* Act of June 30, 1936 (P.L. 74-846, Chap. 881, 49 Stat. 2036; 29U.S.C. 557, 41 U.S.C. 35-43, 43a, 44-45)

Note-Section numbers refer to U.S. Code sections

Sec. 35. Contracts for materials, etc., exceeding $10,000; representa-tions and stipulations.-In any con-tract made and entered into by an executive department, independent establishment, or other agency or instrumentality of the United States, or by the District of Columbia, or by any corporation all the stock of which is beneficially owned by the United States (all the foregoing being hereinafter designated as agencies of the United States), for the manufacture or furnishing of materials, supplies, articles, and equipment in any amount exceeding $10,000, there shall be included the following representations and stipu-lations:

(a) That the contractor is the manufacturer of or a regular dealer in the materials, supplies, articles, or equipment to be manufactured or used in the performance of the contract;

(b) That all persons employed by the contractor in the manufacture or furnishing of the materials, supplies, articles, or equipment used in the performance of the contract will be paid, without subsequent deduction or rebate on any account, not less than the minimum wages as deter-mined by the Secretary of Labor to be the prevailing minimum wages for persons employed on similar work or in the particular or similar industries or groups of industries currently operating in the locality in which the materials, supplies, arti-cles, or equipment are to be manu-factured or furnished under said contract;

(c) That no person employed by the contractor in the manufacture or furnishing of the materials, supplies, articles, or equipment used in the performance of the contract shall be permitted to work in excess of forty hours in any one week: Provided, That the provisions of this subsec-tion shall not apply to any employer who shall have entered into an agreement with his employees pur-suant to the provisions of para-graphs (1) or (2) of subsection (b) of section 207 of Title 29;

(d) That no male person under sixteen years of age and no female person under eighteen years of age and no convict labor will be em-ployed by the contractor in the manufacture or production or fur-nishing of any of the materials, supplies, articles, or equipment included in such contract, except that this section, or any other law or Executive order containing similar prohibitions against purchase of goods by the Federal Government, shall not apply to convict labor which satisfies the condition of section 1761(c) of Title 18; and

(e) That no part of such contract will be performed nor will any of the materials, supplies, articles, or equipment to be manufactured or furnished under said contract be manufactured or fabricated in any plants, factories, buildings, or sur-roundings under working condi-tions which are unsanitary or haz-ardous or dangerous to the health and safe-ty of employees engaged in the performance of said contract. Compliance with the safety, sani-tary, and factory inspection laws of the State in which the work or part thereof is to be performed shall be prima facie evidence of compliance with this subsection.

Sec. 36. Liability for contract breach; cancellation; completion by Government agency; employee's wages.-Any breach or violation of any of the representations and stipu-lations in any contract for the pur-poses set forth in section 35 of this title shall render the party responsi-ble therefor liable to the United States of America for liquidated damages, in addition to damages for any other breach of such contract, the sum of $10 per day for each male person under sixteen years of age or each female person under eighteen years of age, or each con-vict laborer knowingly employed in the perfor-mance of such contract, and a sum equal to the amount of any deductions, rebates, refunds, or underpayment of wages due to any employee engaged in the performance of such contract; and, in addition, the agency of the United States entering into such contract shall have the right to cancel same and to make open-market purchases or enter into other contracts for the completion of the original contract, charging any additional cost to the original contractor. Any sums of money due to the United States of America by reason of any violation of any of the representations and stipulations of said contract set forth in section 35 of this title may be withheld from any amounts due on any such contracts or may be recov-ered in suits brought in the name of the United States of America by the Attorney General thereof. All sums withheld or recovered as deductions, rebates, refunds, or underpayments of wages shall be held in a special deposit account and shall be paid, on order of the Secretary of Labor, directly to the employees who have been paid less than minimum rates of pay as set forth in such contracts and on whose account such sums were withheld or recovered: Provided, That no claims by employees for such payments shall be entertained unless made within one year from the date of actual notice to the contractor of the withholding or recovery of such sums by the Unit-ed States of America.

