40 U.S.C. § 3134 — Waivers for certain contracts

Page 119 TITLE 40—PUBLIC BUILDINGS, PROPERTY, AND WORKS § 3134 (A) in the name of the United States for the use of the person bringing the action; and (B) in the United States District Court for any district in which the contract was to be performed and executed, regardless of the amount in controversy. (4) PERIOD IN WHICH ACTION MUST BE BROUGHT.—An action brought under this sub- section must be brought no later than one year after the day on which the last of the labor was performed or material was supplied by the person bringing the action. (5) LIABILITY OF FEDERAL GOVERNMENT.—The Government is not liable for the payment of any costs or expenses of any civil action brought under this subsection. (c) WAIVER OF RIGHT TO CIVIL ACTION.—A waiv- er of the right to bring a civil action on a pay- ment bond required under this subchapter is void unless the waiver is— (1) in writing; (2) signed by the person whose right is waived; and (3) executed after the person whose right is waived has furnished labor or material for use in the performance of the contract. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1148; Pub. L. 109–284, § 6(9), (10), Sept. 27, 2006, 120 Stat. 1213.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3133(a) ........ 40:270c. Aug. 24, 1935, ch. 642, § 3, 49 Stat. 794; Pub. L. 86–135, § 2, Aug. 4, 1959, 73 Stat. 279; Pub. L. 98–269, Apr. 18, 1984, 98 Stat. 156. 3133(b)(1), (2). 40:270b(a). Aug. 24, 1935, ch. 642, § 2(a), (b), 49 Stat. 794; Pub. L. 86–135, § 1, Aug. 4, 1959, 73 Stat. 279; Pub. L. 106–49, § 2(b), Aug. 17, 1999, 113 Stat. 231. 3133(b)(3)– (5). 40:270b(b). 3133(c) ........ 40:270b(c). Aug. 24, 1935, ch. 642, § 2(c), as added Pub. L. 106–49, § 2(c), Aug. 17, 1999, 113 Stat. 231. In subsection (b)(1), the words ‘‘may bring a civil ac- tion’’ are substituted for ‘‘shall have the right to sue’’ for consistency in the revised title and with other titles of the United States Code. The words ‘‘or sums’’ are omitted because of 1:1. In subsection (b)(2), the words ‘‘to the contractor at any place he maintains an office or conducts his busi- ness, or his residence, or in any manner in which the United States marshal of the district in which the pub- lic improvement is situated is authorized by law to serve summons’’ are restated to reflect the probable in- tent of Congress. See H. Rept. 106–277, Part 1, 106th Cong., 1st Sess., pp. 4, 7. In subsection (c), the words ‘‘bring a civil action’’ are substituted for ‘‘sue’’ for consistency in the revised title and with other titles of the United States Code. Editorial Notes AMENDMENTS 2006—Subsec. (b). Pub. L. 109–284, § 6(9), substituted ‘‘To’’ for ‘‘to’’ in heading. Subsec. (c). Pub. L. 109–284, § 6(10), inserted heading. § 3134. Waivers for certain contracts (a) MILITARY.—The Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force, or the Secretary of Transportation may waive this subchapter with respect to cost-plus- a-fixed fee and other cost-type contracts for the construction, alteration, or repair of any public building or public work of the Federal Govern- ment and with respect to contracts for manufac- turing, producing, furnishing, constructing, al- tering, repairing, processing, or assembling ves- sels, aircraft, munitions, materiel, or supplies for the Army, Navy, Air Force, or Coast Guard, respectively, regardless of the terms of the con- tracts as to payment or title. (b) TRANSPORTATION.—The Secretary of Trans- portation may waive this subchapter with re- spect to contracts for the construction, alter- ation, or repair of vessels when the contract is made under sections 1535 and 1536 of title 31 or subtitle V of title 46, regardless of the terms of the contracts as to payment or title. (c) NATIONAL OCEANIC AND ATMOSPHERIC AD- MINISTRATION.—The Secretary of Commerce may waive this subchapter with respect to contracts for the construction, alteration, or repair of ves- sels, regardless of the terms of the contracts as to payment or title, when the contract is made under the Act entitled ‘‘An Act to define the functions and duties of the Coast and Geodetic Survey, and for other purposes’’, approved Au- gust 6, 1947 (33 U.S.C. 883a et seq.). (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1149; Pub. L. 109–304, § 17(g)(2), Oct. 6, 2006, 120 Stat. 1709; Pub. L. 115–91, div. C, title XXXV, § 3502(b)(2), Dec. 12, 2017, 131 Stat. 1910; Pub. L. 115–232, div. C, title XXXV, § 3515(c), Aug. 13, 2018, 132 Stat. 2313.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3134(a) ........ 40:270e. Apr. 29, 1941, ch. 81, § 1, 55 Stat. 147; June 3, 1955, ch. 129, 69 Stat. 83. 3134(b) ........ 40:270f. Apr. 29, 1941, ch. 81, § 2, as added Pub. L. 91–469, § 39, Oct. 21, 1970, 84 Stat. 1036; Pub. L. 97–31, § 12(12), Aug. 6, 1981, 95 Stat. 154. In subsection (a), the words ‘‘Secretary of Transpor- tation’’ are substituted for ‘‘Secretary of Commerce’’ because of 49:108. The words ‘‘the manufacturing, pro- ducing, furnishing, construction, alteration, repair, processing, or assembling of’’ and ‘‘of any kind or na- ture’’ are omitted as unnecessary. In subsection (b), the words ‘‘of any kind or nature’’ are omitted as unnecessary. The words ‘‘sections 1535 and 1536 of title 31’’ are substituted for ‘‘the Act of June 30, 1932 (47 Stat. 382, 417–418), as amended [31 U.S.C. 686, 686b]’’ because of section 4(b) of the Act of September 13, 1982 (Public Law 97–258, 96 Stat. 1067), the first section of which enacted Title 31, United States Code. Editorial Notes REFERENCES IN TEXT An Act to define the functions and duties of the Coast and Geodetic Survey, and for other purposes, referred to in subsec. (c), is act Aug. 6, 1947, ch. 504, 61 Stat. 787, popularly known as the Coast and Geodetic Survey Act, which is classified generally to subchapter II (§ 883a et Page 120 TITLE 40—PUBLIC BUILDINGS, PROPERTY, AND WORKS § 3141 seq.) of chapter 17 of Title 33, Navigation and Navigable Waters. For complete classification of this Act to the Code, see Tables. AMENDMENTS 2018—Subsec. (c). Pub. L. 115–232 added subsec. (c). 