[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 2328 Introduced in Senate (IS)]

103d CONGRESS
  2d Session
                                S. 2328

    To revise and simplify certain labor laws applicable to Federal 
                   contracts, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                July 27 (legislative day, July 20), 1994

 Mr. Simon (by request) introduced the following bill; which was read 
    twice and referred to the Committee on Labor and Human Resources

_______________________________________________________________________

                                 A BILL


 
    To revise and simplify certain labor laws applicable to Federal 
                   contracts, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federal Acquisition Labor Law 
Improvement Act of 1994''.

SEC. 2. AMENDMENTS TO THE DAVIS-BACON ACT.

    The Act of March 3, 1931 (46 Stat. 1494) as amended, commonly 
referred to as the ``Davis-Bacon Act'' (40 U.S.C. 276a et seq.), is 
amended--
            (1) by retitling section 1 (40 U.S.C. 276a) to read 
        ``CONTRACT REQUIREMENTS'' and amending subsection (a) to read 
        as follows:
    ``(a) Required Provisions.--(1) In General.--A contract described 
in subsection (b) which requires or involves the employment of 
mechanics and/or laborers shall contain a provision--
            ``(A) stating the minimum wages to be paid various classes 
        of laborers and mechanics which shall be based upon the wages 
        that will be determined by the Secretary of Labor to be 
        prevailing for the corresponding classes of laborers and 
        mechanics employed on projects of a character similar to the 
        contract work in the locality where the work is to be 
        performed;
            ``(B) which stipulates that the contractor or subcontractor 
        under the contract shall pay all laborers and mechanics under 
        the contract--
                    ``(i) unconditionally;
                    ``(ii) not less often than once a week; and
                    ``(iii) without subsequent deduction or rebate on 
                any account, unless otherwise authorized in writing by 
                such laborer or mechanic in accordance with section 
                186(c)(4) of title 29, United States Code or by 
                regulations issued by the Secretary of Labor, the full 
                amounts accrued at the time of payment, computed at 
                wage rates not less than those stated in the advertised 
                specifications, regardless of any contractual 
                relationship which may be alleged to exist between the 
                contractor or subcontractor and such laborers and 
                mechanics;
            ``(C) which stipulates that the requirements of paragraph 
        (A) shall apply to laborers and mechanics employed by the 
        contractor or subcontractor to work directly upon the site of 
        the work, including work at fabrication plants, batch plants, 
        tool yards or similar facilities (other than previously 
        established facilities of a contractor or subcontractor whose 
        location and continuance in operation are determined wholly 
        without regard to the contract work) which are not located on 
        the project site but are dedicated exclusively, or nearly so, 
        to construction of the project; and to laborers and mechanics, 
        including truckdrivers, employed by the contractor or 
        subcontractor to transport materials, supplies, and equipment 
        to and/or from the site of the work (other than the hauling of 
        materials or supplies to the site of the work from a permanent 
        previously established facility by truckdrivers employed by a 
        bona-fide independent trucking company or bona-fide material 
        supplier), including between the actual construction location 
        and other covered facilities; and
            ``(D) which stipulates that there may be withheld from the 
        contractor under the contract or any contract between the same 
        contractor and the Federal Government or the District of 
        Columbia or under any Federally assisted contract subject to 
        Davis-Bacon prevailing wage requirements so much of accrued 
        payments as may be considered necessary by the contracting 
        officer or by the Secretary of Labor to pay to laborers and 
        mechanics employed by the contractor or any subcontractor on 
        the work the difference between the rates of wages required by 
        the contract to be paid laborers and mechanics on the work and 
        the rates of wages received by such laborers and mechanics and 
        not refunded to the contractor, subcontractors or their agents, 
        and, if the violations are willful, to pay an additional equal 
