HUD 5370-C2 General Conditions for Non-Construction Contracts Sec II

General Conditions for Non-Construction
Contracts

U.S. Department of Housing and Urban
Development
Office of Public and Indian Housing
Office of Labor Relations

Section II – (With Maintenance Work)

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Applicability. This form HUD-5370C has 2 Sections. These
Sections must be inserted into non-construction contracts as
described below:

in the classification under this Contract from the first
day on which work is performed in the classification.
2.

1)

Non-construction contracts (without maintenance) greater
than $150,000 - use Section I;
2) Maintenance contracts (including nonroutine maintenance
as defined at 24 CFR 905.200) greater than $2,000 but not
more than $150,000 - use Section II; and
3) Maintenance contracts (including nonroutine maintenance),
greater than $150,000 – use Sections I and II.

The Contracting Officer, upon his/her own action or upon
request of HUD, shall withhold or cause to be withheld from the
Contractor under this Contract or any other contract subject to
HUD-determined wage rates, with the same prime Contractor,
so much of the accrued payments or advances as may be
considered necessary to pay laborers and mechanics employed
by the Contractor or any subcontractor the full amount of wages
required by this clause. In the event of failure to pay any laborer
or mechanic employed under this Contract all or part of the
wages required under this Contract, the Contracting Officer or
HUD may, after written notice to the Contractor, take such action
as may be necessary to cause the suspension of any further
payment or advance until such violations have ceased. The
Public Housing Agency or HUD may, after written notice to the
Contractor, disburse such amounts withheld for and on account
of the Contractor or subcontractor to the respective employees
to whom they are due.

Section II – Labor Standard Provisions for all Maintenance
Contracts greater than $2,000
1.

Minimum Wages
(a) All maintenance laborers and mechanics employed under
this Contract in the operation of the project(s) shall be paid
unconditionally and not less often than semi-monthly, and
without subsequent deduction (except as otherwise
provided by law or regulations), the full amount of wages
due at time of payment computed at rates not less than
those contained in the wage determination of the Secretary
of Housing and Urban Development which is attached
hereto and made a part hereof. Such laborers and
mechanics shall be paid the appropriate wage rate on the
wage determination for the classification of work actually
performed, without regard to skill. Laborers or mechanics
performing work in more than one classification may be
compensated at the rate specified for each classification for
the time actually worked therein; provided, that the
employer’s payroll records accurately set forth the time
spent in each classification in which work is performed. The
wage determination, including any additional classifications
and wage rates approved by HUD under subparagraph
1(b), shall be posted at all times by the Contractor and its
subcontractors at the site of the work in a prominent and
accessible place where it can be easily
seen by the workers.
(b) (i) Any class of laborers or mechanics which is not listed in
the wage determination and which is to be employed under
the Contract shall be classified in conformance with the
wage determination. HUD shall approve an additional
classification and wage rate only when the following criteria
have been met:
(1) The work to be performed by the classification
required is not performed by a classification in the
wage determination;
(2) The classification is utilized in the area by the
industry; and
(3) The proposed wage rate bears a reasonable
relationship to the wage rates contained in the
wage determination.
(ii)
The wage rate determined pursuant to this
paragraph shall be paid to all workers performing work

Section II - Page 1 of 3

Withholding of funds

3. Records
(a) The Contractor and each subcontractor shall make and
maintain for three (3) years from the completion of the work
records containing the following for each laborer and
mechanic:
(i) Name, address and Social Security Number;
(ii) Correct work classification or classifications;
(iii) Hourly rate or rates of monetary wages paid;
(iv) Rate or rates of any fringe benefits provided;
(v) Number of daily and weekly hours worked;
(vi) Gross wages earned;
(vii) Any deductions made; and
(viii) Actual wages paid.
(b) The Contractor and each subcontractor shall make the
records required under paragraph 3(a) available for
inspection, copying, or transcription by authorized
representatives of HUD or the HA and shall permit such
representatives to interview employees during working
hours on the job. If the Contractor or any subcontractor
fails to make the required records available, HUD or its
designee may, after written notice to the Contractor, take
such action as may be necessary to cause the suspension
of any further payment, advance or guarantee of funds.
4.

