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hour to a mechanic as his basic cash 6.21 Ineligible list. wage plus 50 cents an hour as a con- tribution to a welfare and pension plan. Subpart C—Enforcement Proceedings The Secretary of Labor determines Under the Davis-Bacon Act and Re- that a basic hourly rate of $3 an hour lated Prevailing Wage , the and a fringe benefit contribution of 50 Copeland Act, and the Work cents are prevailing. The basic hourly Hours and Safety Standards Act (Ex- rate or regular rate for overtime pur- cept Under Subject to the poses would be $3.25, the rate actually Service Contract Act) paid as a basic cash wage for the em- 6.30 Referral to Chief Administrative ployee of X, rather than the $3 rate de- . termined as prevailing by the Sec- 6.31 Amendments to pleadings. retary of Labor. 6.32 Consent findings and order. (3) Under the same prevailing wage 6.33 Decision of the determination, discussed in paragraph Judge. (c)(2) of this section, the Y construc- 6.34 Petition for review. tion contractor who has been paying $3 6.35 Ineligible lists. an hour as his basic cash wage on which he has been computing overtime Subpart D—Substantial Interest compensation reduces the cash wage to Proceedings $2.75 an hour but computes his costs of benefits under section 1(b)(2)(B) as $1 6.40 Scope. an hour. In this example the regular or 6.41 Referral to Chief Administrative Law basic hourly rate would continue to be Judge. 6.42 Amendments to pleadings. $3 an hour. See S. Rep. No. 963, p. 7. 6.43 Consent findings and order. 6.44 Decision of the Administrative Law PART 6—RULES OF PRACTICE FOR Judge. ADMINISTRATIVE PROCEEDINGS 6.45 Petition for review. ENFORCING LABOR STANDARDS 6.46 Ineligible list. IN FEDERAL AND FEDERALLY AS- SISTED CONSTRUCTION CON- Subpart E—Substantial Variance and TRACTS AND FEDERAL SERVICE Arm’s-Length Proceedings CONTRACTS 6.50 Scope. 6.51 Referral to Chief Administrative Law Subpart A—General Judge. 6.52 Appointment of Administrative Law Sec. Judge and notification of prehearing con- 6.1 Applicability of rules. ference and hearing date. 6.2 Definitions. 6.53 Prehearing conference. 6.3 Service; copies of documents and plead- 6.54 Hearing. ings. 6.55 Closing of record. 6.4 Subpoenas (Service Contract Act). 6.56 Decision of the Administrative Law 6.5 Production of documents and witnesses. Judge. 6.6 Administrative Law Judge. 6.57 Petition for review. 6.7 Appearances. 6.8 Transmission of record. AUTHORITY: Secs. 4 and 5, 79 Stat. 1034, 1035 as amended by 86 Stat. 789, 790, 41 U.S.C. 353 Subpart B—Enforcement Proceedings and 354; 5 U.S.C. 301; Reorg. Plan No. 14 of Under the Service Contract Act (and 1950, 64 Stat. 1267, 5 U.S.C. Appendix; 46 Stat. Under the Contract Work Hours and 1494, as amended by 49 Stat. 1011, 78 Stat. 238, Safety Standards Act for Contracts 40 U.S.C. 276a–276a–7; 76 Stat. 357–359, 40 Subject to the Service Contract Act) U.S.C. 327–332; 48 Stat. 948, as amended by 63 Stat. 108, 72 Stat. 967, 40 U.S.C. 276c. 6.15 Complaints. SOURCE: 49 FR 10627, Mar. 21, 1984, unless 6.16 Answers. otherwise noted. 6.17 Amendments to pleadings. 6.18 Consent findings and order. EDITORIAL NOTE: Nomenclature changes to 6.19 Decision of the Administrative Law part 6 appear at 61 FR 19984, May 3, 1996. Judge. 6.20 Petition for review.

