[Federal Register Volume 68, Number 246 (Tuesday, December 23, 2003)]
[Proposed Rules]
[Pages 74404-74409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31232]



[[Page 74403]]

  
  
  
  
  
  
-----------------------------------------------------------------------


Part V





Department of Defense

General Services Administration

National Aeronautics and Space Administration





-----------------------------------------------------------------------



48 CFR Parts 22, 52, and 53



Federal Acquisition Regulation; Labor Standards for Contracts Involving 
Construction; Proposed Rule

  Federal Register / Vol. 68, No. 246 / Tuesday, December 23, 2003 / 
Proposed Rules  

[[Page 74404]]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 22, 52, and 53

[FAR Case 2002-004]
RIN 9000-AJ79


Federal Acquisition Regulation; Labor Standards for Contracts 
Involving Construction

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) are proposing to amend the 
Federal Acquisition Regulation (FAR) to implement the revised 
definitions of ``Construction'' and ``site of the work'' in the 
Department of Labor (DoL) regulations. In addition, the Councils are 
proposing to clarify several definitions relating to labor standards 
for contracts involving construction and make requirements for flow 
down of labor clauses more precise.

DATES: Interested parties should submit comments in writing on or 
before February 23, 2004, to be considered in the formulation of a 
final rule.

ADDRESSES: Submit written comments to--General Services Administration, 
FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, ATTN: Laurie 
Duarte, Washington, DC 20405. Submit electronic comments via the 
Internet to-- [email protected]. Please submit comments only and 
cite FAR case 2002-004 in all correspondence related to this case.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755 
for information pertaining to status or publication schedules. For 
clarification of content, contact Ms. Linda Nelson, Procurement 
Analyst, at (202) 501-1900. Please cite FAR case 2002-004.

SUPPLEMENTARY INFORMATION: 

