; electrical transmission facilities and systems;

utilities; broadband infrastructure; and buildings and real property; and structures, facilities, and equipment that generate, transport, and distribute energy including electric vehicle (EV) charging

BAP applies to infrastructure spending unless total cost (from all funding sources) is equal to or less than the simplified acquisition threshold at 2 CFR 200.1 which is currently $250,000.

1. Iron or steel products.

Means an article, material, or supply that consists wholly or predominantly of iron or steel, or a combination of both.

2. Manufactured products.

Articles, materials, or supplies that have been:

(i) Processed into a specific form and shape; or

(ii) Combined with other articles, materials, or supplies to create a product with different properties than the individual articles, materials, or supplies.

3. Construction materials.

The listed items are:

a. i. Non-ferrous metals;

b. ii. Plastic and polymer-based products (including polyvinylchloride, composite

c. building materials, and polymers used in fiber optic cables);

d. iii. Glass (including optic glass);

e. iv. Fiber optic cable (including drop cable);

f. v. Optical fiber;

g. vi. Lumber;

h. vii. Engineered wood, and

i. viii. Drywall.

4. Section 70917(c) materials.

Means cement and cementitious materials; aggregates such as stone, sand, or gravel, or aggregate binding agents or additives.

Required Documentation for Contractor to Maintain :

• Manufacturer certification or origin documentation showing U.S. production

• Invoices, product data sheets, or shipping records that identify country of origin

• Construction logs noting where and when materials are installed

• Buy America compliance forms, if required by the City

De Minimis Waiver (General Waiver)

In addition to applicability triggers, HUD provides a general (published) waiver that reduces burden for certain material costs:

De Minimis Waiver

• Condition: Covered materials that collectively make up no more than 5% of the total project cost and are valued at no more than $1,000,000.

• Effect: These covered materials are not required to meet the domestic production requirements under BABA.

• This waiver applies automatically if the cost/percentage thresholds are met — no individual waiver request is necessary.

Summary of Contract Provisions for Inclusion in the Notice Inviting Bids

: This contract will be funded in whole or in part with federal housing and community development funds. The Federal Labor Standards Provisions, including prevailing wage requirements of the Davis-Bacon and Related Acts will be enforced.

This is project is a public work in the State of California, funded in whole or in part with public funds. Therefore, the higher of the two applicable prevailing wage rates, federal or state, will be enforced. The Contractor’s duty to pay State prevailing wages can be found under Labor Code Section 1770 et seq. Labor Code Sections 1775 and 1777.7 outline the penalties for failure to pay prevailing wages and to employ apprentices, including forfeitures and debarment. The State Wage Decision is on file at the City Clerk’s office, and is also available online at http://www.dir.ca.gov/dlsr/.

Apprenticeship Program: Attention is directed to Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code and Title 8, California Administrative code, Section 200 et seq. to ensure compliance and complete understanding of the law regarding apprentices.

Section 3 Statement: To the extent this Project is funded in excess of $200,000, Section 3 prefrences are required. First preference will be given to a bidder who provides a reasonable bid and is a qualified Section 3 Business Concern. Second preference will be given to a bidder who provides a reasonable bid and commits to achieving the Section 3 employment, training and subcontracting opportunity goals by submitting a written commitment (Economic Opportunity Plan).

Conflict of Interest: In the procurement of supplies, equipment, construction, and services by sub-recipients, the conflict of interest provisions in 2 CFR .

shall apply. No employee, officer or agent of the sub-recipient shall participate in selection, or in the award or administration of a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved.

Section 3 Clause Federal Contract Provision

a. The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (Section 3). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by the U.S. Department of Housing and Urban Development (HUD) assistance or HUD assisted projects covered by Section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing.

b. The parties to this contract will comply with HUD's regulations as set forth in 24 CFR Part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the Part 135 regulations.

c. The contractor agrees to send to each labor organization or representative of workers which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this Section 3 Clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall;

describe the Section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each, and the name and location of the persons) taking applications foe each of the positions, and the anticipated date the work shall begin.

d. The contractor agrees to include this Section 3 Clause in every subcontract subject to compliance with regulations in 24 CFR Part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 Clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR Part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of regulations under 24 CFR Part 135.

e. The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected, but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR Part 135 require employment opportunities to be directed, where not filled to circumvent the contractor's obligations under 24 CFR Part 135.

f. Noncompliance with HUD's regulations in 24 CFR Part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts.

