(2) In 1931, the legislature enacted the Montana "Little Davis-Bacon" Act. The Act requires a hiring preference for Montana workers in all contracts let for public works, a 50 percent preference on public works projects, excluding projects involving the expenditure of federal aid funds or where residency preference laws are specifically prohibited by federal law, and empowers the commissioner to determine the minimum wage rates to be paid to all workers on public work contracts.

As used in this subchapter, the following definitions apply, unless the context of the rule clearly indicates otherwise:

(1) "Act" means 18-2-401 through 18-2-432, MCA.

(2) "Adverse decision" means a decision by the department that is not favorable to the party requesting review.

(3) "Apprentice" means a worker employed to learn a skilled trade under a written apprenticeship agreement registered with the department or the U.S. Bureau of Apprenticeship and Training.

(4) "Bona fide resident of Montana" is defined at 18-2-401, MCA.

(5) "Commissioner" has the same meaning as provided by 2-15-1701, MCA.

(6) "Certified payroll records" mean payroll records of an employer which show the rates and hours paid and any deductions therefrom, made by the employer on a public works contract job and which have been verified by or on behalf of the employer as being complete and accurate.

(7) "Claim or "complaint" means:

(a) a complaint alleging non-payment of the standard prevailing wage on a public works contract job;

(b) a request for an audit of an employer's payroll on a public works contract job; or

(c) a field investigation by the department of an employer's payroll on a public works contract job.

(8) "Day" means a calendar day.

(9) "Department" has the same meaning as provided by 2-15-1701, MCA.

(10) "Determination" means a decision by the department on the merits of a claim, providing the amount of wages and penalty owed for labor performed on a public works contract job.

(11) "Dispatch city" is the courthouse in the city from the following list which is closest to the center of the job and within the same prevailing wage district, if any: Billings, Bozeman, Butte, Great Falls, Helena, Kalispell, Miles City, Missoula, and Sidney.

(12) "District" means a prevailing wage district as established under 18-2-411, MCA.

(13) "Employ" has the same meaning as provided by 39-3-201, MCA.

(14) "Employee" has the same meaning as provided by 39-3-201, MCA, and includes any laborer, mechanic, skilled, unskilled and semiskilled laborer and apprentices employed by a contractor, subcontractor or employer and engaged in the performance of services directly upon or immediately adjacent to the job site. The term does not include material suppliers or their employees who do not perform services at the job site.

(15) "Employer" has the same meaning as provided by 39-3-201, MCA, and includes contractors and subcontractors.

(16) "Hearing" means a contested case per Title 2, chapter 4, part 6, MCA.

(17) "Mediation" is the process described by 26-1-813, MCA. 

(18) "Penalty" means the statutory penalty provided by 18-2-407, MCA, assessed by the department against the employer and paid to the employee in addition to any wages owed.

(19) "Per diem" typically covers costs associated with board and lodging expenses. Per diem is paid when an employee is required to work at a location outside the daily commuting distance and is required to stay at that location overnight or longer.

(20) "Public contracting agency" includes:

(a) the state of Montana or any political subdivision thereof;

(b) the Montana university system;

(c) any local government or political subdivision thereof;

(d) school districts, irrigation districts, or other public authorities organized under the laws of the state of Montana; or

(e) any board, council, commission, trustees or other public body acting as or on behalf of a public agency.

(21) "Prevailing wage" or "standard prevailing rate of wages" means the standard prevailing rate of wages, as provided by 18-2-401, MCA, and as adopted by the department for work on public works contract jobs. The standard prevailing rate of wages determined according to these rules is not a prescribed wage rate, but is rather a minimum, at or above which an individual performing labor on a public works project must be compensated.

(22) "Redetermination" means an informal review by the department, based upon new or additional information supplied by a party receiving an adverse determination.

(23) "Travel pay," also referred to as "travel allowance," is and must be paid for travel both to and from the job site, except those with special provisions listed under the classification. The rate is determined by measuring the road miles one direction over the shortest practical maintained route from the dispatch city or the employee's home, whichever is closer, to the center of the job.

(24) "Wages" have the same meaning as provided by 18-2-401, 18-2-412, 39-3-201, MCA.

(25) "Zone pay" is an amount added to the base pay; the combined sum then becomes the new base wage rate to be paid for all hours worked on the project. Zone pay must be determined by measuring the road miles one way over the shortest practical maintained route from the dispatch city to the center of the job.

(1) Pursuant to 18-2-411, MCA, the commissioner has established four districts for the purpose of setting the standard prevailing rate of wages for building construction services ARM 24.17.119 and nonconstruction services ARM 24.17.122. Heavy construction services rates ARM 24.17.120 and highway construction services rates (ARM 24.17.121) are set on a statewide basis pursuant to 18-2-414, MCA.

(2) The districts are composed of the following counties:

(a) District 1: Flathead, Lake, Lincoln, Mineral, Missoula, Ravalli, and Sanders;

(b) District 2: Beaverhead, Broadwater, Deer Lodge, Glacier, Granite, Jefferson, Lewis and Clark, Liberty, Madison, Pondera, Powell, Silver Bow, Teton, and Toole;

(c) District 3: Blaine, Cascade, Chouteau, Fergus, Gallatin, Golden Valley, Hill, Judith Basin, Meagher, Park, Petroleum, Phillips, Sweet Grass, and Wheatland;

(d) District 4: Big Horn, Carbon, Carter, Custer, Daniels, Dawson, Fallon, Garfield, McCone, Musselshell, Powder River, Prairie, Richland, Roosevelt, Rosebud, Sheridan, Stillwater, Treasure, Valley, Wibaux, and Yellowstone.

(3) Districts and their contiguous districts are as follows:

(a) the contiguous district for District 1 is district 2;

(b) the contiguous districts for District 2 are districts 1 and 3;

(c) the contiguous districts for District 3 are districts 2 and 4; and

(d) the contiguous district for District 4 is district 3.

(1) The commissioner shall establish the standard prevailing rate of wages and fringe benefits for the various occupations engaged in building construction services in each district. Although the commissioner establishes wage rates and fringe benefit rates including travel, zone pay, and per-diem allowance rates separately, an employer's obligation to pay the "prevailing rate of wages" includes paying the combined value of both wages and fringe benefits, including travel, zone pay, and per-diem.

(2) The standard prevailing rate of wages is based upon an annual survey in each of the districts established in ARM 24.17.107, of licensed electrical contractors, licensed plumbers, and registered construction contractors engaged in work performed to commercial building codes, as provided for by 18-2-413, MCA, who are licensed or registered on February 1 of the year in which the survey is being conducted.

(3) Based on survey data collected by the department for each district, the commissioner will compile wage rate information for a given occupation that reflects wage rates actually paid to workers engaged in public works or commercial projects. Where a wage rate is adopted from a collective bargaining agreement, applicable zone pay or travel pay, if any, shall be adopted from that same agreement. If the wage rate is adopted from collective bargaining agreements which have equal wage rates and different zone pay or travel pay, the zone pay or travel pay shall be adopted from the agreement covering more employees. Wage rates calculated through the survey for each occupation will be established using the following procedure:

(a) If a minimum of 10 or more workers is reported for the occupation within the district and 50 percent or more of those workers receive the same wage, then the higher of that wage or the highest applicable collectively bargained rate is the prevailing wage rate for that occupation in that district.

