DOE O 3220.6A, Federal Labor Standards

DOE 3220.6A 5-14-92 THIS PAGE MUST BE KEPT WITH DOE 3220.6A, FEDERAL LABOR STANDARDS. DOE 3220. 6A, FEDERAL LABOR STANDARDS, REVISED DOE 3220.6 TO REFLECT ORGANIZATIONAL TITLE, ROUTING SYMBOL, AND OTHER EDITORIAL REVISIONS TO INCORPORATE CHANGES REQUIRED BY SEN-6. NO SUBSTANTIVE CHANGES HAVE BEEN MADE. DUE TO THE NUMBER OF PAGES AFFECTED BY THE REVISIONS, THE ORDER HAS BEEN ISSUED AS A REVISION. I I 1. PURPOSE. To prescribe policy and procedures and to assign responsibilities and authorities to assure compliance by Department of Energy (DOE) covered contractors with Federal labor laws, regulations, and standards and the intent of applicable laws. 2. CANCELLATION. DOE 3220.6, FEDERAL LABOR STANDARDS, of 7-6-90. 3. SCOPE. The provisions of this Order apply to all Departmental Elements that have responsibility for management and operating contractors or other contractors performing work for the Department as provided by law and/or contract and as implemented by the appropriate contracting officer. 4. REFERENCES. a. b. c. d. e. Title 40 United States Code (U.S.C.) 276a to 276a-7, Davis-Bacon Act, which provides for minimum wages and benefits for laborers and mechanics on Federally funded contracts in excess of $2,000 for the construction, alteration or repair of a public building or work. Title 40 U.S.C. 276c, Copeland Anti-Kickback Act, which makes it unlawful for employees engaged in construction or repair of any Federally financed public building or project to give up any part of their compensation through intimidation, threat or otherwise. Title 40 U.S.C. 327-333, Contract Work Hours and Safety Standards Act, requires that every laborer and mechanic employed by any contractor or subcontractor on a public work be paid overtime wages computed at time and one-half for all hours worked in excess of 40 hours in one workweek. Title 41 U.S.C. 351, Service Contract Act, which provides for minimum wages and benefits for various classes of service employees employed on contracts in excess of $2,500 to provide services to the Government. While the Service Contract Act is not applicable to management and operating contracts, subcontracts awarded by these contractors are covered. Title 41 U.S.C. 35-45, Walsh-Healey Public Contracts Act, which provides that employees of employers who have contracted-with a Government agency to manufacture or supply articles and equipment in any amount exceeding $10,OOO shall be paid time and one-half the basic rate for hours worked in excess of 40 in a workweek. . All Departmental Elements Office of Procurement, Assistance and Program Management DOE 3220.6A 5-14-92 f. g. h. i. j. k. l. m. n. Department of Energy Acquisition Regulations (DEAR) 922 and 970.22 which set forth Davis-Bacon Act regulations and criteria for determining coverage by the Act. Federal Acquisition Regulations (FAR), Part 22 Application of Labor Laws to Government Acquisitions. Title 29 Code of Federal Regulations (CFR) Part 1, Procedure for Predetermination of Wage Rates, which provides procedures and guidance in conducting wage surveys to determine prevailing rates for laborers and mechanics on Davis-Bacon covered projects. Title 29 CFR Part 3, Payment and Reporting of Wages Applicable to Federally Financed and Assisted Construction Contracts, which sets forth requirements for payment and recording of wages paid laborers and mechanics on Davis-Becan covered contracts.