A. Background

    The Department of Labor (DoL) published a final rule at 65 FR 
80268, December 20, 2000, revising the terms ``construction, 
prosecution, completion, or repair'' (29 CFR 5.2(j)) and ``site of the 
work'' (29 CFR 5.2(l)). The DoL rule became effective on January 19, 
2001. The DOL changes were made to conform the regulations with Federal 
appellate court decisions and subsequent decisions of DoL's 
Administrative Review Board regarding the transportation of supplies 
and materials to or from the construction site. In addition, the DoL 
rule revised the definition of the ``site of the work'' to include 
secondary sites, other than the project's final resting place, which 
have been established specifically for the performance of the Davis-
Bacon covered contract and at which a significant portion of the public 
building or work called for by the contract is constructed. The 
Councils propose revisions to the definitions of ``construction, 
alteration, or repair'' and ``site of the work'' in 22.401, to reflect 
the changes in the DoL regulations. A new provision at 52.222-XX, 
Davis-Bacon Act--Secondary Site of the Work, is proposed to regulate 
potential situations where an offeror intends to perform significant 
portions of the building or work at a secondary site outside the 
primary site of the work and for which the wage determination provided 
by the Government for work at the primary site is not applicable.
    The proposed revision to the Davis-Bacon Act clause at FAR 52.222-6 
mandates that any subsequent incorporation to the contract of a wage 
determination for a secondary site shall become retroactively effective 
from the first day work under the contract was performed at that site, 
without any adjustment in contract price or estimated cost. This is 
based on the premise that secondary sites are initiatives of the 
offeror that can be instituted before or after contract award. The 
proposed rule also specifies that whenever there is transportation of 
portions of the building or work between the secondary site and the 
primary site of the work, the applicable wage determination that would 
prevail shall be for the primary site of the work. This decision was 
made in accordance with the DoL's administrative determination as 
outlined in the Federal Register at 65 FR 80276.
    The Councils also proposed to revise the Davis-Bacon Act clause to 
establish that any wage determination for a secondary site shall be 
posted both at the primary site of the work and at the secondary site 
of the work. The Councils are proposing to include DoL's revised 
definition of ``site of the work'' in the Davis-Bacon Act clause.
    In addition, the Councils are proposing editorial changes to other 
definitions in this section. Specifically, the definitions of 
``apprentice'' and ``trainee'' have been listed separately in the 
alphabetical list of definitions rather than as a subcategory of 
``laborer and mechanic.'' Also the terms ``building or work'' and 
``public building or public work'' have been combined into a single 
term of ``building or work'' and ``public building or public work'' for 
definitional purposes. No substantive change is intended with these 
editorial changes.
    The Councils propose revisions to the clause at 52.222-11, 
Subcontracts (Labor Standards), to clarify that it flows down only to 
subcontracts for construction within the United States, and that the 
clause entitled ``Contract Work Hours and Safety Standards Act--
Overtime Compensation'' does not flow down unless included in the 
contract. This change is necessary because the coverage threshold for 
the Contract Work Hours and Safety Standards Act is $100,000 and the 
threshold for the Davis-Bacon Act is $2,000. Thus for construction 
contracts of $100,000 or less, the Contract Work Hours and Safety 
Standards Act clause is not included in the contract and therefore 
would not flow down to any subcontract. If the construction contract is 
in excess of $100,000, then the clause flows down to subcontracts that 
may require or involve the employment of laborers and mechanics 
including watchmen and guards without regard to the value of the 
subcontract. The clause at 52.222-4 is being revised to reflect this 
principle.
    The Councils have also proposed changes to the Standard Form 1413, 
Statement and Acknowledgment, to require that the contractor state 
whether its contract contains the clause entitled ``Contract Work Hours 
and Safety Standards Act--Overtime Compensation,'' so that the 
subcontractor certification will only cover this clause if the 
contractor has indicated that the clause is in its contract. In 
addition, the Councils have proposed corrections to two of the clause 
titles and added to the list the clause entitled ``Compliance with 
Davis-Bacon and Related Act Regulations,'' which is one of the clauses 
for which certification is required (29 CFR 5.6(a)).
    A correction is proposed to FAR 22.406-9(c). That section was 
incorrectly changed by FAR Case 1999-003, published in the Federal 
Register at 65 FR 46064, July 26, 2000, by redirecting the transfer of 
withheld funds under the Davis-Bacon to the Secretary of the Treasury 
instead of the Comptroller General of the General Accounting Office 
(GAO). Section 3(a) of the Davis-Bacon Act specifically, provides that 
``the Comptroller General of the United States is authorized and 
directed to pay directly to laborers and mechanics from any accrued 
payments

[[Page 74405]]

withheld under the terms of the contract any wages found to be due 
laborers and mechanics pursuant to this Act.'' The proposed revision 
would restore the appropriate FAR language to that which existed prior 
to the aforementioned FAR case.
    The Councils endorsed the proposal to selectively insert in FAR 
parts 22.404-3 through 22.404-7, ``for the primary site of the work,'' 
to provide clarity when the requirements do not apply to the wage 
determination for the secondary site of the work.
    Finally, the Councils have proposed plain language changes to the 
clause prescriptions at FAR 22.407, and the clause at 52.222-l1.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Councils do not expect this proposed rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because this rule only implements DoL regulation or clarifies the 
existing requirements. The Councils agree with the Department of 
Labor's (DoL) December 20, 2000, determination that its regulation 
would not have a significant economic impact on a substantial number of 
small entities (see Federal Register at 65 FR 80277). DoL stated that 
the rule primarily implements modifications resulting from court 
decisions interpreting statutory language, which would reduce the 
coverage of Davis-Bacon prevailing wage requirements as applied to 
construction contractors and subcontractors, both large and small, on 
Davis-Bacon and Related Act covered contracts. In addition, the rule 
makes a limited amendment to the site of the work definition to address 
an issue not contemplated under the current regulatory language--those 
instances where significant portions of buildings or works may be 
constructed at secondary sites which are not in the vicinity of the 
project's final resting place. DoL believes that such instances will be 
rare, and that any increased costs, which may arise on such projects, 
would be offset by the savings due to the other limitations on coverage 
provided by the rule. An Initial Regulatory Flexibility Analysis has, 
therefore, not been performed. We invite comments from small businesses 
and other interested parties. The Councils will consider comments from 
small entities concerning the affected FAR parts 22, 52, and 53 in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 601, et seq. (FAR case 
2002-004), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 104-13) applies, but the 
Councils estimate that the current burden is unaffected by the 
revisions to the form. The form is being revised for clarification. The 
form (OMB Control Number 9000-0014) is currently approved by the Office 
of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 22, 52, and 53

