N.M. Admin. Code § 11.1.2.9

Current through Register Vol. 35, No. 23, December 10, 2024

Section 11.1.2.9 - RESPONSIBILITIES AND DUTIES

A. The director shall:

(1) coordinate the administration of the Public Works Minimum Wage Act;

(2) annually determine the prevailing wage and fringe benefit rates and the rate for the employer contributions to the public works apprentice and training funds, and publish said rates;

(3) pursue enforcement of the payment of prevailing wages and fringe benefit rates;

(4) adopt standard job classifications applicable on public works projects;

(5) adopt appropriate wage rate for all apprentices on public works projects;

(6) issue electronic correspondence of the appropriate wage rate decision or decisions to the requesting agency within five business days of receipt by the director of such agency's request;

(7) furnish the contracting agency and the contractor or employer with posters or written summaries containing the minimum wage rates of all employees for posting at each particular project site;

(8) notify the contracting agency and the contractor or employer when the contractor or employer has failed to comply with any requirement of the PWMWA and of the obligation of the contracting agency to withhold the payment of funds to the contractor or to ensure that all laborers and mechanics working on the project are paid according to the prevailing wage;

(9) request certified payrolls by letter or by issuing a subpoena at the director's discretion, if appropriate payments have not been made by an employer;

(10) notify the contracting agency and the contractor or employer of the right of the contracting agency to terminate the contract when a determination is made by the director of a willful failure of the contractor or employer to comply with the PWMWA.

B. The contracting agency, or its agent, shall:

(1) Submit a request to the director, in the manner prescribed by the division, not less than three weeks before the initial advertising date, for a wage rate decision applicable to the work to be performed. The request shall contain the following information:

(a) name, title and signature of requesting officer;

(b) department or agency requesting decision;

(c) date of request;

(d) full description and estimated cost of each of the several classifications of construction as set out in 11.1.2.10 NMAC.

(e) location (city or other description) of project site; and

(f) proposed advertising date and date by which bids are to be submitted.

(2) Electronically submit, to the director the notification of award and list of subcontractors within five business days of the execution of the contract.

(3) Electronically submit to the director any changes or additions made to the list of subcontractors within 10 business days of the change or addition.

(4) Electronically submit to the director notice of any cancellation of the project within 10 business days of the cancellation.

(5) Include wage rate decisions in advertised specifications for every contract subject to the PWMWA.

(6) Include in the advertised specifications and the contract a requirement that the contractor or any tier of the subcontractors must agree to pay the prevailing wages and benefits in order for a bidder to be considered responsible and that the contractor must, within 3 days of the award, submit to the director a signed statement of intent to pay prevailing wages and fringe benefits on a form provided by the director.

(7) Include in the advertised specifications and the contract between the agency and the contractor for all work subject to the terms of the PWMWA a provision requiring contractors and all tiers of subcontractors to maintain certified weekly payroll records that are to be updated weekly, provided to the contracting agency on a monthly basis and to the director, upon request. The prime contractor is responsible for the submission of copies of certified payroll records by all subcontractors. The director may require disclosure of any information necessary to ensure compliance by all contractors at all tiers with the requirements of the PWMWA.

(8) The contractual provision shall require that all payrolls be numbered, starting with number one for the first payroll at the beginning of the job and continuing in numerical order until the job is completed. The advertised and contractual provision need not require any particular form for contractor or subcontractor forms. The advertised and contractual provision need not require any particular form for contractor or subcontractor payrolls. The certified payrolls must contain the following information:

(a) the employee's full name need only appear on the first payroll on which the employee's name appears;

(b) the employee's classification (or classifications);

(c) the employee's hourly wage rate (or rates); the employee's hourly fringe benefits; subsistence and zone pay when applicable, and the employee's overtime hourly wage rate (or rates);

(d) the daily and weekly hours worked in each classification, including actual overtime hours worked (not adjusted);

(e) the itemized deductions made;

(f) the net wages paid;

(g) the identifying number of the wage rate decision issued on the project by the director:

(h) statement of compliance form;

(i) fringe benefit statement, when applicable; and

(j) annualization of fringe benefit worksheet.

(9) Include in the advertised specifications and the contract between the agency and the contractor for all work subject to the terms of the PWMWA a provision requiring contractors and all tiers of subcontractors to maintain the full social security number and current address of each employee and provide them to the director upon request for purposes of an investigation or audit of compliance with prevailing wage requirements

(10) Include in the advertisement for bidding and the contract between the agency and the contractor a provision requiring the contractors and all tiers of subcontractors to provide a signed statement with the certified payrolls demonstrating the disbursement of all fringe benefits paid to or on behalf of each employee of the contractor or subcontractor.