(b) If 10 or more workers are reported for the occupation within the district but 50 percent of those workers are not paid the same wage, the weighted average wage rate is the prevailing wage rate for that occupation in that district.

(c) If less than 10 workers are reported for the occupation within the district, the prevailing wage rate is the highest applicable collectively bargained rate for that occupation in that district.

(d) If less than 10 workers are reported for the occupation within the district and a collective bargaining agreement does not exist for the occupation in that district, a weighted average wage rate for the district will be computed using data submitted from that district and its contiguous districts.

(e) If contiguous district data do not sum to a minimum of 10 workers, a statewide weighted average wage rate will be calculated for that occupation.

(f) If a minimum of 10 workers is not reported for the occupation statewide, no wage rate will be established for that occupation.

(4) Based on survey data collected by the department for each district, the commissioner will compile fringe benefit information for a given occupation that reflects fringe benefits actually paid to workers engaged in public works or commercial projects. Where a fringe benefit is adopted from a collective bargaining agreement, applicable per diem, if any, must be adopted from that same agreement. If the fringe benefit is adopted from collective bargaining agreements which have equal fringe benefits and different per diem, the per diem shall be adopted from the agreement covering more employees. A single fringe benefit rate calculated through the survey for each occupation will be established for bona fide benefits paid or contributed to approved plans, funds, or programs for health insurance, life insurance, pension or retirement, vacations, holidays, and sick leave using the following procedure:

(a) If a minimum of 10 or more workers is reported for the occupation within the district and 50 percent or more of those workers receive the same dollar value of fringe benefits, then the higher of that dollar value of fringe benefits, the highest applicable collectively bargained rate, or other predominate, established trade organization fringe benefit funds, plans, or programs is the prevailing fringe benefit rate for that occupation in that district.

(b) If 10 or more workers are reported for the occupation within the district but 50 percent of those workers are not paid the same fringe benefit rate, the weighted average fringe benefit rate is the prevailing fringe benefit rate for that occupation in that district.

(c) If less than 10 workers are reported for the occupation within the district, the district prevailing fringe benefit rate is the higher of the highest applicable collectively bargained fringe benefit rate or other predominate, established trade organization fringe benefit funds, plans, or programs for that occupation in that district.

(d) If less than 10 workers are reported for the occupation within the district and a collective bargaining agreement or other predominate, established trade organization funds, plans, or programs does not exist for the occupation in that district, a weighted average fringe benefit rate for the district will be computed using data submitted from that district and all contiguous districts.

(e) If contiguous district fringe benefit data do not sum to a minimum of 10 workers, a statewide weighted average fringe benefit rate will be calculated for that occupation.

(f) If a minimum of 10 workers are not reported for the occupation statewide, no fringe benefit rate will be established for that occupation.

(5) The commissioner considers current wage rate information on file and as provided in survey responses when setting the standard prevailing rate of wages and fringe benefits for each craft, trade, occupation, or type of workers.

(a) Wage information will be considered by the commissioner only if such information is received by the Department of Labor and Industry, P.O. Box 8011, Helena, Montana 59604, within the time set by the commissioner.

(b) The commissioner may request clarification, additional information, or independent verification of information submitted pursuant to this rule.

(c) Wage information received during public comment for the update of prevailing wage rates or fringe benefits will not be considered.

(6) In the event of an incorrect prevailing wage rate or fringe benefit rate being published, the commissioner will review additional data submitted to determine whether the rate is incorrect. If found to be incorrect, the prevailing wage and fringe benefit rates will revert to the last published wage and fringe benefits rate for that occupation that was adopted via the rulemaking and public hearing process. For purposes of this rule, wage information which was not submitted during the survey does not indicate that a rate is incorrect. For temporary rates which have not been adopted via the rulemaking and the public hearing process, a corrected rate will be calculated based on information collected and submitted.

(7) It is the obligation of any person having possession or knowledge of wage rate information, including collective bargaining agreements that the commissioner should consider, or desires that the commissioner consider, to timely deliver such information to the commissioner.

(1) The commissioner shall establish the standard prevailing rate of wages and fringe benefits for the various occupations engaged in heavy construction services statewide. Although the commissioner establishes wage rates and fringe benefit rates, including travel, zone pay, and per-diem allowance rates separately, an employer's obligation to pay the "prevailing rate of wages" includes paying the combined value of both wages and fringe benefits, including travel, zone pay, and per-diem.

(2) The commissioner uses various data sources to determine the standard prevailing rate of wages.

(a) The standard prevailing rate of wages may be based upon an annual statewide survey of licensed electrical contractors, licensed plumbers, and registered construction contractors engaged in work performed to commercial building codes, as provided for by 18-2-414, MCA, who are licensed or registered on February 1 of the year in which the survey is being conducted.

(b) The standard prevailing rate of wages may instead be based upon applicable federal Davis-Bacon Act rates for heavy construction services in effect on a statewide basis for Montana as of September 1 of that year.

(c) If, with respect to any given occupation, there is a difference in the standard prevailing rate of wages (including the value of fringe benefits) surveyed for under this section, and the applicable federal Davis-Bacon Act rates in effect statewide for heavy construction services in Montana as of September 1 of that year, the commissioner shall adopt the higher of the two as the standard prevailing rate of wages.

(3) Based on survey data collected by the department statewide, the commissioner will compile wage rate information for a given occupation that reflects wage rates actually paid to workers engaged in public works or commercial projects. Where a wage rate is adopted from a collective bargaining agreement, applicable zone pay or travel pay, if any, must be adopted from that same agreement. If the wage rate is adopted from collective bargaining agreements which have equal wage rates and different zone pay or travel pay, the zone pay or travel pay must be adopted from the agreement covering more employees. Wage rates calculated through the survey for each occupation will be established using the following procedure:

(a) If a minimum of 40 or more workers are reported for the occupation statewide and 50 percent or more of those workers receive the same wage, then the statewide surveyed prevailing wage rate for that occupation is the higher of:

(i) that wage; or

(ii) the highest applicable collectively bargained rate.

(b) If 40 or more workers are reported for the occupation statewide but 50 percent of those workers are not paid the same wage, then the statewide surveyed prevailing wage rate for that occupation is the higher of:

(i) the weighted average wage; or

(ii) the highest applicable collectively bargained rate.

(c) If less than 40 workers are reported for the occupation statewide, the surveyed prevailing wage rate is the highest applicable collectively bargained rate for that occupation statewide.

(d) If less than 40 workers are reported for the occupation statewide and a collective bargaining agreement does not exist for the occupation, the federal Davis-Bacon Act rate for heavy construction services for the occupation in effect statewide for Montana on September 1 of that year is the prevailing wage rate for that occupation.

(e) No wage rate will be established for an occupation where:

(i) a minimum of 40 workers is not reported statewide;

(ii) a collective bargaining agreement does not exist; and

(iii) a federal Davis-Bacon Act rate for heavy construction services has not been established on a statewide basis as of September 1 of that year.

