7 CCR 1103-6-2 - Definitions
2.1 "Agency of
government" as used in the Prevailing Wage Act, C.R.S. §
24-92-201(1)
means any agency, department, division, board, bureau, commission, institution,
or section of the state, which is a budgetary unit exercising construction
contracting authority or discretion. "Agency of government" does not include
any county, city and county, city, municipality, town, school district, special
district, or any other political subdivision of the state.
2.1.1 "Contracting Agency" is the specific
agency of government with which a contractor or subcontractor has a contract
for a public project.
2.2
"Authorized representative" means a person who is designated by a party to a
complaint to represent the party during the Division's complaint and/or appeal
process.
2.3 "Colorado labor" as
used in KJICA, C.R.S. §
8-17-101(2)(a),
means labor that is performed on a public project by any person who is a
resident of the state of Colorado, without discrimination as to race, color,
creed, sex, sexual orientation, marital status, national origin, ancestry, age,
or religion, except when sex or age is a bona fide occupational qualification.
2.3.1 A resident of the state of Colorado is
a person who can provide a valid Colorado driver's license, a valid Colorado
state-issued photo identification, or other documentation showing that the
person has resided in Colorado for the last thirty days.
2.4 "Contractor" as used in the Prevailing
Wage Act, C.R.S. §
24-92-201(2),
means any employer, person, entity, individual, partnership, association,
corporation, business trust, legal representative, or any organized group of
persons that has a contract for a public project with a Contracting
Agency.
2.5 "Davis Bacon Act"
refers to the Davis-Bacon and Related Acts (DBRA),
40 U.S.C. §
3141 et seq.
2.6 "Director" means the Director of the
Colorado Division of Labor Standards and Statistics, or his or her
designee.
2.7 "Division" means the
Division of Labor Standards and Statistics within the Colorado Department of
Labor and Employment.
2.8
"Employees" and/or "workers" under KJICA and Prevailing Wage Act.
2.8.1 Under KJICA, C.R.S. §
8-17-105, a"worker" is defined
pursuant to the Davis Bacon Act,
29 C.F.R. §
5.2. Workers are those whose duties are
manual or physical in nature (including those workers who use tools or who are
performing the work of a trade), as distinguished from mental or managerial.
The term does not apply to workers whose duties are primarily administrative,
executive, or clerical, rather than manual.
2.8.2 Under the Prevailing Wage Act, C.R.S.
§
24-92-201(4),
"employees" are workers who are employees pursuant to the Colorado Wage Act,
C.R.S. §
8-4-101(5), and
who are engaged by contractors or subcontractors to perform jobs on various
types of public projects, including as mechanics, laborers, or other
construction workers.
2.9
"Fringe benefit," as used in KJICA, C.R.S. §
8-17-105, is defined pursuant to
the Davis Bacon Act, 29
C.F.R. §
5.23. Fringe benefit includes
the rate of costs to the contractor or subcontractor which may be reasonably
anticipated in providing benefits to workers pursuant to an enforceable
commitment to carry out a financially responsible plan or program which was
communicated in writing to the workers affected, for medical or hospital care,
pensions on retirement or death, compensation for injuries or illness resulting
from occupational activity, or insurance to provide any of the foregoing, for
unemployment benefits, life insurance, disability and sickness insurance, or
accident insurance, for vacation and holiday pay, for defraying costs of
apprenticeship or other similar programs, or for other bona fide fringe
benefits.
2.10 "Public works
project" or "public project" have the following definitions:
2.10.1 Under KJICA, C.R.S. §
8-17-101(2)(b),
C.R.S. §
24-103-908(1),
and C.R.S. §
24-92-102(8),
"public works project" has the same meaning as "public project," and is defined
as:
(A) any public project as defined in
C.R.S. §
24-92-102(8),
including any construction, alteration, repair, demolition, or improvement of
any land, building, structure, facility, road, highway, bridge, or other public
improvement suitable for and intended for use in the promotion of the public
health, welfare, or safety and any maintenance programs for the upkeep of such
projects, including any such project awarded by any county, including any home
rule county, municipality, as defined in C.R.S. §
31-1-101(6),
school district, special district, or other political subdivision of the state.