(11) Electronically notify the director within 10 business days if the contracting agency makes a finding or determination that the employees of the contractor or subcontractors are not being paid the prevailing wages or benefits required or if the contractor or subcontractors are otherwise failing to perform in accordance with the requirements of the PWMWA.

(12) Withhold payments to the contractor, if the contractor or any subcontractor is otherwise failing to perform in accordance with the requirement of the PWMWA, until such time as the employees have all been paid sums that are due or to the contracting agency may pay the employees of the contractor or subcontractor directly any sums that are due.

(13) Require that the contractor and all subcontractors and their tiers shall maintain legible copies of the certified weekly payrolls prepared in accordance with these regulations for a minimum of three years from the date of the final payment and for so long as is required to resolve any disputes or claims regarding the payment of wages or benefits to employees of the contractor or subcontractor that remain pending after one year and subject to all other state or federal requirements for the retention of such records by the contractor.

(14) Comply with the lawful requests of the director and cooperate with the director regarding the inspection of the project and the acquisition of all requested documentation regarding the project necessary to assure that all employees of contractors and subcontractors working on the project have been paid.

(15) Require that the contractor and each of the subcontractors submit an affidavit of wages, fringe benefits and subsistence and zone payments made prior to the final payment by the contracting agency on a project, which shall be in the following form:

I hereby certify that the above information is correct and that all workers I employ on this public works project were paid no less than the Prevailing Wage Rate(s) as determined by the Department of Workforce Solutions, Labor Relations Division for this project as identified by the State Wage Decision Number. I understand that contractors who violate Prevailing Wage Laws (i.e., incorrect job classification, improper payment of prevailing wages, or overtime, etc.), are subject to debarment procedures and shall be required to pay back any wages due to workers. (Ref. Labor Relations Division Public Works Minimum Wage Act Policy Manual (11.1.2 NMAC) & Public Works Minimum Wage Act (13-4-11 through 13-4-18, NMSA 78)). I, ______________, being first duly sworn on oath under penalty of perjury, swear that the foregoing information is true and correct.

Contractor's signature. Date

Notary: Subscribed and sworn to before me at _____ this _____ day of __________, 2___ _____________________ ___________ Notary Public

(Signature) (Date)

My commission expires: __________________

C. Contractor and subcontractor shall:

(1) Pay employees, including apprentices, the prevailing wage and fringe benefits determined to be due pursuant to the prevailing wage rate determination for the project.

(2) Post the prevailing wage and fringe benefits for all employees provided by the director in a prominent, easily accessible place at the site of each particular project.

(3) Submit to the contracting agency on a monthly basis, and to the director within 10 business days of a request by the director for the purposes of an investigation or audit of compliance with prevailing wage requirements, certified payrolls and a signed statement showing the disbursement of all fringe benefits paid to or on behalf of each employee of the contractor or subcontractor. The prime contractor is responsible for the submission of copies of certified payrolls of all subcontractors.

(4) Comply with all requirements imposed by the PWMWA and these regulations.

(5) Submit to the contracting agency an affidavit of wage, fringe benefits, and subsistence and zone payments made to the employees, in the form required by the director, prior to the final payment by the contracting agency on a project.

(6) Maintain certified payrolls and documents regarding the disbursement of fringe benefits for a minimum of three years from the date of final payment to the contractor and so long as is required to resolve any disputes or claims of employees or the director regarding the payment of wages or benefits to employees of the contractor or subcontractor.

(7) Maintain a valid LEF registration at the time bids are due and for the duration of the project in accordance with Section 13-4-13.1 NMSA 1978.

N.M. Admin. Code § 11.1.2.9

5/31/72, 6/4/79, 1/29/81, 5/28/81, 11/4/88; 11.1.2.9 NMAC - Rn, 11 NMAC 1.1.9, 12/31/09; A, 3/15/12, Adopted by New Mexico Register, Volume XXVII, Issue 24, December 30, 2016, eff. 12/30/2016, Amended by New Mexico Register, Volume XXXI, Issue 21, November 10, 2020, eff. 11/10/2020, Amended by New Mexico Register, Volume XXXI, Issue 24, December 29, 2020, eff. 11/10/2020