Service Contract Act Wage Determination OnLine Request Process, 50888-50899 [05-16779]
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Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations
DEPARTMENT OF LABOR
Employment Standards Administration
Wage and Hour Division
29 CFR Parts 1 and 4
[RIN 1215–AB47]
Service Contract Act Wage
Determination OnLine Request
Process
Wage and Hour Division,
Employment Standards Administration,
Labor.
ACTION: Final rule.
AGENCY:
SUMMARY: The Department of Labor
(DOL) is amending two regulations to
allow for full implementation of the
Wage Determinations OnLine (WDOL)
Internet Web site (https://www.wdol.gov)
as the source for federal contracting
agencies to use when obtaining wage
determinations issued by the DOL for
service contracts subject to the
McNamara-O’Hara Service Contract Act
(SCA) and for construction contracts
subject to the Davis-Bacon Act and
Related Acts (DBRA).
DATES: These rules are effective on
September 26, 2005.
FOR FURTHER INFORMATION CONTACT:
William W. Gross, Director, Office of
Wage Determinations, Wage and Hour
Division, Employment Standards
Administration, U.S. Department of
Labor, Room S–3028, 200 Constitution
Avenue, NW., Washington, DC 20210,
telephone (202) 693–0062. This is not a
toll-free number.
You may direct questions of
interpretation and/or enforcement of
regulations issued by this agency or
referenced in this notice to the nearest
Wage and Hour Division District Office.
Locate the nearest office by calling the
WHD toll-free help line at 1–866–4USWAGE (1–866–487–9243) between 8
a.m. and 5 p.m. in your local time zone,
or log onto the agency Web site for a
nationwide listing of WHD District and
Area Offices at: https://www.dol.gov/esa/
contacts/whd/america2.htm.
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act
This regulation is not subject to the
Paperwork Reduction Act, because it
contains no new information collection
requirements and does not modify any
existing requirements.
II. Section 508 of the Rehabilitation Act
The Wage Determinations OnLine
(WDOL) Internet Web site (https://
www.wdol.gov), an electronic
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information resource, is subject to and
will be developed and maintained in
accordance with the accessibility
requirements of Section 508 of the
Rehabilitation Act, 29 U.S.C. 794d.
III. Summary of Changes
The SCA requires contractors and
subcontractors performing services on
prime contracts in excess of $2,500 to
pay service employees in various classes
no less than the wage rates and fringe
benefits found prevailing in the locality
as determined by the Secretary of Labor
(or authorized representative), or the
rates (including prospective increases)
contained in a predecessor contractor’s
collective bargaining agreement.
SCA section 4, 41 U.S.C. 353,
authorizes the Secretary of Labor to
enforce the Act, make rules and
regulations, issue orders, hold hearings,
make decisions based upon findings of
fact and take other appropriate action.
The DOL rules relating to SCA
administration are contained in
Regulations, 29 CFR part 4.
Section 1 of the Davis-Bacon Act
(DBA), as amended, 40 U.S.C. 3141 et
seq., requires that each contract over
$2,000 to which the United States or the
District of Columbia is a party for the
construction, alteration, or repair of
public buildings or public works shall
contain a clause setting forth the
minimum wages to be paid to various
classes of laborers and mechanics
employed under the contract. The DBA
requires contractors or their
subcontractors to pay workers employed
directly upon the site of the work no
less than the locally prevailing wages
and fringe benefits paid on projects of
a similar character as determined by the
Secretary of Labor.
Regulations, 29 CFR part 1, contain
the procedures for making and applying
determinations of prevailing wage rates
and fringe benefits pursuant to the DBA
and any other Federal statute providing
for determinations of such wages (the
Davis-Bacon Related Acts) by the DOL
in accordance with the provisions of the
DBA.
The DOL published a Notice of
Proposed Rulemaking in the Federal
Register on December 16, 2004 (69 FR
75408), proposing to update its
regulations to have contracting agencies
use the WDOL Internet website to meet
their obligation to obtain DBA general
wage determinations from the Wage and
Hour Division (WHD). The DOL
proposed to publish wage
determinations solely through WDOL
and to discontinue publishing notice of
changes in the Federal Register and to
no longer publish paper copies of
general wage determinations through
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the Government Printing Office (GPO).
WDOL offers users the opportunity to
request e-mail notice of future revisions
to a wage determination they have
selected for a specific period of time, or
until a specific date.
For SCA wage determinations, the
DOL proposed to eliminate the paper
Form SF–98 and replace it with an
electronic e98 process by which
contracting agencies may continue to
request SCA wage determinations from
the WHD. The DOL also proposed to
allow use of WDOL as an alternative
means of obtaining SCA wage
determinations. The DOL further
proposed to update pertinent statutory
citations for applicable laws to reflect
amendments to Title 40 of the U.S. Code
and to make other minor editorial
revisions and updates to its regulations.
The development of WDOL required
an update of the existing regulations,
which now also provides a basis for
updating related information in the
Federal Acquisition Regulations (FAR)
to be compatible with the DOL rule.
WDOL does not affect how the WHD
determines prevailing wages under
either the SCA or DBA.
29 CFR Part 1
The proposed rule adopted the WDOL
website as the single source for
obtaining DBA general wage
determinations and eliminated
publication of notices in the Federal
Register. Notice of future modifications
and supersedeas general wage
determinations will be posted on
WDOL. The proposed rule also
eliminated references to GPO
publication of general wage
determinations, although GPO may
continue, at its discretion, to publish
general wage determinations. The
proposed rule retained the requirement
in the current regulations under 29 CFR
1.5 that Federal contracting agencies
request a wage determination by
preparing and mailing Form SF–308 to
the Department of Labor, for those
infrequent situations when a DBA
general wage determination is not
available through WDOL. The DOL
processed fewer than 100 Forms SF–308
in FY 2004, and did not believe
providing Federal agencies with an
electronic submission option in these
rare cases justified the considerable
expense that developing such a system
would require.
29 CFR Part 4
The proposal drew upon
technological advances of recent years
and the wide use of electronic
communication and information
sharing. It replaced the paper Standard
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Form SF–98 request and response
process for obtaining SCA wage
determinations with an electronic e98
process and enabled contracting
agencies alternatively to use the WDOL
website to obtain SCA wage
determinations.
The DOL has been working with
contracting agencies to develop better
and more efficient mechanisms for
agencies to obtain SCA wage
determinations. With the advent and
expansion of the Internet in the mid1990s, several contracting agencies
approached the WHD seeking the ability
to access and download SCA wage
determinations. The vast majority of the
covered service contracts awarded by
these agencies were either options or
renewals, and the applicable SCA wage
determinations for these contracts were
well established. By this time, the WHD
had developed a standard set of SCA
wage determinations that applied to
most of these contracts. The National
Technical Information Service (NTIS)
had posted these wage determinations
on the Internet for information
purposes, and the agencies requested
the ability to download and use these
standard wage determinations in
appropriate situations. This led to the
WHD entering into Memoranda of
Understanding (MOUs) with several
agencies to allow them to use these
standard wage determinations without
first submitting an SF–98. Under the
MOUs, the agencies agreed to train their
personnel in the proper selection and
use of SCA wage determinations. The
agencies also agreed to monitor the SCA
wage determinations database and to
use any subsequent revisions of the
applicable wage determinations that
were issued before the applicable
procurement dates specified in the SCA
regulations. After the agency selected an
applicable SCA wage determination, it
would notify the WHD of its selection
by the submission of a Form SF–98 after
the fact.
This MOU program further
implemented the remedial purpose of
the SCA by requiring that participating
agencies monitor the SCA wage
determination database and use the
latest revisions published in a timely
manner before award or commencement
of the contract. With the paper Form
SF–98, the WHD had no mechanism to
follow-up and advise contracting
agencies when wage determinations
were revised or updated. Because the
MOU program proved to be quite
successful, it subsequently was
expanded to numerous other agencies.
An interagency work group composed
of representatives from the Office of
Management and Budget, Department of
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the Army, Department of the Air Force,
Department of the Navy, Army Corps of
Engineers, General Services
Administration, NTIS and the
Department of Energy began
development of a new online system
designed to consolidate the best
practices of agencies operating under
the MOU program. The work group also
looked at adding non-standard wage
determinations to the online system.
Principal objectives of the work group
were the elimination of the paper Form
SF–98 and the availability of wage
determinations electronically.
At the same time, the WHD was
developing an electronic request and
response system to replace Form SF–98.
The WHD began live tests of the e98
system in FY 2003. During FY 2003, the
WHD received and responded to more
than 12,000 e98 submissions. A
computer responds to a significant
number of the e98 requests immediately
while the requester is online. The
remaining requests are referred to an
analyst and the response is usually sent
later the same day or the next day. For
all requests, the e98 system is designed
to track individual requests by the
procurement dates listed on the request,
and when a wage determination that
would affect a particular procurement is
revised, an amended email response is
sent to the contracting agency.
The site developed by the WDOL
work group integrates the e98 process
with the best practices developed under
the MOU program. WDOL offers users a
number of unique features in a webbased environment. The site includes:
(1) guidance to contracting officers on
selecting the appropriate wage
determination for each contract action;
(2) access to the most current SCA and
DBA wage determinations, as well as an
alert service for notification of future
revisions to particular wage
determinations; and, (3) access to
databases containing archived wage
determinations under both the SCA and
DBA.
To facilitate contracting officers
selecting the appropriate SCA wage
determination, the WDOL site leads the
requester through a ‘‘decision tree’’
consisting of a series of questions. Based
upon the responses to these questions,
the WDOL site will either identify an
SCA wage determination or direct the
requester to submit an e98. A link to the
e98 site is provided. In addition, the
WDOL site gives the requester the
option of going directly to the e98 site
without having to go through the
‘‘decision tree’’ selection process. If a
contracting officer has any question
regarding the selection of the proper
SCA wage determination, the WDOL
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site directs the contracting officer to the
e98.
As clearly indicated on the WDOL
Web site, compliance with the decision
tree selection process and the guidance
provided by the User’s Guide does not
relieve the contracting officer or other
program user of the requirement to
carefully review the contract or
solicitation, the FAR and its
Supplements, other Federal agency
acquisition regulations or the DOL
regulations related to these actions. If
the DOL discovers and determines,
whether before or after contract award,
that the correct SCA wage determination
was not included in a covered contract,
the contracting officer, within 30 days of
notification by the DOL, is required to
include in the contract the applicable
wage determination issued by the DOL.
(See 29 CFR 4.5(c)(2).)
III. Summary of Comments
DOL received five comments in
response to the Notice of Proposed
Rulemaking, discussed further below,
from the: Office of the Under Secretary
of Defense (DOD); Army Corps of
Engineers (Army); Department of the
Navy, Office of the Assistant Secretary
for Research, Development and
Acquisition (Navy); Contract Services
Association (CSA); and International
Association of Machinists and
Aerospace Workers. All comments
generally support the automated
environment for obtaining wage
determinations that underlies the
proposed rule; however, several
comments recommend minor revisions.
Some of the recommendations address
issues that are beyond the scope of the
proposed rule.
The CSA urges removing the
references in proposed §§ 1.2(e) and
4.1a(i) that ‘‘the term WDOL will apply
to any other Internet Web site or
electronic means that the Department of
Labor may approve for these purposes,’’
in addition to https://www.wdol.gov. The
CSA believes the definition may cause
potential confusion among contractors
and contracting agencies. These sections
define the term, ‘‘WDOL.’’ The proposed
rule allows more flexibility and
accommodates future technological
advances without the delays that might
otherwise be associated with procedural
regulatory changes. The final rule
retains the references.
The Navy urges revising or
eliminating the current requirement in
§ 1.4 for contracting agencies to provide
the DOL with an annual summary of
their construction plans for the coming
year. The final rule retains the
requirement. The Navy believes much of
the information provided in these
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reports could be extracted from various
reports used for other purposes. These
construction reports are not related to
the process for obtaining wage
determinations and are not part of the
proposed rule. In the past, the WHD has
used these reports to identify localities
with the greatest need for new DavisBacon wage surveys. Although the WHD
is testing new processes that might
allow regularly scheduled Davis-Bacon
wage surveys of all areas of the country,
it is not yet clear that such processes
will totally eliminate the need for some
targeted surveys. In addition, it is not
clear that the other sources identified by
the Navy would provide the same level
of detail and information as called for
under § 1.4 of the Regulations. The DOL
does not believe that further action on
this recommendation is warranted at
this time and that the suggestion would
necessitate reopening the notice and
comment process. The DOL will give
careful consideration to the Navy’s
recommendation, if it undertakes
further rulemaking regarding the DavisBacon Act in the future.
The DOD and Navy recommend
replacing the detailed discussion in
§ 1.5(b) regarding the requirements for
completing Form SF–308 with a more
general statement and provide for an
electronic submission option. The final
rule retains the existing provision,
because the DOL does not believe
providing Federal agencies with an
electronic submission option for the rare
instances in which an agency files Form
SF–308 justifies the considerable
expense that developing such a system
would require. The DOL processed
fewer than 100 Forms SF–308 in FY
2004.
The CSA recommends amending the
definition of ‘‘wage determination’’ in
§ 4.1a(h) to clarify the effective date and
applicability of wage determinations.
This definition is not part of the
proposed regulatory changes. The
Administrative Procedure Act (APA), 5
U.S.C. 553, normally requires notice and
an opportunity for public comment
when an agency amends a substantive
rule. The APA, however, contains
exceptions to the notice and comment
provisions for (1) ‘‘interpretive rules,
general statements of policy, or rules of
agency organization, procedure, or
practice’’ and (2) rules where the agency
for good cause finds that notice and
public comment are ‘‘impracticable,
unnecessary, or contrary to the public
interest.’’ Agencies may immediately
adopt rules subject to the exceptions.