Title 29 CFR Part 4, Labor Standards for Federal Service Contracts, which sets forth policies, procedures, and requirements for contracts covered by the Service Contract Act. Title 29 CFR Part 5, Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction, which sets forth policies, procedures, and requirements for application of labor standards to contracts covered by the Davis-Bacon Act. Title 29 CFR Part 6, Rules of Practice for Administrative Proceedings Enforcing Labor Standards in Federal and Federally Assisted Construction Contracts and Federal Service Contracts, which sets forth the rules of practice for administrative proceedings under the Davis-Bacon Act, the Service Contract Act, the Contract Work Hours and Safety Standards Act, and the Copeland Act. Title 29 CFR Part 7, Rules of Practice of the Wage Appeals Board, which sets forth the rules of practice of the Wage Appeals Board regarding proceedings dealing with appeals concerning questions of law and fact from decisions relating to wage determinations and issued under the Davis-Bacon Act. Title 29 CFR Part 8, Rules of Practice Before the Board of Service Contract Appeals, which sets forth the rules of practice of the Board of Service Contract Appeals dealing with appeals concerning questions of law and fact from final decisions of the Administrator of the Wage and Hour Division or authorized representative, and from decisions of Administrative Law Judges. DOE 3220.6A 5-14-92 3 O. Title 29 CFR Subtitle A, Investigation and Enforcement Manual, which sets forth minimum investigatory requirements which must be met with respect to labor standards provisions applicable to contracts covering Federally financed and assisted construction. p. DOE 2320.IC, COOPERATION WITH THE OFFICE OF INSPECTOR GENERAL, of 5-18-92, which establishes DOE policy for cooperation with the Office of Inspector General. q. DOE 5483.1A, OCCUPATIONAL SAFETY AND HEALTH PROGRAM FOR DOE CONTRACTOR EMPLOYEES AT GOVERNMENT-OWNED CONTRACTOR-OPERATED FACILITIES, of 6-22-83, which provides for occupational safety and health protection for DOE contractor employees in Government-owned contractor-operated facilities that is consistent with the protection afforded private industry employees by the occupational safety and health standards promulgated under the Occupational Safety and Health Act of 1970, Public Law 91-596. 5. DEFINITIONS. a. Headquarters or Field Element is the organization having contract authority or the field element responsible for administering contracts or managing projects at Government-owned or -controlled, contractor operated facilities. b. Management and Operating (M&O) Contract means an agreement under which DOE contracts for the operation, maintenance, or support, on its behalf, of a Government-owned or -controlled research, devel- opment, special production, or testing establishment wholly or principally devoted to one or more major programs of DOE (source: FAR 17.601). The term does not necessarily include all prime contracts providing for work to be performed at DOE-owned or -leased facilities. (A listing of M&O contracts, not necessarily current, can be found as an attachment to DOE 5700.7C, WORK AUTHORIZATION SYSTEM, or as an appendix to the most recent edition of the "DOE Annual Procurement and Financial Assistance Report," [the edition reporting on FY 1987 is publication DOE/MA-0318]. Further information as to the identification of M&O contracts can be obtained from the office of Procurement, Assistance and Program Management, Office of Clearance and Support.

6. POLICY AND OBJECTIVES. a. Policy. The Department of Energy (DOE) requires its contractors to comply with Federal labor standards statutes, and in particular with the Walsh-Healey Public Contracts Act (PCA), the Davis-Bacon Act (DBA), the Contract Work Hours and Safety Standards Act (CWHSSA), the Copeland Anti-Kickback Act, and the Service Contract Act (SCA), that provide certain guarantees and protection to DOE 3220.6A 5-14-92 7. workers on federally funded contracts. DOE has the primary and final authority to determine DBA coverage. While DOE makes initial determination of coverage under the SCA, the Department of Labor (DOL) has ultimate authority to make these determinations. The Department will coordinate with and assist the DOL in its investigative responsibilities for these Acts. b. Objectives. To accomplish the above, the Department will: (1) Assure that determinations regarding applicability of labor standards acts to proposed DOE funded contracts