in place and interconnected for the purpose of conducting a test or experiment. The nature of the test or experiment is such that professional personnel responsible for the test or experiment and/or the data to be derived therefrom necessarily must participate in the assembly and interconnections. Specifically excluded from experimental work are buildings, building utility services, structural changes, drilling, tunneling, excavation and backfilling work which can be performed according to customary drawings and specifications, and utility services or modification to utility services-as distinguished from temporary connections thereto. Work in this category may be performed in mines or in other locations specifically constructed for tests or experiments. (See also

§ 9-12.5005-2 (h).)

(7) Emergency work to combat the effects of fire, flood, earthquake, equipment failure, accident or other casualties, and to restart the operational activity following the casualty. Work which is not directly related to restarting the activity and which involves rebuilding or replacement of structure or structural components or equipment is excluded from this category. (See § 9-12.5005-2 (d).)

(8) Decontamination, including washing, scrubbing, and scraping to remove contamination; removal of contaminated soil or other material; and painting or other resurfacing, provided that such painting or resurfacing is an integral part of the decontamination activity and does not include complete replacement of large sections of paved areas or roadways.

(9) Burial of contaminated solid waste or contained liquid; however, initial preparatory work readying the burial ground for use (for example, any grading or excavation that is a part of initial site preparation, fencing, drilling wells for continued monitoring of contamination, construction of guard or other office space) is covered. Likewise, work subsequent to burial which involves the placement of concrete or other like activity is covered.

(b) The classification of a contract as a contract for operational or maintenance activities does not necessarily mean that all work and activities at the contract location are classifiable as outside of Davis-Bacon Act coverage since it may be necessary to separate out work

which should be classified as covered in accordance with § 9-12.5002. Therefore, Managers of Operations shall establish and maintain controls for the careful scrutiny of proposed work assignments under such a contract to assure that:

(1) Contractors whose contracts do not contemplate the performance of covered work with the contractor's own forces are neither asked nor authorized to perform work within the scope of the Davis-Bacon Act.

(2) Where covered work is performed by a contractor whose contract contains provisions required by the DavisBacon Act, such work is performed as required by law and the contract. After such contractor has been informed, as provided in (3) below, that certain work is covered work the Manager's responsibility to assure compliance is the same as it would be if the work were being performed under a separate construction contract.

(3) Controls provided for above include consideration by the Manager and the contractor, before work is begun or contracted out, of the relation of the DavisBacon Act to (a) the annual programming of work, (b) contractor's work orders, and (c) work contracted out in excess of $2,000. The Manager may, if he concludes that it is consistent with AEC's responsibilities as described in this section, prescribe from time to time classes of work as to which applicability or non-applicability of the Davis-Bacon Act is clear, for which he will require no further AEC determination on coverage in advance of the work. For all work, the controls to be established by the Manager should provide for notification to the operating contractor before work is begun as to whether such work is covered.

§ 9-12.5004-8 Checking compliance.

Managers of Operations shall provide for the collection, examination, and retention of copies of the payrolls of contractors and subcontractors where required by law; and for auditing of these payrolls. A principal use of the payroll check is to compare wage rates being paid by a contractor with the applicable Davis-Bacon rates as determined by the Secretary of Labor. On-the-job investigations, including observation of the work and employee interviews, shall be made as necessary to insure compliance. There are other, somewhat less obvious,

indications of compliance or non-compliance with legal requirements which may be developed through the payroll check:

(a) Payrolls should be checked for violations of the Copeland (Anti-Kickback) Act, bearing in mind that payroll deductions may be made only in accordance with § 3.5 of the Regulations of the Secretary of Labor, Part 3 (29 CFR 3.5).

(b) Violations of the Eight-Hour Law may also be detected from the payroll check. Particular attention should be given to overlapping shifts, preliminary activity, etc., to determine whether any employee worked more than eight hours during any day and, if so, whether he was properly compensated.

(c) Attention should be given to the correctness of classifications and any disproportionate employment of laborers, helpers and apprentices. A review of the job classifications, with knowledge of the construction work involved, may reveal misassignment of employees. (Example: A construction job which calls for bricklaying and a review of the payroll indicates no bricklayers employed.) Furthermore, it should be ascertained that each apprentice employed is registered in an approved apprenticeship program.

§ 9-12.5004-9

Penalties under the Davis-Bacon Act.