    Government procurement.

    Dated: December 15, 2003.
Laura Auletta,
Director, Acquisition Policy Division.
    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 22, 52, 
and 53 as set forth below:
    1. The authority citation for 48 CFR parts 22, 52, and 53 is 
revised to read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

    2. Amend section 22.401 by--
    a. Adding, in alphabetical order, the definitions ``Apprentice'' 
and ``Trainee'';
    b. Removing from the first sentence of the definition ``Building or 
work generally'' and removing from the third sentence ``building or 
work'' and adding ``building or work'' in both places;
    c. Revising the definitions ``Construction, alteration, or 
repair'', ``Laborers or mechanics'' and ``Site of the work''; and
    d. Amending the definition ``Public building or public work'' by 
removing ``building or public work'' and adding ``building or public 
work'' in its place.
    The added and revised text reads as follows:


Sec.  22.401  Definitions.

* * * * *
    Apprentice means a person--
    (1) Employed and individually registered in a bona fide 
apprenticeship program registered with the U.S. Department of Labor, 
Employment and Training Administration, Office of Apprenticeship 
Training, Employer, and Labor Services (OATELS), or with a State 
Apprenticeship Agency recognized by OATELS; or
    (2) Who is in the first 90 days of probationary employment as an 
apprentice in an apprenticeship program, and is not individually 
registered in the program, but who has been certified by the OATELS or 
a State Apprenticeship Agency (where appropriate) to be eligible for 
probationary employment as an apprentice.
* * * * *
    Construction, alteration, or repair means all types of work done by 
laborers and mechanics employed by the construction contractor or 
construction subcontractor on a particular building or work at the site 
thereof, including without limitations--
    (l) Altering, remodeling, installation (if appropriate) on the site 
of the work of items fabricated off-site;
    (2) Painting and decorating;
    (3) Manufacturing or furnishing of materials, articles, supplies, 
or equipment on the site of the building or work;
    (4) Transportation of materials and supplies between the site of 
the work within the meaning of paragraphs (l)(i) and (ii) of the ``site 
of the work'' definition and a facility which is dedicated to the 
construction of the building or work and is deemed part of the site of 
the work within the meaning of paragraph (l)(iii) of the ``site of 
work'' definition; and
    (5) Transportation of portions of the building or work between a 
secondary site where a significant portion of the building or work is 
constructed, which is part of the ``site of the work'' definition in 
paragraph (l)(ii), and the physical place or places where the building 
or work will remain (paragraph (l)(i) in the ``site of the work'' 
definition).
    Laborers or mechanics--(1) Means--
    (i) Workers, utilized by a contractor or subcontractor at any tier, 
whose duties are manual or physical in nature (including those workers 
who use tools or who are performing the work of a trade), as 
distinguished from mental or managerial;
    (ii) Apprentices, trainees, helpers, and, in the case of contracts 
subject to the Contract Work Hours and Safety Standards Act, watchmen 
and guards.
    (iii) Working foremen who devote more than 20 percent of their time 
during a workweek performing duties of a laborer or mechanic, and who 
do not meet the criteria of 29 CFR part 541, for the time so spent; and
    (iv) Every person performing the duties of a laborer or mechanic,