are made according to regulations. (2) Assure that appropriate labor standards provisions are included in all contracts subject to the Acts. (3) Exercise oversight responsibility to assure contractor compliance with requirements for applicable minimum wages and benefits, hours worked, and overtime pay. (4) Provide complete and timely reports required by DOL on proposed construction programs, contract awards, violations, and enforcement actions. RESPONSIBILITIES AND AUTHORITIES. a. Director of Procurement, Assistance and Program Management. (1) Provides overall authority for the development of policies regarding labor standards compliance. (2) Establishes a Labor Standards Committee at DOE Headquarters to perform the functions described in this Order for such committee. b. Director of Contractor Human Resource Management. (1) Develops policy and issues operational guidelines pertaining to compliance with labor standards. (2) Reviews acquisitions, handled by the Headquarter’s Office of Headquarters Procurement Operations, which require a determination of applicability of labor standards laws. (3) Obtains wage and supplemental data in support of wage determination requests for acquisitions handled by the Office of Headquarters Procurement Operations and upon request of field elements. DOE 3220.6A 5-14-92 5 (4) (5) (6) (7) (8) (9) (l0) (11) (12) (13) (14) (15) Maintains liaison with the DOL to obtain wage determinations for acquisitions handled by the Office of Headquarters Procurement Operations, resolves disagreements over wage determinations issued, resolves disagreements over determin- ations of labor standards coverage, and coordinates enforce- ment activities for contracts originated by Headquarters and field elements. Provides guidance on implementation of this Order to Headquarters and field elements. Provides liaison support for field elements in relationships with DOL Headquarters. Appraises performance of Headquarters and field elements in the implementation of this Order. Investigates DBA complaints in connection with contracts awarded by the Office of Headquarters Procurement Operations. Cooperates with DOL in any investigation conducted by that agency. Coordinates and assists authorized representatives of the DOL in preparation for a hearing on the alleged violations or disputes.

Conducts preliminary investigations of complaints, problems and violations received on Headquarters administered contracts covered by the Acts listed in this Order, other than DBA. Coordinates with DOL since that agency is responsible for formal investigations and determinations of work covered by these Acts. Coordinates with the Office of Headquarters Procurement Operations on responses to Congress and DOL on labor standards complaints on acquisitions handled at Headquarters. Coordinates and reviews field element responses to DOL and Congress on complaints regarding labor standards and suggests changes as needed. Coordinates Department comments on proposed revisions to DOL regulations and provides interpretations of final revisions to Headquarters and field elements. Prepares and submits to DOL the Davis-Bacon Semiannual Enforcement Report within 30 days of April 1 and October 1. 6 DOE 3220.6A 5-14-92 (16) Prepares and submits to DOL a general outline of proposed construction programs by April 10. c. Contracting Officers have the responsibility to: (1) Ensure that contracts let contain the appropriate labor standards provisions. (2) Ensure that bidders and contractors are provided with applicable labor standards information and, where necessary, conferences or contract orientation meetings are held for solicitations or contracts. d. Heads of Field Elements have responsibility for: (1) (2) (3) (4) (5) (6) (7) (8) Assuring labor standards compliance of contractors under their cognizance. Establishing a Labor Standards Committee and developing written formal procedures for it to follow in reviewing acquisitions for determining coverage. Reviewing SF-98 and SF-98a, "Notice of Intention to Make a Service Contract and Response to Notice," prepared by Management and Operating (M&O) contractors to assure that the contemplated work is, in fact, covered by SCA and not DBA or PCA. Furnishing the Wage and Hour Division, DOL, an original and one copy of Standard Form 99, "Notice of Award of Contract," when a contract subject to the SCA, in excess of $10,000, is not reported on Standard Form 279, "Federal Procurement Data System (FPDS) Individual Contract Action Report," or its equivalent, to