[Code of Federal Regulations]
[Title 29, Volume 8]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1926.13]

[Page 20]
 
                             TITLE 29--LABOR
 
CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT 
                                OF LABOR
 
PART 1926_SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION--Table of Contents
 
                    Subpart B_General Interpretations
 
Sec. 1926.13  Interpretation of statutory terms.

    (a) The terms construction, alteration, and repair used in section 
107 of the Act are also used in section 1 of the Davis-Bacon Act (40 
U.S.C. 276a), providing minimum wage protection on Federal construction 
contracts, and section 1 of the Miller Act (40 U.S.C. 270a), providing 
performance and payment bond protection on Federal construction 
contracts. Similarly, the terms contractor and subcontractor are used in 
those statutes, as well as in Copeland (Anti-Kickback) Act (40 U.S.C. 
276c) and the Contract Work Hours and Safety Standards Act itself, which 
apply concurrently with the Miller Act and the Davis-Bacon Act on 
Federal construction contracts and also apply to most federally assisted 
construction contracts. The use of the same or identical terms in these 
statutes which apply concurrently with section 107 of the Act have 
considerable precedential value in ascertaining the coverage of section 
107.
    (b) It should be noted that section 1 of the Davis-Bacon Act limits 
minimum wage protection to laborers and mechanics ``employed directly'' 
upon the ``site of the work.'' There is no comparable limitation in 
section 107 of the Act. Section 107 expressly requires as a self-
executing condition of each covered contract that no contractor or 
subcontractor shall require ``any laborer or mechanic employed in the 
performance of the contract to work in surroundings or under working 
conditions which are unsanitary, hazardous, or dangerous to his health 
or safety'' as these health and safety standards are applied in the 
rules of the Secretary of Labor.
    (c) The term subcontractor under section 107 is considered to mean a 
person who agrees to perform any part of the labor or material 
requirements of a contract for construction, alteration or repair. Cf. 
MacEvoy Co. v. United States, 322 U.S. 102, 108-9 (1944). A person who 
undertakes to perform a portion of a contract involving the furnishing 
of supplies or materials will be considered a ``subcontractor'' under 
this part and section 107 if the work in question involves the 
performance of construction work and is to be performed: (1) Directly on 
or near the construction site, or (2) by the employer for the specific 
project on a customized basis. Thus, a supplier of materials which will 
become an integral part of the construction is a ``subcontractor'' if 
the supplier fabricates or assembles the goods or materials in question 
specifically for the construction project and the work involved may be 
said to be construction activity. If the goods or materials in question 
are ordinarily sold to other customers from regular inventory, the 
supplier is not a ``subcontractor.'' Generally, the furnishing of 
prestressed concrete beams and prestressed structural steel would be 
considered manufacturing; therefore a supplier of such materials would 
not be considered a ``subcontractor.'' An example of material supplied 
``for the specific project on a customized basis'' as that phrase is 
used in this section would be ventilating ducts, fabricated in a shop 
away from the construction job site and specifically cut for the project 
according to design specifications. On the other hand, if a contractor 
buys standard size nails from a foundry, the foundry would not be a 
covered ``subcontractor.'' Ordinarily a contract for the supplying of 
construction equipment to a contractor would not, in and of itself, be 
considered a ``subcontractor'' for purposes of this part.