Current through Register Vol. 35, No. 18, September 24, 2024
A. The
director shall:
(1) coordinate the
administration of the Public Works Minimum Wage Act;
(2) annually determine the prevailing wage
and fringe benefit rates and the rate for the employer contributions to the
public works apprentice and training funds, and publish said rates;
(3) pursue enforcement of the payment of
prevailing wages and fringe benefit rates;
(4) adopt standard job classifications
applicable on public works projects;
(5) adopt appropriate wage rate for all
apprentices on public works projects;
(6) issue electronic correspondence of the
appropriate wage rate decision or decisions to the requesting agency within
five business days of receipt by the director of such agency's
request;
(7) furnish the
contracting agency and the contractor or employer with posters or written
summaries containing the minimum wage rates of all employees for posting at
each particular project site;
(8)
notify the contracting agency and the contractor or employer when the
contractor or employer has failed to comply with any requirement of the PWMWA
and of the obligation of the contracting agency to withhold the payment of
funds to the contractor or to ensure that all laborers and mechanics working on
the project are paid according to the prevailing wage;
(9) request certified payrolls by letter or
by issuing a subpoena at the director's discretion, if appropriate payments
have not been made by an employer;
(10) notify the contracting agency and the
contractor or employer of the right of the contracting agency to terminate the
contract when a determination is made by the director of a willful failure of
the contractor or employer to comply with the PWMWA.
B. The contracting agency, or its agent,
shall:
(1) Submit a request to the director,
in the manner prescribed by the division, not less than three weeks before the
initial advertising date, for a wage rate decision applicable to the work to be
performed. The request shall contain the following information:
(a) name, title and signature of requesting
officer;
(b) department or agency
requesting decision;
(c) date of
request;
(d) full description and
estimated cost of each of the several classifications of construction as set
out in
11.1.2.10
NMAC.
(e) location (city or other
description) of project site; and
(f) proposed advertising date and date by
which bids are to be submitted.
(2) Electronically submit, to the director
the notification of award and list of subcontractors within five business days
of the execution of the contract.
(3) Electronically submit to the director any
changes or additions made to the list of subcontractors within 10 business days
of the change or addition.
(4)
Electronically submit to the director notice of any cancellation of the project
within 10 business days of the cancellation.
(5) Include wage rate decisions in advertised
specifications for every contract subject to the PWMWA.
(6) Include in the advertised specifications
and the contract a requirement that the contractor or any tier of the
subcontractors must agree to pay the prevailing wages and benefits in order for
a bidder to be considered responsible and that the contractor must, within 3
days of the award, submit to the director a signed statement of intent to pay
prevailing wages and fringe benefits on a form provided by the director.
(7) Include in the advertised
specifications and the contract between the agency and the contractor for all
work subject to the terms of the PWMWA a provision requiring contractors and
all tiers of subcontractors to maintain certified weekly payroll records that
are to be updated weekly, provided to the contracting agency on a monthly basis
and to the director, upon request. The prime contractor is responsible for the
submission of copies of certified payroll records by all subcontractors. The
director may require disclosure of any information necessary to ensure
compliance by all contractors at all tiers with the requirements of the
PWMWA.
(8) The contractual
provision shall require that all payrolls be numbered, starting with number one
for the first payroll at the beginning of the job and continuing in numerical
order until the job is completed. The advertised and contractual provision need
not require any particular form for contractor or subcontractor forms. The
advertised and contractual provision need not require any particular form for
contractor or subcontractor payrolls. The certified payrolls must contain the
following information:
(a) the employee's full
name need only appear on the first payroll on which the employee's name
appears;
(b) the employee's
classification (or classifications);
(c) the employee's hourly wage rate (or
rates); the employee's hourly fringe benefits; subsistence and zone pay when
applicable, and the employee's overtime hourly wage rate (or rates);
(d) the daily and weekly hours worked in each
classification, including actual overtime hours worked (not
adjusted);
(e) the itemized
deductions made;
(f) the net wages
paid;
(g) the identifying number of
the wage rate decision issued on the project by the director:
(h) statement of compliance form;
(i) fringe benefit statement, when
applicable; and
(j) annualization
of fringe benefit worksheet.