        amount as liquidated damages. Funds withheld under this section 
        shall be placed in an interest bearing account until the 
        disposition of the funds is administratively and/or judicially 
        resolved.
    ``(2) Posting.--A contractor or subcontractor under a contract 
described in subsection (b) shall post the scale of wages required to 
be paid under such contract in a prominent and easily accessible place 
at the site of the contract work.'';
            (2) by redesignating subsection (b) as (c), inserting 
        ``Wages.--(1) Definition.--'' after ``(c)'', redesignating 
        ``(1)'' and ``(2)'' as ``(A)'' and ``(B)'', redesignating 
        ``(A)'' and ``(B)'' ``(i)'' and ``(ii)'', changing all 
        references to ``subparagraph (2)(A)'' to ``subparagraph 
        (B)(i)'', changing all references to ``subparagraph (2)(B)'' to 
        ``subparagraph (B)(ii)'', changing all references to 
        ``paragraph (1)'' to ``subparagraph (A)'', change all 
        references to ``paragraph (2)'' to ``subparagraph (B)'', and by 
        inserting ``(2) Overtime.--'' at the beginning of the last 
        paragraph of the subsection;
            (3) by inserting the following as new subsection (b) of 
        section 1 (40 U.S.C. 276a) to read as follows:
    ``(b) Covered Contracts.--(1) In General.--The requirements of this 
section shall apply to any contract to which the United States or the 
District of Columbia is a party--
            ``(A) for the new construction, complete rehabilitation or 
        reconstruction, including painting and decorating, of public 
        buildings or public works of the United States or the District 
        of Columbia within the geographical limits of the States of the 
        Union or the District of Columbia in excess of $100,000; and
            ``(B) for the repair and/or alteration, including painting 
        and decorating, of public buildings or public works of the 
        United States or the District of Columbia within the 
        geographical limits of the States of the Union or the District 
        of Columbia in excess of $50,000.
    ``(2) Leases of real property.--The requirements of this section 
shall apply to any contract to which the United States or the District 
of Columbia is a party for the new construction, complete 
rehabilitation or reconstruction, including painting and decorating, of 
any building or work which is so constructed, rehabilitated or 
reconstructed for lease to, and in preparation for occupancy and use 
by, the United States or the District of Columbia where such lease 
provides for an average annual rental in excess of $100,000, provided, 
that any use of the building or work other than by the United States or 
the District of Columbia will be functionally or quantitatively 
incidental to the use and occupancy by the United States or the 
District of Columbia.
    ``(3) Federally Assisted.--(A) The requirements of this Act apply 
as provided in subparagraph (B) of this paragraph to any project for 
the construction, rehabilitation, reconstruction, alteration or repair, 
including painting and decorating, of buildings or works which are 
financed in whole or in part by loans, grants, revolving funds, loan 
guarantees, or other assistance from the United States pursuant to a 
statute which (i) is enacted after the effective date of this Act 
unless exempted or otherwise limited by Federal law, or (ii) contains a 
provision requiring the payment of prevailing wages as determined by 
the Secretary of Labor pursuant to this Act.
    ``(B) The provisions of this Act shall apply to Federally assisted 
projects if the amount of Federal financial assistance provided for the 
project exceeds the applicable thresholds set forth in this subsection 
for contracts to which the United States or the District of Columbia is 
a party. In the case of loan guarantees or other assistance for which 
the instrument of Federal financing or assistance does not have an 
aggregate dollar amount or cannot be determined, this Act shall apply 
when the value of the assisted project exceeds the applicable threshold 
set forth in this subsection for projects to which the United States or 
the District of Columbia is a party.
    ``(4) Adjustments for Changes in Dollar Values.--The amounts of the 
thresholds set forth in paragraph (1) shall be adjusted by the 
Secretary of Labor each year that is divisible by 5 to the amount that 
is equal to the fiscal year 1994 constant dollar value of the amount 
set forth. Any amount, as so adjusted, shall be rounded to the nearest 
$1,000. The adjusted threshold shall be effective upon publication in 
the Federal Register to contracts for which bids are solicited or 
negotiations concluded after such publication.
    ``(5) Prohibition on Splitting Contracts.--No project that would, 
if procured under a single contract, be subject to the requirements of 
this Act may be divided into multiple contracts of lesser value to 