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Subpart A—General service shall be complete upon mailing. However, documents are not deemed § 6.1 Applicability of rules. filed until received by the Chief Clerk This part provides the rules of prac- at the Office of Administrative Law tice for administrative proceedings and where documents are filed under the Service Contract Act, the by mail 5 days shall be added to the Davis-Bacon Act and related statutes prescribed period. listed in § 5.1 of part 5 of this title (c) Service upon Department, number of which require payment of wages deter- copies of pleading or other documents. An mined in accordance with the Davis- original and three copies of all plead- Bacon Act, the Contract Work Hours ings and other documents shall be filed and Safety Standards Act, and the with the Department of Labor: The Copeland Act. See parts 4 and 5 of this original and one copy with the Admin- title. istrative Law Judge before whom the case is pending, one copy with the at- § 6.2 Definitions. torney representing the Department (a) Administrator means the Adminis- during the hearing, and one copy with trator of the Wage and Hour Division, the Associate . U.S. Department of Labor, or author- ized representative. § 6.4 Subpoenas (Service Contract Act). (b) Associate Solicitor means the Asso- ciate Solicitor for Fair Labor Stand- All applications under the Service ards, Office of the Solicitor, U.S. De- Contract Act for subpoenas ad partment of Labor, Washington, DC testificandum and subpoenas duces 20210. tecum shall be made in writing to the (c) Chief Administrative Law Judge Administrative Law Judge. Application means the Chief Administrative Law for subpoenas duces tecum shall specify Judge, U.S. Department of Labor, 800 K as exactly as possible the documents to Street, NW., Suite 400, Washington DC be produced. 20001–8002. (d) Respondent means the contractor, § 6.5 Production of documents and wit- subcontractor, person alleged to be re- nesses. sponsible under the contract or sub- The parties, who shall be deemed to contract, and/or any firm, corporation, be the Department of Labor and the re- partnership, or association in which spondent(s), may serve on any other such person or firm is alleged to have a party a request to produce documents substantial interest (or interest, if the or witnesses in the control of the party proceeding is under the Davis-Bacon served, setting forth with particularity Act) against whom the proceedings are the documents or witnesses requested. brought. The party served shall have 15 days to [49 FR 10627, Mar. 21, 1984, as amended at 56 respond or object thereto unless a FR 54708, Oct. 22, 1991; 82 FR 2226, Jan. 9, shorter or longer time is ordered by the 2017] Administrative Law Judge. The parties shall produce documents and witnesses § 6.3 Service; copies of documents and to which no privilege attaches which pleadings. are in the control of the party, if so or- (a) Manner of service. Service upon dered by the Administrative Law Judge any party shall be made by the party upon motion therefor by a party. If a filing the pleading or document by de- privilege is claimed, it must be specifi- livering a copy or mailing a copy to the cally claimed in writing prior to the last known address. When a party is hearing or orally at the hearing or dep- represented by an attorney, the service osition, including the reasons therefor. should be upon the attorney. In no event shall a statement taken in (b) Proof of service. A certificate of confidence by the Department of Labor the person serving the pleading or or other Federal agency be ordered to other document by personal delivery or be produced prior to the date of testi- by mailing, setting forth the manner of mony at of the person whose said service shall be proof of the serv- statement is at issue unless the con- ice. Where service is made by mail, sent of such person has been obtained.

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§ 6.6 Administrative Law Judge. § 6.8 Transmission of record. (a) Equal Access to Act. Pro- If a petition for review of the Admin- ceedings under this part are not sub- istrative Law Judge’s decision is filed ject to the provisions of the Equal Ac- with the Administrative Review Board, cess to Justice Act (Pub. L. 96–481). In the Chief Administrative Law Judge any hearing conducted pursuant to the shall promptly transmit the record of provisions of this part 6, Administra- the proceeding. tive Law Judges shall have no power or If a petition for review is not filed authority to award attorney fees and/ within the time prescribed in this part, or other litigation expenses pursuant the Chief Administrative Law Judge to the provisions of the Equal Access shall so advise the Administrator. to Justice Act. (b) Contumacious conduct: failure or re- Subpart B—Enforcement Pro- fusal of a witness to appear or answer. ceedings Under the Service Contumacious conduct at any hearing Contract Act (and Under the before an Administrative Law Judge Contract Work Hours and shall be ground for exclusion from the Safety Standards Act for Con- hearing., In cases arising under the tracts Subject to the Service Service Contract Act, the failure or re- Contract Act) fusal of a witness to appear at any hearing or at a deposition when so or- § 6.15 Complaints. dered by the Administrative Law Judge, or to answer any question which (a) Enforcement proceedings under has been ruled to be proper, shall be the Service Contract Act and under the Contract Work Hours and Safety ground for the action provided in sec- Standards Act for contracts subject to tion 5 of the Act of June 30, 1936 (41 the Service Contract Act, may be insti- U.S.C. 39) and, in the discretion of the tuted by the Associate Solicitor for Administrative Law Judge, for striking Fair Labor Standards or a Regional So- out all or part of the which licitor by issuing a complaint and caus- may have been given by such witness. ing