The suggested change regarding the date
on which a wage determination
becomes effective, without including a
reference to the applicability of the
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determination, helps to clarify the
WDOL process and augments § 4.4(c)(1)
of the proposed rule. The section makes
clear that a contracting agency using the
WDOL process bears full responsibility
for selecting the correct wage
determination. The rule, however, also
requires the contracting agency to
amend a contract if the DOL
subsequently determines the contracting
agency applied an incorrect wage
determination to a specific contract;
thus, an inapplicable wage
determination does not become
applicable because the contracting
agency has inserted it into the
contracting action. The final rule
incorporates the suggestion to include
when a wage determination becomes
effective by adding a new sentence to
the existing definition for wage
determination in § 4.1a(h) to read, ‘‘A
wage determination is effective upon its
publication on the WDOL website or
when a Federal agency receives a
response from the Department of Labor
to an e98.’’ The DOL hereby finds,
pursuant to 5 U.S.C. 553(b)(3)(B), that
notice and public comment procedures
on this clarification of the definition of
‘‘wage determination’’ in § 4.1a(h) are
impracticable and unnecessary and
would not further the public interest.
The DOD and Navy want the
definition for the term, ‘‘e98,’’ in
§ 4.1a(j) to include the Internet address
for WDOL. The agencies believe such a
change would help clarify how to locate
the e98. The DOL agrees this could
improve access to the e98. The final rule
includes the Web site.
The CSA believes proposed § 4.3(c)
requires minor clarification by adding
the word, ‘‘revision,’’ to the discussion
of methods by which an existing wage
determination may become obsolete in
the last sentence. The CSA points out
that the remainder of the section
discusses ‘‘revisions’’ of wage
determinations. The DOL agrees the
change may help in understanding the
requirement, and the final rule
incorporates this change. The CSA also
recommends relocating the proposed
description in § 4.3(c) of what a wage
determination includes and its
significance to the definitions found in
§ 4.1a. The final rule retains the
description in its present location,
because the DOL believes the overall
discussion of wage determinations in
§ 4.3 remains a more appropriate
context for information found in a wage
determination and its significance.
The CSA also urges revising proposed
§ 4.3(e) to (1) make all effective SCA
wage determinations and any
underlying collective bargaining
agreements and locality wage
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determinations available for public
inspection at all WHD District Offices
and (2) clarify the availability of
archived wage determinations through
WDOL. The proposed regulation
provides for the DOL to make wage
determinations available for public
inspection through the National and five
Regional Offices of the WHD during
regular business hours and through
WDOL. The proposed WDOL rule
parallels the ‘‘public inspection’’
provisions that exist in the current rule
geared for review of only paper
documents and, adds an on-line viewing
feature available through WDOL. The
final rule does not provide for public
inspection of wage determinations at
WHD District Offices but does highlight
the availability of archived copies of
wage determinations through WDOL.
WHD District Offices are not staffed in
a way that would allow public
inspections of wage determinations in
the District Offices. In addition, the
proposed change would require the
agency to either maintain a supply of
printed copies of all wage
determinations available or a computer
available for public use at each District
Office. Adoption of the recommendation
would impose a regulatory requirement
to make staff available and print copies
of all wage determinations in each
District Office and could impose a new
demand for resources not presently
available. Persons in outlying areas may
access wage determinations through the
Internet and facilities to access the
Internet are available at public libraries.
Availability of a DOL computer for
public inspection could also present
potential security concerns for DOL’s
information technology systems. The
WDOL website does have a capability to
allow the viewing of archival copies of
wage determinations that are not
current, and the final rule makes that
availability clear. The DOL has also
incorporated this suggestion in
§ 1.6(c)(3)(v), with respect to DavisBacon wage determinations.
The DOL has received several
suggestions regarding § 4.4, Obtaining a
wage determination. The CSA urges
inserting ‘‘applicable,’’ when referring
to wage determinations in effect for a
particular contracting action in § 4.4(a).
The CSA wants this change since the
FAR SCA price adjustment clause uses
‘‘applicable’’ to describe the basis for
changing pricing when a new wage
determination takes effect, tribunals use
‘‘applicable’’ when determining which
wage determination is appropriate for
price adjustment, and DOL uses the
term for enforcement purposes. The
final rule does not include the reference.
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The DOL believes the proposed
regulation sufficiently outlines the
relevant applicable requirements and
the reasons for not adopting a similar
suggestion discussed in relation to
§ 4.1a(h) also apply to this situation.
The CSA also suggests adding the
issuance of any task order issued
pursuant to a GSA Schedule contract or
blanket purchase agreement for
commercial services to the illustrative
list of contracting actions for which a
contracting agency must obtain a wage
determination in § 4.4(a)(1). The CSA
believes adding the reference may be
prudent, given the continuing growth of
GSA Schedule and commercial service
contracting. The final rule does not add
the example. The DOL believes naming
GSA schedule contracts and blanket
purchase agreements may cause some
confusion, because no individual task or
purchase order determines the amount
of the contract. The existing provisions
of § 4.142 provides guidance by stating
these contracts would ordinarily
constitute contracts within the intent of
the Act under judicially established
principles.
A third CSA recommendation
encourages adding a statement in
§ 4.4(a)(3)(i) highlighting that a
contracting agency may select a wage
determination through WDOL, in
addition to obtaining it from DOL. The
final rule does not include the
additional statement. The proposed rule
requires a contracting agency to obtain
a wage determination for each location
in which work may be performed, if the
place of performance is unknown at the
time of solicitation. In addition to the
e98 process, contracting agencies may
obtain wage determinations from DOL
through WDOL. Section 4.4 (a)(2)
provides a general discussion of the
methods and § 4.4(b) and (c) provide
specific discussions of the different
ways in which a contracting agency may
obtain a wage determination. In a
related recommendation, the CSA
suggests removing the provision in this
section that requires use of the wage
determination incorporated in the
contract documents. The CSA believes
the wage determinations apply to
service employees in specific localities,
not to contractors. The CSA also
presents a view that, when a contractor
relocates work, contracting agencies
should use the WDOL or e98 process to
obtain a new wage determination for the
location in which the work performance
actually takes place. The final rule
retains the provision. The DOL does not
believe that further action on this
recommendation is warranted at this
time and it would necessitate reopening
the notice and comment process.
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The DOD and Navy recommend
revising § 4.4(b)(1) to have WDOL use
the applicable solicitation or contract
number for tracking purposes, instead of
the WDOL system assigning a unique
number. The final rule does not
incorporate this recommendation,
because it would require redesign of the
WDOL system and how it interfaces
with internal DOL programs, as well as
considerable additional resources that
are presently not available.
The DOD and Navy also recommend
changing the proposed requirement in
§ 4.4(b)(3) for a contracting agency to
monitor email addresses to having
contracting agencies resubmit an e98
with a new email address each time an
email address changes. These agencies
also believe the DOL should establish an
internal policy of requesting electronic
delivery and read receipts. The final
rule retains the monitoring requirement
and does not establish a policy of
requesting electronic delivery and read
receipts. The proposed rule makes clear
that contracting agencies obtaining wage
determinations through WDOL bear the
responsibility for insuring they
incorporate the correct wage
determination into any contracting
action. The rule also provides flexibility
to contracting agencies in how they
accomplish that standard. The ‘‘email
monitoring provision’’ of proposed
§ 4.4(b)(3) is similar to the proposed
§ 4.4(c)(3) requirement for contracting
agencies to monitor the WDOL website
to determine whether the applicable
wage determination has been revised.
There may also be situations, such as
periods of leave (e.g., 2-week vacation),
during which contracting agencies may
not believe it practical to update email
addresses; thus, to require resubmission
of an e98 in all cases could be unduly
burdensome. The WDOL website
provides a method for contracting
agencies to contact the Division. The
DOL believes the WDOL contact process
is sufficient.
The DOD and Navy recommend
replacing the phrase ‘‘geographic area’’
in §§ 4.4(b)(5) and (c)(4) with ‘‘locality,’’
to make the wording consistent with
§ 4.163(i). The DOL agrees and the final
rule reflects the modification.
The DOD and Navy also seek to revise
§ 4.4(b)(5) and 4.5(d) to have the
contracting officer follow up with the
DOL, if the contracting agency has not
received a response within 10 business
days of the submission of the original
e98 notice or within 15 business days of
the submission of the collective
bargaining agreement. They further
suggest the regulation specify an email
address and a telephone number where
such follow up should be made. The
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DOL has not adopted the suggested
changes in the final rule. Proposed
§ 4.4(b)(1) provides for the requester to
receive a response indicating the request
has been referred to an analyst, if the
DOL does not provide a final response
to an e98 while the requester is online.
The e98 will be assigned a unique serial
number to facilitate follow-up should
that become necessary. Although the
regulations do not provide specific
timeframes for a further response by an
analyst, the initial e98 response states
that a further response will be provided
within five days. The additional
response is usually provided on the
same day or the next day; however some
cases may require additional time.
When the DOL requires additional time
or information, the analyst working on
the request will provide an interim
reply informing the requestor of the
need and that further response will
come from the email address of the
analyst working on the e98 request. If
the contracting officer needs to followup on his/her e98, it would be more
efficient to address such follow-up
directly to the analyst working on the
e98. In those rare instances where the
contracting officer does not receive at
least an interim response from an
analyst within five days of submission,
the instructions for the e98 provide both
an email address and a telephone
number where requests for assistance or
a status report may be sent. The DOL
believes including telephone numbers
and email addresses in the regulations
is not the most efficient way to ensure
contracting officers have access to the
current address and telephone number,
because such information may change.
The DOL also believes contracting
officers accustomed to using the internet
for submitting e98s will most likely
return to the e98 website, rather than
turn to the DOL regulations to seek an
email address or telephone number to
follow-up on their e98 submission. The
DOL believes that these matters are
adequately addressed within the e98
system and the proposed regulations.
The CSA recommends adding a
reference to the ‘‘changes’’ clause in an
SCA contract to the requirement in
§ 4.4(c)(1) for contracting agencies to
amend contracts by incorporating the
correct wage determination as
determined by DOL. The CSA believes
the change is appropriate, because the
proposed regulations (1) affect Federal
agency procurement procedures and (2)
are for contracting agencies. The final
rule does not contain such a provision.
The DOL believes the proposed rule
adequately states the obligations
contracting agencies have when a
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contracting agency incorporates an
incorrect wage determination and that
the FAR is the appropriate vehicle to
address the concern raised by the CSA.
The CSA suggests the DOL refer to
‘‘information,’’ instead of ‘‘document,’’
in § 4.5(a)(1), and the final rule reflects
this recommendation. The CSA believes
the change would make the regulation
more consistent with the purpose of the
regulation, to take advantage of wide
use of electronic communication and
information sharing. The types of
‘‘documents’’ contemplated by the
proposed rule are the wage
determination, including revisions
received timely, for the contracting
action. The DOL believes contracting
agencies currently routinely use paper
copies of wage determinations for
insertion into contracting actions;
however, the proposed rule would not
preclude use of electronic documents.
DOL, however, believes the more
common use of ‘‘documents’’ as
referring to paper and the broader use of
‘‘information’’ and ‘‘data’’ for
information technology purposes make
a sufficiently compelling case to adopt
the suggestion.
The CSA urges the DOL to divide
§ 4.5(a)(2) into a general introductory
statement and two subsections
pertaining to special circumstances. The
final rule incorporates this
recommendation, because the DOL
agrees this may increase understanding
of the regulatory requirements. The CSA
also recommends the DOL reduce the
10-day time frame discussed in the
second sentence of § 4.5(a)(2). The CSA
believes a 5-day period would still
allow contracting agencies time to
provide electronic notification to
offerors of the amended solicitation and
still allow offerors sufficient time to
amend their proposals. The final rule
does not include this second change.
The current and proposed rule allow
agencies to make a determination that
there is not a reasonable time to notify
bidders of a revised wage determination,
if the agency receives notice of the
revision less than 10 days before the bid
opening. The DOL believes use of
electronic communication may cause
contracting agencies to have fewer
instances in which they will make a
finding of insufficient time; however, it
remains appropriate for contracting
agencies to have an ability to exercise
this discretion based on varying factual
circumstances. The CSA further seeks to
change this section by (1) making any
revised wage determinations received
after final proposal revisions
inapplicable to negotiated procurements
and (2) adding a provision requiring
contracting agencies to make
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modifications within half the time
currently allowed and (3) requiring
corresponding adjustment in the
contract price. The final rule does not
include the requested changes, because
they exceed the intended scope of the
proposed rule, and the DOL believes
further action on this recommendation
would require reopening the notice and
comment process. The DOD and Navy
suggest removal of the fourth sentence
of this proposed section, as initially
drafted, which provides that, if (1) the
contract does not specify a start of
performance date which is within 30
days from the award and/or (2)
performance of such procurement does
not commence within this 30-day
period, the DOL shall be notified and
any notice of a revision received by the
agency not less than 10 days before
commencement of the contract shall be
effective. The agencies believe on-line
access to wage determinations through
WDOL and the e98 process make it
unnecessary to continue the
requirement for contracting agencies to
submit blanket notifications to the DOL
for all contracts specifying a start of
performance date of more than 30 days,
originally developed under the paper
Form SF–98 process. The final rule does
not include the notification
requirement, but the remainder of the
requirement has been retained.
The CSA urges that § 4.5(a)(3)
highlight that a contracting agency has
received an initial or a revised wage
determination on the date the DOL (1)
posts the determination to the WDOL
Web site or (2) sends the determination
through the e98 response process. The
CSA believes it is critical to emphasize
that a wage determination becomes
effective when published on the WDOL
Web site, and not only when the
contracting agency receives an e98
response from DOL, since proposed
§ 4.4, Obtaining a wage determination,
addresses identification of the initial
wage determination (whether by the
WDOL or e98 process). The final rule
now includes references to the initial
wage determination and e98 process in
§ 4.5(a)(3). The proposed rule only
mentions the date of publication on
WDOL or date on which an agency
receives a revised determination from
the DOL; however, the proposed rule
does not indicate that contracting
agencies may also receive initial wage
determinations through the e98 process.