(4) Based on survey data collected by the department statewide, the commissioner will compile fringe benefit information for a given occupation statewide that reflects fringe benefits actually paid to workers engaged in public works or commercial projects. Where a fringe benefit is adopted from a collective bargaining agreement, applicable per diem, if any, must be adopted from that same agreement. If the fringe benefit is adopted from collective bargaining agreements which have equal fringe benefits and different per diem, the per diem must be adopted from the agreement covering more employees. A single fringe benefit rate calculated through the survey for each occupation will be established for bona fide benefits paid or contributed to approved plans, funds, or programs for health insurance, life insurance, pension or retirement, vacations, holidays, and sick leave using the following procedure:

(a) If a minimum of 40 or more workers are reported for the occupation statewide and 50 percent or more of those workers receive the same dollar value of fringe benefits, then the statewide surveyed prevailing fringe benefit rate for that occupation is the higher of:

(i) that fringe benefit; or

(ii) the highest applicable collectively bargained fringe benefit rate.

(b) If 40 or more workers are reported for the occupation statewide but 50 percent of those workers are not paid the same fringe benefit rate, the surveyed prevailing fringe benefit rate for that occupation statewide is the higher of:

(i) the weighted average fringe benefit rate; or

(ii) the highest applicable collectively bargained fringe benefit rate.

(c) If less than 40 workers are reported for the occupation statewide, the surveyed prevailing fringe benefit rate is the highest applicable collectively bargained fringe benefit rate for that occupation statewide.

(d) If less than 40 workers are reported for the occupation statewide and a collective bargaining agreement does not exist for the occupation, the federal Davis-Bacon Act rate for heavy construction services for the occupation in effect statewide for Montana on September 1 of that year is the surveyed prevailing fringe benefit rate for that occupation.

(e) No fringe benefit rate will be established for an occupation where:

(i) a minimum of 40 workers is not reported statewide;

(ii) a collective bargaining agreement does not exist; and

(iii) a federal Davis-Bacon Act rate for heavy construction services has not been established on a statewide basis as of September 1 of that year.

(5) The commissioner considers current wage rate information on file and as provided in survey responses when setting the standard prevailing rate of wages and fringe benefits for each craft, trade, occupation, or type of workers.

(a) Wage information will be considered by the commissioner only if such information is received by the Department of Labor and Industry, P.O. Box 8011, Helena, Montana 59604, within the time set by the commissioner.

(b) The commissioner may request clarification, additional information, or independent verification of information submitted pursuant to this rule.

(c) Wage information received during public comment for the update of prevailing wage rates or fringe benefits will not be considered.

(6) In the event of an incorrect prevailing wage rate or fringe benefit rate being published, the commissioner will review additional data submitted to determine whether the rate is incorrect. If found to be incorrect, the prevailing wage and fringe benefit rates will revert to the last published wage and fringe benefits rate for that occupation that was adopted via the rulemaking and public hearing process. For purposes of this rule, wage information which was not submitted during the survey does not indicate that a rate is incorrect. For temporary rates which have not been adopted via the rulemaking and the public hearing process, a corrected rate will be calculated based on information collected and submitted.

(7) It is the obligation of any person having possession or knowledge of wage rate information, including collective bargaining agreements that the commissioner should consider, or desires that the commissioner consider, to timely deliver such information to the commissioner.

(1) The commissioner shall establish the standard prevailing rate of wages and fringe benefits for the various occupations engaged in highway construction services statewide. Although the commissioner establishes wage rates and fringe benefit rates, including travel, zone pay, and per-diem allowance rates separately, an employer's obligation to pay the "prevailing rate of wages" includes paying the combined value of both wages and fringe benefits, including travel, zone pay, and per-diem.

(2) The commissioner uses various data sources to determine the standard prevailing rate of wages.

(a) The standard prevailing rate of wages may be based upon an annual statewide survey of licensed electrical contractors, licensed plumbers, and registered construction contractors engaged in work performed to commercial building codes, as provided for by 18-2-414, MCA, who are licensed or registered on February 1 of the year in which the survey is being conducted.

(b) The standard prevailing rate of wages may instead be based upon applicable federal Davis-Bacon Act rates for highway construction services in effect for Montana on September 1 of that year.

(c) If, with respect to any given occupation, there is a difference in the standard prevailing rate of wages (including the value of fringe benefits) surveyed for under this section, and the applicable federal Davis-Bacon Act rates in effect statewide for highway construction services in Montana as of September 1 of that year, the commissioner shall adopt the higher of the two as the standard prevailing rate of wages.

(3) Based on survey data collected by the department statewide, the commissioner will compile wage rate information for a given occupation that reflects wage rates actually paid to workers engaged in public works or commercial projects. Where a wage rate is adopted from a collective bargaining agreement, applicable zone pay or travel pay, if any, must be adopted from that same agreement. If the wage rate is adopted from collective bargaining agreements which have equal wage rates and different zone pay or travel pay, the zone pay or travel pay must be adopted from the agreement covering more employees. Wage rates calculated for each occupation will be established using the following procedure:

(a) If a minimum of 40 or more workers are reported for the occupation statewide, and 50 percent or more of those workers receive the same wage, then the statewide surveyed prevailing wage rate for that occupation is the higher of:

(i) that wage; or

(ii) the highest applicable collectively bargained rate.

(b) If 40 or more workers are reported for the occupation statewide, but 50 percent of those workers are not paid the same wage, then the statewide surveyed prevailing wage rate for that occupation is the higher of:

(i) the weighted average wage; or

(ii) the highest applicable collectively bargained rate.

(c) If less than 40 workers are reported for the occupation statewide, the surveyed prevailing wage rate is the highest applicable collectively bargained rate for that occupation statewide.

(d) If less than 40 workers are reported for the occupation statewide and a collective bargaining agreement does not exist for the occupation, the federal Davis-Bacon Act rate for highway construction services for the occupation in effect statewide for Montana on September 1 of that year is the prevailing wage rate for that occupation.

(e) No rate will be established for an occupation where:

(i) a minimum of 40 workers is not reported statewide;

(ii) a collective bargaining agreement does not exist; and

(iii) a federal Davis-Bacon Act rate for highway construction services has not been established on a statewide basis as of September 1 of that year.

(4) Based on survey data collected by the department statewide, the commissioner will compile fringe benefit information for a given occupation statewide that reflects fringe benefits actually paid to workers engaged in public works or commercial projects. Where a fringe benefit is adopted from a collective bargaining agreement, applicable per diem, if any, must be adopted from that same agreement. If the fringe benefit is adopted from collective bargaining agreements which have equal fringe benefits and different per diem, the per diem must be adopted from the agreement covering more employees. A single fringe benefit rate calculated through the survey for each occupation will be established for bona fide benefits paid or contributed to approved plans, funds, or programs for health insurance, life insurance, pension or retirement, vacations, holidays, and sick leave, using the following procedure:

(a) If a minimum of 40 or more workers are reported for the occupation statewide, and 50 percent or more of those workers receive the same dollar value of fringe benefits, then the statewide surveyed prevailing fringe benefit rate for that occupation is the higher of:

(i) that fringe benefit; or

(ii) the highest applicable collectively bargained fringe benefit rate.