24 CFR Part 135

Compliance with Clean Air and Water Acts Federal Contract Provision

During the performance of this contract, the contractor and all subcontractors shall comply with the requirements of the Clean Air Act, as amended, 42 USC 1857 et seq., the Federal. Water Pollution Control Act, as amended, 33 USC 1251 et seq., and the regulations of the Environmental Protection Agency with respect thereto, at 40 CFR Part 15, as amended.

In addition to the foregoing requirements, all nonexempt contractors and subcontractors shall furnish to the owner, the following:

1. A stipulation by the contractor or subcontractors, that any facility to be utilizes) in the performance of any non exempt contract or subcontract,. is not listed on the List of Violating Facilities issued by the Environmental Protection Agency (EPA) pursuant to

40 CFR 15.20.

2. Agreement by the contractor to comply with all the requirements of Section 114 of the Clean Air Act, as amended, (42 USC 1857c-8) and Section 308 of the Federal Water Pollution Control Act, as amended, (33 USC 1318) relating to inspection, monitoring, entry, reports and information, as well as all other requirements specified in said Section 114 and Section 308, and all regulations and guidelines issued there under.

3. A stipulation that as a condition for the award of the contract, prompt notice will be given of any notification received from the Director, Office of Federal Activities, EPA, indicating that .a facility utilized, or to be utilized for the contract, is under consideration to be listed on the EPA List of Violating Facilities.

4. Agreement by the contractor that he will include, or cause to be included, the criteria and requirements in paragraph (1) through (4) of this section in every nonexempt subcontract and requiring that the contractor will take such action as the government may direct as a means of enforcing such provisions.

Section 3 Federal Requirements Information

1. Section 3 Purpose. Section 3 is a provision of the Housing and Urban Development (HUD)

Act of 1968. Found under 24 CFR Part 75, the purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD financial assistance are, to the greatest extent feasible, directed to low- and very low-income persons, particularly those who are recipients of government assistance for housing.

2. Section 3 Obligation. HUD housing and community development assistance used for housing rehab/construction, public construction above $200,000. It focuses on labor hours instead of new hires creating an incentive for employers to invest in and retain their newly hired low-income workers.

3. City's Efforts to Award to Section 3 Business Concerns (24 CFR 75.25(b)). All bidders must address the Section 3 employment and contracting benchmarks to be considered in compliance with HUD.

Procurement under the Competitive Proposal Method of procurement (Request for

Proposal - RFP)

1) For contracts and subcontracts awarded under the competitive proposals method of procurement (2 CFR 200.320), a Request for Proposals (RFP) shall identify all evaluation factors (and their relative importance) to be used to rate proposals.

2) One of the evaluation factors shall address both the preference for Section 3 business concerns and the acceptability of the strategy for meeting the greatest extent feasible requirement (Section 3 Economic Opportunity Plan), as disclosed in proposals submitted by all business concerns (Section 3 and non-section 3 business concerns).

This factor shall provide for a range of 15 to 25 percent of the total number of available points to be set aside for the evaluation of these two components.

4. Section 3 Definitions

4.1. Section 3 Project (75.3(a)(2))

4.1.1. The project is the site or sites together with any building(s) and improvements located on the site(s) that are under common ownership, management, and financing. Applies to the entire project, regardless of whether the project is fully or partially assisted under HUD.

4.2. Section 3 Worker (75.5)

4.2.1. Any worker who currently fits, or when hired within the past five years (not before

11/30/20) fit, at least one of the following categories, as documented:

A low or very low-income worker, or

Employed by a Section 3 business concern; or

A Youthbuild participant

4.3. Section 3 Targeted Worker (75.5)

Worker employed by a Section 3 business concern; or

Currently fits or when hired fit at least one of the following categories as documented within the past five years:

Living within the service area or the neighborhood of the project

(one-mile radius of project site) Youthbuild participants

4.4. Section 3 Business Concern (75.5)

4.4.1. Businesses that meet one of the following criteria within the last six months:

At least 51% owned and controlled by low-income or very low-income persons; or

Over 75% of labor hours performed for the business over the prior 3-month period are performed by Section 3 workers; or

51% or more owned and controlled by current residents of public housing or

Section 8-assisted housing

A business may register as a Section 3 business through HUD’s Section 3 Business Registry1.

