[Code of Federal Regulations]
[Title 48, Volume 1]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 48CFR22.401]

[Page 398-400]
 
            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
 
                CHAPTER 1--FEDERAL ACQUISITION REGULATION
 
PART 22_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS--Table of Contents
 
    Subpart 22.4_Labor Standards for Contracts Involving Construction
 
Sec.  22.401  Definitions.

    As used in this subpart--
    Building or work generally means construction activity as 
distinguished from manufacturing, furnishing of materials, or servicing 
and maintenance work. The terms include, without limitation, buildings, 
structures, and improvements of all types, such as bridges, dams, 
plants, highways, parkways, streets, subways, tunnels, sewers, mains, 
power lines, pumping stations, heavy generators, railways, airports, 
terminals, docks, piers, wharves, ways, lighhouses, buoys, jetties, 
breakwaters, levees, canals, dredging, shoring, rehabilitation and 
reactivation of plants, scaffolding, drilling, blasting, excavating, 
clearing, and landscaping. The manufacture or furnishing of materials, 
articles, supplies, or equipment (whether or not a Federal or State 
agency acquires title to such materials, articles, supplies, or 
equipment during the course of the manufacture or furnishing, or owns 
the materials from which they are manufactured or furnished) is not 
building or work within the meaning of the regulations in this subpart 
unless conducted in connection with and at the site of such building or 
work as is described in the foregoing sentence, or under the United 
States Housing Act of 1937 and the

[[Page 399]]

Housing Act of 1949 in the construction or development of the project.
    Construction, alteration, or repair means all types of work done on 
a particular building or work at the site thereof, including without 
limitation, altering, remodeling, installation (if appropriate) on the 
site of the work of items fabricated off-site, painting and decorating, 
the transporting of materials and supplies to or from the building or 
work by the employees of the construction contractor or construction 
subcontractor, and the manufacturing or furnishing of materials, 
articles, supplies, or equipment on the site of the building or work by 
persons employed by the contractor or subcontractor.
    Laborers or mechanics includes--
    (1) Those workers, utilized by a contractor or subcontractor at any 
tier, whose duties are manual or physical in nature (including those 
workers who use tools or who are performing the work of a trade), as 
distinguished from mental or managerial;
    (2) Apprentices, trainees, helpers, and, in the case of contracts 
subject to the Contract Work Hours and Safety Standards Act, watchmen 
and guards. The terms ``apprentice'' and ``trainee'' are defined as 
follows:
    (i) Apprentice means (A) a person employed and individually 
registered in a bona fide apprenticeship program registered with the 
U.S. Department of Labor, Employment and Training Administration, Bureau 
of Apprenticeship and Training, or with a State Apprenticeship Agency 
recognized by the Bureau, or (B) a person in the first 90 days of 
probationary employment as an apprentice in such an apprenticeship 
program, who is not individually registered in the program, but who has 
been certified by the Bureau of Apprenticeship and Training or a State 
Apprenticeship Agency (where appropriate) to be eligible for 
probationary employment as an apprentice.
    (ii) Trainee means a person registered and receiving on-the-job 
training in a construction occupation under a program which has been 
approved in advance by the U.S. Department of Labor, Employment and 
Training Administration, as meeting its standards for on-the-job 
training programs and which has been so certified by the Administration.
    (3) Working foremen who devote more than 20 percent of their time 
during a workweek performing duties of a laborer or mechanic, and who do 
not meet the criteria of 29 CFR part 541, for the time so spent; and
    (4) Every person performing the duties of a laborer or mechanic, 
regardless of any contractual relationship alleged to exist between the 
contractor and those individuals. The terms exclude workers whose duties 
are primarily executive, supervisory (except as provided in paragraph 
(3) of this definition), administrative, or clerical, rather than 
manual. Persons employed in a bona fide executive, administrative, or 
professional capacity as defined in 29 CFR part 541 are not deemed to be 
laborers or machanics.
    Public building or public work means building or work, the 
construction, prosecution, completion, or repair of which, as defined in 
this section, is carried on directly by authority of, or with funds of, 
a Federal agency to serve the interest of the general public regardless 
of whether title thereof is in a Federal agency.
    Site of the work is defined as follows:
    (1) The site of the work is limited to the physical place or places 
where the construction called for in the contract will remain when work 
on it is completed, and nearby property, as described in paragraph (2) 
of this definition, used by the contractor or subcontractor during 
construction that, because of proximity, can reasonably be included in 
the site.
    (2) Except as provided in paragraph (3) of this definition, 
fabrication plants, mobile factories, batch plants, borrow pits, job 
headquarters, tool yards, etc., are parts of the site of the work; 
provided they are dedicated exclusively, or nearly so, to performance of 
the contract or project, and are so located in proximity to the actual 
construction location that it would be reasonable to include them.
    (3) The site of the work does not include permanent home offices, 
branch plant establishments, fabrication plants, or tool yards of a 
contractor or subcontractor whose locations and continuance in operation 
are determined

[[Page 400]]

wholly without regard to a particular Federal contract or project. In 
addition, fabrication plants, batch plants, borrow pits, job 
headquarters, yards, etc., of a commercial supplier or materialman which 
are established by a supplier of materials for the project before 
opening of bids and not on the project site, are not included in the 
site of the work. Such permanent, previously established facilities are 
not a part of the site of the work, even if the operations for a period 
of time may be dedicated exclusively, or nearly so, to the performance 
of a contract.
    Wages means the basic hourly rate of pay; any contribution 
irrevocably made by a contractor or subcontractor to a trustee or to a 
third person pursuant to a bona fide fringe benefit fund, plan, or 
program; and the rate of costs to the contractor or subcontractor which 
may be reasonably anticipated in providing bona fide fringe benefits to 
laborers and mechanics pursuant to an enforceable commitment to carry 
out a financially responsible plan or program, which was communicated in 
writing to the laborers and mechanics affected. The fringe benefits 
enumerated in the Davis-Bacon Act include medical or hospital care, 
pensions on retirement or death, compensation for injuries or illness 
resulting from occupational activity, or insurance to provide any of the 
foregoing; unemployment benefits; life insurance, disability insurance, 
sickness insurance, or accident insurance; vacation or holiday pay; 
defraying costs of apprenticeship or other similar programs; or other 
bona fide fringe benefits. Fringe benefits do not include benefits 
required by other Federal, State, or local law.

[53 FR 4935, Feb. 18, 1988, as amended at 57 FR 44263, Sept. 24, 1992; 
59 FR 67038, Dec. 28, 1994; 66 FR 2130, Jan. 10, 2001]