Public Law 88-349 88th Congress, H. R. 6041 July 2, 1964 An Act To amend the prevailing wage section of the Davis-Bacon Act, as amended; and related sections of the Federal Airport Act, as amended; and the National Housing Act, as amended. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 1 of Federal emstre the Act of March 3, 1931, as amended (46 Stat. 1494, as amended; 40 tion contract U.S.C. 276a), is hereby amended by designating the language of the laborers. present section as subsection (a) and by adding at the end thereof the Fringe benefits, following new subsection (h). "(b) As used in this Act the term 'wages', 'scale of wages', 'wage rates', 'minimum wages', and 'prevailing wages' shall include "(1) the basic hourly rate of pay; and “(2) the amount of— 49 Stat. 1011. 78 STAT 238. 78 STAT. 239. "(A) the rate of contribution irrevocably made by a con- Trustee contritractor or subcontractor to a trustee or to a third person bution. pursuant to a fund, plan, or program; and "(B) the rate of costs to the contractor or subcontractor Benefit costs. for medical or hospital care, pensions on retirement or death, Provided, That the obligation of a contractor or subcontractor to Payor obligam "In determining the overtime pay to which the laborer or mechanic Overtime pay is entitled under any Federal law, his regular or basic hourly rate of computation, pay (or other alternative rate upon which premium rate of overtime olusion of compensation is computed) shall be deemed to be the rate computed benefit oosts. under paragraph (1), except that where the amount of payments, contributions, or costs incurred with respect to him exceeds the prevailing wage applicable to him under this Act, such regular or basic hourly rate of pay (or such other alternative rate) shall be arrived at by deducting from the amount of payments, contributions, or costs actually incurred with respect to him, the amount of contributions or costs of the types described in paragraph (2) actually incurred with respect to him, or the amount determined under paragraph (2) but not actually paid, whichever amount is the greater." Airport prejeots. 63 Stat. 480. 49 Stat. 1011. Housing projeots. 53 Stat. 807; 73 Stat. 667. 12 USC 17150. Effective date. 78 STAT. 239. 78 STAT. 240. Pub. Law 88-349 -2 July 2, 1964 SEC. 2. Section 15(b) of the Federal Airport Act, as amended (60 Stat. 178, as amended; 49 U.S.C. 1114(b)), is hereby amended by inserting the words "in accordance with the Davis-Bacon Act, as amended (40 U.S.C. 276a-276a-5)" after the words "Secretary of Labor,". SEC. 3. Section 212(a) of the National Housing Act, as amended (53 Stat. 208, as amended; 12 U.S.C. 1715(c)), is hereby amended by inserting the words "in accordance with the Davis-Bacon Act, as amended (40 U.S.C. 276a-276a-5)," after the words "Secretary of Labor," SEC. 4. The amendments made by this Act shall take effect on the /ninetieth day after the date of enactment of this Act, but shall not affect any contract in existence on such effective date or made thereafter pursuant to invitations for bids outstanding on such effective date and the rate of payments specified by section 1(b) (2) of the Act of March 3, 1931, as amended by this Act, shall, during a period of two hundred and seventy days after such effective date, become effective only in those cases and reasonable classes of cases as the Secretary of Labor, acting as rapidly as practicable to make such rates of payments fully effective, shall by rule or regulation provide. Approved July 2, 1964. LEGISLATIVE HISTORY: HOUSE REPORT No. 308 (Comm. on Education & Labor). Jan. 28: Considered and passed House. MILLER ACT Act of Aug. 24, 1935, as amended, 40 U.S.C. 270 et seq. Summary and Description PERSONS AND EMPLOYMENTS COVERED The Miller Act applies to every contract of over $2,000 for the construction, alteration, or repair of any public building or public work of the United States and provides that, before any contract covered by its provisions is awarded, the contractor must execute a payment bond with a surety or sureties to protect the wages of all persons supplying labor. This law, while not a prevailing wage law or overtime pay law, is particularly important to laborers and mechanics who work on construction covered by the Davis-Bacon Act-that is, on construction contracts made directly by the Federal Government. Although the law does not apply to Federal-aid projects but only to direct Federal contracts, it is usual for Federal agencies administering grant-in-aid, loan, mortgage guarantee, and similar Federal-aid programs to require by regulation that contractors on construction under these programs executive a performance bond which require among its terms the payment of wages to laborers. Generally, the term of such bonds extends to 1 year after completion of the project. RIGHT TO SUE The Miller Act gives the worker a right to sue on the contractor's bond if he does not receive payment in full within 90 days after the day on which the last labor was performed. If the worker was employed by a subcontractor, he can sue the prime contractor and sureties on the bond for his unpaid wages, if he first gives written notice to the prime contractor within 90 days after the last labor was performed. This notice must be sent by registered mail, postage prepaid, in an envelope addressed to the contractor at any