the FPDS in accordance with Title 29 CFR Part 4.8. Investigating complaints by contractor employees and others regarding DBA covered contracts. Advising the Director of Contractor Human Resource Management of complaints by contractor employees and others of alleged labor standards violations. Cooperating with DOL in any investigation conducted by that agency. Conducting preliminary investigations of complaints, problems and violations relating to contracts covered by Acts listed in this Order, other than DBA, prior to advising DOE 3220.6A 5-14-92 DOL of complaints received. Coordinates with DOL has final investigative responsibility for complaints related to these Acts. (9) Coordinating and assisting authorized representatives DOL in preparation for a hearing on the alleged or dispute. 7 since DOL o f t h e violations (l0) Gathering or assisting in gathering wage data for submission to the DOL for their issuance of appropriate DBA and SCA wage determinations reflecting prevailing wage rates. (11) Preparing and submitting the Davis-Bacon Semi-Annual Enforcement Report (Attachment 1) to Contractor Human Resource Management 21 of each year. 8. PROCEDURES AND REQUIREMENTS. the Director of by April 21 and October

a. Review of Work Assignments and Contracts for Labor Standards Coverage. (1) The Associate Director for Headquarters Procurement Operations and Heads of Field Elements shall establish procedures which provide for advance review of planned procurement actions to assure that all contracts subject to labor standards contain the appropriate provisions and clauses. (2) The Director of the Office of Procurement, Assistance and Program Management and each field element shall establish a Labor Standards Committee which will be responsible for making recommendations on or establish a position for labor standards coverage to the Contracting Officer regarding applicability of the DBA to contracts or proposed work assignments and develop written procedures for the Committee to follow which assure close scrutiny by DOE of all coverage determinations. (a) The suggested membership of the committee could include a representative of the industrial relations, procurement, legal and engineering functions. (b) The committee will review work for construction, refurbishing, maintenance, and repair of DOE operating facilities, experimental systems, and demonstration set-ups to determine applicability of the DBA to the 8 DOE 3220.6A 5-14-92 b. contract or portions thereof. Administrative controls and criteria for application of DBA in operational or maintenance activities are contained in DEAR 922.4 and 970.2273. (c) The committee will consider all questionable acquisitions or work orders referred to it and disputes which arise about covered or noncovered work and make a recommendation on or establish a position for coverage. (d) In the event the committee experiences difficulty in establishing a position, requests for interpretations should be submitted to the Director of Contractor Human Resource Management. Obtaining Wage Determinations. (1) Service Contract Act. (a) (b) (c) (d) Requests to DOL for SCA Wage Determinations are to be made on Forms SF-98 and 98a, “Notice of Intention to Make a Service Contract and Response to Notice.” Field elements shall review SF-98 and SF-98a prepared by authorized M&O contractors prior to its transmittal to covered work to avoid possible interpretations of coverage under other labor statutes. In addition, a statement of the rates DOE would pay the various classes of service employees if the work were performed by Federal employees must be included in the request (source: Title 29 CFR Part 4.4). In the case of a follow-on contract where the employees are covered by a labor agreement, a copy of that agreement must be submitted to DOL. If the wages in the wage determination which are based upon the labor agreement of the incumbent contractor are substantially at variance with the prevailing wages in the area, a variance hearing may be requested under 29 CFR Part 4.1O by letter to DOL, through the Office of Contractor Human Resource Management, setting forth the request and justification. If the wage determination is based upon the labor agreement of the incumbent contractor which was not reached as a result of arms-length negotiations, a DOE 3220.6A 5-14-92 9 hearing may be letter to DOL, requested under 29 CFR Part 4.11 by through the Office of Contractor Human Resource Management, setting forth the request and justification. (2) Davis-Bacon Act.