Apprentices and Trainees
(a) Apprentices and trainees will be permitted to work at less
than the predetermined rate for the work they perform
when they are employed pursuant to and individually
registered in:
(i)
A bona fide apprenticeship program registered
with the U.S. Department of Labor, Employment
and Training Administration (ETA), Office of

form HUD-5370-C (1/2014)

forth those findings that are in dispute and the
reasons, including any affirmative defenses, with
respect to the violations. The request shall be
directed to the appropriate HA or HUD official in
accordance with instructions contained in the
notice of findings or, if the notice does not specify
to whom a request should be made, to the
Regional Labor Relations Officer (HUD). The HA
or HUD official shall, within 60 days (unless
(ii)
otherwise indicated in the notice of findings) after
receipt of a timely request for reconsideration,
issue a written decision on the findings of violation.
The written decision on reconsideration shall
contain instructions that any appeal of the decision
shall be addressed to the Regional Labor
Relations Officer by letter postmarked within 30
calendar days after the date of the decision. In the
event that the Regional Labor Relations Officer
was the deciding official on reconsideration, the
appeal shall be directed to the Director, Office of
Labor Relations (HUD). Any appeal must set forth
the aspects of the decision that are in dispute and
the reasons, including any affirmative defenses,
with respect to the violations. The Regional Labor
Relations Officer shall, within 60 days (unless
(iii)
otherwise indicated in the decision on
reconsideration) after receipt of a timely appeal,
issue a written decision on the findings. A decision
of the Regional Labor Relations Officer may be
appealed to the Director, Office of Labor Relations,
by letter postmarked within 30 days of the
Regional Labor Relations Officer’s decision. Any
appeal to the Director must set forth the aspects of
the prior decision(s) that are in dispute and the
reasons. The decision of the Director, Office of
Labor Relations, shall be
final.
(b) Disputes arising out of the labor standards provisions of
paragraph 6 shall not be subject to paragraph 5(a) of this
form HUD-5370C. Such disputes shall be resolved in
accordance with the procedures of the U.S. Department of
Labor set forth in 29 CFR Parts 5, 6 and 7. Disputes within
the meaning of this paragraph 5(b) include disputes
between the Contractor (or any of its subcontractors) and
the HA, HUD, the U.S. Department of Labor, or the
employees or their representatives.

Apprenticeship Training, Employer and Labor
Services (OATELS), or with a state apprenticeship
agency recognized by OATELS, or if a person is
employed in his/her 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 OATELS or a state apprenticeship
agency (where appropriate) to be eligible for
probationary employment as an apprentice; A
trainee program which has received prior approval,
(ii)
evidenced by formal certification by the
U.S. Department of Labor, ETA; or
(iii)
A training/trainee program that has received prior
approval by HUD.
(b) Each apprentice or trainee must be paid at not less than
the rate specified in the registered or approved program for
the apprentice’s/trainee’s level of progress, expressed as a
percentage of the journeyman hourly rate specified in the
applicable wage determination. Apprentices and trainees
shall be paid fringe benefits in accordance with the
provisions of the registered or approved program. If the
program does not specify fringe benefits,
apprentices/trainees must be paid the full amount of fringe
benefits listed on the wage determination for the applicable
classification.
(c) The allowable ratio of apprentices or trainees to
journeyman on the job site in any craft classification shall
not be greater than the ratio permitted to the employer as
to the entire work force under the approved program.
(d) Any worker employed at an apprentice or trainee wage rate
who is not registered in an approved program, and any
apprentice or trainee performing work on the job site in
excess of the ratio permitted under the approved program,
shall be paid not less than the applicable wage rate on the
wage determination for the classification of work actually
performed.
(e) In the event OATELS, a state apprenticeship agency
recognized by OATELS or ETA, or HUD, withdraws
approval of an apprenticeship or trainee program, the
employer will no longer be permitted to utilize
apprentices/trainees at less than the applicable
predetermined rate for the work performed until an
acceptable program is approved.
5.