(b) If 40 or more workers are reported for the occupation statewide, but 50 percent of those workers are not paid the same fringe benefit rate, the surveyed prevailing fringe benefit rate for that occupation statewide is the higher of:

(i) the weighted average fringe benefit; or

(ii) the highest applicable collectively bargained fringe benefit rate.

(c) If less than 40 workers are reported for the occupation statewide, the surveyed prevailing fringe benefit rate is the highest applicable collectively bargained fringe benefit rate for that occupation statewide.

(d) If less than 40 workers are reported for the occupation statewide and a collective bargaining agreement does not exist for the occupation, the federal Davis-Bacon Act rate for highway construction services for the occupation in effect statewide for Montana on September 1 of that year is the surveyed prevailing fringe benefit rate for that occupation.

(e) No fringe benefit rate will be established for an occupation where:

(i) a minimum of 40 workers is not reported statewide;

(ii) a collective bargaining agreement does not exist; and

(iii) a federal Davis-Bacon Act rate for highway construction services has not been established on a statewide basis as of September 1 of that year.

(5) The commissioner considers current wage rate information on file and as provided in survey responses when setting the standard prevailing rate of wages and fringe benefits for each craft, trade, occupation, or type of workers.

(a) Wage information will be considered by the commissioner only if such information is received by the Department of Labor and Industry, P.O. Box 8011, Helena, Montana 59604, within the time set by the commissioner.

(b) The commissioner may request clarification, additional information, or independent verification of information submitted pursuant to this rule.

(c) Wage information received during public comment for the update of prevailing wage rates or fringe benefits will not be considered.

(6) In the event of an incorrect prevailing wage rate or fringe benefit rate being published, the commissioner will review additional data submitted to determine whether the rate is incorrect. If found to be incorrect, the prevailing wage and fringe benefit rates will revert to the last published wage and fringe benefit rate for that occupation that was adopted via the rulemaking and public hearing process. For purposes of this rule, wage information which was not submitted during the survey does not indicate that a rate is incorrect. For temporary rates which have not been adopted via the rulemaking and the public hearing process, a corrected rate will be calculated based on information collected and submitted.

(7) It is the obligation of any person having possession or knowledge of wage rate information, including collective bargaining agreements that the commissioner should consider, or it is desired that the commissioner consider, to timely deliver such information to the commissioner.

(1) The commissioner shall establish the standard prevailing rate of wages and fringe benefits for the various occupations engaged in nonconstruction services in each district. Although the commissioner establishes wage rates and fringe benefit rates separately, an employer's obligation to pay the "prevailing rate of wages" includes paying the combined value of both wages and fringe benefits, including travel, and per-diem.

(2) The standard prevailing rate of wages is based upon an annual survey in each of the districts established in ARM 24.17.107 of employers pursuant to 18-2-415, MCA, as known to the department as of February 1 of the year in which the survey is being conducted.

(3) Based on survey data collected by the department for each district, the commissioner will compile wage rate information for a given occupation that reflects wage rates actually paid to workers engaged in public works or commercial projects. Where a wage rate is adopted from a collective bargaining agreement, applicable zone pay or travel pay, if any, must be adopted from that same agreement. If the wage rate is adopted from collective bargaining agreements which have equal wage rates and different zone pay or travel pay, the zone pay or travel pay must be adopted from the agreement covering more employees. Wage rates calculated through the survey for each occupation will be established using the following procedure:

(a) If a minimum of 10 or more workers is reported for the occupation within the district and 50 percent or more of those workers receive the same wage, that rate is the prevailing wage rate for that occupation in that district.

(b) If 10 or more workers are reported for the occupation within the district but 50 percent of those workers are not paid the same wage, the weighted average wage rate is the prevailing wage rate for that occupation in that district.

(c) If less than 10 workers are reported for the occupation within the district, the prevailing wage rate is the highest applicable collectively bargained rate for that occupation in that district.

(d) If less than 10 workers are reported for the occupation within the district and a collective bargaining agreement does not exist for the occupation in that district, a weighted average wage rate for the district will be computed using data submitted from that district and its contiguous districts.

(e) If contiguous district data do not sum to a minimum of 10 workers, a statewide weighted average wage rate will be calculated for that occupation.

(f) If a minimum of 10 workers is not reported for the occupation statewide, no wage rate will be established for that occupation.

(4) Based on survey data collected by the department for each district, the commissioner will compile fringe benefit information for a given occupation that reflects fringe benefits actually paid to workers engaged in public works or commercial projects. Where a fringe benefit is adopted from a collective bargaining agreement, applicable per diem, if any, must be adopted from that same agreement. If the fringe benefit is adopted from collective bargaining agreements which have equal fringe benefits and different per diem, the per diem must be adopted from the agreement covering more employees. A single fringe benefit rate calculated through the survey for each occupation will be established for bona fide benefits paid or contributed to approved plans, funds, or programs for health insurance, life insurance, pension or retirement, vacations, holidays, and sick leave using the following procedure:

(a) If a minimum of 10 or more workers is reported for the occupation within the district and 50 percent or more of those workers receive the same dollar value of fringe benefits, that rate is the prevailing fringe benefit rate for that occupation in that district.

(b) If 10 or more workers are reported for the occupation within the district but 50 percent of those workers are not paid the same fringe benefit rate, the weighted average fringe benefit rate is the prevailing fringe benefit rate for that occupation in that district.

(c) If less than 10 workers are reported for the occupation within the district, the district prevailing fringe benefit rate is the highest applicable collectively bargained fringe benefit rate for that occupation in that district.

(d) If less than 10 workers are reported for the occupation within the district and a collective bargaining agreement does not exist for the occupation, a weighted average fringe benefit rate for the district will be computed using data submitted from that district and all contiguous districts.

(e) If contiguous district fringe benefit data do not sum to a minimum of 10 workers, a statewide weighted average fringe benefit rate will be calculated for that occupation.

(f) If a minimum of 10 workers are not reported for the occupation statewide, no fringe benefit rate will be established for that occupation.

(5) The commissioner considers current wage rate information on file and as provided in survey responses when setting the standard prevailing rate of wages and fringe benefits for each craft, trade, occupation, or type of workers.

(a) Wage information will be considered by the commissioner only if such information is received by the Department of Labor and Industry, P.O. Box 8011, Helena, Montana 59604, within the time set by the commissioner.

(b) The commissioner may request clarification, additional information, or independent verification of information submitted pursuant to this rule.

(c) Wage information received during public comment for the update of prevailing wage rates or fringe benefits will not be considered.

(6) In the event of an incorrect prevailing wage rate or fringe benefit rate being published, the commissioner will review additional data submitted to determine whether the rate is incorrect. If found to be incorrect, the prevailing wage and fringe benefit rates will revert to the last published wage and fringe benefits rate for that occupation that was adopted via the rulemaking and public hearing process. For purposes of this rule, wage information which was not submitted during the survey does not indicate that a rate is incorrect. For temporary rates which have not been adopted via the rulemaking and the public hearing process, a corrected rate will be calculated based on information collected and submitted.