The DOL agrees the clarification
proposed by the CSA could reduce
confusion over the date of receipt and
make it more congruous with § 4.4.
The CSA recommends revising
§ 4.5(c) by referring to an ‘‘applicable’’
wage determination, changing the time
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frame for inserting the appropriate wage
determination from 30 to 15 days from
the date of the DOL notification and
incorporating a reference to the changes
clause of the contract. The final rule
does not adopt these changes, for
reasons previously explained.
The DOD and Navy recommend
§ 4.5(d) direct the contracting officer to
incorporate a complete copy of the
collective bargaining agreement into the
contract action, if a timely response to
the e98 has not been received and the
e98 involves a collective bargaining
agreement. The final rule does not
include this prescription, because it
may not be the most efficient approach
in all cases and the existing proposal
provides adequate guidance and greater
flexibility in addressing the underlying
concern. Proposed § 4.5(d) provides that
the WHD should be contacted for
guidance in cases where the contracting
agency has filed an e98 and has not
received a response. While it is possible
that the guidance will be to include the
entire collective bargaining agreement
in the contract action, such action may
not be necessary in all cases.
The DOD, Army and Navy also
express a belief that the § 4.8
requirement regarding use of Form SF–
99 (Notice of Award of Contract) is no
longer needed and its continuation
creates an unnecessary duplication of
contract reporting, in view of the
enhanced reporting capabilities of the
Federal Procurement Data System
(FPDS). The agencies ask the DOL to
eliminate the reporting requirement.
The proposed rule does not include any
changes in § 4.8 or this reporting
requirement. The SCA coverage
threshold for application of SCA wage
determinations is $2,500; however, § 4.8
of the current rule requires that when a
contract over $10,000 is awarded and
the agency does not report the award to
the FPDS via Form SF–279 (FPDS
Individual Contract Action Report) or its
equivalent, the agency is expected to
furnish a Form SF–99 to the Wage and
Hour Division unless it makes other
arrangements for notifying the Division
of such awards. The $10,000 reporting
threshold was adopted in the SCA rules
in 1983 to be consistent with the thenapplicable small purchase threshold and
reporting requirements of the FPDS.
Prior to 1983, a Form SF–99 was
required for all SCA contracts in excess
of S2,500. This procedural rule, thus,
originally established a reporting
requirement between a federal
contracting agency and the DOL only if
the contract award data was not already
being reported to the FPDS, thereby
eliminating any duplication of reporting
requirements and reducing existing
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paperwork and reporting burdens on the
agencies. The FPDS reporting threshold
via Form SF–279, however, has since
been increased to $25,000. The change
in the FPDS reporting threshold, thus,
has created the additional reporting
burden. In any event, in the interest of
eliminating any unanticipated
paperwork and reporting burdens
imposed by § 4.8, the DOL has decided
to discontinue the use of Standard Form
99 and eliminate the reporting
requirement entirely. The APA
exception to the notice-and-comment
procedures applies to this situation. The
DOL finds, pursuant to 5 U.S.C.
553(b)(3)(B), that notice and public
comment procedures on this procedural
reporting rule are impracticable and
unnecessary and would not further the
public interest. Accordingly, the final
rule removes and reserves § 4.8 and the
DOL will discontinue using Form SF–
99.
The CSA suggests removal of
§ 4.50(a)(2), in the absence of any
correlation between the provision and
the wide use of electronic
communication and information
sharing, or moving the discussion to
§ 4.56, Review and reconsideration of
wage determinations. The final rule
retains this provision as proposed
without change. The section stresses
that (1) various prevailing wage
determinations may apply in a
particular locality and (2) the
application of these different prevailing
wage determinations will depend upon
the nature of the contracts to which they
are applied. These differences and
variations in wage determinations
require that contracting agencies
observe the proper protocol required by
the WDOL processes when selecting the
appropriate wage determination. The
provisions of § 4.56 provide an appeal
right for any interested party affected by
a wage determination to request the
Wage and Hour Administrator to review
and reconsider it.
The CSA also urges revising the last
sentence of § 4.54(b), to provide for the
issuance of wage determinations for
various localities identified by the
contracting agency as set forth in
§ 4.4(a)(3)(i) ‘‘using the e98 process or
4.4(c) using the WDOL process.’’ The
final rule does not adopt the suggested
change. Section 4.54 discusses
situations where services are to be
performed for a Federal agency at the
site of the successful bidder, in contrast
to services to be performed at a specific
Federal facility or installation, or in the
locality of such installation. The
location where the work will be
performed often cannot be ascertained
at the time of bid advertisement or
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solicitation. The § 4.4(a) introductory
discussion of obtaining wage
determinations applies equally to wage
determinations obtained through either
the e98 or WDOL processes,
respectively explained in § 4.4 (b) and
(c).
The CSA recommends inserting a
requirement in § 4.55(a) for the WHD to
review wage determinations no less
often than once every two years and also
seeks other changes, consistent with the
recommendation for § 4.54. The final
rule does not include these changes.
The current and proposed regulations
require periodic review of wage
determinations but do not impose the
maximum two-year interval between
such reviews. The general requirement
in SCA section 4(d) for the periodic
update of wage determinations directs
the contracting agencies to update wage
determinations in awarded multi-year
contracts. It is not a directive to DOL to
update its wage determination database
no less often than every two years. The
DOL has not made these remaining
changes, for the reasons discussed.
The CSA recommends adding a
reference to the ‘‘changes’’ clause in an
SCA contract to § 4.144(c)(1), pertaining
to contract modifications affecting the
amount of a contract. The final rule does
not add the reference for the reasons
previously stated. The proposed section
merely conforms the provision to the
e98 process and reflects the current
regulation in all other respects.
The CSA makes a general
recommendation to substitute ‘‘website’’
for ‘‘Internet Web site’’ and to remove
quotation marks from e98. The final rule
incorporates these plain language
changes. The final rule does not adopt
the CSA recommendation to replace
‘‘Government’’ with ‘‘Department of
Labor,’’ because the DOL does not host
the WDOL Web site.
IV. Regulatory Flexibility, Executive
Order 12866; Small Business
Regulatory Enforcement Fairness Act
This regulation affects Federal agency
procurement procedures and will not
have a significant economic impact on
a substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq. The
agency certified to this effect to the
Chief Counsel for Advocacy of the U.S.
Small Business Administration.
This rule has been treated as a
significant rulemaking, although not
economically significant or major, and
has, therefore, been reviewed by OMB.
V. Unfunded Mandates Reform Act
For purposes of the Unfunded
Mandates Reform Act of 1995, 2 U.S.C.
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50893
1532, this rule does not include any
Federal mandate that may result in
excess of $100 million in expenditures
by state, local and tribal governments in
the aggregate or by the private sector.
VI. Executive Order 13132 (Federalism)
The rule does not have federalism
implications as outlined in Executive
Order 13132. The rule does not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.
VII. Executive Order 13175, Indian
Tribal Governments
This rule does not have ‘‘tribal
implications’’ under Executive Order
13175 and does not require a tribal
summary impact statement. The rule
does not have ‘‘substantial direct effects
on one or more Indian tribes, on the
relationship between the Federal
government and Indian tribes or on the
distribution of power and
responsibilities between the Federal
government and Indian tribes.’’
VIII. Effects on Families
The undersigned hereby certifies that
the rule will not adversely affect the
well-being of families, as discussed
under section 654 of the Treasury and
General Government Appropriations
Act, 1999.
IX. Executive Order 13045, Protection
of Children
This rule has no environmental health
risk or safety risk that may
disproportionately affect children.
X. Environmental Impact Assessment
A review of this rule in accordance
with the requirements of the National
Environmental Policy Act of 1969
(NEPA), 42 U.S.C. 4321 et seq.; the
regulations of the Council on
Environmental Quality, 40 CFR 1500 et
seq.; and the Departmental NEPA
procedures, 29 CFR part 11, indicates
the rule will not have a significant
impact on the quality of the human
environment. There is, thus, no
corresponding environmental
assessment or an environmental impact
statement.
XI. Executive Order 13211, Energy
Supply
This rule is not subject to Executive
Order 13211. It will not have a
significant adverse effect on the supply,
distribution or use of energy.
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XII. Executive Order 12630,
Constitutionally Protected Property
Rights
This rule is not subject to Executive
Order 12630, because it does not
involve implementation of a policy
‘‘that has takings implications’’ or that
could impose limitations on private
property use.
XIII. Executive Order 12988, Civil
Justice Reform Analysis
This rule was drafted and reviewed in
accordance with Executive Order 12988
and will not unduly burden the Federal
court system. The rule was: (1)
Reviewed to eliminate drafting errors
and ambiguities; (2) written to minimize
litigation; and (3) written to provide a
clear legal standard for affected conduct
and to promote burden reduction.
List of Subjects
29 CFR Part 1
Administrative practice and
procedure, Government contracts,
Investigations, Labor, Minimum wages,
Recordkeeping requirements, Reporting
requirements, Wages.
29 CFR Part 4
Administrative practice and
procedure, Government contracts,
Investigations, Labor, Minimum wages,
Penalties, Recordkeeping requirements,
Reporting requirements, Wages.
Signed at Washington, DC, this 18th day of
August, 2005.
Victoria A. Lipnic,
Assistant Secretary for Employment
Standards.
Alfred B. Robinson, Jr.,
Deputy Administrator, Wage and Hour
Division.
For the reasons set forth above, title
29, parts 1 and 4, of the Code of Federal
Regulations are amended as set forth
below.
■
TITLE 29—LABOR
PART 1—PROCEDURES FOR
PREDETERMINATION OF WAGE
RATES
1. The authority citation for part 1 is
revised to read as follows:
■
Authority: 5 U.S.C. 301; R.S. 161, 64 Stat.
1267; Reorganization Plan No. 14 of 1950, 5
U.S.C. appendix; 40 U.S.C. 3141 et seq.; 40
U.S.C. 3145; 40 U.S.C. 3148; and the laws
listed in appendix A of this part.
2. Paragraph (e) is added to section 1.2
to read as follows:
■
§ 1.2
Definitions.1
*
*
*
*
*
(e) The term Wage Determinations
OnLine (WDOL) shall mean the
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Government Internet Web site for both
Davis-Bacon Act and Service Contract
Act wage determinations available at
https://www.wdol.gov. In addition,
WDOL provides compliance assistance
information. The term will also apply to
any other Internet Web site or electronic
means that the Department of Labor may
approve for these purposes.
■ 3. Paragraphs (a) and (b) of § 1.5 are
revised to read as follows:
§ 1.5 Procedure for requesting wage
determinations.
(a) The Department of Labor publishes
general wage determinations under the
Davis-Bacon Act on the WDOL Internet
Web site. If there is a general wage
determination applicable to the project,
the agency may use it without notifying
the Department of Labor, Provided, That
questions concerning its use shall be
referred to the Department of Labor in
accordance with § 1.6(b).
(b)(1) If a general wage determination
is not available, the Federal agency shall
request a wage determination under the
Davis-Bacon Act or any of its related
prevailing wage statutes by submitting
Form SF–308 to the Department of
Labor at this address: U.S. Department
of Labor, Employment Standards
Administration, Wage and Hour
Division, Branch of Construction
Contract Wage Determination,
Washington, DC 20210. In preparing
Form SF–308, the agency shall check
only those classifications that will be
needed in the performance of the work.
Inserting a note such as ‘‘entire
schedule’’ or ‘‘all applicable
classifications’’ is not sufficient.
Additional classifications needed that
are not on the form may be typed in the
blank spaces or on a separate list and
attached to the form.
(2) In completing SF–308, the agency
shall furnish:
(i) A sufficiently detailed description
of the work to indicate the type of
construction involved. Additional
description or separate attachment, if
necessary for identification of type of
project, shall be furnished.
(ii) The county (or other civil
subdivision) and State in which the
proposed project is located.
(3) Such request for a wage
determination shall be accompanied by
any pertinent wage payment
information that may be available.
When the requesting agency is a State
highway department under the FederalAid Highway Acts as codified in 23
U.S.C. 113, such agency shall also
include its recommendations as to the
wages which are prevailing for each
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classification of laborers and mechanics
on similar construction in the area.
*
*
*
*
*
■ 4. Paragraphs (a)(2), (c)(3)(iv) and
(c)(3)(v) of § 1.6 are revised to read as
follows:
§ 1.6 Use and effectiveness of wage
determinations.
(a) * * *
(2) General wage determinations
issued pursuant to § 1.5(a), notice of
which is published on WDOL, shall
contain no expiration date.
*
*
*
*
*
(c) * * *
(3) * * *
(iv) If under paragraph (c)(3)(i) of this
section the contract has not been
awarded within 90 days after bid
opening, or if under paragraph (c)(3)(ii)
or (iii) of this section construction has
not begun within 90 days after initial
endorsement or the signing of the
agreement to enter into a housing
assistance payments contract, any
modification, notice of which is
published on WDOL prior to award of
the contract or the beginning of
construction, as appropriate, shall be
effective with respect to that contract
unless the head of the agency or his or
her designee requests and obtains an
extension of the 90-day period from the
Administrator. Such request shall be
supported by a written finding, which
shall include a brief statement of the
factual support, that the extension is
necessary and proper in the public
interest to prevent injustice or undue
hardship or to avoid serious impairment
in the conduct of Government business.
The Administrator will either grant or
deny the request for an extension after
consideration of all the circumstances.
