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(ii) The classification is used in the area by the
<br />construction industry; and
<br />(iii) The wage rate for the classification bears a reasonable
<br />relationship to the prevailing wage rates contained in the
<br />wage determination.
<br />(2) The Administrator will establish wage rates for such
<br />classifications in accordance with paragraph 1.c.(1)(iii) of this
<br />section. Work performed in such a classification must be paid
<br />at no less than the wage and fringe benefit rate listed on the
<br />wage determination for such classification.
<br />c. Conformance. (1) The contracting officer must require that
<br />any class of laborers or mechanics, including helpers, which is
<br />not listed in the wage determination and which is to be
<br />employed under the contract be classified in conformance with
<br />the wage determination. Conformance of an additional
<br />classification and wage rate and fringe benefits is appropriate
<br />only when the following criteria have been met:
<br />(i) The work to be performed by the classification
<br />requested is not performed by a classification in the wage
<br />determination; and
<br />(ii) The classification is used in the area by the
<br />construction industry; and
<br />(iii) The proposed wage rate, including any bona fide fringe
<br />benefits, bears a reasonable relationship to the wage rates
<br />contained in the wage determination.
<br />(2) The conformance process may not be used to split,
<br />subdivide, or otherwise avoid application of classifications
<br />listed in the wage determination.
<br />(3) If the contractor and the laborers and mechanics to be
<br />employed in the classification (if known), or their
<br />representatives, and the contracting officer agree on the
<br />classification and wage rate (including the amount designated
<br />for fringe benefits where appropriate), a report of the action
<br />taken will be sent by the contracting officer by email to
<br />DBAconformance0dotoov. The Administrator, or an
<br />authorized representative, will approve, modify, or disapprove
<br />every additional classification action within 30 days of receipt
<br />and so advise the contracting officer or will notify the
<br />contracting officer within the 30—day period that additional time
<br />is necessary.
<br />(4) In the event the contractor, the laborers or mechanics to
<br />be employed in the classification or their representatives, and
<br />the contracting officer do not agree on the proposed
<br />classification and wage rate (including the amount designated
<br />for fringe benefits, where appropriate), the contracting officer
<br />will, by email to DBAconformance(adoLaov, refer the
<br />questions, including the views of all interested parties and the
<br />recommendation of the contracting officer, to the Administrator
<br />for determination. The Administrator, or an authorized
<br />representative, will issue a determination within 30 days of
<br />receipt and so advise the contracting officer or will notify the
<br />contracting officer within the 30—day period that additional time
<br />is necessary.
<br />(5) The contracting officer must promptly notify the
<br />contractor of the action taken by the Wage and Hour Division
<br />under paragraphs 1.c.(3) and (4) of this section. The contractor
<br />must furnish a written copy of such determination to each
<br />affected worker or it must be posted as a part of the wage
<br />determination. The wage rate (including fringe benefits where
<br />appropriate) determined pursuant to paragraph 1.c.(3) or (4) of
<br />this section must be paid to all workers performing work in the
<br />classification under this contract from the first day on which
<br />work is performed in the classification.
<br />d. Fringe benefits not expressed as an hourly rate.
<br />Whenever the minimum wage rate prescribed in the contract
<br />for a class of laborers or mechanics includes a fringe benefit
<br />which is not expressed as an hourly rate, the contractor may
<br />either pay the benefit as stated in the wage determination or
<br />may pay another bona fide fringe benefit or an hourly cash
<br />equivalent thereof.
<br />e. Unfunded plans. If the contractor does not make
<br />payments to a trustee or other third person, the contractor may
<br />consider as part of the wages of any laborer or mechanic the
<br />amount of any costs reasonably anticipated in providing bona
<br />fide fringe benefits under a plan or program, Provided, That
<br />the Secretary of Labor has found, upon the written request of
<br />the contractor, in accordance with the criteria set forth in
<br />§ 5.28, that the applicable standards of the Davis -Bacon Act
<br />have been met. The Secretary of Labor may require the
<br />contractor to set aside in a separate account assets for the
<br />meeting of obligations under the plan or program.
<br />f. Interest. In the event of a failure to pay all or part of the
<br />wages required by the contract, the contractor will be required
<br />to pay interest on any underpayment of wages.
<br />2. Withholding (29 CFR 5.5)
<br />a. Withholding requirements. The contracting agency may,
<br />upon its own action, or must, upon written request of an
<br />authorized representative of the Department of Labor, withhold
<br />or cause to be withheld from the contractor so much of the
<br />accrued payments or advances as may be considered
<br />necessary to satisfy the liabilities of the prime contractor or any
<br />subcontractor for the full amount of wages and monetary relief,
<br />including interest, required by the clauses set forth in this
<br />section for violations of this contract, or to satisfy any such
<br />liabilities required by any other Federal contract, or federally
<br />assisted contract subject to Davis -Bacon labor standards, that
<br />is held by the same prime contractor (as defined in § 5.2). The
<br />necessary funds may be withheld from the contractor under
<br />this contract, any other Federal contract with the same prime
<br />contractor, or any other federally assisted contract that is
<br />subject to Davis -Bacon labor standards requirements and is
<br />held by the same prime contractor, regardless of whether the
<br />other contract was awarded or assisted by the same agency,
<br />and such funds may be used to satisfy the contractor liability
<br />for which the funds were withheld. In the event of a
<br />contractor's failure to pay any laborer or mechanic, including
<br />any apprentice or helper working on the site of the work all or
<br />part of the wages required by the contract, or upon the
<br />contractor's failure to submit the required records as discussed
<br />in paragraph 3.d. of this section, the contracting agency may
<br />on its own initiative and after written notice to the contractor,
<br />take such action as may be necessary to cause the
<br />suspension of any further payment, advance, or guarantee of
<br />funds until such violations have ceased.
<br />b. Priority to withheld funds. The Department has priority to
<br />funds withheld or to be withheld in accordance with paragraph
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