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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