avoid the application of this Act.
    ``(6) Preemption.--Neither the requirements of subsection (a) nor 
the provisions of any other Federal law or regulation related to 
prevailing wages shall, solely by reason of such prevailing wage 
provisions preempt the application of requirements for the payment of 
wages or fringe benefits or both adopted by State, local or tribal 
governments otherwise applicable to contracts for the construction, 
rehabilitation or reconstruction, repair or alteration, including 
painting and decorating, of buildings and works financed in whole or in 
part by loans, grants, revolving funds, loan guarantees, or other 
assistance from the United States, unless compliance with such 
requirement would make it impossible to comply with the requirements of 
subsection (a).'';
            (4) by retitling section 3 (40 U.S.C. 276a-2(a)) to read 
        ``ENFORCEMENT'' and amending subsection (a) to read as follows:
    ``(a) Administrative Procedures.--(1) Payments.--The Secretary of 
Labor is hereby authorized and directed to pay directly to laborers and 
mechanics from any accrued payments withheld under the contract or any 
contract between the same contractor and the Federal Government or 
District of Columbia or under any Federally assisted contract subject 
to Davis-Bacon prevailing wage requirements any wages found to be due 
laborers and mechanics pursuant to this Act, and if the violations were 
willful, for payment of an additional equal amount as liquidated 
damages. Any sum not paid to an employee because of inability to do so 
within 3 years shall be deposited into the miscellaneous receipts of 
the United States Treasury. If the accrued payments withheld are 
insufficient to reimburse all the laborers and mechanics with respect 
to whom there has been a failure to pay the wages required by this Act, 
the Secretary or any laborer or mechanic or any organization authorized 
to represent such laborer or mechanic may, within one year of the 
conclusion of all administrative proceedings, bring an action against 
the contractor and the contractor's sureties or other responsible 
parties for the payment of wages and liquidated damages found due by 
the Secretary. In such an action it shall be no defense that such 
laborers and mechanics accepted or agreed to accept less than the 
required rate of wages or voluntarily made refunds. Every suit 
instituted under this subparagraph shall be brought in the United 
States district court for the district in which the contract was 
performed, where the contractor or subcontractor is currently doing 
business, or where the contractor or subcontractor maintains its 
payroll records, irrespective of the amount in controversy in such 
suit. In such suits, the parties must conform to chapter 7 of title 5 
of the United States Code.
    ``(2) Debarment.--The Secretary of Labor is further authorized and 
directed to provide the names of persons or firms whom the Secretary 
has found to have disregarded their obligations to employees and 
subcontractors to the General Services Administration for inclusion on 
the governmentwide List of Parties Excluded from Federal Procurement 
and Nonprocurement Programs. No contract shall be awarded to the person 
or firm appearing on this list or to any firm, corporation, 
partnership, or association in which such person or firm has an 
interest until three years have elapsed from the date the persons' or 
firms' name is entered on the electronic version of the list.
    ``(3) Authority.--The Secretary of Labor shall prescribe 
appropriate standards, regulations and procedures in order to assure 
coordination of administration and consistency of enforcement of this 
Act which shall be observed by the Federal agencies responsible for 
administration of contracts described in subsection (b) of section 1 of 
this Act. The Secretary of Labor and the Federal agencies awarding 
contracts or providing financial assistance to projects are authorized 
to investigate compliance by any contractor or subcontractor with the 
requirements of the Act, and may take such action to secure compliance 
with such requirements as may be appropriate. The Secretary shall have 
the power to issue orders requiring the attendance and testimony of 
witnesses and the production of evidence under oath. Witnesses shall be 
paid the same fees and mileage that are paid witnesses in the courts of 
the United States. In the case of contumacy, failure, or refusal of any 
person to obey such order, any district court of the United States or 
of any territory or possession, within the jurisdiction of which the 
inquiry is carried on, or within the jurisdiction of which said person 
who is guilty of contumacy, failure, or refusal is found, or resides or 
transacts business, upon application by the petitioner, shall have 
jurisdiction to issue to such person an order requiring such person to 