(v) A modification to a general wage
determination is ‘‘published’’ within the
meaning of this section on the date
notice of a modification or a
supersedeas wage determination is
published on WDOL or on the date the
agency receives actual written notice of
the modification from the Department of
Labor, whichever occurs first. Archived
versions of Davis-Bacon and Related
Acts wage determinations that are no
longer current may be accessed in the
‘‘Archived DB WD’’ database of WDOL
for information purposes only.
Contracting officers should not use an
archived wage determination in a
contract action without prior approval
of the Department of Labor.
*
*
*
*
*
■ 5. Items 19 and 20 in Appendix A of
part 1 are revised to read as follows:
Appendix A to Part 1
*
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*
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19. National Visitors Center Facilities Act
of 1968 (sec. 110, 82 Stat. 45; 40 U.S.C. 808).
Note: Section applying labor standards
provisions of the Davis-Bacon Act repealed
August 21, 2002, by 116 Stat. 1318, Pub. L.
107–217.
20. Appalachian Regional Development
Act of 1965 (sec. 402, 79 Stat. 21; 40 U.S.C.
14701).
*
*
*
*
*
■ 6. Appendix B of Part 1 is revised to
read as follows:
Southeast Region
For the States of Alabama, Florida, Georgia,
Kentucky, Mississippi, North Carolina, South
Carolina and Tennessee:
Regional Administrator, Wage and Hour
Division, Employment Standards
Administration, U.S. Department of Labor, 61
Forsyth Street, SW., Room 7M40, Atlanta, GA
30303 (Telephone 404–893–4531, FAX: 404–
893–4524).
Midwest Region
For the States of Illinois, Indiana, Iowa,
Kansas, Michigan, Minnesota, Missouri,
Nebraska, Ohio and Wisconsin:
Regional Administrator, Wage and Hour
Division, Employment Standards
Administration, U.S. Department of Labor,
230 South Dearborn Street, Room 530,
Chicago, IL 60604–1591 (Telephone: 312–
596–7180, FAX: 312–596–7205).
Southwest Region
For the States of Arkansas, Colorado,
Louisiana, Montana, New Mexico, North
Dakota, Oklahoma, South Dakota, Texas,
Utah and Wyoming:
Regional Administrator, Wage and Hour
Division, Employment Standards
Administration, U.S. Department of Labor,
525 South Griffin Street, Suite 800, Dallas,
TX 75202–5007 (Telephone: 972–850–2600,
FAX: 972–850–2601).
Western Region
For the States of Alaska, American Samoa,
Arizona, California, Guam, Hawaii, Idaho,
Nevada, Oregon and Washington:
Regional Administrator, Wage and Hour
Division, Employment Standards
Administration, U.S. Department of Labor, 71
Stevenson Street, Suite 930, San Francisco,
CA 94105, (Telephone: 415–848–6600, FAX:
415–848–6655).
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Authority: 41 U.S.C. 351 et seq.; 41 U.S.C.
38 and 39; 5 U.S.C. 301.
Subpart A—Service Contract Labor
Standards Provisions and Procedures
9. In § 4.1a, paragraphs (b) and (h) are
revised and paragraphs (i) and (j) are
added, to read as follows:
Northeast Region
For the States of Connecticut, Delaware,
District of Columbia, Maine, Maryland,
Massachusetts, New Hampshire, New Jersey,
New York, Pennsylvania, Puerto Rico, Rhode
Island, Vermont, Virgin Islands, Virginia and
West Virginia:
Regional Administrator, Wage and Hour
Division, Employment Standards
Administration, U.S. Department of Labor,
Curtis Center, 170 South Independence Mall
West, Room 850 West, Philadelphia, PA
19106 (Telephone: 215–861–5800, FAX: 215–
861–5840).
7. Appendix C of part 1 is deleted.
8. The authority citation for part 4
continues to read as follows:
■
■
Appendix B to Part 1
■
PART 4—LABOR STANDARDS FOR
FEDERAL SERVICE CONTRACTS
§ 4.1a
Definitions and use of terms.
(b) Secretary includes the Secretary of
Labor, the Assistant Secretary for
Employment Standards, and their
authorized representatives.
*
*
*
*
*
(h) Wage determination includes any
determination of minimum wage rates
or fringe benefits made pursuant to the
provisions of sections 2(a) and/or 4(c) of
the Act for application to the
employment in a locality of any class or
classes of service employees in the
performance of any contract in excess of
$2,500 which is subject to the
provisions of the Service Contract Act of
1965. A wage determination is effective
upon its publication on the WDOL Web
site or when a Federal agency receives
a response from the Department of
Labor to an e98.
(i) Wage Determinations OnLine
(WDOL) means the Government Internet
Web site for both Davis-Bacon Act and
Service Contract Act wage
determinations available at https://
www.wdol.gov. In addition, WDOL
provides compliance assistance
information and a link to submit an e98
or any electronic means the Department
of Labor may approve for this purpose.
The term will also apply to any other
Internet Web site or electronic means
that the Department of Labor may
approve for these purposes.
(j) The e98 means a Department of
Labor approved electronic application
(https://www.wdol.gov), whereby a
contracting officer submits pertinent
information to the Department of Labor
and requests a wage determination
directly from the Wage and Hour
Division. The term will also apply to
any other process or system the
Department of Labor may establish for
this purpose.
■ 10. In § 4.3, paragraphs (b) through (d)
are revised and paragraph (e) is added,
to read as follows:
§ 4.3
Wage determinations.
*
*
*
*
*
(b) As described in subpart B of this
part—Wage Determination Procedures,
two types of wage determinations are
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50895
issued under the Act: Prevailing in the
locality or Collective Bargaining
Agreement (Successorship) wage
determinations. The facts related to a
specific solicitation and contract will
determine the type of wage
determination applicable to that
procurement. In addition, different
types of prevailing wage determinations
may be issued depending upon the
nature of the contract. While prevailing
wage determinations based upon crossindustry survey data are applicable to
most contracts covered by the Act, in
some cases the Department of Labor
may issue industry specific wage
determinations for application to
specific types of service contracts. In
addition, the geographic scope of
contracts is often different and the
geographic scope of the underlying
survey data for the wage determinations
applicable to those contracts may be
different.
(c) Such wage determinations will set
forth for the various classes of service
employees to be employed in furnishing
services under such contracts in the
appropriate localities, minimum
monetary wage rates to be paid and
minimum fringe benefits to be furnished
them during the periods when they are
engaged in the performance of such
contracts, including, where appropriate
under the Act, provisions for
adjustments in such minimum rates and
benefits to be placed in effect under
such contracts at specified future times.
The wage rates and fringe benefits set
forth in such wage determinations shall
be determined in accordance with the
provisions of sections 2(a)(1), (2), and
(5), 4(c) and 4(d) of the Act from those
prevailing in the locality for such
employees, with due consideration of
the rates that would be paid for direct
Federal employment of any classes of
such employees whose wages, if
Federally employed, would be
determined as provided in 5 U.S.C. 5341
or 5 U.S.C. 5332, or from pertinent
collective bargaining agreements with
respect to the implementation of section
4(c). The wage rates and fringe benefits
so determined for any class of service
employees to be engaged in furnishing
covered contract services in a locality
shall be made applicable by contract to
all service employees of such class
employed to perform such services in
the locality under any contract subject
to section 2(a) of the Act which is
entered into thereafter and before such
determination has been rendered
obsolete by a withdrawal, modification,
revision, or supersedure.
(d) Generally, wage determinations
issued for solicitations or negotiations
for any contract where the place of
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performance is unknown will contain
minimum monetary wages and fringe
benefits for the various geographic
localities where the work may be
performed which were identified in the
initial solicitation. (See § 4.4(a)(3)(i).)
(e) Wage determinations will be
available for public inspection during
business hours at the Wage and Hour
Division, Employment Standards
Administration, U.S. Department of
Labor, Washington, DC, and copies will
be made available on request at Regional
Offices of the Wage and Hour Division.
In addition, most prevailing wage
determinations are available online from
WDOL. Archived versions of SCA wage
determinations that are no longer
current may be accessed in the
‘‘Archived SCA WD’’ database of WDOL
for information purposes only.
Contracting officers should not use an
archived wage determination in a
contract action without prior approval
of the Department of Labor.
■ 11. Section 4.4 is revised to read as
follows:
§ 4.4
Obtaining a wage determination.
(a)(1) Sections 2(a)(1) and (2) of the
Act require that every contract and any
bid specification therefore in excess of
$2,500 contain a wage determination
specifying the minimum monetary
wages and fringe benefits to be paid to
service employees performing work on
the contract. The contracting agency,
therefore, must obtain a wage
determination prior to:
(i) Any invitation for bids;
(ii) Request for proposals;
(iii) Commencement of negotiations;
(iv) Exercise of option or contract
extension;
(v) Annual anniversary date of a
multi-year contract subject to annual
fiscal appropriations of the Congress; or
(vi) Each biennial anniversary date of
a multi-year contract not subject to such
annual appropriations, if so authorized
by the Wage and Hour Division.
(2) As described in § 4.4(b), wage
determinations may be obtained from
the Department of Labor by
electronically submitting an e98
describing the proposed contract and
the occupations expected to be
employed on the contract. Based upon
the information provided on the e98, the
Department of Labor will respond with
the wage determination or wage
determinations that the contracting
agency may rely upon as the correct
wage determination(s) for the contract
described in the e98. Alternatively,
contracting agencies may select and
obtain a wage determination using
WDOL. (See § 4.4(c).) Although the
WDOL Web site provides assistance to
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the agency to select the correct wage
determination for the contract, the
agency remains responsible for the wage
determination selected.
(3)(i) Where the place of performance
of a contract for services subject to the
Act is unknown at the time of
solicitation, the solicitation need not
initially contain a wage determination.
The contracting agency, upon
identification of firms participating in
the procurement in response to an
initial solicitation, shall obtain a wage
determination for each location where
the work may be performed as indicated
by participating firms. An applicable
wage determination must be obtained
for each firm participating in the
bidding for the location in which it
would perform the contract. The
appropriate wage determination shall be
incorporated in the resultant contract
documents and shall be applicable to all
work performed thereunder (regardless
of whether the successful contractor
subsequently changes the place(s) of
contract performance).
(ii) There may be unusual situations,
as determined by the Department of
Labor upon consultation with a
contracting agency, where the procedure
in paragraph (a)(3)(i) of this section is
not practicable in a particular situation.
In these situations, the Department may
authorize a modified procedure that
may result in the subsequent issuance of
wage determinations for one or more
composite localities.
(4) In no event may a contract subject
to the Act on which more than five (5)
service employees are contemplated to
be employed be awarded without an
appropriate wage determination. (See
section 10 of the Act.)
(b) e98 process—
(1) The e98 is an electronic
application used by contracting agencies
to request wage determinations directly
from the Wage and Hour Division. The
Division uses computers to analyze
information provided on the e98 and to
provide a response while the requester
is online, if the analysis determines that
an existing wage determination is
currently applicable to the procurement.
The response will assign a unique serial
number to the e98 and the response will
provide a link to an electronic copy of
the applicable wage determination(s). If
the initial computer analysis cannot
identify the applicable wage
determination for the request, an online
response will be provided indicating
that the request has been referred to an
analyst. Again, the online response will
assign a unique serial number to the
e98. After an analyst has reviewed the
request, a further response will be sent
to the email address identified on the
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e98. In most cases, the further response
will provide an attachment with a copy
of the applicable wage determination(s).
In some cases, however, additional
information may be required and the
additional information will be requested
via email. After an applicable wage
determination is sent in response to an
e98, the e98 system continues to
monitor the request and if the
applicable wage determination is
revised in time to affect the
procurement, an amended response will
be sent to the email address identified
on the e98.
(2) When completing an e98, it is
important that all information requested
be completed accurately and fully.
However, several sections are
particularly important. Since most
responses are provided via email, a
correct email address is critically
important. Accurate procurement dates
are essential for the follow-up response
system to operate effectively. An
accurate estimate of the number of
service employees to be employed
under the contract is also important
because section 10 of the Act requires
that a wage determination be issued for
all contracts that involve more than five
service employees.
(3) Since the e98 system automatically
provides an amended response if the
applicable wage determination is
revised, the email address listed on the
e98 must be monitored during the full
solicitation stage of the procurement.
Communications sent to the email
address provided are deemed to be
received by the contracting agency. A
contracting agency must update the
email address through the ‘‘help’’
process identified on the e98, if the
agency no longer intends to monitor the
email address.
(4) For invitations to bid, if the bid
opening date is delayed by more than
sixty (60) days, or if contract
commencement is delayed by more than
sixty (60) days for all other contract
actions, the contracting agency shall
submit a revised e98.
(5) If the services to be furnished
under the proposed contract will be
substantially the same as services being
furnished in the same locality by an
incumbent contractor whose contract
the proposed contract will succeed, and
if such incumbent contractor is
furnishing such services through the use
of service employees whose wage rates
and fringe benefits are the subject of one
or more collective bargaining
agreements, the contracting agency shall
reference the union and the collective
bargaining agreement on the e98. The
requester will receive an e-mail
response giving instructions for
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submitting a copy of each such
collective bargaining agreement together
with any related documents specifying
the wage rates and fringe benefits
currently or prospectively payable
under such agreement. After receipt of
the collective bargaining agreement, the
Wage and Hour Division will provide a
further e-mail response attaching a copy
of the wage determination based upon
the collective bargaining agreement. If
the place of contract performance is
unknown, the contracting agency will
submit the collective bargaining
agreement of the incumbent contractor
for incorporation into a wage
determination applicable to a potential
bidder located in the same locality as
the predecessor contractor. If such
services are being furnished at more
than one locality and the collectively
bargained wage rates and fringe benefits
are different at different localities or do
not apply to one or more localities, the
agency shall identify the localities to
which such agreements have
application. If the collective bargaining
agreement does not apply to all service
employees under the contract, the
agency shall identify the employees
and/or work subject to the collective
bargaining agreement. In the event the
agency has reason to believe that any
such collective bargaining agreement
was not entered into as a result of arm’slength negotiations, a full statement of
the facts so indicating shall be
transmitted with the copy of such
agreement. (See § 4.11.) If the agency
has information indicating that any such
collectively bargained wage rates and
fringe benefits are substantially at
variance with those prevailing for
services of a similar character in the
locality, the agency shall so advise the
Wage and Hour Division and, if it
believes a hearing thereon pursuant to
section 4(c) of the Act is warranted,
shall file its request for such hearing
pursuant to § 4.10 at the time of filing
the e98.