(7) It is the obligation of any person having possession or knowledge of wage rate information, including collective bargaining agreements that the commissioner should consider, or desires that the commissioner consider, to timely deliver such information to the commissioner.

(2) If the commissioner receives a written request for a rate that does not exist for a particular craft, trade, or occupation, the commissioner may set an interim advisory rate that may be used by the public contracting agency or public contractor until the rate is published in accordance with ARM 24.17.127. Such rates will not be established more frequently than once every three months.

(3) At least 30 days prior to advertising for bids or letting a contract for a public works project, a public contracting agency may request that a new job classification and commensurate rate of wages and fringe benefits be established for a particular craft, classification or type of worker needed for a project. The commissioner will establish a standard prevailing rate of wages for any craft, classification or type of worker for which no rate has been previously determined.

(4) A request for a new project job classification and commensurate rate of wages and benefits does not relieve a contractor from the obligation to classify and pay workers in accordance with annually established standard prevailing wage rates pending the establishment of a new job classification and wage rates.

(5) A request for a new job classification and rate of wages shall include:

(a) identification of the project by name, number or description and location;

(b) the name and address of the public contracting agency and the successful public contractor if a contract for work on the project has been awarded;

(c) the name, address and signature of the requesting party, and the name, address and signature of a requesting party's representative;

(d) each proposed job classification and rate of wages requested;

(e) a brief description of the project and the character of the work to be performed;

(f) a detailed description of the job requirements, work to be performed and skills involved in each proposed job classification;

(g) an explanation as to why none of the classifications established for the standard prevailing rate of wages is applicable;

(h) any written items of information or documents the requesting party desires to be considered;

(i) the names and addresses of all parties entitled to notice and a signed and dated certificate showing that a copy of the request was mailed to each.

(6) A request for a new job classification and rate of wages must establish:

(a) that the project is of such an unusual character that its performance requires unique skills not traditionally performed by any craft classification or type of worker for which there has been established a standard prevailing rate of wages;

(b) that there exists a classification of workers who commonly perform work involving such unique skills at the proposed rate of wages.

(1) The commissioner's determination of minimum wage rates, including fringe benefits for health and welfare, pension contributions and travel allowance, by craft, classification or type of worker, and by character of project, are adopted in accordance with the Montana Administrative Procedure Act and rules implementing such act.

(a) A notice of proposed adoption of the commissioner's determination is published in the Montana Administrative Register approximately 45 to 60 days prior to adoption according to regular publication dates scheduled in ARM 1.2.419.

(b) Adopted wage rates are effective until superseded and replaced by a subsequent adoption.

(c) The wage rates applicable to a particular public works project are those in effect at the time the bid specifications are advertised.

(d) The wage rates proposed and the wage rates adopted are incorporated by reference in respective notices published in the Montana Administrative Register.

(e) The current building construction services rates are contained in the 2024 amended version of the "Montana Prevailing Wage Rates for Building Construction Services" publication.

(f) The current nonconstruction services rates are contained in the 2024 version of the "Montana Prevailing Wage Rates for Nonconstruction Services" publication.

(g) The current heavy construction services rates are contained in the 2024 amended version of the "Montana Prevailing Wage Rates for Heavy Construction Services" publication.

(h) The current highway construction services rates are contained in the 2024 version of the "Montana Prevailing Wage Rates for Highway Construction Services" publication.

(2) The commissioner maintains a mailing list of interested persons and agencies. A copy of any notice, proposed rate of wages, adopted rates, wages or other information are distributed to each addressee. All others may obtain a copy or be included on the mailing list upon request to the address listed in (3). Copies of adopted wage rates are available at reproduction cost for a period of five years following their effective date.

(3) The standard prevailing rates of wages publications are adopted and incorporated by reference. Copies of the rates are available upon request from the Labor Standards Bureau, Employment Relations Division, Department of Labor and Industry, 1805 Prospect Avenue, P.O. Box 8011, Helena, MT 59604, (406) 444-6543, or online at www.mtwagehourbopa.com.

(2) Assistance in determining the nature of public works projects and whether heavy, highway or building construction prevailing wage rates apply, can be obtained through the office of the Commissioner of Labor and Industry. Any determination or assistance provided by the commissioner's office is based solely on the facts as presented to the commissioner in the specific request for assistance.

(3) Pursuant to 18-2-422 , MCA, a public contracting agency is obligated to include in its bid specifications and public works contracts a provision that the contractors, subcontractors and employers must pay the standard prevailing rate of wages in the performance of the public works contract, and specify what those rates are. As provided in 18-2-403 , MCA, the failure of the public contracting agency to include such provisions subjects the public contracting agency to liability for any underpaid wages owed by any contractor, subcontractor or employer for the performance of the public works contract.

(4) Pursuant to 18-2-403 , MCA, if the public contracting agency includes the required provisions regarding payment of the standard prevailing rate of wages, the contractor, subcontractor or employer that signs the contract with the public contracting agency is obligated to ensure that the appropriate standard prevailing rate of wages is paid to each employee performing construction services in performance of the public works contract, and is liable for any underpaid wages or fringe benefits.

(5) As provided in 18-2-406 , MCA, each contractor, subcontractor or employer must post the wage scale to be paid for work done in performance of the public works contract in a prominent and accessible site on the project or work area from the first day of work and continued for the duration of the project. Failure to pay at least the standard prevailing rate of wages subjects each contractor, subcontractor or employer to penalties and fees as provided by law.

(6) In order to ensure compliance with Montana's prevailing wage laws, public contracting agencies, contractors, subcontractors and employers may enter into contractual agreements that specify that each contractor, subcontractor or employer working on the public works contract has an obligation to ensure that any person, firm or entity performing any portion of the public works contract for which the contractor, subcontractor or employer is responsible, is paid the applicable standard prevailing rate of wages. The terms of the contract may include a provision for the indemnification of a party that is required to pay underpaid wages on behalf of any other person, firm or entity that failed to properly pay the required prevailing wage.

(7) The failure of a contractor, subcontractor or employer to comply with the provisions of 18-2-412 , MCA, regarding the acceptable alternative methods of paying the standard prevailing rate of wages, may subject that party to penalties as provided by law and damages or obligations as specified by contract.

(a) an unequivocal agreement by the contractor or employer to give preference to employment of bona fide Montana residents in compliance with 18-2-403 (1) , MCA;

(b) a statement that any construction project, excluding projects involving the expenditure of federal aid funds or where residency preference laws are specifically prohibited by federal law, the bid specifications and the contract shall provide that at least 50% of the workers of each contractor working on the project will be bona fide Montana residents in compliance with 18-2-403 (1) and 18-2-409 , MCA. In the case of a particular contractor such percentage of Montana residents shall be modified to comply with any written directive by the commissioner specifying a different percentage;

(c) an unequivocal agreement by the contractor or employer that a worker performing labor on the project will be paid the applicable standard prevailing rate of wages as determined by the commissioner;

(d) a listing of standard prevailing wage rates including fringe benefits determined by the commissioner applicable to the public works contract; and

(e) the contract provisions must clearly show that the contractor or employer is bound to pay wages at rates determined by the commissioner, and to give required preferences.