the complaint to be served upon the respondent. § 6.7 Appearances. (b) The complaint shall contain a (a) Representation. The parties may clear and concise factual statement of appear in person, by , or other- the grounds for relief and the relief re- wise. quested. (b) Failure to appear. In the event (c) The Administrative Law Judge that a party appears at the hearing and shall notify the parties of the time and no party appears for the opposing side, place for a hearing. the presiding Administrative Law Judge is authorized, if such party fails § 6.16 Answers. to show good cause for such failure to (a) Within 30 days after the service of appear, to dismiss the case or to find the complaint the respondent shall file the facts as alleged in the complaint an answer with the Chief Administra- and to enter a default con- tive Law Judge. The answer shall be taining such findings, conclusions and signed by the respondent or his/her at- order as are appropriate. Only where a torney. petition for review of such default (b) The answer shall (1) contain a judgment cites alleged procedural statement of the facts which constitute irregularities in the proceeding below the grounds of , and shall spe- and not the merits of the case shall a cifically admit, explain, or deny each non-appearing party be permitted to of the allegations of the complaint un- file such a petition for review. Failure less the respondent is without knowl- to appear at a hearing shall not be edge, in which case the answer shall so deemed to be a waiver of the right to state; or (2) state that the respondent be served with a copy of the Adminis- admits all of the allegations of the trative Law Judge’s decision. complaint. The answer may contain a

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waiver of hearing. Failure to file an an- a proceeding in whole or in part shall swer to or plead specifically to any al- also provide: legation of the complaint shall con- (1) That the order shall have the stitute an admission of such allegation. same force and effect as an order made (c) Failure to file an answer shall after full hearing; constitute grounds for waiver of hear- (2) That the entire record on which ing and entry of a default judgment un- any order may be based shall consist less respondent shows good cause for solely of the complaint and the agree- such failure to file. In preparing the de- ment; cision of default judgment the Admin- (3) A waiver of any further proce- istrative Law Judge shall adopt as dural steps before the Administrative findings of fact the material facts al- Law Judge and Administrative Review leged in the complaint and shall order Board regarding those matters which the appropriate relief and/or sanctions. are the subject of the agreement; and (4) A waiver of any right to challenge § 6.17 Amendments to pleadings. or contest the validity of the findings and order entered into in accordance At any time prior to the close of the with the agreement. hearing record, the complaint or an- (c) Within 30 days after receipt of an swer may be amended with the permis- agreement containing consent findings sion of the Administrative Law Judge and an order disposing of the disputed and on such terms as he/she may ap- matter in whole, the Administrative prove. When issues not raised by the Law Judge shall, if satisfied with its pleadings are reasonably within the form and substance, accept such agree- scope of the original complaint and are ment by issuing a decision based upon tried by express or implied consent of the agreed findings and order. If such the parties, they shall be treated in all agreement disposes of only a part of respects as if they had been raised in the disputed matter, a hearing shall be the pleadings, and such amendments conducted on the matters remaining in may be made as necessary to make dispute. them conform to the . Such amendments shall be allowed when jus- § 6.19 Decision of the Administrative tice and the presentation of the merits Law Judge. are served thereby, provided there is no (a) Proposed findings of fact, conclu- prejudice to the objecting party’s pres- sions, and order. Within 20 days of filing entation on the merits. A continuance of the transcript of the testimony or in the hearing may be granted or the such additional time as the Adminis- record left open to enable the new alle- trative Law Judge may allow each gations to be addressed. The presiding party may file with the Administrative Administrative Law Judge may, upon Law Judge proposed findings of fact, reasonable notice and upon such terms conclusion of law, and order, together as are just, permit supplemental plead- with a supporting brief expressing the ings setting forth transactions, occur- reasons for such proposals. Such pro- rences or events which have happened posals and brief shall be served on all since the data of the pleadings and parties, and shall refer to all portions which are relevant to any of the issues of the record and to all authorities re- involved. lied upon in support of each proposal. (b) Decision of the Administrative Law § 6.18 Consent findings and order. Judge. (1) Within a reasonable time (a) At any time prior to the receipt of after the time allowed for the filing of evidence or, at the discretion of the proposed findings of fact, conclusions Administrative Law Judge, prior to the of law, and order, or within 30 days issuance of the decision of the Admin- after receipt of an agreement con- istrative Law Judge, the parties may taining consent findings and order dis- enter into consent findings and an posing of the disputed matter in whole, order disposing of the processings in the Administrative Law Judge shall whole or in part. make his/her decision. If any aggrieved (b) Any agreement containing con- party desires review of the decision, a sent findings and an order disposing of petition for review thereof shall be