(6) If the proposed contract is for a
multi-year period subject to other than
annual appropriations, the contracting
agency shall provide a statement in the
comments section of the e98 concerning
the type of funding and the
contemplated term of the proposed
contract. Unless otherwise advised by
the Wage and Hour Division that a wage
determination must be obtained on the
annual anniversary date, a new wage
determination shall be obtained on each
biennial anniversary date of the
proposed multi-year contract in the
event its term is for a period in excess
of two years.
(c) WDOL process—
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(1) Contracting agencies may use the
WDOL Web site to select the applicable
prevailing wage determination for the
procurement. The WDOL site provides
assistance to the agency in the selection
of the correct wage determination. The
contracting agency, however, is fully
responsible for selecting the correct
wage determination. If the Department
of Labor subsequently determines that
an incorrect wage determination was
applied to a specific contract, the
contracting agency, in accordance with
§ 4.5, shall amend the contract to
incorporate the correct wage
determination as determined by the
Department of Labor.
(2) If an applicable prevailing wage
determination is not available on the
WDOL site, the contracting agency must
submit an e98 in accordance with
§ 4.4(b).
(3) The contracting agency shall
monitor the WDOL site to determine
whether the applicable wage
determination has been revised.
Revisions published on the WDOL site
or otherwise communicated to the
contracting officer within the
timeframes prescribed in § 4.5(a)(2) are
applicable and must be included in the
resulting contract.
(4) If the services to be furnished
under the proposed contract will be
substantially the same as services being
furnished in the same locality by an
incumbent contractor whose contract
the proposed contract will succeed, and
if such incumbent contractor is
furnishing such services through the use
of service employees whose wage rates
and fringe benefits are the subject of one
or more collective bargaining
agreements, the contracting agency may
prepare a wage determination that
references the collective bargaining
agreement by incorporating that wage
determination, with a complete copy of
the collective bargaining agreement
attached thereto, into the successor
contract action. It need not submit a
copy of the collective bargaining
agreement to the Department of Labor
unless requested to do so. If the place
of contract performance is unknown, the
contracting agency will prepare a wage
determination on WDOL and attach the
collective bargaining agreement of the
incumbent contractor and make both the
wage determination and collective
bargaining agreement applicable to a
potential bidder located in the same
locality as the predecessor contractor.
(See section 4.4(a)(3).) If such services
are being furnished at more than one
locality and the collectively bargained
wage rates and fringe benefits are
different at different localities or do not
apply to one or more localities, the
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50897
agency shall identify the localities to
which such agreements have
application. If the collective bargaining
agreement does not apply to all service
employees under the contract, the
agency shall identify the employees
and/or work subject to the collective
bargaining agreement. In the event the
agency has reason to believe that any
such collective bargaining agreement
was not entered into as a result of arm’slength negotiations, a full statement of
the facts so indicating shall be
transmitted to the Wage and Hour
Division with the copy of such
agreement. (See § 4.11.) If the agency
has information indicating that any such
collectively bargained wage rates and
fringe benefits are substantially at
variance with those prevailing for
services of a similar character in the
locality, the agency shall so advise the
Wage and Hour Division and, if it
believes a hearing thereon pursuant to
section 4(c) of the Act is warranted,
shall file its request for such hearing
pursuant to § 4.10. A wage
determination based upon the collective
bargaining agreement must be included
in the contract until a hearing or a final
ruling of the Administrator determines
that the collective bargaining agreement
was not reached as the result of arm’slength negotiations or was substantially
at variance with locally prevailing rates.
Any questions regarding timeliness or
applicability of collective bargaining
agreements must be referred to the
Department of Labor for resolution.
(5) If the proposed contract is for a
multi-year period subject to other than
annual appropriations, the contracting
agency shall, unless otherwise advised
by the Wage and Hour Division, obtain
a new wage determination on each
biennial anniversary date of the
proposed multi-year contract in the
event its term is for a period in excess
of two years.
■ 12. Section 4.5 is amended by revising
paragraphs (a), (c), and (d) to read as
follows:
§ 4.5 Contract specification of determined
minimum wages and fringe benefits.
(a) Any contract in excess of $2,500
shall contain, as an attachment, the
applicable, currently effective wage
determination specifying the minimum
wages and fringe benefits for service
employees to be employed thereunder,
including any information referred to in
paragraphs (a)(1) or (2) of this section;
(1) Any wage determination from the
Wage and Hour Division, Employment
Standards Administration, Department
of Labor, responsive to the contracting
agency’s submission of an e98 or
obtained through WDOL under § 4.4; or
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(2) Any revision of a wage
determination issued prior to the award
of the contract or contracts which
specifies minimum wage rates or fringe
benefits for classes of service employees
whose wages or fringe benefits were not
previously covered by wage
determinations, or which changes
previously determined minimum wage
rates and fringe benefits for service
employees employed on covered
contracts in the locality.
(i) However, revisions received by the
Federal agency later than 10 days before
the opening of bids, in the case of
contracts entered into pursuant to
competitive bidding procedures, shall
not be effective if the Federal agency
finds that there is not a reasonable time
still available to notify bidders of the
revision.
(ii) In the case of procurements
entered into pursuant to negotiations (or
in the case of the execution of an option
or an extension of the initial contract
term), revisions received by the agency
after award (or execution of an option or
extension of term, as the case may be)
of the contract shall not be effective
provided that the contract start of
performance is within 30 days of such
award (or execution of an option or
extension of term). Any notice of a
revision received by the agency not less
than 10 days before commencement of
the contract shall be effective, if:
(A) The contract does not specify a
start of performance date which is
within 30 days from the award; and/or
(B) Performance of such procurement
does not commence within this 30-day
period.
(iii) In situations arising under section
4(c) of the Act, the provisions in
§ 4.1b(b) apply.
(3) For purposes of using WDOL
databases containing prevailing wage
determinations, the date of receipt by
the contracting agency will be the date
of publication on the WDOL Web site or
on the date the agency receives actual
notice of an initial or revised wage
determination from the Department of
Labor through the e98 process,
whichever occurs first.
*
*
*
*
*
(c) Where the Department of Labor
discovers and determines, whether
before or subsequent to a contract
award, that a contracting agency made
an erroneous determination that the
Service Contract Act did not apply to a
particular procurement and/or failed to
include an appropriate wage
determination in a covered contract, the
contracting agency, within 30 days of
notification by the Department of Labor,
shall include in the contract the
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stipulations contained in § 4.6 and any
applicable wage determination issued
by the Administrator or his authorized
representative through the exercise of
any and all authority that may be
needed (including, where necessary, its
authority to negotiate or amend, its
authority to pay any necessary
additional costs, and its authority under
any contract provision authorizing
changes, cancellation, and termination).
With respect to any contract subject to
section 10 of the Act, the Administrator
may require retroactive application of
such wage determination. (See 53
Comp. Gen. 412, (1973); Curtiss-Wright
Corp. v. McLucas, 381 F. Supp. 657 (D
NJ 1974); Marine Engineers Beneficial
Assn., District 2 v. Military Sealift
Command, 86 CCH Labor Cases ¶33,782
(D DC 1979); Brinks, Inc. v. Board of
Governors of the Federal Reserve
System, 466 F. Supp. 112 (D DC 1979),
466 F. Supp. 116 (D DC 1979).) (See also
32 CFR 1–403.)
(d) In cases where the contracting
agency has filed an e98 and has not
received a response from the
Department of Labor, the contracting
agency shall, with respect to any
contract for which section 10 to the Act
and § 4.3 for this part mandate the
inclusion of an applicable wage
determination, contact the Wage and
Hour Division by e-mail or telephone for
guidance.
§ 4.8
[Removed and Reserved]
13. Section 4.8 is removed and
reserved.
■
Subpart B—Wage Determination
Procedures
14. Section 4.50 is revised to read as
follows:
■
§ 4.50 Types of wage and fringe benefit
determinations.
The Administrator specifies the
minimum monetary wages and fringe
benefits to be paid as required under the
Act in two types of determinations:
(a) Prevailing in the locality. (1)
Determinations that set forth minimum
monetary wages and fringe benefits
determined to be prevailing for various
classes of service employees in the
locality (sections 2(a)(1) and 2(a)(2) of
the Act) after giving ‘‘due
consideration’’ to the rates applicable to
such service employees if directly hired
by the Federal Government (section
2(a)(5) of the Act).
(2) The prevailing wage
determinations applicable to most
contracts covered by the Act are based
upon cross-industry survey data.
However, in some cases the Department
of Labor may issue industry specific
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wage determinations for application to
specific types of service contracts. In
addition, the geographic scope of
contracts is often different and the
geographic scope of the underlying
survey data for the wage determinations
applicable to those contracts may be
different. Therefore, a variety of
different prevailing wage
determinations may be applicable in a
particular locality. The application of
these different prevailing wage
determinations will depend upon the
nature of the contracts to which they are
applied.
(b) Collective Bargaining Agreement—
(Successorship). Determinations that set
forth the wage rates and fringe benefits,
including accrued and prospective
increases, contained in a collective
bargaining agreement applicable to the
service employees who performed on a
predecessor contract in the same
locality. (See sections 2(a)(1) and (2) as
well as 4(c) of the Act.)
■ 15. Paragraph (b) of § 4.54 is revised
to read as follows:
§ 4.54 Locality basis of wage and fringe
benefit determinations.
*
*
*
*
*
(b) Where the services are to be
performed for a Federal agency at the
site of the successful bidder, in contrast
to services to be performed at a specific
Federal facility or installation, or in the
locality of such installation, the location
where the work will be performed often
cannot be ascertained at the time of bid
advertisement or solicitation. In such
instances, wage determinations will
generally be issued for the various
localities identified by the agency as set
forth in § 4.4(a)(3)(i).
*
*
*
*
*
■ 16. Paragraphs (a) and (b) of § 4.55 are
revised to read as follows:
§ 4.55 Issuance and revision of wage
determinations.
(a) Determinations will be reviewed
periodically and where prevailing wage
rates or fringe benefits have changed,
such changes will be reflected in revised
determinations. For example, in a
locality where it is determined that the
wage rate which prevails for a particular
class of service employees is the rate
specified in a collective bargaining
agreement(s) applicable in that locality,
and such agreement(s) specifies
increases in such rates to be effective on
specific dates, the determinations would
be revised to reflect such changes as
they become effective. Revised
determinations shall be applicable to
contracts in accordance with the
provisions of § 4.5(a) of subpart A.
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(b) Determinations issued by the Wage
and Hour Division with respect to
particular contracts are required to be
incorporated in the invitations for bids
or requests for proposals or quotations
issued by the contracting agencies, and
are to be incorporated in the contract
specifications in accordance with § 4.5
of subpart A. In this manner,
prospective contractors and
subcontractors are advised of the
minimum monetary wages and fringe
benefits required under the most
recently applicable determination to be
paid the service employees who perform
the contract work. These requirements
are the same for all bidders so none will
be placed at a competitive disadvantage.
*
*
*
*
*
Subpart C—Application of the
McNamara-O’Hara Service Contract
Act
17. Paragraphs (e)(1)(iv)(A) and
(e)(2)(iii)(A) of § 4.123 are revised to
read as follows:
■
§ 4.123 Administrative limitations,
variances, tolerances and exemptions.
*
*
*
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*
15:00 Aug 25, 2005
Jkt 205001
(e) * * *
(1) * * *
(iv)(A) If the Administrator
determines after award of the prime
contract that any of the requirements in
paragraph (e)(1) of this section for
exemption has not been met, the
exemption will be deemed inapplicable,
and the contract shall become subject to
the Service Contract Act, effective as of
the date of the Administrator’s
determination. In such case, the
corrective procedures in § 4.5(c) shall be
followed.
*
*
*
*
*
(2) * * *
(iii)(A) If the Administrator
determines after award of the prime
contract that any of the requirements in
paragraph (e)(2) of this section for
exemption has not been met, the
exemption will be deemed inapplicable,
and the contract shall become subject to
the Service Contract Act. In such case,
the corrective procedures in § 4.5(c)
shall be followed.
*
*
*
*
*
■ 18. Section 4.144 is revised to read as
follows:
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50899
§ 4.144 Contract modifications affecting
amount.
Where a contract that was originally
issued in an amount not in excess of
$2,500 is later modified so that its
amount may exceed that figure, all the
provisions of section 2(a) of the Act, and
the regulations thereunder, are
applicable from the date of modification
to the date of contract completion. In
the event of such modification, the
contracting officer shall immediately
obtain a wage determination from the
Department of Labor using the e98
application or directly from WDOL, and
insert the required contract clauses and
any wage determination issued into the
contract. In the event that a contract for
services subject to the Act in excess of
$2,500 is modified so that it cannot
exceed $2,500, compliance with the
provisions of section 2(a) of the Act and
the contract clauses required thereunder
ceases to be an obligation of the
contractor when such modification
becomes effective.