place he maintains an office or conducts his business; or it may be served in any other way that the U.S. marshal or the Federal district court for the district where the job is located is authorized to serve a summons. TIME AND MANNER FOR BRINGING SUIT Suits to recover under the Miller Act must be commenced within 1 year after the date of final settlement of the contract and must be brought in the name of the United States, for the use of the person suing, in the U.S. district court in any district in which the contract was to be performed and executed. Suit is brought and prosecuted by the worker's own attorney. Text of Act (Section Nos. refer to U.S. Code) § 270a. Bonds of contractors for public buildings or works; waiver of bonds covering contract performed in foreign country. (a) Before any contract, exceeding $2,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States the following bonds, which shall become binding upon the award of the contract to such person, who is hereinafter designated as "contractor": (1) A performance bond with a surety or sureties satisfactory to the officer awarding such contract, and in such amount as he shall deem adequate, for the protection of the United States. (2) A payment bond with a surety or sureties satisfactory to such officer for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person. Whenever the total amount payable by the terms of the contract shall be not more than $1,000,000 the said payment bond shall be in a sum of onehalf the total amount payable by the terms of the contract. Whenever the total amount payable by the terms of the contract shall be more than $1,000,000 and not more than $5,000,000, the said payment bond shall be in a sum of 40 per centum of the total amount payable by the terms of the contract. Whenever the total amount payable by the terms of the contract shall be more than $5,000,000 the said payment bond shall be in the sum of $2,500,000. (b) The contracting officer in respect of any contract is authorized to waive the requirement of a performance bond and payment bond for so much of the work under such contract as is to be performed in a foreign country if he finds that it is impracticable for the contractor to furnish such bonds. (c) Nothing in this section shall be construed to limit the authority of any contracting officer to require a performance bond or other security in addition to those, or in cases other than the cases specified in subsection (a) of this section. (d) Every performance bond required under this section shall specifically provide coverage for taxes imposed by the United States which are collected, deducted, or withheld from wages paid by the contractor in carrying out the contract with respect to which such bond is furnished. However, the United States shall give the surety or sureties on such bond written notice, with respect to any such unpaid taxes attributable to any period, within ninety days after the date when such contractor files a return for such period, except that no such notice shall be given more than one hundred and eighty days from the date when a return for the period was required to be filed under the Internal Revenue Code of 1954. No suit on such bond for such taxes shall be commenced by the United States unless notice is given as provided in the preceding sentence, and no such suit shall be commenced after the expiration of one year after the day on which such notice is given. (Aug. 24, 1935, ch. 642, § 1, 49 Stat. 793; Nov. 2, 1966, Pub. L. 89-719, title I, § 105 (b), 80 Stat. 1139.) AMENDMENTS 1966 Subsec. (d). Pub. L. 89-719 added subsec. (d). EFFECTIVE DATE OF 1966 AMENDMENT Amendment of section by Pub. L. 89-719 applicable to contract entered into pursuant to invitations for bids issued after June 30, 1967, see section 114(e) (2) of Pub. L. 89-719, set out as a note under section 6323 of Title 26, Internal Revenue Code. EFFECTIVE DATE Section 5 of act Aug. 24, 1935, provided that the act "shall take effect upon the expiration of sixty days after the date of its enactment. but shall not apply to any contract awarded pursuant to any invitation for bids issued on or before the date it takes effect, or to any persons or bonds in respect of any such contract." SHORT TITLE Sections 270a-270d of this title are commonly known as the "Miller Act". WAIVER OF SECTIONS 270a-270d oF THIS TITLE BY SECRETARY OF THE TREASURY Act July 11, 1941, ch. 290 § 3 (b), 55 Stat. 585, formerly set out in note to this section, which authorized the Secretary of the Treasury, in his discretion, to waive sections 270a-270d of this title with respect to certain contracts entered into for the Coast Guard during the national emergency, was repealed by Joint Res. July 25, 1947, ch. 327, § 1, 61 Stat. 449. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 270b, 270d, 270e, 270f, 1594 of this title; title 6 section 15; title 39 section 410; title 42 section 1416; title 46 section 1119b; title 50 App. section 1152. § 270b. Same; rights of persons furnishing labor material. (a) Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished under section 270a of this title and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him: Provided, however, That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be served by mailing the same by registered mail, postage prepaid, in an envelope addressed to the contractor |