appear before the Secretary or a representative designated by the 
Secretary, to produce evidence if, as, and when so ordered, and to give 
testimony relating to the matter under investigation or in question; 
and any failure to obey such order of the court may be punished by said 
court as a contempt thereof.'';
            (5) by amending subsection (b) of section 3 (40 U.S.C. 
        276a-2(b)) to read as follows:
    ``(b) Review Procedures.--(1) Action by the Secretary.--The 
Secretary of Labor shall issue regulations providing procedures for 
making determinations regarding the application of this Act to given 
contracts.
    ``(2) Coverage Review.--(i) Any interested person, as defined in 
regulations issued by the Secretary of Labor, shall have the right to 
request the Secretary of Labor to make a determination regarding the 
applicability of the Act to a contract. Such determination shall be 
binding upon the Federal agencies awarding contracts or providing 
financial assistance and any recipient of financial assistance. If the 
Secretary notifies the contracting agency that the contract is subject 
to the Act, the contracting authority shall include in the contract the 
provisions required by section 1, including any applicable wage 
determination issued by the Secretary or his authorized representative, 
through the exercise of any and all authority that may be needed 
(including, where necessary, its authority to negotiate or amend, its 
authority to pay any necessary additional costs, and its authority 
under any contract provision authorizing changes, cancellation, and 
termination).
    ``(ii) Any person adversely affected or aggrieved by a 
determination by the Secretary of Labor made on a petition filed 
pursuant to paragraph (i), may obtain review of such determination in 
any United States court of appeals for the circuit in which such person 
is located, or in the United States Court of Appeals for the District 
of Columbia, by filing in such court within 60 days following issuance 
of such determination, a written petition praying that such 
determination be modified or set aside. A copy of such petition shall 
be forthwith transmitted by the clerk of the court in which it is filed 
to the Secretary and to other interested persons. Review shall conform 
to Chapter 7 of Title 5 of the United States Code.''; and
            (6) by amending section 3 (40 U.S.C. 276a-2) to add a new 
        subsection (c) to read as follows:
    ``(c) Right of Action.--(1) In General.--A laborer or mechanic 
employed pursuant to a contract, subcontract, loan, grant or other 
agreement which incorporates the provision required by section 1, or an 
organization authorized by such laborer or mechanic to represent the 
laborer or mechanic, who has not been paid in full therefor shall have 
the right to sue the contrctor and/or subcontractor and the 
contractors' sureties for the amount, or balance thereof, unpaid and, 
if the violations were willful, for an additional equal amount as 
liquidated damages, and to prosecute said action to final execution and 
judgment for the sum or sums justly due the laborer or mechanic. A copy 
of the complaint shall be served on the Secretary of Labor. Such an 
action shall be commenced not later than 180 days after the day on 
which the last labor was performed under the contract with respect to 
which the action is brought, except that such time allowed for 
commencement shall be tolled if the contract is under investigation or 
review, including review of the applicability of the Act to the 
contract, by the Secretary of Labor pursuant to section 2(b) of this 
Act. In such an action it shall be no defense that such laborers and 
mechanics accepted or agreed to accept less than the required rate of 
wages or voluntarily made refunds. Any action that requires a 
determination of the applicability of the Act shall first be referred 
by the Court to the Secretary of Labor for the opportunity to make a 
decision pursuant to paragraph (b)(2) of this section. No action may be 
brought or maintained under this paragraph by a laborer or mechanic 
with respect to the laborers' or mechanics' wages if an administrative 
proceeding or judicial action has been brought by the Secretary for the 
payment of wages alleged due such laborers or mechanics.
    ``(2) Actions.--Every suit instituted under paragraph (c)(1) shall 
be brought in the United States District Court for the district in 
which the contract was performed, where the contractor or subcontractor 
is currently doing business, or where the contractor or subcontractor 
maintains its payroll records, irrespective of the amount in 
controversy in such suit.
    ``(3) Attorney's Fee.--The Court in any action brought under 
paragraph (c)(1) shall, in addition to any judgment awarded to the 
plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid 
by the defendant and the cost of the action.''.