(a) Where DBA area decisions are not available from the General Wage Determinations Issued Under the Davis-Bacon and Related Acts or are not appropriate to the DOE site or job, Field Elements will request project wage determinations from DOL on an SF-308, “Request for Determination and Response to Request,” that reflect area practice for the type of construction work planned (source: FAR 22.404). (b) With respect to requests for DBA project wage determinations, the field element will gather, assist in gathering and/or coordinate the submission of wage data to the DOL for issuance of wage determinations reflecting area wage rates. Such data may be available from sources such as the local contractor associations, unions, and employers. (3) Requests to DOL should contain all necessary data and be submitted with adequate lead time so that wage determinations may be obtained in time to avoid a delay in contract awards. c. Determinations of Compliance. (1) Field elements and the Office of Headquarters Procurement Operations shall assure that: (a) Prebid or prestart meetings are held at which time contractors are informed of labor standards requirements and, on contracts covered by DBA, provided with Publication WH 1321, Notice to Employees Working on Federal or Federally Financed Construction Projects. (b) On contracts covered by SCA and PCA, contractors are provided with Publication WH 1313, Notice to Employees Working on Government Contracts. (c) Contractors are aware that these publications, together with the applicable wage determination(s) shall be posted in a prominent and accessible place at the worksite. 10 DOE 3220.6A 5-14-92 (2) Field elements and, for Headquarters awarded contracts, the Office of Contractor Human Resource Management shall assure that: (a) Payroll and job-site audits are conducted as may be necessary to determine compliance with DBA minimum wage and fringe benefit requirements. An on-site audit involves observing the work being performed by specific individual mechanics and laborers and obtaining information such as: Contractor/project site/date Name, Social Security Number, Address Description of duties performed Statement by employee as to whether or not any rebates (“kickbacks”) have been taken from his/her paycheck. Compare above data with payroll data to verify it is correct and classification reflects work performed. (b) All payrolls will be maintained for 3 years from completion of the contract. (3) Field elements shall investigate DBA complaints regarding compliance, compile the facts, and make decisions consistent with the law, regulations, and area practice. If in the course of the investigation, violations of CWHSSA are discovered, they will be investigated concurrently. (In Headquarters, the Director of Contractor Human Resource Management conducts investigations.) Under normal procedures, DOE will conduct DBA investigations on DOE-owned or on-site locations. DOL may request to conduct a DBA investigation of a contractor concurrently with another labor standards investigation under their jurisdiction (e. g., Fair Labor Standards Act), or in conjunction with another agency investigation, or for off-site locations. (a) If no violations are found, advise complainant of the reasons for this conclusion. (b) If violations are found: 1 Determine amount of back wages, fringe benefits, and overtime pay due each employee; 2 Advise contractor of violation and wage and benefit deficiencies and request restitution to employees;

DOE 3220.6A 5-14-92 11 3 Advise contracting officer of findings when violations are willful or when the contractor disagrees with the findings and refuses to make restitution to the affected employees. In either case, request that sufficient funds be withheld to compensate employees and to cover any liquidated damages which may be due; 4 Assure that funds being withheld to compensate employees for back wages are forwarded to the Comptroller General for proper disbursement. At a minimum, the name, address, social security number and amount due each individual shall be provided; 5 Furnish an enforcement report to the Administrator, Wage and Hour Division, U.S. Department of Labor, with a copy to the Office of Contractor Human Resource Management, within 60 days after completion of an investigation where: a DBA underpayments by a contractor total $1,000 or more; b There is reason to believe the violations are willful; c The contractor does not agree with the findings and refuses to make restitution; d DOL requested the investigation. In cases where liquidated damages are computed in excess of $500 for CWHSSA violations and the contractor inadvertently violated the provisions of that Act, recommend to the Administrator, Wage and Hour Division, U.S. Department of Labor, any determination to make an adjustment in liquidated damages or to relieve the contractor the liability for such liquidated damages. The Administrator shall issue an order concurring in the recommendations, partially concurring in the recommendations, or rejecting the recommendations, and the reason therefor. 