It does not include any project:
(1) for
which appropriation or expenditure of moneys may be reasonably expected not to
exceed five hundred thousand dollars in the aggregate for any fiscal
year;
(2) under the supervision of
the department of transportation for which appropriation or expenditure of
funds may be reasonably expected not to exceed two hundred fifty thousand
dollars in the aggregate of any fiscal year; or
(3) that is financed with any amount of
federal money.
(B) any
publicly funded contract for construction entered into by a governmental body
of the executive branch of the state of Colorado which is subject to the
"Procurement Code," articles
101 to
112 of title
24, C.R.S.; and
(C) any highway or bridge construction,
whether undertaken by the department of transportation or by any political
subdivision of the state of Colorado, in which the expenditure of funds may be
reasonably expected to exceed fifty thousand dollars.
2.10.2 Under the Prevailing Wage Act, C.R.S.
§
24-92-201, "public project":
(A) means any construction, alteration,
repair, demolition, or improvement of any land, building, structure, facility,
road, highway, bridge, or other public improvement suitable for and intended
for use in the promotion of public health, welfare, or safety and any operation
or maintenance programs for the operation and upkeep of such projects. "Public
project" includes any work, construction, or repair performed by a private
party through a contract to rent, lease, or purchase at least fifty percent of
the project by one or more agencies of government, and may include projects
undertaken pursuant to contracts awarded under Title 24, Article 92, Part 1,
C.R.S., or under Title 24, Article 93, C.R.S. It does not include any project:
(1) that receives federal funding;
or
(2) for which the contracting
agency is the Department of Transportation.
(B) includes an "energy sector public works
project," as defined by C.R.S. §
24-92-303(5), and
may include thermal energy network or thermal energy system projects, as
defined by C.R.S. §
40-3.2-108. It does not include
any project:
(1) for which a public utility
or cooperative electric association invitation for bids or proposals was issued
before January 1, 2024; or
(2)
listed under C.R.S. §
24-92-304(1)(c).
2.11 "Site of the project" as used in KJICA,
C.R.S. §
8-17-105, is defined pursuant to
the Davis Bacon Act definition of "site of the work,"29 C.F.R. §
5.2.
Site of the project is the physical place or places where the building or work
called for in the contract will remain; and any other site where a significant
portion of the building or work is constructed, provided that such site is
either established specifically for the performance of the contract or project
or dedicated exclusively, or nearly so, to the performance of the contract or
project for a specific period of time.
2.11.1
Not included in the site of the project are permanent home offices, branch
plant establishments, fabrication plants, tool yards, etc., of a contractor or
subcontractor whose location and continuance in operation are determined wholly
without regard to a particular public works contract or
project.
2.12 A "wage
determination" as defined by the Prevailing Wage Act, C.R.S. §
24-92-205(1), is
the determination made by the Colorado Department of Personnel and
Administration establishing prevailing wage rates for the applicable trade or
occupation and the particular geographical locality of the public project. A
"wage determination" includes the original decision and any subsequent
decisions modifying, superseding, correcting, or otherwise changing the
provisions of the original decision.
2.13 "Wages," "scale of wages," "wage rates,"
"minimum wages," and "prevailing wages" as defined by the Prevailing Wage Act,
C.R.S. §
24-92-201(6),
means:
(A) The employee's basic hourly rate
of pay;
(B) Any contribution
irrevocably made by a contractor or subcontractor to a trustee or to a third
person pursuant to a bona fide fringe benefit fund, plan, or program;
and
(C) The rate of costs to the
contractor or subcontractor which may be reasonably anticipated in providing
bona fide fringe benefits to laborers, mechanics, and other construction
workers pursuant to an enforceable commitment to carry out a financially
responsible plan or program, which was communicated in writing to the workers
affected in advance.
Unless otherwise noted, when used herein, the term "wages" includes fringe benefits, except where it is used to refer to wages as defined in the Colorado Wage Act, C.R.S. § 8-4-101(14).
2.14 A "willful violation," as
defined by the Prevailing Wage Act, C.R.S. §
24-92-209(2)(b),
includes an intentional violation and a violation made with reckless disregard
or deliberate ignorance of the law. A contractor or subcontractor acts with
"reckless disregard" of the requirements of the law if, for example, it should
have inquired further into whether its conduct was in compliance with the law
and failed to make adequate further inquiry. Whether employees accepted or
agreed to accept less than the required rate of wages or voluntarily made
refunds is not a defense to willfulness.
Notes
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