SEC. 3. AMENDMENTS TO THE COPELAND ACT.

    Section 2 of the Act of June 13, 1934 (48 Stat 948) as amended, 
commonly referred to as the ``Copeland Act'' (40 U.S.C. 276c), is 
amended to read as follows:
    ``(a) The Secretary of Labor shall make reasonable regulations for 
contractors and subcontractors engaged in the construction, 
prosecution, completion or repair and/or alteration of buildings or 
works subject to the Davis-Bacon Act, as amended (40 U.S.C. 276a et 
seq.), or to the requirement of payment of wages determined in 
accordance with the Davis-Bacon Act. The regulations shall include 
provisions (1) requiring contractors and subcontractors to submit along 
with each payment request under the contract a signed statement 
certifying that all persons employed in the performance of work under 
the contract have been paid the full amount of wages earned without 
deductions, except as permitted by regulations under this Act, during 
the period covered by the payment request and certifying that all 
payroll records maintained and/or submitted by the contractor or 
subcontractor under subsections (b) and (c) of this section are correct 
and accurate, and (2) requiring lessors to submit monthly during the 
period of construction subject to prevailing wage provisions of the 
Davis-Bacon Act a signed statement certifying that all persons employed 
in performance of work under the contract have been paid the full 
amount of wages earned without deductions, except as permitted by 
regulations under this Act, during the period covered by the payment 
request and certifying that all payroll records maintained and/or 
submitted by the contractor or subcontractor under subsections (b) and 
(c) of this section are correct and accurate. Section 1001 of title 18 
of the United States Code (Criminal Code and Criminal Procedure) shall 
apply to such statements.
    ``(b) Such regulations shall provide, among other things--
            ``(1) in the case of contracts which exceed $100,000 (as 
        adjusted under section (b)(3) of 40 U.S.C. 276a), that all 
        contractors and subcontractors, unless waived by the Secretary 
        of Labor, shall furnish with respect to persons employed in 
        such work not later than the 10th day of each month a payroll 
        statement which sets forth at least the following information 
        for each person for each payroll period ending during the 
        preceding calendar month: the name, address, social security 
        number, employment classification, number of hours worked daily 
        and during the payroll period, hourly rates of wages paid 
        (including rates of contributions or costs anticipated for bona 
        fide fringe benefits), all deductions made, and actual wages 
        paid, and
            ``(2) procedures for waiving the requirement for submission 
        of monthly payroll statements based on criteria established by 
        the Secretary of Labor. Such criteria shall include, but are 
        not limited to, the contractor or subcontractor; (A) has never 
        been debarred for disregarding its obligations to employees 
        under the Act of March 3, 1931 (46 Stat. 1494) as amended, 
        commonly referred to as the ``Davis-Bacon Act'' or any other 
        labor standards statute, (B) has demonstrated a thorough 
        knowledge of the requirements of the Davis-Bacon Act through a 
        history of compliance with the requirements of the Davis-Bacon 
        Act over a substantial period of time, and (C) has otherwise 
        demonstrated through performance that it is a responsible 
        contractor.
    ``(c)(1) Each contractor and subcontractor shall maintain payroll 
and other basic records relating to payroll as required by regulations 
issued by the Secretary of Labor and shall preserve such records for a 
period of three years after completion of the contract work.
    ``(2) The contractor or subcontractor shall submit payroll and 
related records to the contracting officer or the authorized 
representatives of the Secretary of Labor upon request, and make 
payroll and related records available for inspection upon request. If a 
contractor or subcontractor fails to make records available in a timely 
manner as required herein, the Secretary of Labor or authorized 
representatives or the contracting officer may suspend all payments to 
the contractor or subcontractor. Any statement provided under this 
section, excepting social security numbers, may be obtained by any 
person from any department, agency, or contracting authority which is 
required by law, regulation, or the terms of a contract, grant, or 
other agreement, to maintain a record of such statement without regard 
to the provisions of section 552 of title 5, United States Code.
    ``(3) The Secretary of Labor may require by subpoena testimony and 
the production of payroll and related records access to which is 
provided by this section. Any such subpoena in the case of contumacy or 
refusal to obey, shall be enforceable by order of an appropriate United 
States district court.
    ``(4) The Secretary of Labor may debar contractors, subcontractors 
or other persons pursuant to section 3(a)(2) of the Davis-Bacon Act who 
fail to submit payroll records when requested to do so or who fail or 
refuse to make payroll records available for inspection, including 
contractors and subcontractors who fail to retain required records, or 
who maintain or provide false payroll records.
    ``(5) Any contractor, subcontractor or other person whose duty it 
shall be to employ, direct, or control any laborer or mechanic employed 
in the performance of any contract to which this Act applies who other 
than inadvertently provides false payroll records to the Government 
under any mechanism provided for in this section, shall be subject to a 
fine of not to exceed $25,000, or by imprisonment for not more than one 
year, or both, in the discretion of the court having jurisdiction 
thereof.
    ``(d) This section shall not apply to any contract or project that 
is exempted by its size from the application of the Act of March 3, 
1931 (46 Stat. 1494) as amended, commonly referred to as the ``Davis-
Bacon Act'', 40 U.S.C. 276a et seq.''.