[FR Doc. 05–16779 Filed 8–25–05; 8:45 am]
BILLING CODE 4510–27–P
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Agencies
[Federal Register Volume 70, Number 165 (Friday, August 26, 2005)]
[Rules and Regulations]
[Pages 50888-50899]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-16779]
[[Page 50887]]
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Part IV
Department of Labor
-----------------------------------------------------------------------
Employment Standards Administration
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Wage and Hour Division
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29 CFR Parts 1 and 4
Service Contract Act Wage Determination OnLine Request Process; Final
Rule
Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules
and Regulations
[[Page 50888]]
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DEPARTMENT OF LABOR
Employment Standards Administration
Wage and Hour Division
29 CFR Parts 1 and 4
[RIN 1215-AB47]
Service Contract Act Wage Determination OnLine Request Process
AGENCY: Wage and Hour Division, Employment Standards Administration,
Labor.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Labor (DOL) is amending two regulations to
allow for full implementation of the Wage Determinations OnLine (WDOL)
Internet Web site (https://www.wdol.gov) as the source for federal
contracting agencies to use when obtaining wage determinations issued
by the DOL for service contracts subject to the McNamara-O'Hara Service
Contract Act (SCA) and for construction contracts subject to the Davis-
Bacon Act and Related Acts (DBRA).
DATES: These rules are effective on September 26, 2005.
FOR FURTHER INFORMATION CONTACT: William W. Gross, Director, Office of
Wage Determinations, Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Room S-3028, 200 Constitution
Avenue, NW., Washington, DC 20210, telephone (202) 693-0062. This is
not a toll-free number.
You may direct questions of interpretation and/or enforcement of
regulations issued by this agency or referenced in this notice to the
nearest Wage and Hour Division District Office. Locate the nearest
office by calling the WHD toll-free help line at 1-866-4US-WAGE (1-866-
487-9243) between 8 a.m. and 5 p.m. in your local time zone, or log
onto the agency Web site for a nationwide listing of WHD District and
Area Offices at: https://www.dol.gov/esa/contacts/whd/america2.htm.
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act
This regulation is not subject to the Paperwork Reduction Act,
because it contains no new information collection requirements and does
not modify any existing requirements.
II. Section 508 of the Rehabilitation Act
The Wage Determinations OnLine (WDOL) Internet Web site (https://
www.wdol.gov), an electronic information resource, is subject to and
will be developed and maintained in accordance with the accessibility
requirements of Section 508 of the Rehabilitation Act, 29 U.S.C. 794d.
III. Summary of Changes
The SCA requires contractors and subcontractors performing services
on prime contracts in excess of $2,500 to pay service employees in
various classes no less than the wage rates and fringe benefits found
prevailing in the locality as determined by the Secretary of Labor (or
authorized representative), or the rates (including prospective
increases) contained in a predecessor contractor's collective
bargaining agreement.
SCA section 4, 41 U.S.C. 353, authorizes the Secretary of Labor to
enforce the Act, make rules and regulations, issue orders, hold
hearings, make decisions based upon findings of fact and take other
appropriate action. The DOL rules relating to SCA administration are
contained in Regulations, 29 CFR part 4.
Section 1 of the Davis-Bacon Act (DBA), as amended, 40 U.S.C. 3141
et seq., requires that each contract over $2,000 to which the United
States or the District of Columbia is a party for the construction,
alteration, or repair of public buildings or public works shall contain
a clause setting forth the minimum wages to be paid to various classes
of laborers and mechanics employed under the contract. The DBA requires
contractors or their subcontractors to pay workers employed directly
upon the site of the work no less than the locally prevailing wages and
fringe benefits paid on projects of a similar character as determined
by the Secretary of Labor.
Regulations, 29 CFR part 1, contain the procedures for making and
applying determinations of prevailing wage rates and fringe benefits
pursuant to the DBA and any other Federal statute providing for
determinations of such wages (the Davis-Bacon Related Acts) by the DOL
in accordance with the provisions of the DBA.
The DOL published a Notice of Proposed Rulemaking in the Federal
Register on December 16, 2004 (69 FR 75408), proposing to update its
regulations to have contracting agencies use the WDOL Internet website
to meet their obligation to obtain DBA general wage determinations from
the Wage and Hour Division (WHD). The DOL proposed to publish wage
determinations solely through WDOL and to discontinue publishing notice
of changes in the Federal Register and to no longer publish paper
copies of general wage determinations through the Government Printing
Office (GPO). WDOL offers users the opportunity to request e-mail
notice of future revisions to a wage determination they have selected
for a specific period of time, or until a specific date.
For SCA wage determinations, the DOL proposed to eliminate the
paper Form SF-98 and replace it with an electronic e98 process by which
contracting agencies may continue to request SCA wage determinations
from the WHD. The DOL also proposed to allow use of WDOL as an
alternative means of obtaining SCA wage determinations. The DOL further
proposed to update pertinent statutory citations for applicable laws to
reflect amendments to Title 40 of the U.S. Code and to make other minor
editorial revisions and updates to its regulations.
The development of WDOL required an update of the existing
regulations, which now also provides a basis for updating related
information in the Federal Acquisition Regulations (FAR) to be
compatible with the DOL rule. WDOL does not affect how the WHD
determines prevailing wages under either the SCA or DBA.
29 CFR Part 1
The proposed rule adopted the WDOL website as the single source for
obtaining DBA general wage determinations and eliminated publication of
notices in the Federal Register. Notice of future modifications and
supersedeas general wage determinations will be posted on WDOL. The
proposed rule also eliminated references to GPO publication of general
wage determinations, although GPO may continue, at its discretion, to
publish general wage determinations. The proposed rule retained the
requirement in the current regulations under 29 CFR 1.5 that Federal
contracting agencies request a wage determination by preparing and
mailing Form SF-308 to the Department of Labor, for those infrequent
situations when a DBA general wage determination is not available
through WDOL. The DOL processed fewer than 100 Forms SF-308 in FY 2004,
and did not believe providing Federal agencies with an electronic
submission option in these rare cases justified the considerable
expense that developing such a system would require.
29 CFR Part 4
The proposal drew upon technological advances of recent years and
the wide use of electronic communication and information sharing. It
replaced the paper Standard
[[Page 50889]]
Form SF-98 request and response process for obtaining SCA wage
determinations with an electronic e98 process and enabled contracting
agencies alternatively to use the WDOL website to obtain SCA wage
determinations.
The DOL has been working with contracting agencies to develop
better and more efficient mechanisms for agencies to obtain SCA wage
determinations. With the advent and expansion of the Internet in the
mid-1990s, several contracting agencies approached the WHD seeking the
ability to access and download SCA wage determinations. The vast
majority of the covered service contracts awarded by these agencies
were either options or renewals, and the applicable SCA wage
determinations for these contracts were well established. By this time,
the WHD had developed a standard set of SCA wage determinations that
applied to most of these contracts. The National Technical Information
Service (NTIS) had posted these wage determinations on the Internet for
information purposes, and the agencies requested the ability to
download and use these standard wage determinations in appropriate
situations. This led to the WHD entering into Memoranda of
Understanding (MOUs) with several agencies to allow them to use these
standard wage determinations without first submitting an SF-98. Under
the MOUs, the agencies agreed to train their personnel in the proper
selection and use of SCA wage determinations. The agencies also agreed
to monitor the SCA wage determinations database and to use any
subsequent revisions of the applicable wage determinations that were
issued before the applicable procurement dates specified in the SCA
regulations. After the agency selected an applicable SCA wage
determination, it would notify the WHD of its selection by the
submission of a Form SF-98 after the fact.
This MOU program further implemented the remedial purpose of the
SCA by requiring that participating agencies monitor the SCA wage
determination database and use the latest revisions published in a
timely manner before award or commencement of the contract. With the
paper Form SF-98, the WHD had no mechanism to follow-up and advise
contracting agencies when wage determinations were revised or updated.
Because the MOU program proved to be quite successful, it subsequently
was expanded to numerous other agencies.
An interagency work group composed of representatives from the
Office of Management and Budget, Department of the Army, Department of
the Air Force, Department of the Navy, Army Corps of Engineers, General
Services Administration, NTIS and the Department of Energy began
development of a new online system designed to consolidate the best
practices of agencies operating under the MOU program. The work group
also looked at adding non-standard wage determinations to the online
system. Principal objectives of the work group were the elimination of
the paper Form SF-98 and the availability of wage determinations
electronically.
At the same time, the WHD was developing an electronic request and
response system to replace Form SF-98. The WHD began live tests of the
e98 system in FY 2003. During FY 2003, the WHD received and responded
to more than 12,000 e98 submissions. A computer responds to a
significant number of the e98 requests immediately while the requester
is online. The remaining requests are referred to an analyst and the
response is usually sent later the same day or the next day. For all
requests, the e98 system is designed to track individual requests by
the procurement dates listed on the request, and when a wage
determination that would affect a particular procurement is revised, an
amended email response is sent to the contracting agency.
The site developed by the WDOL work group integrates the e98
process with the best practices developed under the MOU program. WDOL
offers users a number of unique features in a web-based environment.
The site includes: (1) guidance to contracting officers on selecting
the appropriate wage determination for each contract action; (2) access
to the most current SCA and DBA wage determinations, as well as an
alert service for notification of future revisions to particular wage
determinations; and, (3) access to databases containing archived wage
determinations under both the SCA and DBA.
To facilitate contracting officers selecting the appropriate SCA
wage determination, the WDOL site leads the requester through a
``decision tree'' consisting of a series of questions. Based upon the
responses to these questions, the WDOL site will either identify an SCA
wage determination or direct the requester to submit an e98. A link to
the e98 site is provided. In addition, the WDOL site gives the
requester the option of going directly to the e98 site without having
to go through the ``decision tree'' selection process. If a contracting
officer has any question regarding the selection of the proper SCA wage
determination, the WDOL site directs the contracting officer to the
e98.
As clearly indicated on the WDOL Web site, compliance with the
decision tree selection process and the guidance provided by the User's
Guide does not relieve the contracting officer or other program user of
the requirement to carefully review the contract or solicitation, the
FAR and its Supplements, other Federal agency acquisition regulations
or the DOL regulations related to these actions. If the DOL discovers
and determines, whether before or after contract award, that the
correct SCA wage determination was not included in a covered contract,
the contracting officer, within 30 days of notification by the DOL, is
required to include in the contract the applicable wage determination
issued by the DOL. (See 29 CFR 4.5(c)(2).)
III. Summary of Comments
DOL received five comments in response to the Notice of Proposed
Rulemaking, discussed further below, from the: Office of the Under
Secretary of Defense (DOD); Army Corps of Engineers (Army); Department
of the Navy, Office of the Assistant Secretary for Research,
Development and Acquisition (Navy); Contract Services Association
(CSA); and International Association of Machinists and Aerospace
Workers. All comments generally support the automated environment for
obtaining wage determinations that underlies the proposed rule;
however, several comments recommend minor revisions. Some of the
recommendations address issues that are beyond the scope of the
proposed rule.
The CSA urges removing the references in proposed Sec. Sec. 1.2(e)
and 4.1a(i) that ``the term WDOL will apply to any other Internet Web
site or electronic means that the Department of Labor may approve for
these purposes,'' in addition to https://www.wdol.gov. The CSA believes
the definition may cause potential confusion among contractors and
contracting agencies. These sections define the term, ``WDOL.'' The
proposed rule allows more flexibility and accommodates future
technological advances without the delays that might otherwise be
associated with procedural regulatory changes. The final rule retains
the references.
The Navy urges revising or eliminating the current requirement in
Sec. 1.4 for contracting agencies to provide the DOL with an annual
summary of their construction plans for the coming year. The final rule
retains the requirement. The Navy believes much of the information
provided in these
[[Page 50890]]
reports could be extracted from various reports used for other
purposes. These construction reports are not related to the process for
obtaining wage determinations and are not part of the proposed rule. In
the past, the WHD has used these reports to identify localities with
the greatest need for new Davis-Bacon wage surveys. Although the WHD is
testing new processes that might allow regularly scheduled Davis-Bacon
wage surveys of all areas of the country, it is not yet clear that such
processes will totally eliminate the need for some targeted surveys. In
addition, it is not clear that the other sources identified by the Navy
would provide the same level of detail and information as called for
under Sec. 1.4 of the Regulations. The DOL does not believe that
further action on this recommendation is warranted at this time and
that the suggestion would necessitate reopening the notice and comment
process. The DOL will give careful consideration to the Navy's
recommendation, if it undertakes further rulemaking regarding the
Davis-Bacon Act in the future.
The DOD and Navy recommend replacing the detailed discussion in
Sec. 1.5(b) regarding the requirements for completing Form SF-308 with
a more general statement and provide for an electronic submission
option. The final rule retains the existing provision, because the DOL
does not believe providing Federal agencies with an electronic
submission option for the rare instances in which an agency files Form
SF-308 justifies the considerable expense that developing such a system
would require. The DOL processed fewer than 100 Forms SF-308 in FY
2004.
The CSA recommends amending the definition of ``wage
determination'' in Sec. 4.1a(h) to clarify the effective date and
applicability of wage determinations. This definition is not part of
the proposed regulatory changes. The Administrative Procedure Act
(APA), 5 U.S.C. 553, normally requires notice and an opportunity for
public comment when an agency amends a substantive rule. The APA,
however, contains exceptions to the notice and comment provisions for
(1) ``interpretive rules, general statements of policy, or rules of
agency organization, procedure, or practice'' and (2) rules where the
agency for good cause finds that notice and public comment are
``impracticable, unnecessary, or contrary to the public interest.''
Agencies may immediately adopt rules subject to the exceptions. The
suggested change regarding the date on which a wage determination
becomes effective, without including a reference to the applicability
of the determination, helps to clarify the WDOL process and augments
Sec. 4.4(c)(1) of the proposed rule. The section makes clear that a
contracting agency using the WDOL process bears full responsibility for
selecting the correct wage determination. The rule, however, also
requires the contracting agency to amend a contract if the DOL
subsequently determines the contracting agency applied an incorrect
wage determination to a specific contract; thus, an inapplicable wage
determination does not become applicable because the contracting agency
has inserted it into the contracting action. The final rule
incorporates the suggestion to include when a wage determination
becomes effective by adding a new sentence to the existing definition
for wage determination in Sec. 4.1a(h) to read, ``A wage determination
is effective upon its publication on the WDOL website or when a Federal
agency receives a response from the Department of Labor to an e98.''
