41 U.S.C. § 6509 — Other procedures

Page 170 TITLE 41—PUBLIC CONTRACTS § 6508 order issued under subsection (c)’’ are substituted for ‘‘requiring such person to appear before him or rep- resentative designated by him, to produce evidence if, as, and when so ordered, and to give testimony relating to the matter under investigation or in question’’ for clarity and to eliminate unnecessary words. In subsection (e), the duty to make findings of fact is restated as a duty of the Secretary (or the Secretary’s representative). The grammatical structure of the last sentence of 41:39 seems to suggest that the court, rath- er than the Secretary (or the Secretary’s representa- tive), serves as fact finder. However, the provision taken as a whole indicates that it is the Secretary (or the Secretary’s representative) who serves as fact find- er. It is the Secretary (or the Secretary’s representa- tive) before whom hearings are held, witnesses testify, and evidence is produced. The court’s involvement is limited to compelling recalcitrant witnesses ‘‘to appear before him [the Secretary] or representative designated by him’’. The restatement clarifies the generally ac- cepted understanding that the Secretary (or the Sec- retary’s representative) serves as fact finder (see, e.g., United States v. Sweet Briar, 92 F. Supp. 777, 780 (W.D.S.C. 1950) (‘‘the Secretary ‘shall make findings of fact’ ’’); Ready-Mix Concrete Company v. United States, 158 F. Supp. 571, 578 (Cl. Ct. 1958) (‘‘the findings of the Department of Labor’’)). § 6508. Authority to make exceptions (a) DUTY OF THE SECRETARY TO MAKE EXCEP- TIONS.—When the head of an agency of the United States makes a written finding that the inclusion of representations or stipulations under section 6502 of this title in a proposal or contract will seriously impair the conduct of Federal Government business, the Secretary shall make exceptions, in specific cases or oth- erwise, when justice or the public interest will be served. (b) AUTHORITY OF THE SECRETARY TO MODIFY EXISTING CONTRACTS.—When an agency of the United States and a contractor jointly rec- ommend, the Secretary may modify the terms of an existing contract with respect to minimum wages and maximum hours of labor as the Sec- retary finds necessary and proper in the public interest or to prevent injustice and undue hard- ship. (c) AUTHORITY OF THE SECRETARY TO ALLOW LIMITATIONS, VARIATIONS, TOLERANCES, AND EX- EMPTIONS.—The Secretary may provide reason- able limitations and may prescribe regulations to allow reasonable variations, tolerances, and exemptions in the application of this chapter to contractors, including with respect to minimum wages and maximum hours of labor. (d) RATE OF PAY FOR OVERTIME.—When the Secretary permits an increase in the maximum hours of labor stipulated in a contract, the Sec- retary shall set a rate of pay for overtime. The overtime rate must be at least one and one-half times the basic hourly rate. (e) AUTHORITY OF THE PRESIDENT TO SUS- PEND.—The President may suspend any of the representations and stipulations contained in section 6502 of this title whenever, in the Presi- dent’s judgment, suspension is in the public in- terest. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3810.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 6508(a) ........ 41:40 (1st sentence). June 30, 1936, ch. 881, § 6, 49 Stat. 2038; June 28, 1940, ch. 440, title I, § 13, 54 Stat. 681. 6508(b) ........ 41:40 (2d sentence). 6508(c) ........ 41:40 (3d sentence). 6508(d) ........ 41:40 (last sentence less proviso). 6508(e) ........ 