(2) If a contract for public works is to be performed in more than one district where a different standard prevailing rate of wages is established for a particular craft, classification or type of worker, the highest rate is the rate to be included in the bid specifications and contract provision.

(3) Whenever a public works project is accepted by a public contracting agency, the agency shall promptly send to the department a notice of acceptance and the completion date of the project. This notice is required only if the public works project is covered by the Act.

(4) If a public contracting agency fails to comply with the requirements of this rule, the obligation to pay the standard prevailing rate of wages will be placed on the public contracting agency and the contractor may be relieved of such obligation.

(a) In the performance of a public works contract for a construction project, each contractor so engaged shall ensure that at least 50% of all workers performing labor under the contract for public works are bona fide Montana residents.

(b) For cause as provided in 18-2-409 , MCA, a contractor may in writing request that the commissioner modify percentage residency requirements on a particular project. In requesting the variance, the contractor must document in writing any and all measures taken in assessing the availability of bona fide Montana employees including, but not limited to, newspaper advertising or contacting local job service offices, local union halls, or temporary or personnel agencies. The commissioner may modify or waive residency requirements under the provision of the statute and shall by written directive notify the contracting agency of any such modification or waiver.

(2) All contractors and employers shall classify each employee who performs labor on a public works project according to the applicable standard prevailing rate of wages for such craft, classification or type of employee established by the commissioner, and shall pay each such employee a rate of wages not less than the standard prevailing rate.

(2) When making a determination of whether the public agency divided a contract to avoid compliance, the commissioner shall consider the facts and circumstances in any given situation including, but not limited to, the following matters:

(a) the physical separation of project structures;

(b) whether a single public works project includes several types of improvements or structures;

(c) the anticipated outcome of the particular improvements or structures the agency plans to fund;

(d) whether the structures or improvements are similar to one another and combine to form a single, logical entity having one overall purpose or function;

(e) whether the work on the project is performed in one time period or in several phases as components of a larger entity;

(f) whether a contractor, subcontractor or employer and their employees are the same or substantially the same throughout the particular project;

(g) the manner in which the public contracting agency and the contractors, subcontractors or employers administer and implement the project; and

(h) other relevant matters as may arise in any particular case.

(3) When the commissioner determines that a public contracting agency has divided a public works project to avoid compliance, the commissioner shall issue an order compelling compliance. The order shall be written and shall offer the public contracting agency the opportunity to contest the order.

(2) An employer is limited in the number of apprentices permitted on the job site for any class or type of employee based on the allowable ratio of apprentices to journeymen specified in the approved program. This requirement applies to the work site unless otherwise stated.

(3) An apprentice must register 30 days prior to the date the apprentice starts work on the project. An apprenticeship ratio is determined on a daily basis for each work week, based on the number of journeymen employed on site. Any employee who is not registered or otherwise employed as stated in this rule, shall be paid not less than the applicable wage rate on the wage determination for the class or type or work actually performed. If an employer exceeds or has exceeded the allowable ratio of apprentices to journey-level workers, the apprentice(s) who has the earliest starting date on the public works project is the apprentice who may be paid the percentage of pay specified in the apprenticeship agreement. If the records kept by the employer do not identify which apprentice started on which date, in the event the ratio is exceeded on any given day, all of the employer's apprentices working on the public works project must be paid the prevailing wage for that work week. In the event the Montana apprenticeship and training registration agency or the U.S. Bureau of Apprenticeship and Training withdraws approval of an apprenticeship program, or deems the program to be out of compliance, the contractor, subcontractor or employer shall no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the class or type of work performed until determined in compliance or an acceptable program is approved.

(2) In addition to the certification required by ARM 24.17.307, records necessary to determine whether the prevailing wage rate and overtime wages have been or are being paid must include, but are not limited to, records of:

(a) the name, address, and social security number of each employee;

(b) the work classification or craft of each employee;

(c) the rate or rates of monetary wages and fringe benefits paid to each employee, including:

(i) the amount of payment (if any) for travel expenses;

(ii) the amount of payment (if any) for per diem expenses;

(iii) the amount of payment (if any) for other reimbursed expenses; and

(iv) the fair market value of any other benefits provided to the employee by the employer, such as allowing personal use of a company vehicle by the employee and the value of meals and lodging directly furnished by the employer;

(d) the rate or rates of fringe benefits payments made in lieu of those required to be provided to each employee;

(e) total daily and weekly compensation paid to each employee;

(f) the daily and weekly hours worked by each employee, specified by actual calendar date; and if the employee worked in more than one craft or classification for which different rates were payable, the records shall show the number of hours in each day worked at the different crafts or classifications;

(g) apprenticeship and training agreements and standards;

(h) any deduction, rebates or refunds taken from each employee's total compensation and actual wages paid; and

(i) any payroll and other records pertaining to the employment of employees on a public works project.

(3) When apprentices are employed on a public works project, the records must clearly distinguish them from other employees. The records must also clearly identify the date each apprentice started working on the public works project and must include verification of apprenticeship registration.

(4) When a contractor, subcontractor or employer employs an employee on public works projects and non-public works projects during the same work week and the employee is paid a rate of pay which is less than the prevailing wage rate when working on a non-public works project, the employer must separately record the hours worked on the public works contract projects and those hours worked elsewhere.

(a) meals;

(b) lodging;

(c) transportation; or

(d) use of small tools.

(2) A contractor, subcontractor or employer may make deductions if such deductions are in a form prescribed by the commissioner and consistent with federal WH-347 payroll form available at www.dol.gov and are either:

(a) required by law;

(b) required or allowed by a collective bargaining agreement between a bona fide labor organization and the contractor, subcontractor or employer; or

(c) expressed in a written or oral agreement carried out in practice or in fact and mutually understood between an employee and an employer and undertaken at the beginning of employment. Such an agreement must concern the fair market value of other benefits provided to the employee by the employer such as meals and lodging directly furnished by the employer, employee use of company vehicles, or other similar items not regularly or customarily provided.

(2) As used in this rule, "regular rate" has the same meaning as that defined in ARM 24.16.2512.

(3) When making a determination of whether a contractor, subcontractor or employer has reduced an employee's regular rate in violation of (1) of this rule, the department shall consider:

(a) the timing of the wage rate reduction;

(b) whether the wage rate reduction was made pursuant to an established plan;

(c) whether the wage rate reduction is applied equally to all employees in similar job classifications;

(d) whether the wage rate reductions are applied to employees employed on public works projects, but not to employees employed only on projects not subject to the prevailing wage rate laws; and

(e) other considerations as the facts and circumstances of a particular matter may reveal.

(1) All contractors, subcontractors and employers that are required to pay employees the prevailing rate of wages must pay no less than the hourly rate of pay and fringe benefits as determined by the commissioner.

(2) Apprentices must be paid the percentage of the basic hourly rate required, based on the total time in the craft. If the apprentice performs labor which is subject to a higher wage rate either by contract or by law than that specified in the apprenticeship standards, the higher wage rate shall be paid by the contractor, subcontractor, or employer. In any event, the apprentice is to receive the full amount of the fringe benefits stipulated on the wage decision.