[[Page 74406]]

regardless of any contractual relationship alleged to exist between the 
contractor and those individuals.
    (2) Does not include workers whose duties are primarily executive, 
supervisory (except as provided in paragraph (1)(iii) of this 
definition), administrative, or clerical, rather than manual. Persons 
employed in a bona fide executive, administrative, or professional 
capacity as defined in 29 CFR part 541 are not deemed to be laborers or 
mechanics.
* * * * *
    Site of the work--(1) Means--
    (i) The physical place or places where the construction called for 
in the contract will remain when work on it is completed (primary site 
of the work);
    (ii) Any secondary site where a significant portion of the building 
or work is constructed, provided that such site is established 
specifically for the performance of the contract or project; and
    (iii) Except as provided in paragraph (2) of this definition, 
fabrication plants, mobile factories, batch plants, borrow pits, job 
headquarters, tool yards, etc., provided they are dedicated 
exclusively, or nearly so, to performance of the contract or project, 
and provided they are adjacent or virtually adjacent to the ``site of 
the work'' as defined in paragraphs (1)(i) or (ii) of this definition;
    (2) Does not include permanent home offices, branch plant 
establishments, fabrication plants, or tool yards of a contractor or 
subcontractor whose locations and continuance in operation are 
determined wholly without regard to a particular Federal contract or 
project. In addition, fabrication plants, batch plants, borrow pits, 
job headquarters, yards, etc., of a commercial or material supplier 
which are established by a supplier of materials for the project before 
opening of bids and not on the project site, are not included in the 
``site of the work.'' Such permanent, previously established facilities 
are not a part of the ``site of the work'', even if the operations for 
a period of time may be dedicated exclusively, or nearly so, to the 
performance of a contract.
    Trainee means a person registered and receiving on-the-job training 
in a construction occupation under a program which has been approved in 
advance by the U.S. Department of Labor, Employment and Training 
Administration, as meeting its standards for on-the-job training 
programs and which has been so certified by that Administration.
* * * * *
    3. Amend section 22.404-3 by revising paragraph (c) to read as 
follows:


22.404-3  Procedures for requesting wage determinations.

* * * * *
    (c) Time for submission of requests. (1) The time required by the 
Department of Labor for processing requests for project wage 
determinations varies according to the facts and circumstances in each 
case. An agency should expect the processing to take at least 30 days. 
Accordingly, agencies should submit requests for project wage 
determinations for the primary site of the work to the Department of 
Labor at least 45 days (60 days if possible) before issuing the 
solicitation or exercising an option to extend the term of a contract.
    (2) Agencies should promptly submit to the Department of Labor an 
offeror's request for a project wage determination for a secondary site 
of the work. The Contracting Officer shall not extend the due date for 
receipt of offers as a result of such a request.
* * * * *


22.404-4  [Amended]

    4. Amend section 22.404-4 by revising the section heading as set 
forth below; and amending paragraphs (a), (b), and (c) by adding ``for 
the primary site of the work'' after determination'' each time it 
appears.


22.404-4  Solicitations issued without wage determinations for the 
primary site of the work.

* * * * *
    5. Amend section 22.404-5 by--
    a. Revising the first sentence of paragraphs (b)(1), (b)(2) 
introductory text, and (b)(2)(i);
    b. Revising paragraph (b)(2)(ii);
    c. Revising the first sentence of paragraphs (c)(2) and (c)(3); and
    d. Revising paragraph (c)(4).
    The revised text reads as follows:


22.404-5  Expiration of project wage determinations.

