National Alliance for Fair Contracting

Maine

1. When is the prevailing wage rate used?
2. What is the definition of a public works or related projects?
3. Are there project monetary thresholds?
4. Are any types of projects specifically exempted?
5. What is included in the calculation of wage rates?
6. Who calculates the prevailing wage rates?
7. Enforcement: what are the penalties for violations? Criminal or fines?
8. Can contractors be debarred?
9. Are there posting requirements?
10. Does the agency retain any fines for enforcement (i.e. an enforcement fund)?
11. Record Maintenance?
12. Are there any provisions which discuss apprentices?

When is the prevailing wage rate used?
No information at this time

What is the definition of a public works or related projects?
"Public works" includes all buildings, roads, highways, bridges, streets, alleys, sewers, ditches, sewage disposal plants, demolition, waterworks, airports and all other structures upon which construction may be let to contract by the State and which contract amounts to $50,000 or more. (1304)

* There is no definition offered for the term "State" in this case.

The State, counties, cities and towns, and every charitable or educational institution which is supported in whole or in part by aid granted by the State or by any municipality shall, in the awarding of contracts for constructing, altering, repairing, furnishing or equipping its buildings or public works, give preference to workmen and to bidders for such contracts who are residents of this State, provided the bids submitted by such resident bidders are equally favorable with bids submitted by contractors from without the State. This section shall not apply to construction or repairs amounting to less than $1,000 or to emergency work or to state road work. (1301)

Are there project monetary thresholds?
The monetary threshold in Maine is $50,000 for a project to be considered a "public work". (1304)

Are any types of projects specifically exempted?
A) Whenever a public works construction is built in whole or in part by federal funds and is under the jurisdiction of the Davis-Bacon or other Federal Act that requires the Secretary of Labor to establish the minimum wage and benefits and those minimum wages and benefits are established by the Secretary of Labor, sections 1304 to 1313 do not apply. (1314)

B) Sections 1304 to 1313 apply only to contracts for construction on public works let after January 1, 1968 and to construction on public works for which there has been determined the fair minimum wage and benefits rates as provided in sections 1304 to 1313 and that determination has not been appealed as provided by section 7. (1313)

What is included in the calculation of wage rates?
A) It is declared to be the policy of the State that a wage of no less than the prevailing hourly rate of wages and benefits for work of a similar character in this State must be paid to all workers employed in the construction of public works. (1305)

B) Determination of wage and benefit rates. The Bureau of Labor Standards shall investigate and determine the prevailing hourly wage and benefits rate paid in the construction industry in this State during the 2nd and 3rd week of September of each year. Prevailing wages and benefits must be determined in September 1999 and become effective upon determination. In determining the prevailing rates, the bureau may ascertain and consider the applicable wage and benefits rates established by collective bargaining agreements, if any, and those rates that are paid generally in the locality where the construction of the public works is to be performed. For purposes of this subsection, "benefits" means health and welfare contributions, pension or individual retirement account contributions and vacation and annuity contributions, per diem in lieu of wages and any other form of payment, except for wages, made to or on behalf of the employee. If a defined contribution amount is not established, the most accurate estimated value of contributions must be included. (1308)

C) Surveys. The director may require any person to provide information on the wages and benefits provided to that person's employees and such other information as is needed to determine the prevailing wage and benefits. The director may assess a forfeiture of up to $50 against any person who fails to provide the information as requested. (1308)

* The definition of a "person" is not given in the information found on this issue. However, the definition of an "employee" is the following: "Employee" shall not include such persons as are employed or hired by the public authority on a regular or temporary basis or engaged in making temporary or emergency repairs.

D) Certified copies. A copy of any determination made at the request of the public authority must be certified by the director and filed immediately with the public authority. Copies must be supplied by the bureau to all persons requesting same within 10 days after the filing. (1308)

E) Appeal. Any person affected by the determination of the director, whether or not that person participated in the proceedings resulting in the determination, may appeal to the commissioner from that determination by filing a written notice with the commissioner stating the specific grounds of that person's objection within 10 days from the filing of the copy of the determination with the public authority. The commissioner shall hold a hearing on the appeal, pursuant to Title 5, chapter 375, subchapter IV, within 20 days from the receipt of notice of appeal. The hearing by the commissioner must be held in Augusta. The commissioner has the authority to affirm, reverse or amend the determination of the director. The commissioner shall render a decision within 10 days after the conclusion of the hearing. (1308)

Who calculates the prevailing wage rates?
A) The "fair minimum rate of wages and benefits," for the intent and purposes of sections 1304 to 1313, is the prevailing wage and benefits paid in the locality in like construction. The director or a delegated member of that bureau shall assemble the data as to wages paid by contractors employing 5 or more construction workers in the State during the 2nd and 3rd week of September of each year. From these data, the fair minimum wage and benefits for the following calendar year must be determined by the director. Minimum wages and benefits may not be established for any trade or occupation if fewer than 10 workers are employed in such a trade or occupation in the State in the 2nd and 3rd week of September. (1306)

* "Fair minimum wage and benefits" means the prevailing wage and benefits as determined by the Director of the Bureau of Labor Standards according to section 1306.