The DOL hereby finds, pursuant to 5 U.S.C. 553(b)(3)(B), that notice
and public comment procedures on this clarification of the definition
of ``wage determination'' in Sec. 4.1a(h) are impracticable and
unnecessary and would not further the public interest.
The DOD and Navy want the definition for the term, ``e98,'' in
Sec. 4.1a(j) to include the Internet address for WDOL. The agencies
believe such a change would help clarify how to locate the e98. The DOL
agrees this could improve access to the e98. The final rule includes
the Web site.
The CSA believes proposed Sec. 4.3(c) requires minor clarification
by adding the word, ``revision,'' to the discussion of methods by which
an existing wage determination may become obsolete in the last
sentence. The CSA points out that the remainder of the section
discusses ``revisions'' of wage determinations. The DOL agrees the
change may help in understanding the requirement, and the final rule
incorporates this change. The CSA also recommends relocating the
proposed description in Sec. 4.3(c) of what a wage determination
includes and its significance to the definitions found in Sec. 4.1a.
The final rule retains the description in its present location, because
the DOL believes the overall discussion of wage determinations in Sec.
4.3 remains a more appropriate context for information found in a wage
determination and its significance.
The CSA also urges revising proposed Sec. 4.3(e) to (1) make all
effective SCA wage determinations and any underlying collective
bargaining agreements and locality wage determinations available for
public inspection at all WHD District Offices and (2) clarify the
availability of archived wage determinations through WDOL. The proposed
regulation provides for the DOL to make wage determinations available
for public inspection through the National and five Regional Offices of
the WHD during regular business hours and through WDOL. The proposed
WDOL rule parallels the ``public inspection'' provisions that exist in
the current rule geared for review of only paper documents and, adds an
on-line viewing feature available through WDOL. The final rule does not
provide for public inspection of wage determinations at WHD District
Offices but does highlight the availability of archived copies of wage
determinations through WDOL. WHD District Offices are not staffed in a
way that would allow public inspections of wage determinations in the
District Offices. In addition, the proposed change would require the
agency to either maintain a supply of printed copies of all wage
determinations available or a computer available for public use at each
District Office. Adoption of the recommendation would impose a
regulatory requirement to make staff available and print copies of all
wage determinations in each District Office and could impose a new
demand for resources not presently available. Persons in outlying areas
may access wage determinations through the Internet and facilities to
access the Internet are available at public libraries. Availability of
a DOL computer for public inspection could also present potential
security concerns for DOL's information technology systems. The WDOL
website does have a capability to allow the viewing of archival copies
of wage determinations that are not current, and the final rule makes
that availability clear. The DOL has also incorporated this suggestion
in Sec. 1.6(c)(3)(v), with respect to Davis-Bacon wage determinations.
The DOL has received several suggestions regarding Sec. 4.4,
Obtaining a wage determination. The CSA urges inserting ``applicable,''
when referring to wage determinations in effect for a particular
contracting action in Sec. 4.4(a). The CSA wants this change since the
FAR SCA price adjustment clause uses ``applicable'' to describe the
basis for changing pricing when a new wage determination takes effect,
tribunals use ``applicable'' when determining which wage determination
is appropriate for price adjustment, and DOL uses the term for
enforcement purposes. The final rule does not include the reference.
[[Page 50891]]
The DOL believes the proposed regulation sufficiently outlines the
relevant applicable requirements and the reasons for not adopting a
similar suggestion discussed in relation to Sec. 4.1a(h) also apply to
this situation.
The CSA also suggests adding the issuance of any task order issued
pursuant to a GSA Schedule contract or blanket purchase agreement for
commercial services to the illustrative list of contracting actions for
which a contracting agency must obtain a wage determination in Sec.
4.4(a)(1). The CSA believes adding the reference may be prudent, given
the continuing growth of GSA Schedule and commercial service
contracting. The final rule does not add the example. The DOL believes
naming GSA schedule contracts and blanket purchase agreements may cause
some confusion, because no individual task or purchase order determines
the amount of the contract. The existing provisions of Sec. 4.142
provides guidance by stating these contracts would ordinarily
constitute contracts within the intent of the Act under judicially
established principles.
A third CSA recommendation encourages adding a statement in Sec.
4.4(a)(3)(i) highlighting that a contracting agency may select a wage
determination through WDOL, in addition to obtaining it from DOL. The
final rule does not include the additional statement. The proposed rule
requires a contracting agency to obtain a wage determination for each
location in which work may be performed, if the place of performance is
unknown at the time of solicitation. In addition to the e98 process,
contracting agencies may obtain wage determinations from DOL through
WDOL. Section 4.4 (a)(2) provides a general discussion of the methods
and Sec. 4.4(b) and (c) provide specific discussions of the different
ways in which a contracting agency may obtain a wage determination. In
a related recommendation, the CSA suggests removing the provision in
this section that requires use of the wage determination incorporated
in the contract documents. The CSA believes the wage determinations
apply to service employees in specific localities, not to contractors.
The CSA also presents a view that, when a contractor relocates work,
contracting agencies should use the WDOL or e98 process to obtain a new
wage determination for the location in which the work performance
actually takes place. The final rule retains the provision. The DOL
does not believe that further action on this recommendation is
warranted at this time and it would necessitate reopening the notice
and comment process.
The DOD and Navy recommend revising Sec. 4.4(b)(1) to have WDOL
use the applicable solicitation or contract number for tracking
purposes, instead of the WDOL system assigning a unique number. The
final rule does not incorporate this recommendation, because it would
require redesign of the WDOL system and how it interfaces with internal
DOL programs, as well as considerable additional resources that are
presently not available.
The DOD and Navy also recommend changing the proposed requirement
in Sec. 4.4(b)(3) for a contracting agency to monitor email addresses
to having contracting agencies resubmit an e98 with a new email address
each time an email address changes. These agencies also believe the DOL
should establish an internal policy of requesting electronic delivery
and read receipts. The final rule retains the monitoring requirement
and does not establish a policy of requesting electronic delivery and
read receipts. The proposed rule makes clear that contracting agencies
obtaining wage determinations through WDOL bear the responsibility for
insuring they incorporate the correct wage determination into any
contracting action. The rule also provides flexibility to contracting
agencies in how they accomplish that standard. The ``email monitoring
provision'' of proposed Sec. 4.4(b)(3) is similar to the proposed
Sec. 4.4(c)(3) requirement for contracting agencies to monitor the
WDOL website to determine whether the applicable wage determination has
been revised. There may also be situations, such as periods of leave
(e.g., 2-week vacation), during which contracting agencies may not
believe it practical to update email addresses; thus, to require
resubmission of an e98 in all cases could be unduly burdensome. The
WDOL website provides a method for contracting agencies to contact the
Division. The DOL believes the WDOL contact process is sufficient.
The DOD and Navy recommend replacing the phrase ``geographic area''
in Sec. Sec. 4.4(b)(5) and (c)(4) with ``locality,'' to make the
wording consistent with Sec. 4.163(i). The DOL agrees and the final
rule reflects the modification.
The DOD and Navy also seek to revise Sec. 4.4(b)(5) and 4.5(d) to
have the contracting officer follow up with the DOL, if the contracting
agency has not received a response within 10 business days of the
submission of the original e98 notice or within 15 business days of the
submission of the collective bargaining agreement. They further suggest
the regulation specify an email address and a telephone number where
such follow up should be made. The DOL has not adopted the suggested
changes in the final rule. Proposed Sec. 4.4(b)(1) provides for the
requester to receive a response indicating the request has been
referred to an analyst, if the DOL does not provide a final response to
an e98 while the requester is online. The e98 will be assigned a unique
serial number to facilitate follow-up should that become necessary.
Although the regulations do not provide specific timeframes for a
further response by an analyst, the initial e98 response states that a
further response will be provided within five days. The additional
response is usually provided on the same day or the next day; however
some cases may require additional time. When the DOL requires
additional time or information, the analyst working on the request will
provide an interim reply informing the requestor of the need and that
further response will come from the email address of the analyst
working on the e98 request. If the contracting officer needs to follow-
up on his/her e98, it would be more efficient to address such follow-up
directly to the analyst working on the e98. In those rare instances
where the contracting officer does not receive at least an interim
response from an analyst within five days of submission, the
instructions for the e98 provide both an email address and a telephone
number where requests for assistance or a status report may be sent.
The DOL believes including telephone numbers and email addresses in the
regulations is not the most efficient way to ensure contracting
officers have access to the current address and telephone number,
because such information may change. The DOL also believes contracting
officers accustomed to using the internet for submitting e98s will most
likely return to the e98 website, rather than turn to the DOL
regulations to seek an email address or telephone number to follow-up
on their e98 submission. The DOL believes that these matters are
adequately addressed within the e98 system and the proposed
regulations.
The CSA recommends adding a reference to the ``changes'' clause in
an SCA contract to the requirement in Sec. 4.4(c)(1) for contracting
agencies to amend contracts by incorporating the correct wage
determination as determined by DOL. The CSA believes the change is
appropriate, because the proposed regulations (1) affect Federal agency
procurement procedures and (2) are for contracting agencies. The final
rule does not contain such a provision. The DOL believes the proposed
rule adequately states the obligations contracting agencies have when a
[[Page 50892]]
contracting agency incorporates an incorrect wage determination and
that the FAR is the appropriate vehicle to address the concern raised
by the CSA.
The CSA suggests the DOL refer to ``information,'' instead of
``document,'' in Sec. 4.5(a)(1), and the final rule reflects this
recommendation. The CSA believes the change would make the regulation
more consistent with the purpose of the regulation, to take advantage
of wide use of electronic communication and information sharing. The
types of ``documents'' contemplated by the proposed rule are the wage
determination, including revisions received timely, for the contracting
action. The DOL believes contracting agencies currently routinely use
paper copies of wage determinations for insertion into contracting
actions; however, the proposed rule would not preclude use of
electronic documents. DOL, however, believes the more common use of
``documents'' as referring to paper and the broader use of
``information'' and ``data'' for information technology purposes make a
sufficiently compelling case to adopt the suggestion.
The CSA urges the DOL to divide Sec. 4.5(a)(2) into a general
introductory statement and two subsections pertaining to special
circumstances. The final rule incorporates this recommendation, because
the DOL agrees this may increase understanding of the regulatory
requirements. The CSA also recommends the DOL reduce the 10-day time
frame discussed in the second sentence of Sec. 4.5(a)(2). The CSA
believes a 5-day period would still allow contracting agencies time to
provide electronic notification to offerors of the amended solicitation
and still allow offerors sufficient time to amend their proposals. The
final rule does not include this second change. The current and
proposed rule allow agencies to make a determination that there is not
a reasonable time to notify bidders of a revised wage determination, if
the agency receives notice of the revision less than 10 days before the
bid opening. The DOL believes use of electronic communication may cause
contracting agencies to have fewer instances in which they will make a
finding of insufficient time; however, it remains appropriate for
contracting agencies to have an ability to exercise this discretion
based on varying factual circumstances. The CSA further seeks to change
this section by (1) making any revised wage determinations received
after final proposal revisions inapplicable to negotiated procurements
and (2) adding a provision requiring contracting agencies to make
modifications within half the time currently allowed and (3) requiring
corresponding adjustment in the contract price. The final rule does not
include the requested changes, because they exceed the intended scope
of the proposed rule, and the DOL believes further action on this
recommendation would require reopening the notice and comment process.
The DOD and Navy suggest removal of the fourth sentence of this
proposed section, as initially drafted, which provides that, if (1) the
contract does not specify a start of performance date which is within
30 days from the award and/or (2) performance of such procurement does
not commence within this 30-day period, the DOL shall be notified and
any notice of a revision received by the agency not less than 10 days
before commencement of the contract shall be effective. The agencies
believe on-line access to wage determinations through WDOL and the e98
process make it unnecessary to continue the requirement for contracting
agencies to submit blanket notifications to the DOL for all contracts
specifying a start of performance date of more than 30 days, originally
developed under the paper Form SF-98 process. The final rule does not
include the notification requirement, but the remainder of the
requirement has been retained.
The CSA urges that Sec. 4.5(a)(3) highlight that a contracting
agency has received an initial or a revised wage determination on the
date the DOL (1) posts the determination to the WDOL Web site or (2)
sends the determination through the e98 response process. The CSA
believes it is critical to emphasize that a wage determination becomes
effective when published on the WDOL Web site, and not only when the
contracting agency receives an e98 response from DOL, since proposed
Sec. 4.4, Obtaining a wage determination, addresses identification of
the initial wage determination (whether by the WDOL or e98 process).
The final rule now includes references to the initial wage
determination and e98 process in Sec. 4.5(a)(3). The proposed rule
only mentions the date of publication on WDOL or date on which an
agency receives a revised determination from the DOL; however, the
proposed rule does not indicate that contracting agencies may also
receive initial wage determinations through the e98 process. The DOL
agrees the clarification proposed by the CSA could reduce confusion
over the date of receipt and make it more congruous with Sec. 4.4.
The CSA recommends revising Sec. 4.5(c) by referring to an
``applicable'' wage determination, changing the time frame for
inserting the appropriate wage determination from 30 to 15 days from
the date of the DOL notification and incorporating a reference to the
changes clause of the contract. The final rule does not adopt these
changes, for reasons previously explained.