* * * * *
    (b) * * *
    (1) If a project wage determination for the primary site of the 
work expires before bid opening, or if it appears before bid opening 
that a project wage determination may expire before award, the 
contracting officer shall request a new determination early enough to 
ensure its receipt before bid opening. * * *
    (2) If a project wage determination for the primary site of the 
work expires after bid opening but before award, the contracting 
officer shall request an extension of the project wage determination 
expiration date from the Administrator, Wage and Hour Division. * * *
    (i) If the new determination for the primary site of the work 
changes any wage rates for classifications to be used in the contract, 
the contracting officer may cancel the solicitation only in accordance 
with 14.404-1. * * *
    (ii) If the new determination for the primary site of the work does 
not change any wage rates, the contracting officer shall award the 
contract and modify it to include the number and date of the new 
determination. (See 43.103(b)(1).)
    (c) * * *
    (2) The contracting officer need not delay opening and reviewing 
proposals or discussing them with the offerors while a new 
determination for the primary site of the work is being obtained. * * *
    (3) If the new determination for the primary site of the work 
changes any wage rates, the contracting officer shall amend the 
solicitation to incorporate the new determination, and furnish the wage 
rate information to all prospective offerors that were sent a 
solicitation if the closing date for receipt of proposals has not yet 
occurred, or to all offerors that submitted proposals if the closing 
date has passed. * * *
    (4) If the new determination for the primary site of the work does 
not change any wage rates, the contracting officer shall amend the 
solicitation to include the number and date of the new determination 
and award the contract.
    6. Amend section 22.404-6 by revising the second sentence of 
paragraph (a)(2), the first sentence of paragraph (a)(3), the first 
sentence of paragraph (b)(3), and paragraph (b)(4) to read as follows:


22.404-6  Modifications of wage determinations.

    (a) * * *
    (2) * * * The need to include a modification of a project wage 
determination for the primary site of the work in a solicitation is 
determined by the time of receipt of the modification by the 
contracting agency. * * *
    (3) The need for inclusion of the modification of a general wage 
determination for the primary site of the work in a solicitation is 
determined by the publication date of the notice in the Federal 
Register, or by the time of receipt of the modification (annotated with 
the date and time immediately upon receipt) by the contracting agency, 
whichever occurs first. * * *
    (b) * * *
    (3) If an effective modification of the wage determination for the 
primary site of the work is received by the contracting officer before 
bid opening, the contracting officer shall postpone

[[Page 74407]]

the bid opening, if necessary, to allow a reasonable time to amend the 
solicitation to incorporate the modification and permit bidders to 
amend their bids. * * *
    (4) If an effective modification of the wage determination for the 
primary site of the work is received by the contracting officer after 
bid opening, but before award, the contracting officer shall follow the 
procedures in 22.404-5(b)(2)(i) or (ii).
* * * * *


22.404-8  [Amended]

    7. Amend section 22.404-8 in paragraphs (b)(1) introductory text, 
(b)(2), and (c) by adding ``of an improper wage determination for the 
primary site'' after ``notification''.


22.406-9  [Amended]

    8. Amend section 22.406-9 by--
    a. Removing from the first sentence of paragraph (c)(1) ``Secretary 
of the Treasury'' and adding ``Comptroller General'' in its place and 
removing from the last sentence of paragraph (c)(1) ``Secretary of the 
Treasury'' and adding ``Comptroller General (Claims Section)'' in its 
place; and
    b. Removing from paragraph (c)(3) ``Secretary of the Treasury'' and 
adding ``Comptroller General'' in its place.
    9. Amend section 22.407 by--
    a. Revising the heading and removing from the introductory text of 
paragraph (a) ``The contracting officer shall insert'' and adding 
``Insert'' in its place;
    b. Removing from paragraphs (a)(1) through (a)(10) ``The clause 
at'';
    c. Removing from paragraph (b) ``The contracting officer shall 
insert'' and adding ``Insert'' in its place;
    d. Removing from paragraph (c) ``the contracting officer shall'';
    e. Removing from paragraph (d) ``The contracting shall insert'' and 
adding ``Insert'' in its place; and
    f. Adding paragraph (h) to read as follows:


22.407  Solicitation Provision and Contract clauses.

* * * * *
    (h) Insert the provision at 52.222-XX, Davis Bacon Act--Secondary 
Site of the Work, in solicitations in excess of $2,000 for construction 
within the United States.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    10. Amend section 52.222-4 by revising the date of the clause and 
paragraph (e) to read as follows:


52.222-4  Contract Work Hours and Safety Standards Act-- Overtime 
Compensation.

