§ 5.11 - Disputes concerning payment of wages.

§ 5.11 Disputes concerning payment of wages.

Cross Reference

Link to an amendment published at 88 FR 57741, Aug. 23, 2023.

(a) This section sets forth the procedure for resolution of disputes of fact or law concerning payment of prevailing wage rates, overtime pay, or proper classification, or monetary relief for violations of § 5.5(a)(11) or (b)(5). The procedures in this section may be initiated upon the Administrator's own motion, upon referral of the dispute by a Federal agency pursuant to § 5.5(a)(9), or upon request of the contractor or subcontractor(s).

(b)

(1) In the event of a dispute described in paragraph (a) of this section in which it appears that relevant facts are at issue, the Administrator will notify the affected contractor and subcontractor(s) (, if any), by registered or certified mail to the last known address or by any other means normally assuring delivery, of the investigation findings. If the Administrator determines that there is reasonable cause to believe that either the contractor and/or subcontractor(s) , the subcontractor, or both, should also be subject to debarment under the Davis-Bacon Act or any of the other applicable statutes referenced by § 5.12(a)(1), the letter notification will so indicate.

(2) A contractor and/ or subcontractor desiring a hearing concerning the Administrator's investigative investigation findings shall must request such a hearing by letter postmarked or by any other means normally assuring delivery, sent within 30 days of the date of the Administrator's letternotification. The request shall must set forth those findings which are in dispute and the reasons therefor, including any affirmative defenses, with respect to the violations and/or debarment, as appropriate.

(3) Upon receipt of a timely request for a hearing, the Administrator shall will refer the case to the Chief Administrative Law Judge by Order of Reference, to which shall be attached a with an attached copy of the letter notification from the Administrator and the response theretoof the contractor or subcontractor, for designation of an Administrative Law Judge to conduct such hearings as may be necessary to resolve the disputed matters. The hearing shall hearings will be conducted in accordance with the procedures set forth in 29 CFR part 6 of this subtitle.

(c)

(1) In the event of a dispute described in paragraph (a) of this section in which it appears that there are no relevant facts at issue, and where there is not at that time reasonable cause to institute debarment proceedings under § 5.12, the Administrator shall will notify the contractor and subcontractor(s) (, if any), by registered or certified mail to the last known address or by any other means normally assuring delivery, of the investigation findings, and shall will issue a ruling on any issues of law known to be in dispute.

(2)

(i) If the contractor and/ or subcontractor (s) disagree disagrees with the factual findings of the Administrator or believe believes that there are relevant facts in dispute, the contractor or subcontractor (s) shall so must advise the Administrator by letter postmarked or by any other means normally assuring delivery, sent within 30 days of the date of the Administrator's letternotification. In the response, the contractor and/ or subcontractor (s) shall must explain in detail the facts alleged to be in dispute and attach any supporting documentation.

(ii) Upon receipt of a response under paragraph (c)(2)(i) of this section alleging the existence of a factual dispute, the Administrator shall will examine the information submitted. If the Administrator determines that there is a relevant issue of fact, the Administrator shall will refer the case to the Chief Administrative Law Judge in accordance with paragraph (b)(3) of this section. If the Administrator determines that there is no relevant issue of fact, the Administrator shall will so rule and advise the contractor and subcontractor(s) (, if any) , accordingly.

(3) If the contractor and/ or subcontractor (s) desire desires review of the ruling issued by the Administrator under paragraph (c)(1) or (2) of this section, the contractor and/ or subcontractor (s) shall must file a petition for review thereof with the Administrative Review Board within 30 days of the date of the ruling, with a copy thereof to the Administrator. The petition for review shall must be filed in accordance with part 7 of this titlesubtitle.

(d) If a timely response to the Administrator's findings or ruling is not made or a timely petition for review is not filed, the Administrator's findings and/ or ruling shall will be final, except that with respect to debarment under the Davis-Bacon Act, the Administrator shall will advise the Comptroller General of the Administrator's recommendation in accordance with § 5.12(a)(12). If a timely response or petition for review is filed, the findings and/ or ruling of the Administrator shall will be inoperative unless and until the decision is upheld by the Administrative Law Judge or the Administrative Review Board.

[88 FR 57741, Aug. 23, 2023]