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filed as provided in § 6.20 of this title, petition for review of the decision with and such decision and order shall be in- supporting reasons. Such party shall operative unless and until the Adminis- transmit the petition in writing to the trative Review Board issues an order Administrative Review Board pursuant affirming the decision. The decision of to 29 CFR part 8, with a copy thereof to the Administrative Law Judge shall in- the Chief Administrative Law Judge. clude findings of fact and conclusions The petition shall refer to the specific of law, with reasons and bases therefor, findings of fact, conclusions of law, or upon each material issue of fact, law, order at issue. A petition concerning or discretion presented on the record. the decision on the ineligibility list The decision of the Administrative shall also state the unusual cir- Law Judge shall be based upon a con- cumstances or lack thereof under the sideration of the whole record, includ- Service Contract Act, and/or the aggra- ing any admissions made under §§ 6.16, 6.17 and 6.18 of this title. It shall be vated or willful violations of the Con- supported by reliable and probative tract Work Hours and Safety Stand- evidence. Such decision shall be in ac- ards Act or lack thereof, as appro- cordance with the and rul- priate. ings contained in parts 4 and 5 and other pertinent parts of this title. § 6.21 Ineligible list. (2) If the respondent is found to have (a) Upon the final decision of the Ad- violated the Service Contract Act, the ministrative Law Judge or Administra- Administrative Law Judge shall in- tive Review Board, as appropriate, the clude in his/her decision an order as to Administrator shall within 90 days for- whether the respondent is to be re- ward to the Comptroller General the lieved from the ineligible list as pro- name of any respondent found in viola- vided in section 5(a) of the Act, and, if tion of the Service Contract Act, in- relief is ordered, findings of the un- cluding the name of any firm, corpora- usual circumstance, within the mean- tion, partnership, or association in ing of section 5(a) of the Act, which are which the respondent has a substantial the basis therefor. If respondent is interest, unless such decision orders re- found to have violated the provisions of lief from the ineligible list because of the Contract Work Hours and Safety Standards Act, the Administrative Law unusual circumstances. Judge shall issue an order as to wheth- (b) Upon the final decision of the Ad- er the respondent is to be subject to ministrative Law Judge or the Admin- the ineligible list as provided in istrative Review Board, as appropriate, § 5.12(a)(1) of part 4 of this title, includ- the Administrator promptly shall for- ing findings regarding the existence of ward to the Comptroller General the aggravated or willful violations. If name of any respondent found to be in wages and/or fringe benefits are found aggravated or willful violation of the due under the Service Contract Act Contract Work Hours and Safety and/or the Contract Work Safety Standards Act, and the name of any Standards Act and are unpaid, no relief firm, corporation, partnership, or asso- from the ineligible list shall be ordered ciation in which the respondent has a except on condition that such wages substantial interest. and/or fringe benefits are paid. (3) The Administrative Law Judge shall make no findings regarding liq- uidated damages under the Contract Work Hours and Safety Standards Act.

§ 6.20 Petition for review. Within 40 days after the date of the decision of the Administrative Law Judge (or such additional time as is granted by the Administrative Review Board), any party aggrieved thereby who desires review thereof shall file a

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Subpart C—Enforcement Pro- pleadings are reasonably within the ceedings Under the Davis- scope of the original complaint and are Bacon Act and Related Pre- tried by express or implied consent of the parties, they shall be treated in all vailing Wage Statutes, the respects as if they had been raised in Copeland Act, and the Con- the pleadings, and such amendments tract Work Hours and Safety may be made as necessary to make Standards Act (Except Under them conform to the evidence. The pre- Contracts Subject to the Serv- siding Administrative Law Judge may, ice Contract Act) upon reasonable notice and upon such terms as are just, permit supplemental § 6.30 Referral to Chief Administrative pleadings setting forth transactions, Law Judge. occurrences or events which have hap- (a) Upon timely receipt of a request pened since the date of the pleadings for a hearing under § 5.11 (where the and which are relevant to any of the Administrator has determined that rel- issues involved. A continuance in the evant facts are in dispute) or § 5.12 of hearing may be granted or the record part 5 of this title, the Administrator left open to enable the new allegations shall refer the case to the Chief Admin- to be addressed. istrative Law Judge by Order of Ref- erence, to which shall be attached a § 6.32 Consent findings and order. copy of the notification letter to the (a) At any time prior to the receipt of respondent from the Administrator and evidence or, at the discretion of the response thereto, for designation of an Administrative Law Judge, prior to the Administrative Law Judge to conduct issuance of the decision of the Admin- such hearings as may be necessary to istrative Law Judge, the parties may decide the disputed matters. A copy of enter into consent findings and an the Order of Reference and attach- order disposing of the proceeding in ments thereto shall be served upon the whole or in part. respondent. (b) Any agreement containing con- (b) The notification letter from the sent findings and an order disposing of Administrator and response thereto a proceeding in whole or in part shall shall be given the effect of a complaint also provide: and answer, respectively, for purposes (1) That the order shall have the of the administrative proceedings. The same force and effect as an order made notification letter and response shall after full hearing; be in accordance with the provisions of (2) That the entire record on which § 5.11 or § 5.12(b)(1) of part 5 of this title, any order may be based shall consist as appropriate. solely of the complaint and the agree- ment; § 6.31 Amendments to pleadings. (3) That any order concerning debar- At any time prior to the closing of ment under the Davis-Bacon Act (but the hearing record, the complaint (no- not under any of the other statutes tification letter) or answer (response) listed in § 5.1 of part 5 of this title) may be amended with the permission of shall constitute a recommendation to the Administrative Law Judge and the Comptroller General; upon such terms as he/she may ap- (4) A waiver of any further proce- prove. For proceedings pursuant to dural steps before the Administrative § 5.11 of part 5 of this title, such an Law Judge and the Administrative Re- amendment may include a statement view Board regarding those matters that debarment action is warranted which are the subject of the agreement; under § 5.12(a)(1) of part 5 of this title and or under section 3(a) of the Davis- (5) A waiver of any right to challenge Bacon Act. Such amendments shall be or contest the validity of the findings allowed when justice and the presen- and order entered into in accordance tation of the merits are served thereby, with the agreement. provided there is no prejudice to the (c) Within 30 days after receipt of an objecting party’s presentation on the agreement containing consent findings merits. When issues not raised by the and an order disposing of the disputed

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matter in whole, the Administrative be supported by reliable and probative Law Judge shall, if satisfied with its evidence. form and substance, accept such agree- (2) If the respondent is found to have ment by issuing a decision based upon violated the labor standards provisions the agreed findings and order. If such of any of the statutes listed in § 5.1 of agreement disposes of only a part of part 5 of this title other than the the disputed matter, a hearing shall be Davis-Bacon Act, and if debarment ac- conducted on the matters remaining in tion was requested pursuant to the dispute. complaint (notification letter) or any amendment thereto, the Administra- § 6.33 Decision of the Administrative tive Law Judge shall issue an order as Law Judge. to whether the respondent is to be sub- (a) Proposed findings of fact, conclu- ject to the ineligible list as provided in sions, and order. Within 20 days of filing § 5.12(a)(1) of this title, including any of the transcript of the testimony or findings of aggravated or willful viola- such additional time as the Adminis- tions. If the respondent is found to trative Law Judge may allow, each have violated the Davis-Bacon Act, and party may file with the Administrative if debarment action was requested, the Law Judge proposed findings of fact, Administrative Law Judge shall issue conclusions of law, and order, together as a part of the order a recommenda- with a supporting brief expressing the tion as to whether respondent should reasons for such proposals. Such pro- be subject to the ineligible list pursu- posals and brief shall be served on all ant to section 3(a) of the Act, including parties, and shall refer to all portions any findings regarding respondent’s of the record and to all authorities re- disregard of obligations to employees lied upon in support of each proposal. and subcontractors. If wages are found (b) Decision of the Administrative Law due and are unpaid, no relief from the Judge. (1) Within a reasonable time ineligible list shall be ordered or rec- after the time allowed for filing of pro- ommended except on condition that posed findings of fact, conclusions of such wages are paid. law, and order, or within 30 days of re- (3) The Administrative Law Judge ceipt of an agreement containing con- shall make no findings regarding liq- sent findings and order disposing of the uidated damages under the Contract disputed matter in whole, the Adminis- Work Hours and Safety Standards Act. trative Law Judge shall make his/her decision. If any aggrieved party desires § 6.34 Petition for review. review of the decision, a petition for review thereof shall be filed as pro- Within 40 days after the date of the vided in § 6.34 of this title, and such de- decision of the Administrative Law cision and order shall be inoperative judge (or such additional time as is unless and until the Administrative granted by the Administrative Review Review Board either declines to review Board). any party aggrieved thereby the decision or issues an order affirm- who desires review thereof shall file a ing the decision. The decision of the petition for review of the decision with Administrative Law Judge shall in- supporting reasons. Such party shall clude findings of fact and conclusions transmit the petition in writing to the of law, with reasons and bases therefor, Administrative Review Board, pursu- upon each material issue of fact, law, ant to part 7 of this title, with a copy or discretion presented on the record. thereof to the Chief Administrative Such decision shall be in accordance Law judge. The petition shall refer to with the regulations and rulings con- the specific findings of fact, conclu- tained in part 5 and other pertinent sions of law, or order at issue. A peti- parts of this title. The decision of the tion concerning the decision on debar- Administrative Law Judge shall be ment shall also state the aggravated or based upon a consideration of the willful violations and/or disregard of whole record, including any admissions obligations to employees and sub- made in the respondent’s answer (re- contractors, or lack thereof, as appro- sponse) and § 6.32 of this title. It shall priate.