12 DOE 3220.6A 5-14-92 7 In cases where liquidated damages are computed under $500 for CWHSSA violations, advise the Administrator, Wage and Hour Division, U.S. Department of Labor, of actions taken in assessing such liquidated damages. (4) Field elements will conduct or monitor on-site investigations to: (a) Determine if violations appear to have been willful and assess the contractor’s efforts to correct violations; recommend to DOL whether or not liquidated damages should be assessed (DOL will normally request such a recommendation from the contracting agency); (b) Assure that DOE funds withheld and required for back wages and liquidated damages are forwarded to the Comptroller General for proper disbursement if restitution has not been made. As a minimum, the name, address, social security number, and amount due each individual should be provided. Liquidated damages are payable to the U.S. Treasury. (5) Field elements and, for Headquarters awarded contracts, the Office of Contractor Human Resource Management, shall undertake preliminary investigation of problems, complaints, or violations that develop in the administration of contracts covered by the SCA. Coordinate with the Office of Contractor Human Resource Management as appropriate. DOL is responsible for formal investigations and determinations on SCA contracts. d. Reportinq Requirements. (1) Each Field element shall prepare and submit one copy of the Semiannual Enforcement Report (Attachment 1) to the Office of Contractor Human Resource Management by April 21 and October 21 of each year. The Director of Contractor Human Resource Management shall submit a combined report for the Department to DOL by April 30 and October 30. DOE 3220.6A 5-14-92 13 (and 14)

(2) The Director of Contractor Human Resource Management shall submit a consolidated annual forecast of construction programs by April 10 for each coming fiscal year that includes the information required by DOL All Agency Memorandum No. 144 (Attachment 2) to the Employment Standards Administration, DOL. BY ORDER OF THE SECRETARY OF ENERGY: DONALD W. PEARMAN, JR. Acting Director Administration and Human Resource Management DOE 3220.6A 5-14-92 SEMI-ANNUAL ENFORCEMENT REPORT Attachment 1 Page 1 (See other side for instructions) Attachment 1 Page 2 DOE 3220.6A 5-14-92 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. DOE 3220.6A 5-14-92 Attachment 2 Page 1 REPORT OF PROPOSED CONSTRUCTION PROGRAM Attachment 2 Page 2 DOE 3220.6A 5-14-92 .. ----- . .. . . .. ..-.—. _ . . . . .. .. .. .- -., s... . ●.”L m u,,,. . . .. . . _ 1. CONTROL BLOCKS A. IW() B. Prpartfrcnt Of Fporqv FISCAL YEAR OF CONSTRUCTION —.._ AGI:NCY c. ~bhn t).fdmonrison, pirpctor, Pffirp of IndlJ\trial POl,]tiOn<O. 70?-r,P6-Qfl]9-— .. NW AND TITl,E;or REPORTINii~ip~tijAL ‘— _—— ~il.HPtlON): NWtlt3ER 11. CONSTRUCTION DATA H. TYPE OF CYINST C. LOCATION OF PR~lECT D. ESTIMATED A. PROJECT DESCRIPTION IILffi IIVY Imdy I\Kg- CITY, COIINTY, !;TATE COST (000s) >uperconductlna >l~l~~r Collider - x x Uaxahachic, [Ili$, l~xat t]PP.3fyl lCPP Fire Protection x Idaho Fal onneville, Idaho 3,500 St earn ~lan~flsh Ulsposal Facilitv x Oak Pidq son, Trnnessc~ laboratory and 1,500 Sanltarv Sewer Collection x !!mo Pfpeline Repair/Replacement x Transuranlc Haste Faclllty x fiiken, fiikcw, . . . .—-. . U-I I I--J -s I u) Iv l-t N ‘,1 I 1:.’,1 11(, [l(lPi:> IN fll-vl 1~’,r 1. CONTROL MX)CRS N A. FISCAL YEAR OF (X)NSTRUCTION - Insert the fiscal year in which the projects are scheduled to start. B. AGENCY - Name of primary Agency ie. Department of the Army, General Services ~stration, Veterans Administration, Etc. C. & D. Self explanatory. 11. CONSTRUCTION DATA A. B. c. PROJECT DESCRIPTION - Name of project ie. Office Building, Dam, Apartment Building, Sewage Treatment P1ant, Etc. TYPEOF CONSTRtKTION - Place x in the column relating to the type of construction. he types of construction used under Daviu-13acon are: BLDG - Building, HVY - Sieavy, uNY- Uighway, and RES - Residential. See All Agency Hemoranda 130 and 131. K)CATIO?40? PROJECT - Enter the constructed. If not in a city, installation, Federal facility, ESTIMATED ~ST - Enter the cost BY APdl 10 of each be mailed tot city, county and state where the project is to be some other location should be furnished, such~as township, town, Etc. of each project aa estimated by the Agency. year, the information for the upccnming fiscal year should MMU?USTRATOR WAGE AND NOUR DIVISION EHPU)YNEWT STANDARDS ADMINISTRATION U. S. DEPARTMENT OF LABOR 200 ~NSTITUTION AVENUE, N. W. WASHXNG’XON, D. C. 20210 ATTN$ DIVISION OF WAGS DETERMINATIONS ..