The standard contract clause provides that in event of violation, the government may terminate the contractor's right to proceed with the work or such part of the work as to which there has been a violation and may prosecute the work to completion; and the contractor shall be liable for any excess costs occasioned thereby. Also, there must be withheld from the contractor so much of accrued payments as may be considered necessary to pay to laborers and/or mechanics employed on the work the difference between the rate of wages required by the contract to be paid to them and the rate of wages they receive. procedure to be followed in any case where such withholding appears to be appropriate is set forth in a letter from the Comptroller General of the United States dated March 19, 1957, No. B3368, to Heads of Departments and Other Agencies of the United States.) Comptroller General of the United States is authorized to distribute a list to all departments of the government giv

(The

The

ing the names of persons or firms whom he has found to have disregarded their obligations to employees. These lists, showing names of persons or firms and dates of their ineligibility, are distributed within AEC with instructions that will be followed in the issuing of invitations to bid and in the award of contracts. § 9-12.5004-10 posters.

Department of Labor

On all covered work, the contractor is required by the standard contract clause to post Labor Department Posters SOL-155 (10-54), together with applicable wage determinations attached thereto, in a prominent place at the site of the work. In the box in the middle of the poster, there shall be inserted in a prominent manner the name and address of a representative of the operations, area or field office responsible for administration of the contract whom workers may contact in the event they consider they have reason for complaint. Posters may be secured from AEC Headquarters.

§ 9-12.5005 Decisions and other guides in difficult areas.

§ 9-12.5005-1 General.

Section 9-12.5004-7 necessarily uses general language, and in some cases the application of the criteria discussed therein to particular situations may not be clear. Therefore, this subsection covers more specifically some of the areas of particular concern to AEC and is promulgated to clarify the application of the criteria.

§ 9-12.5005-2 Specific examples.

The following are applications of the regulations to particular situations. Additional narrative statements describing items of work and applicability of the Davis-Bacon Act will be developed from time to time and added to this subsection.

(a) Land-based prototypes. The Labor Department has held that the construction of a full-scale operating prototype of one reactor compartment and of all necessary nuclear power components and systems and propulsion equipment for a submarine is covered. (See letters of March 14 and July 5, 1957, from Acting Solicitor of Labor to Directur of Organization and Personnel, AEC, re TRITON prototype.) In another ship prototype situation, the Department has held that assembling and fitting the

components of nuclear steam propulsion units into the hull sections, including installation of the pressure vessels, turbo-generator sets, heat exchangers, control wiring, etc., is covered. (See letter of October 22, 1956, from Solicitor of Labor to General Manager, AEC, re large ship reactor land prototype.) A

later decision involving the same prototype indicates that these earlier rulings should not be construed as intended to cover all equipment assemblies irrespective of the status of construction and other pertinent factors.

(b) Paving. The construction of roads, including grading, and their repair-where such repair includes work on roadbeds before resurfacing, building up shoulders, forming ditches, culverts and bridges, and on the actual resurfacing of roads-is covered. However, recurring type maintenance work, such as patching surface, filling chuck holes, patching shoulders, and resurfacing railroad crossings is non-covered. Similarly, patch and maintenance work on a parking lot, the replacement of bumper stops, and the repainting of parking dividers is non-covered.

The construc

(c) Stationary boilers. tion, alteration and/or repair, including installation and rebuilding, of stationary boilers costing in excess of $2,000 for labor and materials is covered. In contrast, inspections may reveal need for replacement of pieces of insulation, individual tubes, or other defective parts. Such maintenance, necessary to keep the boiler in safe operating condition, is noncovered.

(d) Start-up of operating activity after fire or other catastrophe. Rebuilding of plant following a catastrophe, such as replacement of structural members, roof trusses, walls, roof, utility services and process piping is covered. However, where process equipment can be restarted and/or operational activities resumed prior to such rebuilding, the actual work of start-up, including preliminary activity, e.g., cleaning, drying, checking, adjustment, temporary services, and temporary weather protection of equipment, essential to such resumption of operational activity, is noncovered.

(e) Rehabilitation of facilities. By contrast with emergency services needed to restore or maintain functional usefulness, as above described, rehabilitation (e.g., painting, change-out, rearrange

ment and installation of equipment, replacement or repair of damaged parts of structure or of building services or equipment) of a non-operable facility or of significant non-operable portions of a facility is covered. In such rehabilitation, the start-up of equipment by operating employees is non-covered.