B) When fair minimum wage and benefit rates are included and made a part of any contract, the rate must remain unchanged during the time the contract is in effect. (1306)

Enforcement: what are the penalties for violations? Criminal or fines?
A) Violation by contractor or subcontractor. Except as provided in section 1308, subsection 1-A, any contractor or subcontractor who willfully and knowingly violates sections 1304 to 1313 is subject to a forfeiture of not less than $250. (1312)

B) Employees' remedies. Any laborer, worker or mechanic engaged in construction of public works let to contract, who is paid less than the posted fair minimum rate of wages and benefits applicable, may recover from such a contractor or subcontractor the difference between the same and the posted fair minimum rate of wages and benefits a penalty equal in amount to the difference and reasonable attorney's fees; however, the surety for the contractor or subcontractor is not liable for the penalty or attorney's fees. (1312)

C) Unfair agreement. A person may not request, demand or receive money or other thing of value from an employee whose rate is determined by sections 1304 to 1313 upon the statement, representation or understanding that failure to comply with such request or demand will prevent the employee from procuring or retaining employment. A person may not aid, directly or indirectly, assist or abet another to violate the prohibitions of this subsection. Any person violating the prohibitions of this subsection is subject to a forfeiture of not less than $250. (1312)

D) Any contractor who knowingly and willfully violates this section (hourly wage and benefit rate) is subject to a fine of not less than $250 per employee violation. Each day that any contractor employs a laborer at less than the wage and benefit minimum stipulated in this section constitutes a separate violation of this section. (1303)

E) This section may not be construed to make unlawful any provision in a collective bargaining agreement between an employer and a labor organization that relates, in any manner, to the conditioning of employment on union membership or on the payment of regular and periodic dues, or of initiation fees, to a labor organization. (1312)

Can contractors be debarred?
A) The information provided is vague when it comes to the issue of debarment because of a prevailing wage violation. However

B) If a contractor is disqualified for any of the reasons stated in subsection 1, 2, 4, 5, 6 or 7, the director may disallow the contractor from bidding on any similar public improvements for a period not to exceed one year. (1747)

* The number 3 is not included in the above reasons for disqualification.

C) The Director of General Services, after consultation with the appropriate department head or superintendent of schools, may refuse to release plans and specifications to a contractor for the purpose of bidding on a project: (1747)

Untimely completion. If, in the opinion of the director, there is evidence the contractor has not completed in a timely manner a prior construction project or projects and the resulting non-completion clearly reflects disregard for the completion date and has created a hardship for the owner;(1747)
Incomplete work. If, in the opinion of the director, there is evidence the contractor has a history of inability to complete similar work; (1747)
Insufficient resources. If, in the opinion of the director, there is evidence the contractor does not have sufficient resources to successfully complete the work. The director may require additional information about the contractor's resources, including identification of major claims or litigation pending and whether the contractor has sought protection under the bankruptcy laws in the past 5 years. That information is confidential and not subject to disclosure under Title 1, chapter 13, subchapter 1. In evaluating the resources of a contractor, the director may consider the contractor's prior experience, including any significant disparity between the size and type of prior projects and the project or projects under consideration; (1747)
Misconduct. If the contractor has been convicted of collusion or fraud or any other civil or criminal violation relating to construction projects;(1747)
Safety record. If, in the opinion of the director, there is evidence of a history of inadequate safety performance and lack of formal safety procedures;(1747)
Material misrepresentation. If, in the opinion of the director, there is evidence of a material misrepresentation on the contractor's pre-bid qualification statement; or (1747)
Termination, suspension, defaults. If, in the opinion of the director, there is evidence that the contractor through its own fault has been terminated, has been suspended for cause, has been debarred from bidding, has agreed to refrain from bidding as part of a settlement or has defaulted on a contract or had a contract completed by another party. (1747)

* This information is taken from Title 5, Section 1747.

Are there posting requirements?
A clearly legible statement of all fair minimum wage and benefits rates to be paid the several classes of laborers, workers and mechanics employed on the construction on the public work must be kept posted in a prominent and easily accessible place at the site by each contractor and subcontractor subject to sections 1304 to 1313. (1310)

Does the agency retain any fines for enforcement (i.e. an enforcement fund)?
There is no documentation stating that the state of Maine retains fines for enforcement.

Record Maintenance?
A) The contractor and each subcontractor in charge of the construction of a public work shall keep an accurate record showing the names and occupation of all laborers, workers and mechanics employed by them and all independent contractors working under contract with them in connection with the construction on the public works. The record must also show for all laborers, workers, mechanics and independent contractors the hours worked, the title of the job, the hourly rate or other method of remuneration and the actual wages or other compensation paid to each of the laborers, workers, mechanics and independent contractors. A copy of such a record must be kept at the job site and must be open at all reasonable hours to the inspection of the Bureau of Labor Standards and the public authority that let the contract and its officers and agents. It is not necessary to preserve those records for a period longer than 3 years after the termination of the contract. A copy of each such record must also be filed monthly with the public authority that let the contract. The filed record is a public record pursuant to Title 1, chapter 13, except that the public authority letting a contract shall adopt rules to protect the privacy of personal information contained in the records filed with the public authority under this section, such as Social Security numbers and taxpayer identification numbers. The rules may not prevent the disclosure of information regarding the classification of workers or independent contractors and the remuneration they receive. Such rules are routine technical rules as defined by Title 5, chapter 375, subchapter 2-A. (1311)

B) Every municipality calling for such bids shall enter proposals and bids upon its books, showing the name and residence of each bidder, and the amount and terms of each bid, and to whom the work or contract was awarded. The same shall be open to the inspection of the Governor. (1302)

Are there any provisions which discuss apprentices?
There is no information available on this subject

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