* * * * *

Contract Work Hours and Safety Standards Act--Overtime Compensation 
(Date)

* * * * *
    (e) Subcontracts. The Contractor shall insert the provisions set 
forth in paragraphs (a) through (d) of this clause in subcontracts 
that may require or involve the employment of laborers and mechanics 
including watchmen and guards and require subcontractors to include 
these provisions in any such lower tier subcontracts. The Contractor 
shall be responsible for compliance by any subcontractor or lower-
tier subcontractor with the provisions set forth in paragraphs (a) 
through (d) of this clause.
    (End of clause)

    11. Amend section 52.222-6 by--
    a. Revising the date of the clause;
    b. Redesignating paragraphs (a) through (d) as paragraphs (b) 
through (e);
    c. Adding a new paragraph (a);
    d. Revising the newly designated paragraph (b); and
    e. Removing from the newly designated paragraph (c)(4) ``(b)(2)'' 
and ``(b)(3)'' and adding ``(c)(2)'' and ``(c)(3)'' in their places, 
respectively.
    The revised and added text reads as follows:


52.222-6  Davis-Bacon Act.

* * * * *

Davis-Bacon Act (Date)

    (a) Definition--Site of the work--(1) Means--
    (i) The physical place or places where the construction called 
for in the contract will remain when work on it is completed 
(primary site of the work);
    (ii) Any secondary site where a significant portion of the 
building or work is constructed, provided that such site is 
established specifically for the performance of the contract or 
project; and
    (iii) Except as provided in paragraph (2) of this definition, 
fabrication plants, mobile factories, batch plants, borrow pits, job 
headquarters, tool years, etc., provided they are dedicated 
exclusively, or nearly so, to performance of the contract or 
project, and provided they are adjacent or virtually adjacent to the 
``site of the work'' as defined in paragraph (1)(i) or (ii) of this 
definition;
    (2) Does not include permanent home offices, branch plant 
establishments, fabrication plants, or tool yards of a Contractor or 
subcontractor whose locations and continuance in operation are 
determined wholly without regard to a particular Federal Contractor 
project. In addition, fabrication plants, batch plants, borrow pits, 
job headquarters, yards, etc., of a commercial material supplier 
which are established by a supplier of materials for the project 
before opening of bids and not on the site are not included in the 
``site of the work.'' Such permanent, previously established 
facilities are not a part of the ``site of the work'' even if the 
operations for a period of time may be dedicated exclusively or 
nearly so, to the performance of a contract.
    (b)(1) All laborers and mechanics employed or working upon the 
site of the work 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 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, or as may be subsequently incorporated for a 
secondary site of the work, regardless of any contractual 
relationship which may be alleged to exist between the Contractor 
and such laborers and mechanics. Any wage determination subsequently 
incorporated for a secondary site of the work shall be effective 
from the first day on which work under the contract was performed at 
that site and shall be incorporated without any adjustment in 
contract price or estimated cost. Laborers employed by the 
construction Contractor or construction subcontractor that are 
transporting portions of the building or work between the secondary 
site of the work and the primary site of the work shall be paid in 
accordance with the wage determination applicable to the primary 
site of the work.
    (2) Contributions made or costs reasonably anticipated for bona 
fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on 
behalf of laborers or mechanics are considered wages paid to such 
laborers or mechanics, subject to the provisions of paragraph (e) of 
this clause; 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 period.
    (3) Such laborers and mechanics shall be paid not less than the 
appropriate wage rate and fringe benefits in the wage determination 
for the classification of work actually performed, without regard to 
skill, except as provided in the clause entitled Apprentices and 
Trainees. 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.
    (4) The wage determination applicable to the respective site of 
the work (including any additional classifications and wage rates 
conformed under paragraph (c) of this clause) and the Davis-Bacon 
poster (WH-1321) shall be posted at all times by the Contractor and 
its subcontractors at the primary site of the work and the secondary 
site of the work, if any, in a prominent and accessible place where 
it can be easily seen by the workers.
* * * * *
    12. Amend section 52.222-9 by revising the date of the clause and 
paragraph (a) to read as follows:


52.222-9  Apprentices and Trainees.

* * * * *

[[Page 74408]]

Apprentices and Trainees (Date)

    (a) Apprentices--(1) An apprentice will be permitted to work at 
less than the predetermined rate for the work performed when 
employed--
    (i) 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 
Training, Employer, and Labor Services (OATELS) or with a State 
Apprenticeship Agency recognized by the OATELS; or
    (ii) In the first 90 days of probationary employment as an 
apprentice in such an apprenticeship program, even though not 
individually registered in the program, if certified by the OATELS 
or a State Apprenticeship Agency (where appropriate) to be eligible 
for probationary employment as an apprentice.
    (2) The allowable ratio of apprentices to journeymen on the job 
site in any craft classification shall not be greater than the ratio 
permitted to the Contractor as to the entire work force under the 
registered program.
    (3) Any worker listed on a payroll at an apprentice wage rate, 
who is not registered or otherwise employed as stated in paragraph 
(a)(1) of this clause, shall be paid not less than the applicable 
wage determination for the classification of work actually 
performed. In addition, any apprentice performing work on the job 
site in excess of the ratio permitted under the registered program 
shall be paid not less than the applicable wage rate on the wage 
determination for the work actually performed.
    (4) Where a Contractor is performing construction on a project 
in a locality other than that in which its program is registered, 
the ratios and wage rates (expressed in percentages of the 
journeyman's hourly rate) specified in the Contractor's or 
subcontractor's registered program shall be observed. Every 
apprentice must be paid at not less than the rate specified in the 
registered program for the apprentice's level of progress, expressed 
as a percentage of the journeyman hourly rate specified in the 
applicable wage determination.
    (5) Apprentices shall be paid fringe benefits in accordance with 
the provisions of the apprenticeship program. If the apprenticeship 
program does not specify fringe benefits, apprentices must be paid 
the full amount of fringe benefits listed on the wage determination 
for the applicable classification. If the Administrator determines 
that a different practice prevails for the applicable apprentice 
classification, fringes shall be paid in accordance with that 
determination.
    (6) In the event OATELS, or a State Apprenticeship Agency 
recognized by OATELS, withdraws approval of an apprenticeship 
program, the Contractor will no longer be permitted to utilize 
apprentices at less than the applicable predetermined rate for the 
work performed until an acceptable program is approved.
* * * * *
    13. Revise section 52.222-11 to read as follows:


52.222-11  Subcontracts (Labor Standards).

    As prescribed in 22.407(a), insert the following clause:

Subcontracts (Labor Standards) (Date)