Disputes concerning labor standards
(a)

Disputes arising out of the labor standards provisions
contained in Section II of this form HUD-5370-C, other than
those in Paragraph 6, shall be subject to the following
procedures. Disputes within the meaning of this paragraph
include disputes between the Contractor (or any of its
subcontractors) and the HA, or HUD, or the employees or
their representatives, concerning payment of prevailing
wage rates or proper classification. The procedures in this
section may be initiated upon HUD’s own motion, upon
referral of the HA, or upon request of the Contractor or
subcontractor(s).
(i)
A Contractor and/or subcontractor or other
interested party desiring reconsideration of
findings of violation by the HA or HUD relating to
the payment of straight-time prevailing wages or
classification of work shall request such
reconsideration by letter postmarked within 30
calendar days of the date of notice of findings
issued by the HA or HUD. The request shall set

Section II - Page 2 of 3

6.

Contract Work Hours and Safety Standards Act
The provisions of this paragraph 6 are applicable only where the
amount of the prime contract exceeds $100,000. As used in this
paragraph, the terms “laborers” and “mechanics” includes
watchmen and guards.
(a) Overtime requirements. No Contractor or subcontractor
contracting for any part of the Contract work which may
require or involve the employment of laborers or mechanics
shall require or permit any such laborer or mechanic in any
workweek in which he or she is employed on such work to
work in excess of 40 hours in such workweek unless such
laborer or mechanic receives compensation at a rate not
less than one and one-half times the basic rate of pay for all
hours worked in excess of
40 hours in such workweek.
(b) Violation; liability for unpaid wages; liquidated
damages. In the event of any violation of the provisions
set forth in paragraph 6(a), the Contractor and any

form HUD-5370-C (1/2014)

subcontractor responsible therefor shall be liable for the
unpaid wages. In addition, such Contractor and
subcontractor shall be liable to the United States (in the
case of work done under contract for the District of
Columbia or a territory, to the District or to such territory), for
liquidated damages. Such liquidated damages shall be
computed with respect to each individual laborer or
mechanic, including watchmen and guards, employed in
violation of the provisions set forth in paragraph (a) of this
clause, in the sum of $10 for each calendar day on which
such individual was required or permitted to work in excess
of the standard workweek of 40 hours without payment of
the overtime wages required by provisions set forth in
paragraph (a) of this clause.
(c) Withholding for unpaid wages and liquidated damages.
HUD or its designee shall upon its own action or upon
written request of an authorized representative of the U.S.
Department of Labor withhold or cause to be withheld,
from any moneys payable on account of work performed
by the Contractor or subcontractor under any such
Contract or any federal contract with the same prime
Contractor, or any other federally-assisted contract subject
to the Contract Work Hours and Safety Standards Act,
which is held by the same prime Contractor such sums as
may be determined to be necessary to satisfy any
liabilities of such Contractor or subcontractor for unpaid
wages and liquidated damages as provided in the
provisions set forth in paragraph (b) of this clause.
7. Subcontracts
The Contractor or subcontractor shall insert in any
subcontracts all the provisions contained in this Section II and
also a clause requiring the subcontractors to include these
provisions in any lower tier subcontracts. The prime Contractor
shall be responsible for the compliance by any subcontractor or
lower tier subcontractor with all the provisions contained in
these clauses.
8.

Non-Federal Prevailing Wage Rates
Any prevailing wage rate (including basic hourly rate and any
fringe benefits), determined under state law to be prevailing,
with respect to any employee in any trade or position
employed under the Contract, is inapplicable to the contract
and shall not be enforced against the Contractor or any
subcontractor, with respect to employees engaged under the
contract whenever such non-Federal prevailing wage rate,
exclusive of any fringe benefits, exceeds the applicable wage
rate determined by the Secretary of HUD to be prevailing in the
locality with respect to such trade or position.

Section II - Page 3 of 3

form HUD-5370-C (1/2014)