SEC. 4. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT.

    The Contract Work Hours and Safety Standards Act, as amended (40 
U.S.C. 327-333) is amended--
            (1) by striking, in subsection 330(a), ``Comptroller 
        General of the United States'' and substituting ``Secretary of 
        Labor'';
            (2) by striking, in subsection 333(d)(1), ``Comptroller 
        General'' and substituting ``General Services Administration''; 
        and
            (3) by amending subsection 333(d)(2) to read as follows:
            ``(2) The General Services Administration shall include 
        each name so transmitted on the governmentwide List of Parties 
        Excluded from Federal Procurement or Nonprocurement Programs. 
        No contract shall be awarded to the person or firm appearing on 
        the list or to any firm, corporation, partnership, or 
        association in which such person or firm has a substantial 
        interest until three years have elapsed from the date the 
        persons' or firms' name is entered on the electronic version of 
        the list.''.

SEC. 5. SERVICE CONTRACT ACT.

    The Service Contract Act Public Law 89-286) as amended (41 U.S.C. 
351(a)), is amended--
            (1) by striking, in subsection 4(d), ``, if authorized by 
        the Secretary,'' and ``not exceeding five,'';
            (2) by amending subsection (a) of section 5 to read as 
        follows:
    ``(a) The Secretary is directed to provide the names of persons or 
firms that the Secretary has found to have violated this Act to the 
General Services Administration for inclusion on the governmentwide 
List of Parties Excluded from Federal Procurement or Nonprocurement 
Programs. Unless the Secretary determines otherwise because of unusual 
circumstances, no contract of the United States shall be awarded to the 
person or firm appearing on this list or to any firm, corporation, 
partnership, or association in which such person or firm as a 
substantial interest until three years have elapsed from the date the 
persons' or firms' name is entered on the electronic version of the 
list.''; and
            (3) by striking paragraph (2) of section 7 and 
        redesignating paragraphs (3) through (7) as (2) through (6).

SEC. 6. EFFECTIVE DATE.

    This Act shall apply to all contracts entered into pursuant to 
negotiations concluded or invitations for bid issued on or after 180 
days from the date of enactment of this Act.
                                 <all>
S 2328 IS----2