Division Office Recommendations: The division engineer shall, by endorsement to the contracting officer's recommendations, make his own recommen- dations, and state his reasons therefor.
Regional Federal Highway Administrator Recommendations: The Regional Administrator, where the computations amount to $100 or less, has full authority to remit the liquidated damages in full. Where he decides such damages should be retained in whole or in part, or if the computations exceed $100, the Regional Administrator will forward the correspondence to the Office of Chief Counsel, together with the contracting officer and division office recommendations, adding his own recommendations and the reasons therefor.
Washington Office; the Final Order: The Director of Public Roads has full authority to order the retention of liquidated damages in any amount, and to remit the damages, in whole or in part, when the computations amount to $100 or less. When the computations exceed $100, and the Director determines that the liquidated damages should be remitted in whole or in part, he must secure the concurrence of the U.S. Department of Labor. The Director's final order will be communicated to the contracting officer through the Federal Highway Administration channels.
Implementing the Final Order: The contractor (and subcontractor (s), if appropriate) shall be promptly notified of the final order by Registered or Certified mail, return receipt requested. If liquidated damages in any amount are to be retained in whole or in part, the contracting officer shall immediately
withhold the amounts from sums otherwise due under the contract. The Federal Highway Administration will immediately withhold the amounts, for the use and benefit of the United States, from sums otherwise due the State under the project agreement. The contracting officer's notice shall advise the interested party(ies) of the further right to appeal the withholding by filing a claim in the Court of Claims within 60 days of receipt of the final order. See 40 U.S.C. 330 (c).
403-6.11 The Standard of Care: All persons in the Federal Highway Administration administrative chain should become familiar with the
standard provided by the Act which must be met before liquidated damages may be remitted in whole or in part.
Section 103(c) of the Act (40 U.S.C. 330 (c)) provides, in part, "if it is found that the sum (of liquidated damages) determined is incorrect or that the con- tractor or subcontractor violated the provisions of this Act inadvertently notwithstanding the exercise of due care on his part and that of his agents, recommendations may be made to the Secretary (of Labor) that an appropriate adjustment in liquidated damages be made, or that the contractor or subcontractor be relieved of liability for such liquidated damages. (emphasis supplied).
The underlined words in subparagraph (a) above set a standard related to the presence or absence of negligence on the part of the employer and his agents, in connection with the underpayments. The employer is thus absolutely liable for the negligent acts of his agents. The standards of "willful"
or "nonwillful," which relate to debarment considerations under the Davis-Bacon Act (40 U.S.C. 276a-2(a)), or under regulations of the Secretary of Labor (29 CFR 5.6), are not pertinent with regard to recommend- ations for remission, in whole or in part, of liquidated damages. However, if a recommender intends to suggest that a misdemeanor should be alleged against a contractor or subcontractor because of intentional violations pursuant to section 106 of the Act (40 U.S.C. 332),
it would then be proper to describe the violations as "intentional" or "willful."
It has been administratively determined within the Federal Highway Administration that underpayments may be considered to have been caused "inadvertently notwith- standing the exercise of due care" in the following situations:
(1) Where the failure to pay the required overtime amount results from an
evidently innocent arithmetical error in computation of wages, provided that the failure is promptly corrected by the employer upon notification.
(2) Where the failure to pay the required overtime amount involves errors and adjustments in amounts less than one dollar per employee per pay period, unless a pattern of such errors indicates advertence or the lack of due care.
(3) Where the failure to pay the required overtime amount results from a misclassification caused by (a) con- fusion, (b) mistake, or (c) a bona fide dispute between the contractor and
the contracting officer, and the employer has paid proper overtime wage rates based upon the erroneous classification, provided such mis- classification error is promptly corrected by the employer when he has been notified of the decision of the contracting officer.
In situations outlined in 403-6.11(c) it will continue to be necessary, under the Act and the regulations, to compute the liquidated damages, notify the contractor and ask for his explanation, and secure from the U.S. Department of Labor, where computations exceed $100, permission to release the employer and/or the contractor from liability.
CHAPTER 404
WAGE DETERMINATIONS
404-1 General: Whenever Federal-aid work subject to the prevailing wage requirements of 23 U.S.C. 113 or to the wage requirements of the Appalachian Regional Development Act of 1965, as amended (40 U.S.c. App. 402), is to be performed and no area wage determination decision is available, a wage determination decision must be obtained from the Secretary of Labor for insertion in the appropriate contract documents. Before submitting a request for an original wage rate decision, the State highway department should make a reasonable effort to ascertain that all necessary actions have been taken, and rights-of-way acquired, so that probable advertising and contract award dates can be accurately estimated. This practice should prevent expiration of the decision period before award. The regulations issued by the Secretary of Labor (29 CFR, Parts 1 and 5) set forth the Department of Labor's procedures for predetermination and use of wage rates.
404-2 Submission of Request:
Requests for determination
of minimum wage rates shall be made on Department of Labor Form DB-lla "Request for Determination." The State highway department will forward the original of the request directly to the Department of Labor in Washington, and shall simultaneously submit one copy of the form and one complete set of accompanying papers to the Public Roads division engineer. The request form should be checked carefully, especially as to the following details:
404-2.1 In the block entitled "law involved" show "23 U.S.C. 113" (for regular Federal-aid) or "40 U.S.c. App. 402" (for Appalachian Highways), as appropriate.
404-2.2 The correct project designation.
A concise, accurate description of only the actual construction work to be performed under the prime contract for which the wage determination is requested.
Only those crafts actually needed for the particular job should be requested. The State highway department is in a position to make an accurate estimate of the categories of workers needed. Considerable unnecessary workload, both to the Bureau of Public Roads and the Department of Labor, is caused by a State office requesting either to few or too many crafts in requests for wage determinations. requests for "complete schedule" should be avoided unless a "complete schedule" is needed. However, all job classifications applicable to the particular site, type of structure and known local building and
labor practices should be included. Therefore, submission of the request should be delayed
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