2017—Subsec. (b). Pub. L. 115–91, § 3502(b)(2), sub- stituted ‘‘31 or’’ for ‘‘31,’’ and struck out ‘‘or the Mer- chant Ship Sales Act of 1946 (50 App. U.S.C. 1735 et seq.),’’ after ‘‘title 46,’’. 2006—Subsec. (b). Pub. L. 109–304 substituted ‘‘subtitle V of title 46’’ for ‘‘the Merchant Marine Act, 1936 (46 App. U.S.C. 1101 et seq.)’’. Statutory Notes and Related Subsidiaries TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. SUBCHAPTER IV—WAGE RATE REQUIREMENTS § 3141. Definitions In this subchapter, the following definitions apply: (1) FEDERAL GOVERNMENT.—The term ‘‘Fed- eral Government’’ has the same meaning that the term ‘‘United States’’ had in the Act of March 3, 1931 (ch. 411, 46 Stat. 1494) (known as the Davis-Bacon Act). (2) WAGES, SCALE OF WAGES, WAGE RATES, MINIMUM WAGES, AND PREVAILING WAGES.—The terms ‘‘wages’’, ‘‘scale of wages’’, ‘‘wage rates’’, ‘‘minimum wages’’, and ‘‘prevailing wages’’ include— (A) the basic hourly rate of pay; and (B) for medical or hospital care, pensions on retirement or death, compensation for in- juries or illness resulting from occupational activity, or insurance to provide any of the forgoing, for unemployment benefits, life in- surance, disability and sickness insurance, or accident insurance, for vacation and holi- day pay, for defraying the costs of appren- ticeship or other similar programs, or for other bona fide fringe benefits, but only where the contractor or subcontractor is not required by other federal, state, or local law to provide any of those benefits, the amount of— (i) the rate of contribution irrevocably made by a contractor or subcontractor to a trustee or to a third person under a fund, plan, or program; and (ii) the rate of costs to the contractor or subcontractor that may be reasonably an- ticipated in providing benefits to laborers and mechanics pursuant to an enforceable commitment to carry out a financially re- sponsible plan or program which was com- municated in writing to the laborers and mechanics affected. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1150; Pub. L. 109–284, § 6(11), Sept. 27, 2006, 120 Stat. 1213.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3141(1) ........ (no source). 3141(2) ........ 40:276a(b) (1st par. words before pro- viso). Mar. 3, 1931, ch. 411, § 1(b) (1st par. words before pro- viso), as added Pub. L. 88–349, § 1, July 2, 1964, 78 Stat. 239. Clause (1) is added for clarity. Editorial Notes REFERENCES IN TEXT The Davis-Bacon Act, referred to in par. (1), is act of Mar. 3, 1931, ch. 411, 46 Stat. 1494, which was classified generally to sections 276a to 276a–5 of former Title 40, Public Buildings, Property, and Works, and was re- pealed and reenacted as sections 3141–3144, 3146, and 3147 of this title by Pub. L. 107–217, §§ 1, 6(b), Aug. 21, 2002, 116 Stat. 1062, 1304. For complete classification of this Act to the Code, see Tables. AMENDMENTS 2006—Par. (1). Pub. L. 109–284 substituted ‘‘1494)’’ for ‘‘1494’’. § 3142. Rate of wages for laborers and mechanics (a) APPLICATION.—The advertised specifica- tions for every contract in excess of $2,000, to which the Federal Government or the District of Columbia is a party, for construction, alter- ation, or repair, including painting and deco- rating, of public buildings and public works of the Government or the District of Columbia that are located in a State or the District of Co- lumbia and which requires or involves the em- ployment of mechanics or laborers shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics. (b) BASED ON PREVAILING WAGE.—The min- imum wages shall be based on the wages the Secretary of Labor determines to be prevailing for the corresponding classes of laborers and me- chanics employed on projects of a character similar to the contract work in the civil subdivi- sion of the State in which the work is to be per- formed, or in the District of Columbia if the work is to be performed there. (c) STIPULATIONS REQUIRED IN CONTRACT.— Every contract based upon the specifications re- ferred to in subsection (a) must contain stipula- tions that— (1) the contractor or subcontractor shall pay all mechanics and laborers employed directly on the site of the work, unconditionally and at least once a week, and without subsequent de- duction or rebate on any account, the full amounts accrued at time of payment, com- puted at wage rates not less than those stated in the advertised specifications, regardless of any contractual relationship which may be al- leged to exist between the contractor or sub- contractor and the laborers and mechanics; (2) the contractor will post the scale of wages to be paid in a prominent and easily ac- cessible place at the site of the work; and (3) there may be withheld from the con- tractor so much of accrued payments as the contracting officer considers necessary to pay to laborers and mechanics employed by the contractor or any subcontractor on the work