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§ 6.35 Ineligible lists. evant facts are in dispute, or on his/her own motion, the Administrator shall Upon the final decision of the Admin- refer the case to the Chief Administra- istrative Law Judge or Administrative tive Law Judge by Order of Reference, Review Board, as appropriate, regard- to which shall be attached a copy of ing violations of any listed in any findings of the Administrator and § 5.1 of part 5 of this title other than response thereto, for designation of an the Davis-Bacon Act, the Adminis- Administrative Law Judge to conduct trator promptly shall foward to the such hearings as may be necessary to Comptroller General the name of any decide the disputed matters. A copy of respondent found to have committed the Order of Reference and attach- aggravated or willful violations of the ments thereto shall be served upon the labor standards provisions of such stat- person or firm requesting the hearing, ute, and the name of any firm, corpora- if any and upon the respondents. tion, partnership, or association in (b) The findings of the Administrator which such respondent has a substan- and response thereto shall be given the tial interest. Upon the final decision of effect of a complaint and answer, re- the Administrative Law Judge or Ad- spectively, for purposes of the adminis- ministrative Review Board, as appro- trative proceedings. priate, regarding violations of the Davis-Bacon Act, the Administrator § 6.42 Amendments to pleadings. promptly shall forward to the Comp- At any time prior to the closing of troller General any recommendation the hearing record, the complaint (Ad- regarding debarment action against a ministrator’s findings) or answer (re- respondent, and the name of any firm, sponse) may be amended with the per- corporation, partnership, or associa- mission of the Administrative Law tion in which such respondent has an Judge and upon such terms as he/she interest. may approve. Such amendments shall be allowed when justice and the presen- Subpart D—Substantial Interest tation of the merits are served thereby, Proceedings provided there is no prejudice to the objecting party’s presentation on the § 6.40 Scope. merits. When issues not raised by the This subpart supplements the proce- pleadings are reasonably within the dures contained in § 4.12 of part 4 and scope of the original complaint and are § 5.12(d) of part 5 of this title, and tried by express or implied consent of states the rules of practice applicable the parties, they shall be treated in all to hearings to determine whether per- respects as if they had been raised in sons of firms whose names appear on the pleadings, and such amendments the ineligible list pursuant to section may be made as necessary to make 5(a) of the Service Contract Act or them conform to the evidence. The pre- § 5.12(a)(1) of part 5 of this title have a siding Administative Law Judge may, substantial interest in any firm, cor- upon such terms as are just, permit poration, partnership, or association supplemental pleadings setting forth other than those listed on the ineli- transactions, occurrences or events gible list; and/or to determine whether which have happened a since the data persons or firms whose names appear of the pleadings and which are relevant on the ineligible list pursuant to sec- to any of the issues involved. A con- tion 3(a) of the Davis-Bacon Act have tinuance in the hearing may be granted an interest in any firm, corporation, or the record left open to enable the partnership, or association other than new allegations to be addressed. those listed on the ineligible list. § 6.43 Consent findings and order. § 6.41 Referral to Chief Administrative (a) At any time prior to the receipt of Law Judge. evidence or, at the discretion of the (a) Upon timely receipt of a request Administrative Law Judge, prior to the for a hearing under § 4.12 of part 4 or issuance of the decision of the Admin- § 5.12 of part 5 of this title, where the istrative Law Judge, the parties may Administrator has determined that rel- enter into consent findings and an

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order disposing of the proceeding in the decision a petition for review whole or in part. thereof shall be filed as provided in (b) Any agreement containing con- § 6.45 of this title, and such decision sent findings and an order disposing of and order shall be inoperative unless a proceeding in whole or in part shall and until the Administrative Review provide: Board issues an order affirming the de- (1) That the order shall have the cision. The decision of the Administra- same force and effect as an order made tive Law Judge shall include findings after full hearing: of fact and conclusions of law, with (2) That the entire record on which reasons and bases therefor, upon each any order may be based shall consist material issue of fact, law, or discre- solely of the complaint and the agree- tion presented on the record. Such de- ment; cision shall be in accordance with the (3) A waiver of any further proce- regulations and rulings contained in dural steps before the Administrative parts 4 and 5 and other pertinent parts Law Judge and the Administrative Re- of this title. The decision of the Ad- view Board, as appropriate, regarding ministrative Law Judge shall be based those matters which are the subject of upon a consideration of the whole the agreement; and record, including