5. Section 3 Benchmark Requirements

5.1. Certification that the following benchmarks are met or exceeded is considered in compliance by HUD (in the absence of evidence to the contrary):

25% of total labor hours worked by Section 3 workers; and

5% of total labor hours worked by Targeted Section 3 workers

5.2. Professional Service Labor Hour

5.2.1. Non-construction services that require an advance degree or professional licensing are excluded from Section 3.

5.2.2. BONUS: Contractor/subcontractor may count any work performed by a professional services

Section 3 worker or Targeted Section 3 worker as Section 3 labor hours. However, do not count professional services as part of the total labor hours.

6. Section 3 Required Reporting

6.1. The contractor/subcontractor shall maintain all records, reports, and other documentation demonstrating its efforts to achieve the Section 3 benchmark requirements. This includes the contractor’s subcontracting activities to achieve Section 3 goals. Such records shall identify the name and business address to each Section 3 subcontractor or vendor and the total dollar amount actually paid each Section 3 subcontractor or vendor with supporting documentation.

6.1.1.1. Section 3 Business Concern Certification for Contracting form (must be submitted with Bid)

6.1.1.2. Notice of Section 3 Commitment (must be submitted with Bid and posted at jobsite)

6.1.1.3. Section 3 Economic Opportunity Plan (must be submitted with Bid if not a Section 3

Business Concern).

6.1.1.4. Section 3 Worker Certification (must be submitted with 1st weekly certified payroll that the Section 3 worker is reported)

6.1.1.5. Section 3 Economic Opportunity Report (submit with Final Certified Payroll Report or June 30th, whichever comes first)

1 HUD’s Section 3 Business Registry https://hudapps.hud.gov/OpportunityPortal/ https://hudapps.hud.gov/OpportunityPortal/ https://hudapps.hud.gov/OpportunityPortal/

6.2. Qualitative Reporting (75.25(b))

If unable to meet benchmark goals, must describe efforts taken to meet requirements with evidence that they have made qualitative efforts to assist low and very low-income persons with employment and training opportunities.

7. Contractor’s Efforts to Comply with Section 3 Requirements

7.1. Examples of the contractor’s efforts to offer training or employment opportunities to

Section 3 workers include:

7.1.1. Entering into “first Source” hiring agreements with organizations representing Section 3 workers.

7.1.2. Sponsoring a HUD-certified “Step Up” employment and training program for Section 3 workers.

7.1.3. Establishing training programs, which are consistent with the requirements of the Department of Labor, for public and Indian housing residents and other Section 3 workers in the building trades.

7.1.4. Advertising the training and employment positions by distributing flyers (which identify the positions to be filled, the qualifications required, and where to obtain additional information about the application process) to every occupied dwelling unit in the housing development or developments where Section 3 workers reside.

7.1.5. Advertising the training and employment positions by posting flyers (which identify the positions to be filled, the qualifications required, and where to obtain additional information about the application process) in common area or other prominent areas of the housing development or developments. For housing authorities, post such advertising in the housing development or developments where Section 3 workers reside; for all other recipients post such advertising in the housing development or developments and transitional housing in the neighborhood or service area of the Section 3 project.

7.1.6. Contacting resident councils, resident management organizations, or other resident organizations, where they exist, in the housing development or developments Section 3 workers reside, and community organizations in HUD-assisted neighborhoods, to request the assistance of these organizations in notifying residents of the training and employment positions to be filed.

7.1.7. Sponsoring (scheduling, advertising, financing, or providing in-kind services) a job informational meeting to be conducted by a housing authority or contactor representative or representatives at a location in the housing development or developments where Section 3 workers reside or in the neighborhood or service area of the Section 3 project.

7.1.8. Arranging assistance in conducting job interviews and completing job applications for residents of the housing development or developments where Section 3 workers reside and in the neighborhood or service area in which a Section 3 project is located.