(3) The provisions of this rule are met when the amount of the fringe benefit or benefits is paid to the employee, in cash, or irrevocable contributions are made to a trustee or a third party administering a fringe benefit or benefits program.

(4) When a contractor, subcontractor or employer pays an hourly rate of pay which exceeds that determined by the commissioner, the amount by which the rate is exceeded may be credited toward payment of the amount of fringe benefits determined by the commissioner for the trade or occupation.

(5) When a contractor, subcontractor or employer pays a rate for any one fringe benefit which exceeds that which is determined for the fringe benefit, the amount by which the rate is exceeded may be credited toward payment of the amount to be paid for all fringe benefits as determined by the commissioner for the trade or occupation.

(6) When a contractor, subcontractor or employer pays an amount for fringe benefits which exceeds the amount of fringe benefits established by the commissioner, the excess amount may be credited towards the hourly rate of pay. In order for the credit to apply, the contractor, subcontractor or employer must have the amount paid for fringe benefits separately identified as required by ARM 24.17.301(2).

(7) Contributions to fringe benefit plans must be made not less than quarterly.

(2) Fringe benefits must be paid for all hours worked, including the overtime hours. When determining the hourly wage rate for overtime purposes, the amount paid for fringe benefits shall be excluded from the computations when determining the overtime rate. For example, an employee who earns $15 per hour plus $3 per hour in fringe benefits and works 42 hours in a week is entitled to $600 ($15/hr x 40 hours) + $45 ($22.50/hr x 2 hours) + $126 ($3/hr x 42 hours) = $771 for that week.

(1) Public works contracts for construction services where the total contract price is more than $25,000 are subject to standard prevailing wage requirements, and include building construction, heavy construction, and highway construction.

(2) Building construction projects generally are the constructions of sheltered enclosures with walk-in access for housing persons, machinery, equipment, or supplies. It includes all construction of such structures, incidental installation of utilities and equipment, both above and below grade level, as well as incidental grading, utilities and paving.

(a) Work performed in new or reopened pits that produce aggregate, asphalt, concrete or backfill when the pit does not normally sell to the general public that is incidental to the project is considered part of the construction phase.

(b) Examples of building construction include, but are not limited to, alterations and additions to buildings, apartment buildings (five stories and above), arenas (closed), auditoriums, automobile parking garages, banks and financial buildings, barracks, churches, city halls, civic centers, commercial buildings, court houses, detention facilities, dormitories, farm buildings, fire stations, hospitals, hotels, industrial structures (buildings only), institutional buildings, libraries, mausoleums, motels, museums, nursing and convalescent facilities, office buildings, out-patient clinics, passenger and freight terminal buildings, police stations, post offices, power plants (buildings only), prefabricated buildings, remodeling buildings, renovating buildings, repairing buildings, restaurants, schools, service stations, shopping centers, stores, subway stations, theaters, warehouses, water and sewage treatment plants (buildings only), etc.

(c) Projects involving the construction, alteration, or repair of single family individual dwelling units, houses, or apartment buildings of not more than four stories in height and consisting of not more than eight living units, are not subject to the prevailing wage rates.

(3) Highway construction projects include, but are not limited to, the construction, alteration, or repair of roads, streets, highways, runways, taxiways, alleys, trails, paths, and parking areas, bridges constructed or repaired in conjunction with highway work, and other similar projects not incidental to building construction or heavy construction.

(a) Work performed in new or reopened pits that produce aggregate, asphalt, concrete or backfill when the pit does not normally sell to the general public that is incidental to the project is considered part of the construction phase.

(b) Highway construction projects include, but are not limited to, alleys, base courses, bituminous treatments, bridle paths, concrete pavement, curbs, excavation and embankment (for road construction), fencing (highway), grade crossing elimination (overpasses or underpasses), guard rails on highways, highway signs, highway bridges (overpasses, underpasses, grade separation), medians, parking areas, resurfacing streets and highways, roadbeds, roadways, runways, shoulders, stabilizing courses, storm sewers incidental to road construction, street paving, surface courses, taxiways, trails, and utility rights-of-way, along with the staging yards located on or off the right-of-way.

(4) Heavy construction projects include, but are not limited to, those projects that are not properly classified as either "building construction" or "highway construction."

(a) Work performed in new or reopened pits that produce aggregate, asphalt, concrete or backfill when the pit does not normally sell to the general public that is incidental to the project is considered part of the construction phase.

(b) Heavy construction projects include, but are not limited to, antenna towers, bridges (major bridges designed for commercial navigation), breakwaters, caissons (other than building or highway), canals, channels, channel cut-offs, chemical complexes or facilities (other than buildings), cofferdams, coke ovens, dams, demolition (not incidental to construction), dikes, docks, drainage projects, dredging projects, electrification projects (outdoor), fish hatcheries, flood control projects, industrial structures (other than buildings), industrial incinerators (other than buildings), irrigation projects, jetties, kilns, land drainage (not incidental to other construction), land leveling (not incidental to other construction), land reclamation, levees, locks and waterways, oil refineries (other than buildings), pipelines, ponds, power plants and powerhouses (other than buildings), pumping stations (prefabricated drop-in units–not buildings), railroad construction, reservoirs, revetments, sewage collection and disposal lines, sewers (sanitary, storm, etc.), shoreline maintenance, ski tows, storage tanks, swimming pools (outdoor), subways (other than buildings), tipples, tunnels, unsheltered piers and wharves, viaducts (other than highway), water mains, waterway construction, water supply lines (not incidental to building), water and sewage treatment plants (other than buildings), and wells.

(2) As used in this rule, the term "goods and supplies" means tangible items, materials or commodities that are produced or manufactured for use or incorporation in construction projects. The term includes both items that are produced or manufactured to a standard size, grade or dimension, as well as items that are specially manufactured or produced on a "to order" or "made to measure" basis.

(2) Employees of a commercial supplier who are engaged in the performance of services directly upon the job site must be paid the applicable prevailing wage rate for the classification of work performed.

(3) For the purposes of this rule, the term "construction work" means labor that is performed after the commercial supplier delivers the goods or supplies. The fact that a commercial supplier charges for delivery (based on distance from the commercial supplier's location to the job site) does not transform the delivery into "construction work".

(a) As an example, the dumping of gravel from a belly-dump trailer, even if the dumping is done in a long row, is considered to be part of the delivery of the gravel. However, if the driver of the delivery vehicle performs "shovel work" after the load is dumped, that "shovel work" is considered to be "construction work".

(b) As another example, ready-mixed concrete is delivered by a commercial supplier from the mixer truck to a particular location on the job site. The mixer truck operator is delivering the concrete when the operator directs the flow of concrete down the delivery chute that is attached to the mixer truck, even if that flow is directed into a form that has been assembled by others in place. Further movement or manipulation of the concrete, after it leaves the end of the delivery chute, such as distributing the concrete evenly in the form with a shovel or screeding the concrete, constitutes "construction work".