any admissions made (4) A waiver of any right to challenge in the respondents’ answer (response) or contest the validity of the findings and § 6.43 of this title. and order entered into in accordance with the agreement. § 6.45 Petition for review. (c) Within 30 days after receipt of an Within 30 days after the date of the agreement containing consent findings decision of the Administrative Law and an order disposing of the disputed Judge, any party aggrieved thereby matter in whole, the Administrative who desires review thereof shall file a Law Judge shall accept such agreement petition for review of the decision with by issuing a decision based upon the supporting reasons. Such party shall agreed findings and order. If a such transmit the petition in writing to the agreement disposes of only a part of Administrative Review Board pursuant the disputed matter, a hearing shall be to 29 CFR part 8 if the proceeding was conducted on the matters remaining in under the Service Contract Act, or to dispute. the Administrative Review Board pur- suant to 29 CFR part 7 if the pro- § 6.44 Decision of the Administrative ceeding was under § 5.12(a)(1) of part 5 Law Judge. of this title or under section 3(a) of the (a) Proposed findings of fact, conclu- Davis-Bacon Act, with a copy thereof sions, and order. Within 30 days of filing to the Chief Administrative Law of the transcript of the testimony, each Judge. The petition for review shall party may file with the Administrative refer to the specific findings of fact, Law Judge proposed findings of fact, conclusions of law, or order at issue. conclusions of law, and order, together with a supporting brief expressing the § 6.46 Ineligible list. reasons for such proposals. Such pro- Upon the final decision of the Admin- posals and brief shall be served on all istrative Law Judge, Administrative parties, and shall refer to all portions Review Board, as appropriate, the Ad- of the record and to all authorities re- ministrator promptly shall forward to lied upon in support of each proposal. the Comptroller General the names of (b) Decision of the Administrative Law any firm, corporation, partnership, or Judge. Within 60 days after the time al- association in which a person or firm lowed for filing of proposed findings of debarred pursuant to section 5(a) of the fact, conclusions of law, and order, or Service Contract Act or § 5.12(a) of part within 30 days after receipt of an agree- 5 of this title has a substantial inter- ment containing consent findings and est; and/or the name of any firm, cor- order disposing of the disputed matter poration, partnership, or association in in whole, the Administrative Law which a person or firm debarred pursu- Judge shall make his/her decision. If ant to section 3(a) of the Davis-Bacon any aggrieved party desires review of Act has an interest.

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Subpart E—Substantial Variance including the applicant, who intends to and Arm’s Length Proceedings participate in the proceeding shall sub- mit a written response to the Chief Ad- § 6.50 Scope. ministrative Law Judge within 20 days This subpart supplements the proce- of the date on which the certificate of dures contained in §§ 4.10 and 4.11 of service indicates the Order of Ref- part 4 of this title and states the rules erence was mailed. The notice will of practice applicable to hearings state that such a response shall in- under section 4(c) of the Act to deter- clude: mine whether the collectively - (1) A statement of the interested par- gained wages and/or fringe benefits ty’s case; otherwise required to be paid under (2) A list of witnesses the interested that section and sections 2(a)(1) and (2) party will present, a summary of the of the Act are substantially at variance testimony each is expected to give, and with those which prevail for services of copies of all exhibits proposed to be a character similar in the locality, and/ proffered; or to determine whether the wages and/ (3) A list of persons who have knowl- or fringe benefits provided in the col- edge of the facts for whom the inter- lective bargaining agreement were ested party requests that subpoenas be reached as a result of arm’s-length ne- issued and a brief statement of the pur- gotiations. pose of their testimony; and (4) A certificate of service in accord- § 6.51 Referral to Chief Administrative Law Judge. ance with § 6.3 of this title on all inter- ested parties, including the Adminis- (a) Referral pursuant to § 4.10 or § 4.11 trator. of part 4 of this title will be by an Order of Reference from the Adminis- § 6.52 Appointment of Administrative trator to the Chief Administrative Law Law Judge and notification of pre- Judge, to which will be attached the hearing conference and hearing material submitted by the applicant or date. any other material the Administrator Upon receipt from the Administrator considers relevant and, for proceedings of an Order of Reference, notice to the pursuant to § 4.11 of this title, a copy of parties, attachments and certificate of any findings of the Administrator. A copy of the Order of Reference and all service, the Chief Administrative Law attachments will be sent by mail to the Judge shall appoint an Administrative following parties: The agency whose Law Judge to hear the case. The Ad- contract is involved, the parties to the ministrative Law Judge shall promptly collective bargaining agreement, any notify all interested