(f) Painting. Although painting and decorating are specifically mentioned in the Act, painting which is closely integrated within operational and maintenance activities, and such repainting as color coding of process lines and service piping (including valves and directional arrows), is non-covered; likewise, application of various materials for localizing contamination, painting of machine tools to identify degree of contamination, preventive maintenance repainting of machine tools, equipment and plant structures is non-covered when performed with a stable work force employed by the operating contractor.

(g) Installation, rearrangement or adjustment of equipment. (See also, "(h) Experimental installations", below.)

(1) During construction. In the construction of a new facility-whether it is a production plant, a laboratory, or supporting facilities, such as shops and warehouses-an integral part of a construction project is the installation of equipment (including mechanical equipment, building services, instruments, etc.) which permits the facility to be utilized for the purpose for which it was intended. Normally, the initial installation, arrangement, adjustment, balancing, calibration and checking of such equipment is a logical part of the construction contract(s) for completion of the facility and, whether or not included within the scope of such contract(s), is covered.

(2) Plant start-up. At the time of the turnover of an AEC facility (which frequently differs in many respects from other facilities), from construction to operation activities, if the facility is turned over a section at a time, some problems of coverage may arise. It is extremely difficult, if not impossible, to write rules or criteria that can be practically applied in all situations. Usually, it is essential that final checkout of a plant prior to the start-up of plant operations be performed by personnel of the operating contractor and, as such, is not covered. The important thing is to work out a practical plan that will

assure: (i) Safe and effective start-up of the facility, (ii) the fulfillment of obligations under applicable statutes, and (iii) continuing construction at the facility.

for

(3) Equipment and equipment assemblies. While the current construction status of a public building or public work is not controlling as to coverage of supply-installation-type contracts, this is a factor to be considered in judging the applicability of the Davis-Bacon Act. The Labor Department has ruled (Walsh-Healey Rulings and Interpretations No. 3, sec. 6(b)) that while contracts in excess of $10,000 equipment, including erection or installation, are subject to the WalshHealey Act, they may be also covered under the Davis-Bacon Act, where more than an incidental amount (see § 9-12.5002-1(c)) of work is involved. Examples given in this ruling include furnishing and installation of mechanical equipment such as elevators or of generators requiring prepared foundations or housing. In a specific situation, the Department has indicated that a contract for furnishing and initial installation of piping, wiring, gas exhaust fans, plumbing, sheet metal work, and related activities to install kitchen and baking equipment was comparable to the basic plumbing, wiring, and heating contracts and was covered (see letter of Aug. 12, 1958, from Acting Asst. Solicitor of Labor to the Director, AFMPPPR-3, Procurement and Production, the Air Force [Attn: Col. Treacy], re the Air Force Academy). While this situation involves an initial installation, alteration or rearrangement of existing facilities involving such work to accommodate new or different equipment is also covered. Conversely, it follows that where the test of more than an incidental amount of construction is not met, and where the installation, rearrangement or adjustment of equipment is not a logical part of any current related construction project, it is non-covered.

(4) Special leased systems. Most, but not all, contracts involving the installation of telephone, detective and other leased systems are not covered when the work is performed by employees of the companies supplying the services and the material and equipment installed is owned by such companies. (See discussion in letter of Aug. 12, 1958, from Acting Asst. Solicitor of Labor to the

Director, AFMPP-PR-3, Procurement and Production, the Air Force [Attn: Col. Treacy], re the Air Force Academy, of one situation in which an extension of the distribution system of the telephone company to supply service to the Air Force was held to be non-covered and of another situation in which the movement of telephone company lines by the telephone company to a location more convenient to the Air Force was held to be covered.) A contract for a telephone central system to be installed by the manufacturer and owned by the United States has been held to be covered. (See letter of Oct. 22, 1958, from the Solicitor of Labor to the Director, AFMPP-PR-3, Procurement and Production, the Air Force [Attn: Col. Treacy], re Patrick Air Force Base.)