Sec. 37. Distribution of list of persons breaching contract; future contracts prohibited.-The Comp-troller General is authorized and directed to distribute a list to all agencies of the United States con-taining the names of persons or firms found by the Secretary of Labor to have breached any of the agreements or representations required by sections 35 to 45 of this title. Unless the Secretary of Labor otherwise recommends no contracts shall be awarded to such persons or firms or to any firm, corporation, partnership, or association in which such persons or firms have a con-trolling interest until three years have elapsed from the date the Secretary of Labor determines such breach to have occurred.

Sec. 38. Administration of Walsh-Healey provisions; officers and employees; appointment; inves-tigations; rules and regula-tions.-The Secretary of Labor is authorized and directed to adminis-ter the provisions of sections 35 to 45 of this title and to utilize such Federal officers and employees and, with the consent of the State, such State and local officers and employ-ees as he may find necessary to assist in the administration of said section and to prescribe rules and regulations with respect thereto. The Secretary shall appoint, subject to chapter 51 and subchapter III of chapter 53 of Title 5, an administra-tive officer, and such attorneys and experts, and other employees with regard to existing laws applicable to the employment and compensation of officers and employees of the United States, as he may from time to time find necessary for the ad-ministration of sections 35 to 45 of this title. The Secretary of Labor or his authorized representatives shall have power to make investigations and findings as provided in sections 35 to 45 of this title, and prosecute any inquiry necessary to his func-tions in any part of the United States. The Secretary of Labor shall have authority from time to time to make, amend, and rescind such rules and regulations as may be necessary to carry out the provisions of sec-tions 35 to 45 of this title.

Sec. 39. Hearings on Walsh-Healey provisions by Secretary of Labor; witness fees; failure to obey order; punishment.-Upon his own motion or on application of any person affected by any ruling of any agency of the United States in rela-tion to any proposal or contract involving any of the provisions of sections 35 to 45 of the title, and on complaint of a breach or violation of any representation or stipulation as provided in said sections, the Secretary of Labor, or an impartial representative designated by him, shall have the power to hold hear-ings and to issue orders requiring the attendance and testimony of witnesses and the production of evidence under oath. Witnesses shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. In case of contumacy, failure, or refus-al of any person to obey such an order, any District Court of the United States or of any Territory or possession within the jurisdiction of which the inquiry is carried on, or within the jurisdiction of which said person who is guilty of contumacy, failure, or refusal is found, or re-sides or transacts business, upon the application by the Secretary of Labor or representative designated by him, shall have jurisdiction to issue to such person an order requir-ing such person to appear before him or representative 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; and any failure to obey such order of the court may be punished by said court as a contempt thereof; and shall make findings of fact after notice and hearing, which findings shall be conclusive upon all agencies of the United States, and if supported by the preponderance of the evidence, shall be conclusive in any court of the United States; and the Secretary of Labor or authorized representa-tive shall have the power, and is authorized, to make such decisions, based upon findings of fact, as are deemed to be necessary to enforce the provisions of sections 35 to 45 of this title.

Sec. 40. Exceptions from Walsh-Healey provisions; modification of contracts; variations; overtime; suspension of representations and stipulations.-Upon a written finding by the head of the contracting agency or department that the inclusion in the proposal or contract of the representations or stipulations set forth in section 35 of this title will seriously impair the conduct of Government business, the Secretary of Labor shall make exceptions in specific cases or otherwise when justice or public interest will be served thereby. Upon the joint recommendation of the contracting agency and the contractor, the Sec-retary of Labor may modify the terms of an existing contract re-specting minimum rates of pay and maximum hours of labor as he may find necessary and proper in the public interest or to prevent injustice and undue hardship. The Secretary of Labor may provide reasonable limitations and may make rules and regulations allowing reasonable variations, tolerances, and exemptions to and from any or all provisions of section 35 to 45 of this title respecting minimum rates of pay and maximum hours of labor or the extent of the application of said sections to contractors, as hereinbe-fore described. Whenever the Sec-retary of Labor shall permit an increase in the maximum hours of labor stipulated in the contract, he shall set a rate of pay for any over-time, which rate shall be not less than one and one-half times the basic hourly rate received by any employee affected: Provided, That whenever in his judgment such course is in the public interest, the President is authorized to suspend any or all of the representations and stipulations contained in section 35 of this title.