    (a) Definition. Construction, alteration or repair, as used in 
this clause, means all types of work done by laborers and mechanics 
employed by the construction Contractor or construction 
subcontractor on a particular building or work at the site thereof, 
including without limitation--
    (1) Altering, remodeling, installation (if appropriate) on the 
site of the work of items fabricated off-site;
    (2) Painting and decorating;
    (3) Manufacturing or furnishing of materials, articles, 
supplies, or equipment on the site of the building or work;
    (4) Transportation of materials and supplies between the site of 
the work within the meaning of paragraphs (1)(i) and (ii) of the 
``site of the work'' definition and a facility which is dedicated to 
the construction of the building or work and is deemed part of the 
site of the work within the meaning of paragraph (1)(iii) of the 
``site of work'' definition; and
    (5) Transportation of portions of the building or work between a 
secondary site where a significant portion of the building or work 
is constructed, which is part of the ``site of the work'' definition 
in paragraph (1)(ii), and the physical place or places where the 
building or work will remain (paragraph (1)(i) in the ``site of the 
work'' definition).
    (b) The Contractor shall insert in any subcontracts for 
construction, alterations and repairs within the United States the 
clauses entitled--
    (1) Davis-Bacon Act;
    (2) Contract Work Hours and Safety Standards Act--Overtime 
Compensation (if the clause is included in this contract);
    (3) Apprentices and Trainees;
    (4) Payrolls and Basic Records;
    (5) Compliance with Copeland Act Requirements;
    (6) Withholding of Funds;
    (7) Subcontracts (Labor Standards);
    (8) Contract Termination--Debarment;
    (9) Disputes Concerning Labor Standards;
    (10) Compliance with Davis-Bacon and Related Act Regulations; 
and
    (11) Certification of Eligibility.
    (c) The prime Contractor shall be responsible for compliance by 
any subcontractor or lower tier subcontractor performing 
construction within the United States with all the contract clauses 
cited in this paragraph.
    (d)(1) Within 14 days after award of the contract, the 
Contractor shall deliver to the Contracting Officer a completed 
Statement and Acknowledgment Form (SF 1413) for each subcontract for 
construction within the United States, including the subcontractor's 
signed and dated acknowledgment that the clauses set forth in 
paragraph (a) of this clause have been included in the subcontract.
    (2) Within 14 days after the award of any subsequently awarded 
subcontract the Contractor shall deliver to the Contracting Officer 
an updated completed SF 1413 for such additional subcontract.
    (e) The Contractor shall insert the substance of this clause, 
including this paragraph (e) in all subcontracts for construction 
within the United States.
    (End of clause)


52.222-41  [Amended]

    14. Amend section 52.222-41 in paragraph (r) by removing ``Bureau 
of Apprenticeship and Training, Employment and Training 
Administration'' and adding ``Office of Apprenticeship Training, 
Employer, and Labor Services (OATELS)'' in its place.
    15. Add provision 52.222-XX to read as follows:


52.222-XX   Davis-Bacon Act--Secondary Site of the Work.

    As prescribed in 22.407(h), insert the following provision:

Davis-Bacon Act--Secondary Site of the Work (Date)

    (a) The offeror shall notify the Government if--
    (1) The offeror intends to perform work at any secondary site, 
as defined in paragraph (a)(1)(ii) of the Davis-Bacon Act clause of 
this solicitation; and
    (2) The Davis-Bacon Act is applicable to the work at any 
secondary site.
    (b) If the wage determination provided by the Government for 
work at the primary place of performance is not applicable to the 
secondary site(s), the offeror shall--
    (1) Obtain a general wage determination for the secondary site 
via the Internet at www.xxx, provide it to the Government for 
inclusion in any subsequent contract; or
    (2) If a general wage determination is not available for the 
secondary site, request the Contracting Officer to obtain a project 
wage determination from the Department of Labor. The offeror should 
request the project wage determination for the secondary site as 
soon as possible. The due date for receipt of offers will not be 
extended as a result of an offeror's request for a project wage 
determination for a secondary site of the work.
    (End of provision)

PART 53--FORMS


53.222  [Amended]

    16. Amend section 53.222 in paragraph (e) by removing ``(Rev 6/
89)'' and adding ``(Date)'' in its place, and removing the last 
sentence.
    17. Amend section 53.301-1413 by revising the form to read as 
follows:


52.301-1413  Statement and Acknowledgement.

BILLING CODE 6820-EP-P

[[Page 74409]]

[GRAPHIC] [TIFF OMITTED] TP23DE03.093

[FR Doc. 03-31232 Filed 12-22-03; 8:45 am]
BILLING CODE 6820-EP-C