7.1.9. Arranging for a location in the housing development or developments where Section 3 workers reside, or the neighborhood or service area of the project, where jobs applications may be delivered to and collected by a recipient or contractor representative or representatives.

7.1.10. Conducting job interviews at the housing development or developments where Section 3 workers reside, or at a location within the neighborhood or service area of the Section 3 project.

7.1.11. Contacting agencies administering HUD Youthbuild programs, and requesting their assistance in recruiting HUD Youthbuild program participants for the housing authority’s or contractor’s training or employment positions.

7.1.12. Consulting with State and County local agencies administering training programs funded through Job Training Partnership Act (JTPA) or Joblinks, probation and parole agencies, unemployment compensation programs, community organizations, and other officials or organizations to assist with recruiting Section 3 residents for the housing authority’s or contractor’s training and employment positions.

7.1.13. Advertising the job dot be filled through local media, such as community television networks, newspapers of general circulations, and radio advertising.

7.1.14. Employing a job coordinator, or contracting with a business concern that is licensed in the field of job placement (preferably one of the Section 3 business concerns), that will undertake, on behalf of the housing authority, other recipient, or contractor, the efforts to match eligible and qualified Section 3 residents with the training and employment positions that the housing authority or contractor intended to fill.

7.1.15. Where there are more qualified Section 3 residents than there are positions to be filled, maintaining a file of eligible qualified Section 3 residents for future employment positions.

7.1.16. Undertaking job counseling, education, and related programs in association with local educational institutions.

7.1.17. Undertaking such continued job training efforts as may be necessary to ensure the continued employment of Section 3 workers previously hired for employment opportunities.

7.1.18. After selection of bidders but prior to execution of contracts, incorporating into the contract a negotiated provision for a specific number of public housing or other Section 3 workers to be trained or employed on the Section 3 projects.

7.1.19. Coordinating plans and implementation of economic development (e.g., job training and preparation, business development assistance for residents) with the planning for housing and community development.

7.2. Examples of Contractor’s Efforts to Award Contracts to Section 3 Business Concerns include:

7.2.1. Utilizing procurement procedures for Section 3 business concerns similar to those provided in

24 CFR Part 905 for business concerns by Native Americans.

7.2.2. In determining the responsibility of potential contractors, consider their record of Section 3 compliance as evidenced by past actions and their current plans for the pending contract.

7.2.3. Contacting business assistance agencies, minority contractors associations, and community organizations to inform them of contracting opportunities and requesting their assistance in identifying Section 3 businesses which may solicit bids or proposals for contracts for work in connection with Section 3 projects.

7.2.4. Advertising contracting opportunities by posting notices, which provide general information, in the common areas or other prominent areas of the housing development or developments owned and managed by the housing authority.

7.2.5. For housing authorities, contacting resident councils, resent management corporations, or other resident organizations, where they exist, and requesting their assistance in identifying

Section 3 business concerns.

7.2.6. Providing written notice to all known Section 3 business concerns of the contracting opportunities. This notice should be in sufficient time to allow the Section 3 business concern to respond to the bid invitations or request for proposals.

7.2.7. Following up with Section 3 business concerns that have expressed interest in the contracting opportunities by contacting them to provide additional information on the contracting opportunities.

7.2.8. Coordinating pre-bid meetings at which Section 3 business concerns could be informed of upcoming contracting and subcontracting opportunities.

7.2.9. Carrying out workshops n contracting procedures and specific contract opportunities in a timely manner so that Section 3 business concerns can take advantage of upcoming contracting and subcontracting opportunities.

7.2.10. Advising Section 3 business concerns as to where they may seek assistance to overcome limitation such as inability to obtain bonding, lines of credit, financing, or insurance.

7.2.11. Arranging solicitations, times for the presentation of bids, quantities, specifications, and delivery scheduled in ways to facilitate the participation by Section 3 business concerns.

7.2.12. Where appropriate, breaking out contract work items to economically feasible units to facilitate participation by Section 3 business concerns.

7.2.13. Contacting agencies administering HUD Youthbuild programs and notifying these agencies of the contracting opportunities.

7.2.14. Advertising the contracting opportunities through trade association papers and newsletters, and through the local media, such as community television networks, newspapers of general circulation, and radio advertising.