parties of the time contractor or subcontractor per- and place of a prehearing conference forming on the contract, any con- and of the hearing which shall be held tractor or subcontractor known to be immediately upon the completion of desirous of bidding thereon or per- prehearing conference. The date of the forming services thereunder who is prehearing conference and hearing known or believed to be interested in shall be not more than 60 days from the the determination of the issue, any date on which the certificate of service unions or other authorized representa- indicates the Order of Reference was tives of service employees employed or mailed. who may be expected to be employed by such contractor or subcontractor on § 6.53 Prehearing conference. the contract work, and any other af- (a) At the prehearing conference the fected parties known to be interested Administrative Law Judge shall at- in the determination of the issue. The tempt to determine the exact areas of Order of Reference will have attached a agreement and disagreement raised by certificate of service naming all inter- the Administrator’s Order of Reference ested parties who have been served. and replies thereto, so that the evi- (b) Accompanying the Order of Ref- dence and arguments presented at the erence and attachments will be a no- hearing will be relevant, complete, and tice advising that any interested party, as brief and concise as possible.

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(b) Any interested party desiring to (f) An expedited transcript shall be file proposed findings of fact and con- made of the hearing and of the pre- clusions of law shall submit them to hearing conference. the Administrative Law Judge at the prehearing conference. § 6.55 Closing of record. (c) If the parties agree that no hear- The Administrative Law Judge shall ing is necessary to supplement the close the record promptly and not later written evidence and the views and ar- than 10 days after the date of com- guments that have been presented, the mencement of the prehearing con- Administrative Law Judge shall forth- with render his/her final decision. The ference. Post-hearing briefs may be Administrative Law Judge with the permitted, but the filing of briefs shall agreement of the parties may permit not delay issuance of the decision of submission of additional written evi- the Administrative Law Judge pursu- dence or argument, such as data ac- ant to § 6.56 of this title. companied by affidavits attesting to its validity or depositions, within ten days § 6.56 Decision of the Administrative of commencement of the prehearing Law Judge. conference. Within 15 days of receipt of the tran- script, the Administrative Law Judge § 6.54 Hearing. shall render his/her decision containing (a) Except as provided in § 6.53(c) of findings of fact and conclusions of law. this title, the hearing shall commence The decision of the Administrative immediately upon the close of the pre- Law Judge shall be based upon consid- hearing conference. All matters re- eration of the whole record, and shall maining in controversy, including the be in accordance with the regulations presentation of additional evidence, and rulings contained in part 4 and shall be considered at the hearing. other pertinent parts of this title. If There shall be a minimum of formality any party desires review of the deci- in the proceeding consistent with or- sion, a petition for review thereof shall derly procedure. be filed as provided in § 6.57 of this (b) To expedite the proceeding the title, and such decision and order shall Administrative Law Judge shall, after be inoperative unless and until the Ad- consultation with the parties, set rea- sonable guidelines and limitations for ministrative Review Board issues an the presentations to be made at the order affirming the decision. If a peti- hearing. The Administrative Law tion has not been filed within 10 days Judge may limit cross-examination of issuance of the Administrative Law and may question witnesses. Judge’s decision, the Administrator (c) Under no circumstances shall shall promptly issue any wage deter- source data obtained by the Bureau of mination which may be required as a Labor Statistics, U.S. Department of result of the decision. Labor, or the names of establishments contacted by the Bureau be submitted § 6.57 Petition for review. into evidence or otherwise disclosed. Within 10 days after the date of the Where the Bureau has conducted a sur- decision of the Administrative Law vey, the published summary of the data Judge, any interested party who par- may be submitted into evidence. ticipated in the proceedings before the (d) Affidavits or depositions may be Administrative Law Judge and desires admitted at the discretion of the Ad- review of the decision shall file a peti- ministrative Law Judge. The Adminis- tion for review by the Administrative trative Law Judge may also require Review Board pursuant to 29 CFR part that unduly repetitious testimony be submitted as affidavits. Such affidavits 8. The petition shall refer to the spe- shall be submitted within three days of cific findings of fact, conclusions of the conclusions of the hearing. law, or order excepted to and the spe- (e) Counsel for the Administrator cific pages of transcript relevant to the shall participate in the proceeding to petition for review. the degree he/she deems appropriate.

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