41:40 (last sentence proviso). In subsection (a), the words ‘‘an agency of the United States’’ are substituted for ‘‘the contracting agency or department’’ for consistency in the chapter. Commas are inserted after ‘‘exceptions’’ and ‘‘otherwise’’ to clarify that the words ‘‘when justice or the public in- terest will be served’’ apply to exceptions in ‘‘specific cases’’ as well as ‘‘otherwise’’. The word ‘‘thereby’’ is omitted as unnecessary. In subsection (b), the words ‘‘an agency of the United States’’ are substituted for ‘‘the contracting agency’’, and the words ‘‘minimum wages’’ are substituted for ‘‘minimum rates of pay’’, for consistency in the chap- ter. In subsection (c), the word ‘‘rules’’ is omitted as in- cluded in ‘‘regulations’’. The words ‘‘as hereinbefore de- scribed’’ are omitted as unnecessary. The words ‘‘min- imum wages’’ are substituted for ‘‘minimum rates of pay’’ for consistency in the chapter. In subsection (d), the words ‘‘received by any em- ployee affected’’ are omitted as unnecessary. In subsection (e), the words ‘‘or all’’ are omitted as unnecessary. § 6509. Other procedures (a) APPLICABILITY OF CERTAIN ADMINISTRATIVE PROVISIONS.—Notwithstanding section 553 of title 5, subchapter II of chapter 5 and chapter 7 of title 5 are applicable in the administration of sections 6501 to 6507 and 6511 of this title. (b) JUDICIAL REVIEW IN GENERAL.—Notwith- standing the inclusion of representations and stipulations in a contract under section 6502 of this title, an interested person has the right of judicial review of any legal question which might otherwise be raised, including wage deter- minations and the interpretation of the terms ‘‘locality’’ and ‘‘open market’’. (c) JUDICIAL REVIEW OF WAGE DETERMINA- TIONS.—A person adversely affected or aggrieved by a wage determination under section 6502(1) of this title has the right of judicial review of the determination, or of the applicability of the de- termination, within 90 days after the determina- tion is made, in the manner provided by chapter 7 of title 5. A person adversely affected or ag- grieved by a wage determination is deemed to include a person in an industry to which the de- termination applies that is a supplier of mate- rials, supplies, articles, or equipment that are purchased or intended to be purchased by the Federal Government from any source. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3810.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 6509(a) ........ 41:43a(a). June 30, 1936, ch. 881, § 10(a), (b) (last sentence), (c), as added June 30, 1952, ch. 530, title III, § 301, 66 Stat. 308; Pub. L. 103–355, title VII, § 7201(2), (3), Oct. 13, 1994, 108 Stat. 3378. Page 171 TITLE 41—PUBLIC CONTRACTS § 6701 HISTORICAL AND REVISION NOTES—CONTINUED Revised Section Source (U.S. Code) Source (Statutes at Large) 6509(b) ........ 41:43a(c). 6509(c) ........ 41:43a(b) (last sen- tence). Subsection (a) is substituted for ‘‘Notwithstanding any provision of section 4 of the Administrative Proce- dure Act, such Act shall be applicable in the adminis- tration of sections 1 to 5 and 7 to 9 of this Act’’ in sec- tion 10 of the Act of June 30, 1936 (ch. 881), for consist- ency in the revised title and because of section 7(b) of Public Law 89–554 (5 U.S.C. note prec. 101). In subsection (c), the words ‘‘has the right of judicial review’’ are substituted for ‘‘Review . . . may be had’’ for consistency with subsection (b) and with section 6510(b) of the revised title and because the review pro- vided for in chapter 7 of title 5 is denominated as judi- cial review. The words ‘‘chapter 7 of title 5’’ are sub- stituted for ‘‘section 10 of the Administrative Proce- dure Act’’ on authority of section 7(b) of Public Law 89–554 (5 U.S.C. note prec. 101). § 6510. Manufacturers and regular dealers (a) PRESCRIBING STANDARDS.—The Secretary may prescribe, in regulations, standards for de- termining whether a contractor is a manufac- turer or regular dealer with respect to mate- rials, supplies, articles, or equipment to be man- ufactured or furnished under, or used in the per- formance of, a contract entered into by an agen- cy of the United States. (b) JUDICIAL REVIEW.—An interested person has the right of judicial review of any legal question relating to interpretation of the terms ‘‘regular dealer’’ and ‘‘manufacturer’’ as defined pursuant to subsection (a). (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3811.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 6510 ............ 