7.2.15. Developing a list of eligible Section 3 business concerns.

7.2.16. Establishing or sponsoring programs designed to assist residents of public or Indian housing in the creation and development of resident-owned business.

7.2.17. Establishing numerical goals (number of awards and dollar amount of contract) for award of contracts to Section 3 business concerns.

7.2.18. Supporting businesses that provide economic opportunities to low-income persons by linking them to the support services available through the Small Business Administration, the

Department of Commerce, and comparable agencies at the State and local levels.

7.2.19. Encouraging financial institutions in carrying out their responsibilities under the Community

Reinvestment Act, to provide no- or low-interest loans for providing working capital and other financial business needs.

7.2.20. Actively supporting joint ventures with Section 3 business concerns.

7.2.21. Actively supporting the development or maintenance of business incubators that assist Section

3 business concerns.

7.3. Local Section 3 Pasadena Agencies

7.3.1. City of Pasadena – Housing Department

649 N. Fair Oaks Avenue Suite 202

Pasadena, CA 91103

(626) 744-8300 www.cityofpasadena.net/housing

7.3.2. Foothill Workforce Development Board (FWDB)

1207 E. Green Street

Pasadena, CA 91106

(626) 796-5627 www.fwdbworks.org

7.3.3. Pasadena Community Job Center

500 N. Lake Avenue

Pasadena, CA 91101

(626) 440-0112 www.pasadenajobcenter.com http://www.cityofpasadena.net/housing http://www.fwdbworks.org/ http://www.pasadenajobcenter.com/

8. Section 3 Complaint Procedures

8.1. A complaint may be filed by Section residents, Section 3 business concerns, or parties alleging non-compliance with the Section 3 regulations by the City or contractor.

Complaints are reviewed and investigated by the Assistant Secretary of Fair Housing and Equal Opportunity and, where appropriate voluntary resolutions are sought. Those complaints that are not resolved voluntarily may result in an administrative hearing. A complaint alleging a violation of Section 3 requirements shall be processed as follows:

8.1.1. A complaint must be filed with the Assistant Secretary of Fair Housing and Equal Opportunity, U.S. Department of Housing & Urban Development.

8.1.2. A complaint must be received not later than 180 days from the date of action or omission upon which the complaint is based, unless the time for filing is extended by the Assistant Secretary for good cause shown.

8.1.3. Each complaint must be in writing, signed by the complainant, and include:

The complainant’s name and address;

The name and address of the respondent; and

A description of the acts or omissions by the respondent that is sufficient to inform the Assistant Secretary of the nature and date of the alleged noncompliance.

8.1.4. A complaint may provide information to be contained in a complaint by telephone to

HUD or any HUD field office, and HUD will reduce the information provided by telephone to writing on the prescribed complaint form and send the form to the complaint for signature.

8.1.5. Where to file your complaint:

Online at https://www.hud.gov/section3.

Please fax or mail your complaint to the appropriate HUD Regional Office of Fair

Housing and Equal Opportunity that has jurisdiction over the state for which you are located or where the alleged violation occurred. Inquiries regarding the status of your complaint should be directed to the appropriate Regional office of FHEO by telephone or email.

SAN FRANCISCO REGIONAL OFFICE

U.S. Department of Housing and Urban

Development Pacific/Hawaii Office

600 Harrison Street Third Floor

San Francisco, CA 94107

(415) 489-6536 (800) 347-3739 Fax: (415) 489-6560

Email: complaints_office_09@hud.gov *Covers the following states: Arizona, California, Guam, Hawaii, and Nevada https://www.hud.gov/program_offices/fair_housing_equal_opp https://www.hud.gov/program_offices/fair_housing_equal_opp https://www.hud.gov/section3 mailto:complaints_office_09@hud.gov

9. Section 3 Non-Compliance

9.1. Noncompliance with HUD’s regulations in 24 CFR Part 755 may result in sanctions, terminations of this contract for default, and debarment or suspension from future HUD assisted contracts.

9.1.1. 5% Retention The City will retain five percent (5%) of the contract amount for this project until the Labor Standards Enforcement File has been completed and final clearance is issued.

