41 U.S.C. § 6508 — Authority to make exceptions

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.