41:43b. June 30, 1936, ch. 881, § 11, as added Pub. L. 103–355, title VII, § 7201(4), Oct. 13, 1994, 108 Stat. 3378; Pub. L. 104–106, div. D, title XLIII, § 4321(f)(1)(A), Feb. 10, 1996, 110 Stat. 675. In subsection (a), the words ‘‘an agency of the United States’’ are substituted for ‘‘any executive department, independent establishment, or other agency or instru- mentality of the United States, or by the District of Columbia, or by any corporation all the stock of which is beneficially owned by the United States’’ because of the definition in section 6501 of the revised title. § 6511. Effect on other law This chapter may not be construed to modify or amend the following provisions: (1) Chapter 83 of this title. (2) Sections 3141 to 3144, 3146, and 3147 of title 40. (3) Chapter 307 of title 18. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3811.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 6511 ............ 41:42. June 30, 1936, ch. 881, § 8, 49 Stat. 2039. Paragraph (1) is substituted for ‘‘Title III of the act entitled ‘An Act making appropriations for the Treas- ury and Post Office Departments for the fiscal year ending June 30, 1934, and for other purposes’, approved May 3, 1933 (commonly known as the Buy American Act)’’ for consistency in the revised title and to correct an error in the source, which incorrectly gives May 3, 1933, rather than March 3, 1933, as the date of approval. Paragraph (2) is substituted for ‘‘the Act entitled ‘An Act relating to the rate of wages for laborers and me- chanics employed on public buildings of the United States and the District of Columbia by contractors and subcontractors, and for other purposes’, approved March 3, 1931 (commonly known as the Bacon-Davis Act), as amended from time to time’’ because of section 5(c) of Public Law 107–217 (40 U.S.C. note prec. 101) and for consistency with title 40. The words ‘‘the labor provisions of Title II of the Na- tional Industrial Recovery Act, approved June 16, 1933, as extended’’ are omitted as obsolete because of section 201 of the Act of June 21, 1938 (ch. 554, 52 Stat. 816), as amended by the Acts of June 27, 1940 (ch. 437, 54 Stat. 633), April 5, 1941 (ch. 40, 55 Stat. 110), and June 27, 1942 (ch. 450, 56 Stat. 410). The words ‘‘or [the labor provisions] of section 7 of the Emergency Relief Appropriation Act, approved April 8, 1935’’ are omitted as obsolete. The intended ref- erence was probably to section 7 of the Emergency Re- lief Appropriation Act of 1935 (49 Stat. 118). Section 7 of the Emergency Relief Appropriation Act of 1935 pro- vided that the President shall require certain rates of pay for persons engaged in carrying out projects that were financed by amounts being appropriated in that Act. Paragraph (3) is substituted for ‘‘the Act entitled ‘An Act to provide for the diversification of employment of Federal prisoners, for their training and schooling in trades and occupations, and for other purposes’, ap- proved May 27, 1930, as amended and supplemented by the Act approved June 23, 1934’’ for consistency with title 18. The Act of May 27, 1930 (ch. 340, 46 Stat. 391) and the Act of June 23, 1934 (ch. 736, 48 Stat. 1211), which were classified to sections 744a to 744n of former title 18, were substantially repealed and were replaced by chapter 307 and section 4162 of title 18 in the codi- fication of title 18 by the Act of June 25, 1948 (ch. 645, 62 Stat. 683). Subsequently, section 4162 of title 18 was repealed by section 218(a)(4) of Public Law 98–473 (98 Stat. 2027). CHAPTER 67—SERVICE CONTRACT LABOR STANDARDS Sec. 6701. Definitions. 6702. Contracts to which this chapter applies. 6703. Required contract terms. 6704. Limitation on minimum wage. 6705. Violations. 6706. Three-year prohibition on new contracts in case of violation. 6707. Enforcement and administration of chapter. § 6701. Definitions In this chapter: (1) COMPENSATION.—The term ‘‘compensa- tion’’ means any of the payments or fringe benefits described in section 6703 of this title. (2) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of Labor. (3) SERVICE EMPLOYEE.—The term ‘‘service employee’’— (A) means an individual engaged in the performance of a contract made by the Fed- eral Government and not exempted under section 6702(b) of this title, whether nego- tiated or advertised, the principal purpose of which is to furnish services in the United States;