Five percent (5%) of the total construction award will be retained from the prime contractor by the City to allow for the availability of funds to remedy monetary liabilities that can result from violations of Section 3 requirements or the Davis- Bacon and Related Acts and Federal Labor Standards Provisions.

Previous editions obsolete Form HUD-4010, (10/2023) ref. Handbook 1344.1

HUD-4010 U.S. Department of Housing and Urban Development Federal Labor Standards Provisions Office of Davis-Bacon and Labor Standards

A. APPLICABILITY

The Project or Program to which the construction work covered by this Contract pertains is being assisted by the United States of America, and the following Federal Labor Standards Provisions are included in this Contract pursuant to the provisions applicable to such Federal assistance.

1. Minimum wages and fringe benefits

i. All laborers and mechanics 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 without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations 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 determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. As provided in 29 CFR 5.5(d) and (e), the appropriate wage determinations are effective by operation of law even if they have not been attached 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 these contract clauses; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics must be paid the appropriate wage rate and fringe benefits on the wage determination for the classification(s) of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer’s payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classifications and wage rates conformed under 29 CFR 5.5(a)(1)(iii)) 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 benefit rates that have been determined to be prevailing under the procedures set forth in 29 CFR part 1, a wage determination may contain, pursuant to § 1.3(f), wage and fringe benefit rates for classifications of laborers and mechanics for which conformance requests are regularly submitted pursuant to 29 CFR 5.5(a)(1)(iii), provided that:

1. The work performed by the classification is not performed by a classification 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 classification 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 29 CFR

5.5(a)(1)(iii)(A)(3). 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 helpers, which is not listed in the wage determination and which is to be employed under the contract be classified in conformance with the wage determination. Conformance of an additional 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 performed 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 determination.

B. The conformance process may not be used to split, subdivide, or otherwise avoid application of classifications listed in the wage determination.

C. If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), 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 classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30–day period that additional time is necessary.

D. In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer will, by email to DBAconformance@dol.gov, refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30–day period that additional time is necessary.

E. The contracting officer must promptly notify the contractor of the action taken by the Wage and Hour Division under 29 CFR 5.5 (a)(1)(iii)(C) and (D). The contractor must furnish a written copy of such determination to each affected worker or it must be posted as a part of the wage determination. The wage rate (including fringe benefits where appropriate) determined pursuant to 29 CFR 5.5 (a)(1)(iii)(C) or (D) must be paid to all workers performing work in the classification under this contract 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 includes a fringe benefit which is not expressed as an hourly rate, the contractor may either pay the benefit as stated in the wage determination or may pay another bona fide fringe benefit or an hourly cash equivalent thereof.

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 contractor, in accordance with the criteria set forth in 29 CFR 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 meeting 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 underpayment of wages.

mailto:DBAconformance@dol.gov mailto:DBAconformance@dol.gov

2. Withholding

i. Withholding requirements

The U. S. Department of Housing and Urban Development may, upon its own action, or must, upon written request of an authorized representative of the Department 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 29 CFR 5.5(a) for violations of this contract, or to satisfy any such liabilities required by any other Federal contract, or federally assisted contract subject to Davis-Bacon labor standards, that is held by the same prime contractor (as defined in 29 CFR 5.2). The necessary funds may be withheld from the contractor under this contract, any other Federal contract with the same prime contractor, or any other federally assisted contract that is subject to Davis-Bacon labor standards requirements 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 withheld. In the event of a contractor’s failure to pay any laborer or mechanic, including any apprentice or helper working on the site of the work (or otherwise working in construction or development of the project under a development statute) all or part of the wages required by the contract, or upon the contractor’s failure to submit the required records as discussed in 29 CFR 5.5(a)(3)(iv), HUD may on its own initiative and after written notice to the contractor, sponsor, applicant, owner, or other entity, as the case may be, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.

ii. Priority to withheld funds The Department has priority to funds withheld or to be withheld in accordance with 29 CFR 5.5(a)(2)(i) or (b)(3)(i), or both, over claims to those funds by:

A. A contractor’s surety(ies), including without limitation performance bond sureties and payment bond sureties;

B. A contracting agency for its reprocurement costs;

C. A trustee(s) (either a court-appointed 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 maintained by the contractor and any subcontractor during the course of the work and preserved for all laborers and mechanics working at the site of the work (or otherwise working in construction or development of the project under a development statute) for a period of at least 3 years after all the work on the prime contract is completed.