(9) Include in the advertised specifications
and the contract between the agency and the contractor for all work subject to
the terms of the PWMWA a provision requiring contractors and all tiers of
subcontractors to maintain the full social security number and current address
of each employee and provide them to the director upon request for purposes of
an investigation or audit of compliance with prevailing wage
requirements
(10) Include in the
advertisement for bidding and the contract between the agency and the
contractor a provision requiring the contractors and all tiers of
subcontractors to provide a signed statement with the certified payrolls
demonstrating the disbursement of all fringe benefits paid to or on behalf of
each employee of the contractor or subcontractor.
(11) Electronically notify the director
within 10 business days if the contracting agency makes a finding or
determination that the employees of the contractor or subcontractors are not
being paid the prevailing wages or benefits required or if the contractor or
subcontractors are otherwise failing to perform in accordance with the
requirements of the PWMWA.
(12)
Withhold payments to the contractor, if the contractor or any subcontractor is
otherwise failing to perform in accordance with the requirement of the PWMWA,
until such time as the employees have all been paid sums that are due or to the
contracting agency may pay the employees of the contractor or subcontractor
directly any sums that are due.
(13) Require that the contractor and all
subcontractors and their tiers shall maintain legible copies of the certified
weekly payrolls prepared in accordance with these regulations for a minimum of
three years from the date of the final payment and for so long as is required
to resolve any disputes or claims regarding the payment of wages or benefits to
employees of the contractor or subcontractor that remain pending after one year
and subject to all other state or federal requirements for the retention of
such records by the contractor.
(14) Comply with the lawful requests of the
director and cooperate with the director regarding the inspection of the
project and the acquisition of all requested documentation regarding the
project necessary to assure that all employees of contractors and
subcontractors working on the project have been paid.
(15) Require that the contractor and each of
the subcontractors submit an affidavit of wages, fringe benefits and
subsistence and zone payments made prior to the final payment by the
contracting agency on a project, which shall be in the following form:
I hereby certify that the above information is correct and
that all workers I employ on this public works project were paid no less than
the Prevailing Wage Rate(s) as determined by the Department of Workforce
Solutions, Labor Relations Division for this project as identified by the State
Wage Decision Number. I understand that contractors who violate Prevailing Wage
Laws (i.e., incorrect job classification, improper payment of prevailing wages,
or overtime, etc.), are subject to debarment procedures and shall be required
to pay back any wages due to workers. (Ref. Labor Relations Division Public
Works Minimum Wage Act Policy Manual (11.1.2 NMAC) & Public Works Minimum
Wage Act (13-4-11 through 13-4-18, NMSA 78)). I, ______________, being first
duly sworn on oath under penalty of perjury, swear that the foregoing
information is true and correct.
Contractor's signature. Date
Notary: Subscribed and sworn to before me at _____ this _____
day of __________, 2___ _____________________ ___________ Notary Public
(Signature) (Date)
My commission expires: __________________
C. Contractor and subcontractor
shall:
(1) Pay employees, including
apprentices, the prevailing wage and fringe benefits determined to be due
pursuant to the prevailing wage rate determination for the project.
(2) Post the prevailing wage and fringe
benefits for all employees provided by the director in a prominent, easily
accessible place at the site of each particular project.
(3) Submit to the contracting agency on a
monthly basis, and to the director within 10 business days of a request by the
director for the purposes of an investigation or audit of compliance with
prevailing wage requirements, certified payrolls and a signed statement showing
the disbursement of all fringe benefits paid to or on behalf of each employee
of the contractor or subcontractor. The prime contractor is responsible for the
submission of copies of certified payrolls of all subcontractors.
(4) Comply with all requirements imposed by
the PWMWA and these regulations.
(5) Submit to the contracting agency an
affidavit of wage, fringe benefits, and subsistence and zone payments made to
the employees, in the form required by the director, prior to the final payment
by the contracting agency on a project.
(6) Maintain certified payrolls and documents
regarding the disbursement of fringe benefits for a minimum of three years from
the date of final payment to the contractor and so long as is required to
resolve any disputes or claims of employees or the director regarding the
payment of wages or benefits to employees of the contractor or
subcontractor.
(7) Maintain a valid
LEF registration at the time bids are due and for the duration of the project
in accordance with Section
13-4-13.1
NMSA 1978.