(c) As another example, a commercial supplier delivers road oil to a public works contract site in a tank truck. The transfer of the road oil from the tank truck to a storage tank or into a road oiler truck is considered to be delivery within the meaning of this rule. However, if the supplier's tank truck also sprays the road oil directly on the road surface, that spraying operation is considered to be "construction work" for which the prevailing rate of wages must be paid.

(d) As another example, a commercial supplier of cabinets is not engaging in "construction work" by delivering the cabinets to a particular location or locations in a building that is being constructed pursuant to a public works contract. However, any installation work done to attach the cabinets to the building, or work performed after the cabinets are attached to the building, constitutes "construction work" within the meaning of this rule.

(1) All employers on public works contracts for construction services (including contractors and subcontractors) shall classify each employee who performs labor on a public works contract project according to the applicable standard prevailing rate of wages for such craft, classification or type of employee established by the commissioner, and shall pay each employee a rate of wages not less than the standard prevailing rate. In instances where an employee performs duties and tasks associated with other crafts for 30 minutes or less per day, the employee would still receive the appropriate rate of wages established for the employee's primary craft classification.

This rule has been repealed.

(1) Unlike construction services, which by their very nature are performed at a specific site of work, many non-construction services can be performed at the place of business of the public contracting agency or at the place of the contractor. The fact that non-construction services are rendered at locations away from the place of business of the governmental entity does not change the requirement that the prevailing wage must be paid under the contract.

(2) As an example, school hot lunches under a food service contract could be prepared at the kitchen of a school where the food is being served, or the food could be prepared at the caterer's own kitchen and transported to the school. Regardless of where the food is being prepared, however, the employees must be paid the prevailing wage.

(2) The prohibition against dividing projects so as to avoid payment of the prevailing wages, as provided in ARM 24.17.161, is also applicable to public works contracts involving non-construction services.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(a) the actions of the contractor, subcontractor or employer in response to previous violations, if any, of statutes and rules;

(b) prior violations, if any, of statutes and rules;

(c) the opportunity and degree of difficulty to comply;

(d) the magnitude and seriousness of the violation, including instances of aggravated or willful violation, or gross negligence; or

(e) whether the contractor, subcontractor or employer knew or should have known of the violation.

(2) It shall be the responsibility of the contractor, subcontractor or employer to provide the commissioner with evidence of any mitigating circumstances set out in (1) of this rule.

(3) In arriving at the actual amount of the penalty and costs, the commissioner shall consider the amount of the underpayment of wages, if any, in violation of any statute or rule.

(4) Notwithstanding any other section of this rule, the commissioner shall consider all mitigating circumstances presented by the contractor, subcontractor or employer for the purpose of reducing the amount of the civil penalty to be assessed.

(a) failing or refusing to pay the prevailing rate of wages to employees employed on public works projects;

(b) failing to respond to inquiries from the department to supply necessary payroll information and generally failing to cooperate in the investigation of the prevailing wage investigation; or

(c) submitting falsified payroll information to the department.

(2) Before placing a contractor, subcontractor or employer on the ineligible debarment list, the commissioner shall serve a notice of intended action upon the contractor, subcontractor or employer in the same manner as service of a summons or by certified mail, return receipt requested. The notice will include:

(a) a reference to 18-2-432 , MCA;

(b) a short and concise statement of the matter(s) constituting a violation of Title 18, chapter 2, MCA;

(c) a statement of the party's right to request a contested case hearing and to be represented by counsel at such hearing, provided that any such request must be received by the commissioner in writing within 20 days of service of the notice;

(d) a statement that the party's name will be published on a list of persons ineligible to receive public works contracts or subcontracts, unless the party requests a contested case hearing; and

(e) a statement that failure to make written request to the commissioner for a contested case hearing within the time specified constitutes a waiver of the right to a hearing.

(3) If a contractor, subcontractor or employer makes a timely request for a contested case hearing, a hearing will be held in accordance with the Montana Administrative Procedure Act.

(4) Upon the failure of the contractor, subcontractor or employer to request a contested case hearing within the time specified, the commissioner or the commissioner's designee shall enter an order supporting the ineligibility action.

(5) Debarment applies both to a firm and individuals. In the case of a firm, it may be applied against any or all businesses in which a firm has involvement (i.e., joint ventures) , or over which it has ownership or control (i.e., subsidiaries) . In the case of an individual, debarment may be applied to and enforced against any and all businesses in which the individual has any level of interest, ownership or control.

(6) If debarred by the federal government or any Montana government agency, a person may not bid on or otherwise participate in any public works project or contract in any capacity (prime contractor, subcontractor, supplier, etc.) , including as a separate contractor, until after the completion of the entire debarment period, whether or not the department debars the individual. Debarment proceedings may continue even if the person ceases doing business during the proceedings.

(7) If an individual is debarred by any agency of the federal government for any period, the department may debar the individual for a period up to that set by the federal government without need for further debarment proceedings. The only evidence required in a debarment hearing in a case based on an existing debarment will be a certified copy of an order, agency letter, or other final action declaring the debarment in the other jurisdiction. Presence of a certified order does not preclude the individual from presenting evidence to dispute the proposed debarment or its length. If the individual is debarred by a branch or agency other than of the Montana or federal governments (i.e., another state, a county, etc.) , or if the department may wish a debarment period exceeding that set by the other Montana agency or federal government, the department must hold debarment proceedings before increasing the debarment period.

(8) As used in this rule and ARM 24.17.817, the following definitions apply:

(a) "Aggravatedly" means circumstances that, in conjunction with an act or omission in violation of Title 18, chapter 2, MCA, serve to increase the magnitude, enormity or reprehensibleness of the offense, violation, injury or damage.

(b) "Debarment" is an action taken or decision made by an agency, other than temporary determinations of nonresponsibility or suspension, that excludes a person from bidding on or participating in public works projects and contracts.

(c) "Substantial financial interest" means:

(i) an ownership interest, whether directly or indirectly, of at least 20% of the entity; or

(ii) control over the entity, whether directly or indirectly applied, that is greater than any other single person or entity with an ownership interest.

(d) "Willfully" means that the act is done or omitted with a purpose or willingness to commit the act or make the omission. It does not require any intent to violate the law or to gain an advantage. The term has the same meaning as provided by 1-1-204 , MCA.

(e) "Gross negligence" means an action involving negligence in excess of ordinary negligence.

(2) The list will contain the name of ineligible employers and the names of any firms, corporations, partnerships or associations in which the employer or its owner(s) have a substantial financial interest. Those names will remain on the list for a period of three years from the date such names were first published on the list. The three year period of ineligibility will begin when the decision of the commissioner regarding ineligibility becomes final and no further appeals can be taken.

(3) An employer who desires to be removed from the list before the expiration of three years must show good cause for such removal. Such persons may petition the commissioner at any time during the period of ineligibility. The decision whether good cause exists to remove the employer from the list before the three year period expires rests in the sound discretion of the commissioner. In reviewing such petitions to determine if good cause exists, the commissioner shall consider the following matters:

(a) the history of the petitioner in taking all necessary measures to prevent or correct violations of statutes or rules;

(b) prior violations, if any, of statutes or rules;

(c) magnitude and seriousness of the violation; and

(d) other matters which indicate to the commissioner that the petitioner is not likely to violate these rules in the future.