B. Information required Such records must contain the name; Social Security number; last known address, telephone number, and email address of each such worker; each worker’s correct 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 actually worked in total and on each covered contract; deductions made; and actual wages paid.

C. Additional records relating to fringe benefits. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(v) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated 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 program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits.

D. Additional records relating to apprenticeship Contractors with apprentices working under approved programs must maintain written evidence of the registration of apprenticeship programs, the registration of the apprentices, 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 submit weekly, for each week in which any DBA- or Related Acts-covered work is performed, certified payrolls to HUD if the agency is a party to the contract, but if the agency is not such a party, the contractor will submit the certified payrolls to the applicant, sponsor, owner, or other entity, as the case may be, that maintains such records, for transmission to HUD. The prime contractor is responsible for the submission of all certified payrolls by all subcontractors. A contracting agency or prime contractor may permit or require contractors to submit certified payrolls through an electronic system, as long as the electronic system requires a legally valid electronic signature; the system allows the contractor, the contracting agency, and the Department of Labor to access the certified payrolls upon request for at least 3 years after the work on the prime contract has been completed; and the contracting agency or prime contractor permits other methods of submission in situations where the contractor is unable or limited in its ability to use or access the electronic system

B. Information required The certified payrolls submitted must set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i)(B), except that full Social Security numbers and last known addresses, telephone numbers, and email addresses must not be included on weekly transmittals. Instead, the certified payrolls need only include an individually identifying number for each worker (e.g., the last four digits of the worker’s Social Security number). The required weekly certified payroll information may be submitted using Optional Form WH-347 or in any other format desired. Optional Form WH-347 is available for this purpose from the Wage and Hour Division Web site at https://www.dol.gov/ sites/dolgov/files/WHD/legacy/files/wh347.pdf or its successor 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 contractor for its own records, without weekly submission by the subcontractor 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 certified payroll submitted must be accompanied by a “Statement of Compliance,” signed by the contractor or subcontractor, or the contractor’s or subcontractor’s agent who pays or supervises the payment of the persons working on the contract, and must certify the following:

1. That the certified payroll for the payroll period contains the information required to be provided under 29 CFR 5.5(a)(3)(ii), the appropriate information and basic records are being maintained under 29 CFR 5.5 (a)(3)(i), and such information and records are correct 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 https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/wh347.pdf https://or/ https://or/ 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 executed certification set forth on the reverse side of Optional Form WH-347 will satisfy the requirement for submission of the “Statement of Compliance” required by 29 CFR 5.5(a)(3)(ii)(C).

E. Signature The signature by the contractor, subcontractor, or the contractor’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 subcontractor to civil or criminal prosecution under 18 U.S.C. 1001 and 31 U.S.C. 3729.

G. Length of certified payroll retention 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 related documents The contractor or subcontractor must maintain this contract or subcontract and related documents including, without limitation, bids, proposals, amendments, modifications, 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 subcontractor must make the records required under 29 CFR 5.5(a)(3)(i)–(iii), and any other documents that HUD or the Department of Labor deems necessary to determine compliance with the labor standards provisions of any of the applicable statutes referenced by 29 CFR 5.1, available for inspection, copying, or transcription by authorized representatives of HUD 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 hours on the job, the Federal agency may, after written notice to the contractor, sponsor, applicant, owner, or other entity, as the case may be, that maintains such records or that employs such workers, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, 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 action pursuant to 29 CFR 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 administrative proceeding under 29 CFR part 6 any of the required records that were not provided or made available to WHD. WHD will take into consideration 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 number and last known address, telephone number, and email address of each covered worker, and must provide them upon request to HUD if the agency is a party to the contract, or to the Wage and Hour Division of the Department of Labor. If the Federal agency 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 entity, as the case may be, that maintains such records, for transmission to HUD, the contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or other compliance 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 individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship (OA), or with a State Apprenticeship Agency recognized 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 probationary 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 probationary employment as an apprentice in such a program.