Sec. 41. "Person" defined in Walsh-Healey provi-sions.-When-ever used in sections 35 to 45 of this title, the word "per-son" includes one or more individu-als, partner-ships, associations, cor-porations, le-gal representatives, trustees, trust-ees in cases under Title 11, or re-ceivers.

Sec. 42. Effect of Walsh-Healey provisions on other laws.-The provisions of sections 35 to 45 of this title shall not be construed to modify or amend Title III of the Act entitled "An Act making appropria-tions for the Treasury and Post Office Departments for the fiscal year ending June 30, 1934, and for other purposes", approved May 3, 1933 (commonly known as the Buy American Act), nor shall the provisions of sections 35 to 45 of this title be construed to modify or amend the Act entitled "An Act relating to the rate of wages for laborers and mechanics employed on public buildings of the United States and the District of Columbia by contractors and subcontrac-tors, and for other purposes", approved March 3, 1931 (commonly known as the Bacon-Davis Act), as amend-ed from time to time (40 U.S.C. 276a et seq.), nor the labor provi-sions of Title II of the National Industrial Recovery Act, approved June 16, 1933, as extended, or of section 7 of the Emergency Relief Appropriation Act, approved April 8, 1935; nor shall the provisions of section 35 to 45 of this title be construed to modify or amend chap-ter 307 and section 4162 of Title 18.

Sec. 43. Walsh-Healey provi-sions not applicable to certain con-tracts.-Sections 35 to 45 of this title shall not apply to purchases of such materials, supplies, articles, or equipment as may usually be bought in the open market; nor shall they apply to perishables, including dairy, livestock and nursery prod-ucts, or to agricultural or farm prod-ucts processed for first sale by the original producers; nor to any con-tracts made by the Secretary of Agriculture for the purchase of agricultural commodities or the products thereof. Nothing in said sections shall be construed to apply to carriage of freight or personnel by vessel, airplane, bus, truck, ex-press, or railway line where pub-lished tariff rates are in effect or to common carriers subject to the Communications Act of 1934 (47 U.S.C. 151 et seq.).

Sec. 43a. Administrative procedure provisions.-

(a) Applicabil-ity.-Notwith-standing any provision of section 553 of Title 5, subchapter II of chapter 5, and chapter 7, of Title 5 shall be applicable in the adminis-tration of sections 35 to 39 and 41 to 43 of this title.

(b) Wage determination; adminis-trative review.-All wage determi-nations under section 35(b) of this title shall be made on the record after opportunity for a hearing. Review of any such wage determi-nation, or of the applicabili-ty of any such wage determination, may be had within ninety days after such determination is made in the manner provided in chapter 7 of Title 5 by any person adversely affected or aggrieved thereby, who shall be deemed to include any manufacturer of, or regular dealer in, materials, supplies, articles or equipment pur-chased or to be purchased by the Government from any source, who is in any industry to which such wage determination is applicable.

(c) Judicial re-view.-Notwith-standing the inclu-sion of any stipu-lations required by any provision of sections 35 to 45 of this title in any contract subject to said sections, any interested person shall have the right of judicial review of any legal question which might otherwise be raised, including, but not limited to, wage determinations and the interpretation of the terms "locality", "regular dealer", "manufacturer", and "open market".

Sec. 44. Separability of Walsh-Healey provisions.-If any provision of sections 35 to 45 of this title, or the application thereof to any persons or circumstances, is held invalid, the remainder of said sections, and the application of such provisions to other persons or circumstances, shall not be affected thereby.

Sec. 45. Effective date of Walsh-Healey provisions; exception as to representations with respect to minimum wages.-Sections 35 to 45 of this title shall apply to all contracts entered into pursuant to invitations for bids issued on or after ninety days from June 30, 1936; Provided, however, That the provisions requiring the inclusion of representations with respect to minimum wages shall apply only to purchases or contracts relating to such industries as have been the subject matter of a determination by the Secretary of Labor.