(h) Experimental installations. Within AEC programs, a variety of experiments are conducted involving materials, fuels, coolants, processes, equipment, etc. Certain types of situations where tests and experiments have sometimes presented coverage questions are described below:

(1) Set-ups of devices and/or processes. The proving out of investigative findings and theories of a scientific and technical nature for extension into practical application may require the set-up of various devices and/or processes at an early or pre-prototype stage of development. These may vary from laboratory bench size upwards. As a rule, these set-ups are made within established facilities (normally laboratories); required utility connections are made to services provided as a part of the basic facilities; and the activity as a whole falls within the functional purpose of the facility. Such set-ups may be for exploring mechanical or electrical design suitability, physical or chemical properties, or for collecting data to verify or reject scientific hypotheses. Such set-ups are noncovered. Preparatory work for the setup requiring structural changes or modifications of basic utility services-as distinguished from connections thereto-is covered. Illustrative of non-covered set-ups of devices and/or processes are the following:

(i) Assembly of piping and equipment within existing "hot cell" facilities for proving out a conceptual design of a chemical processing unit;

(ii) Assembly of equipment, including adaptation and modification thereof, in existing "hot cell" facilities to prove out

a conceptual design for remotely controlled machining equipment;

(iii) Assembly of the first graphite pile in a stadium at Stagg Field in Chicago;

(iv) Assembly of materials and equipment for particular aspects of the direct current thermonuclear experiments to explore feasibility and to study other ramifications of the concept of high energy injection and to collect data thereon.

(2) Loops. Many experiments are carried on in equipment assemblies called loops in which liquids or gases are circulated under monitored and controlled conditions. For purposes of determining Davis-Bacon coverage, loops may be classed as loop facilities or as loop setups. Both of these classes of loops can include in-reactor loops and out-ofreactor loops. In differentiating between clearly identified loop set-ups and loop facilities, an area exists in which there have been some questions of coverage, such as certain loops at the Material Test Reactor and Engineering Test Reactor at the National Reactor Test Site. Upon clarification of this area, further illustrations will be added. In the meantime, the differentiation between loop set-ups and loop facilities must be made on a case-by-case basis, taking into account the total criteria set forth in this Subpart.

(i) Loop set-ups. The assembly, erection, modification and disassembly of a loop set-up is non-covered. A non-controversial example of a loop set-up is one which is assembled in a laboratory, e.g., Oak Ridge National Laboratory, Argonne National Laboratory, and Lawrence Radiation Laboratory, for a particular test and thereafter disassembled. However, preparatory work for a loop set-up requiring structural changes or modifications of basic utility services-as distinguished from connections theretois covered as is material and equipment that is installed for a loop set-up which is a permanent part of the facility or which is used for a succession of experimental programs.

A loop facility

(ii) Loop facilities. differs from a loop set-up in that it is of a more permanent character; usually, but not always, of greater size; normally involves the building or modification of a structure; sometimes is installed as a part of construction of the facility; and may be designed for use in a succession of experimental programs over a longer

period of time. Examples of loop facilities are the in-reactor "K" loops at Hanford and the large Aircraft Nuclear Propulsion loop at National Reactor Test Site. The on-site assembly and erection of such loop facilities are covered. However, once a loop facility is completed and becomes operational, the criteria set forth above for operational and maintenance activities apply.

(3) Reactor component experiments. Other experiments are carried on by insertion of experimental components within reactor systems without the use of a loop assembly. Illustrative of reactor facilities erected for such experimental purposes are the special power excursion test reactors (SPERT) at the National Reactor Test Site, which are designed for studying reactor behavior and performance characteristics of certain reactor components. Such a facility may consist of a reactor vessel. pressurizing tank, coolant loops, pumps, heat exchangers, and other auxiliary equipment as needed. The facility also may include sufficient shielding to permit work on the reactor to proceed following a short period of power operation and buildings as needed to house the reactor and its auxiliary equipment. The erection and on-site assembly of such a reactor facility is covered work, but the components whose characteristics are under study are excluded from coverage. To illustrate one of the SPERTS planned for studies of nuclear reactor safety is designed to accommodate various internal fuel and control assemblies as required to conduct a particular test. Accordingly, the internal structure of the pressure vessel is so designed that cores of different shapes and sizes may be placed in the vessel for investigation, or the entire internal structure may be easily removed and replaced by a structure which will accept a different core design. Similarly, the control rod assembly is arranged to provide for flexibility in the removal of instrument leads and experimental assemblies from within the core.

(4) Tests or experiments in peaceful uses of nuclear energy. These tests or experiments are varied in nature and some are only in a planning state. These tests or experiments consist of a single or series of nuclear or non-nuclear detonations for the purposes of acquiring data. The data can include seismic effects, radiation effects, amount of heat generated, amount of material moved