The DOD and Navy recommend Sec. 4.5(d) direct the contracting
officer to incorporate a complete copy of the collective bargaining
agreement into the contract action, if a timely response to the e98 has
not been received and the e98 involves a collective bargaining
agreement. The final rule does not include this prescription, because
it may not be the most efficient approach in all cases and the existing
proposal provides adequate guidance and greater flexibility in
addressing the underlying concern. Proposed Sec. 4.5(d) provides that
the WHD should be contacted for guidance in cases where the contracting
agency has filed an e98 and has not received a response. While it is
possible that the guidance will be to include the entire collective
bargaining agreement in the contract action, such action may not be
necessary in all cases.
The DOD, Army and Navy also express a belief that the Sec. 4.8
requirement regarding use of Form SF-99 (Notice of Award of Contract)
is no longer needed and its continuation creates an unnecessary
duplication of contract reporting, in view of the enhanced reporting
capabilities of the Federal Procurement Data System (FPDS). The
agencies ask the DOL to eliminate the reporting requirement. The
proposed rule does not include any changes in Sec. 4.8 or this
reporting requirement. The SCA coverage threshold for application of
SCA wage determinations is $2,500; however, Sec. 4.8 of the current
rule requires that when a contract over $10,000 is awarded and the
agency does not report the award to the FPDS via Form SF-279 (FPDS
Individual Contract Action Report) or its equivalent, the agency is
expected to furnish a Form SF-99 to the Wage and Hour Division unless
it makes other arrangements for notifying the Division of such awards.
The $10,000 reporting threshold was adopted in the SCA rules in 1983 to
be consistent with the then-applicable small purchase threshold and
reporting requirements of the FPDS. Prior to 1983, a Form SF-99 was
required for all SCA contracts in excess of S2,500. This procedural
rule, thus, originally established a reporting requirement between a
federal contracting agency and the DOL only if the contract award data
was not already being reported to the FPDS, thereby eliminating any
duplication of reporting requirements and reducing existing
[[Page 50893]]
paperwork and reporting burdens on the agencies. The FPDS reporting
threshold via Form SF-279, however, has since been increased to
$25,000. The change in the FPDS reporting threshold, thus, has created
the additional reporting burden. In any event, in the interest of
eliminating any unanticipated paperwork and reporting burdens imposed
by Sec. 4.8, the DOL has decided to discontinue the use of Standard
Form 99 and eliminate the reporting requirement entirely. The APA
exception to the notice-and-comment procedures applies to this
situation. The DOL finds, pursuant to 5 U.S.C. 553(b)(3)(B), that
notice and public comment procedures on this procedural reporting rule
are impracticable and unnecessary and would not further the public
interest. Accordingly, the final rule removes and reserves Sec. 4.8
and the DOL will discontinue using Form SF-99.
The CSA suggests removal of Sec. 4.50(a)(2), in the absence of any
correlation between the provision and the wide use of electronic
communication and information sharing, or moving the discussion to
Sec. 4.56, Review and reconsideration of wage determinations. The
final rule retains this provision as proposed without change. The
section stresses that (1) various prevailing wage determinations may
apply in a particular locality and (2) the application of these
different prevailing wage determinations will depend upon the nature of
the contracts to which they are applied. These differences and
variations in wage determinations require that contracting agencies
observe the proper protocol required by the WDOL processes when
selecting the appropriate wage determination. The provisions of Sec.
4.56 provide an appeal right for any interested party affected by a
wage determination to request the Wage and Hour Administrator to review
and reconsider it.
The CSA also urges revising the last sentence of Sec. 4.54(b), to
provide for the issuance of wage determinations for various localities
identified by the contracting agency as set forth in Sec. 4.4(a)(3)(i)
``using the e98 process or 4.4(c) using the WDOL process.'' The final
rule does not adopt the suggested change. Section 4.54 discusses
situations where services are to be performed for a Federal agency at
the site of the successful bidder, in contrast to services to be
performed at a specific Federal facility or installation, or in the
locality of such installation. The location where the work will be
performed often cannot be ascertained at the time of bid advertisement
or solicitation. The Sec. 4.4(a) introductory discussion of obtaining
wage determinations applies equally to wage determinations obtained
through either the e98 or WDOL processes, respectively explained in
Sec. 4.4 (b) and (c).
The CSA recommends inserting a requirement in Sec. 4.55(a) for the
WHD to review wage determinations no less often than once every two
years and also seeks other changes, consistent with the recommendation
for Sec. 4.54. The final rule does not include these changes. The
current and proposed regulations require periodic review of wage
determinations but do not impose the maximum two-year interval between
such reviews. The general requirement in SCA section 4(d) for the
periodic update of wage determinations directs the contracting agencies
to update wage determinations in awarded multi-year contracts. It is
not a directive to DOL to update its wage determination database no
less often than every two years. The DOL has not made these remaining
changes, for the reasons discussed.
The CSA recommends adding a reference to the ``changes'' clause in
an SCA contract to Sec. 4.144(c)(1), pertaining to contract
modifications affecting the amount of a contract. The final rule does
not add the reference for the reasons previously stated. The proposed
section merely conforms the provision to the e98 process and reflects
the current regulation in all other respects.
The CSA makes a general recommendation to substitute ``website''
for ``Internet Web site'' and to remove quotation marks from e98. The
final rule incorporates these plain language changes. The final rule
does not adopt the CSA recommendation to replace ``Government'' with
``Department of Labor,'' because the DOL does not host the WDOL Web
site.
IV. Regulatory Flexibility, Executive Order 12866; Small Business
Regulatory Enforcement Fairness Act
This regulation affects Federal agency procurement procedures and
will not have a significant economic impact on a substantial number of
small entities within the meaning of the Regulatory Flexibility Act, 5
U.S.C. 601 et seq. The agency certified to this effect to the Chief
Counsel for Advocacy of the U.S. Small Business Administration.
This rule has been treated as a significant rulemaking, although
not economically significant or major, and has, therefore, been
reviewed by OMB.
V. Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1532, this rule does not include any Federal mandate that may result in
excess of $100 million in expenditures by state, local and tribal
governments in the aggregate or by the private sector.
VI. Executive Order 13132 (Federalism)
The rule does not have federalism implications as outlined in
Executive Order 13132. The rule does not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.
VII. Executive Order 13175, Indian Tribal Governments
This rule does not have ``tribal implications'' under Executive
Order 13175 and does not require a tribal summary impact statement. The
rule does not have ``substantial direct effects on one or more Indian
tribes, on the relationship between the Federal government and Indian
tribes or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
VIII. Effects on Families
The undersigned hereby certifies that the rule will not adversely
affect the well-being of families, as discussed under section 654 of
the Treasury and General Government Appropriations Act, 1999.
IX. Executive Order 13045, Protection of Children
This rule has no environmental health risk or safety risk that may
disproportionately affect children.
X. Environmental Impact Assessment
A review of this rule in accordance with the requirements of the
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et
seq.; the regulations of the Council on Environmental Quality, 40 CFR
1500 et seq.; and the Departmental NEPA procedures, 29 CFR part 11,
indicates the rule will not have a significant impact on the quality of
the human environment. There is, thus, no corresponding environmental
assessment or an environmental impact statement.
XI. Executive Order 13211, Energy Supply
This rule is not subject to Executive Order 13211. It will not have
a significant adverse effect on the supply, distribution or use of
energy.
[[Page 50894]]
XII. Executive Order 12630, Constitutionally Protected Property Rights
This rule is not subject to Executive Order 12630, because it does
not involve implementation of a policy ``that has takings
implications'' or that could impose limitations on private property
use.
XIII. Executive Order 12988, Civil Justice Reform Analysis
This rule was drafted and reviewed in accordance with Executive
Order 12988 and will not unduly burden the Federal court system. The
rule was: (1) Reviewed to eliminate drafting errors and ambiguities;
(2) written to minimize litigation; and (3) written to provide a clear
legal standard for affected conduct and to promote burden reduction.
List of Subjects
29 CFR Part 1
Administrative practice and procedure, Government contracts,
Investigations, Labor, Minimum wages, Recordkeeping requirements,
Reporting requirements, Wages.
29 CFR Part 4
Administrative practice and procedure, Government contracts,
Investigations, Labor, Minimum wages, Penalties, Recordkeeping
requirements, Reporting requirements, Wages.
Signed at Washington, DC, this 18th day of August, 2005.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Alfred B. Robinson, Jr.,
Deputy Administrator, Wage and Hour Division.
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For the reasons set forth above, title 29, parts 1 and 4, of the Code
of Federal Regulations are amended as set forth below.
TITLE 29--LABOR
PART 1--PROCEDURES FOR PREDETERMINATION OF WAGE RATES
0
1. The authority citation for part 1 is revised to read as follows:
Authority: 5 U.S.C. 301; R.S. 161, 64 Stat. 1267; Reorganization
Plan No. 14 of 1950, 5 U.S.C. appendix; 40 U.S.C. 3141 et seq.; 40
U.S.C. 3145; 40 U.S.C. 3148; and the laws listed in appendix A of
this part.
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2. Paragraph (e) is added to section 1.2 to read as follows:
Sec. 1.2 Definitions.\1\
* * * * *
(e) The term Wage Determinations OnLine (WDOL) shall mean the
Government Internet Web site for both Davis-Bacon Act and Service
Contract Act wage determinations available at https://www.wdol.gov. In
addition, WDOL provides compliance assistance information. The term
will also apply to any other Internet Web site or electronic means that
the Department of Labor may approve for these purposes.
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3. Paragraphs (a) and (b) of Sec. 1.5 are revised to read as follows:
Sec. 1.5 Procedure for requesting wage determinations.
(a) The Department of Labor publishes general wage determinations
under the Davis-Bacon Act on the WDOL Internet Web site. If there is a
general wage determination applicable to the project, the agency may
use it without notifying the Department of Labor, Provided, That
questions concerning its use shall be referred to the Department of
Labor in accordance with Sec. 1.6(b).
(b)(1) If a general wage determination is not available, the
Federal agency shall request a wage determination under the Davis-Bacon
Act or any of its related prevailing wage statutes by submitting Form
SF-308 to the Department of Labor at this address: U.S. Department of
Labor, Employment Standards Administration, Wage and Hour Division,
Branch of Construction Contract Wage Determination, Washington, DC
20210. In preparing Form SF-308, the agency shall check only those
classifications that will be needed in the performance of the work.
Inserting a note such as ``entire schedule'' or ``all applicable
classifications'' is not sufficient. Additional classifications needed
that are not on the form may be typed in the blank spaces or on a
separate list and attached to the form.
(2) In completing SF-308, the agency shall furnish:
(i) A sufficiently detailed description of the work to indicate the
type of construction involved. Additional description or separate
attachment, if necessary for identification of type of project, shall
be furnished.
(ii) The county (or other civil subdivision) and State in which the
proposed project is located.
(3) Such request for a wage determination shall be accompanied by
any pertinent wage payment information that may be available. When the
requesting agency is a State highway department under the Federal-Aid
Highway Acts as codified in 23 U.S.C. 113, such agency shall also
include its recommendations as to the wages which are prevailing for
each classification of laborers and mechanics on similar construction
in the area.
* * * * *
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4. Paragraphs (a)(2), (c)(3)(iv) and (c)(3)(v) of Sec. 1.6 are revised
to read as follows:
Sec. 1.6 Use and effectiveness of wage determinations.
(a) * * *
(2) General wage determinations issued pursuant to Sec. 1.5(a),
notice of which is published on WDOL, shall contain no expiration date.
* * * * *
(c) * * *
(3) * * *
(iv) If under paragraph (c)(3)(i) of this section the contract has
not been awarded within 90 days after bid opening, or if under
paragraph (c)(3)(ii) or (iii) of this section construction has not
begun within 90 days after initial endorsement or the signing of the
agreement to enter into a housing assistance payments contract, any
modification, notice of which is published on WDOL prior to award of
the contract or the beginning of construction, as appropriate, shall be
effective with respect to that contract unless the head of the agency
or his or her designee requests and obtains an extension of the 90-day
period from the Administrator. Such request shall be supported by a
written finding, which shall include a brief statement of the factual
support, that the extension is necessary and proper in the public
interest to prevent injustice or undue hardship or to avoid serious
impairment in the conduct of Government business. The Administrator
will either grant or deny the request for an extension after
consideration of all the circumstances.
(v) A modification to a general wage determination is ``published''
within the meaning of this section on the date notice of a modification
or a supersedeas wage determination is published on WDOL or on the date
the agency receives actual written notice of the modification from the
Department of Labor, whichever occurs first. Archived versions of
Davis-Bacon and Related Acts wage determinations that are no longer
current may be accessed in the ``Archived DB WD'' database of WDOL for
information purposes only. Contracting officers should not use an
archived wage determination in a contract action without prior approval
of the Department of Labor.
* * * * *
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5. Items 19 and 20 in Appendix A of part 1 are revised to read as
follows:
Appendix A to Part 1
* * * * *
[[Page 50895]]
19. National Visitors Center Facilities Act of 1968 (sec. 110,
82 Stat. 45; 40 U.S.C. 808).
Note: Section applying labor standards provisions of the Davis-
Bacon Act repealed August 21, 2002, by 116 Stat. 1318, Pub. L. 107-
217.
20. Appalachian Regional Development Act of 1965 (sec. 402, 79
Stat. 21; 40 U.S.C. 14701).
* * * * *
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6. Appendix B of Part 1 is revised to read as follows:
Appendix B to Part 1
Northeast Region
For the States of Connecticut, Delaware, District of Columbia,
Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York,
Pennsylvania, Puerto Rico, Rhode Island, Vermont, Virgin Islands,
Virginia and West Virginia:
Regional Administrator, Wage and Hour Division, Employment
Standards Administration, U.S. Department of Labor, Curtis Center,
170 South Independence Mall West, Room 850 West, Philadelphia, PA
19106 (Telephone: 215-861-5800, FAX: 215-861-5840).
Southeast Region
For the States of Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina and Tennessee:
Regional Administrator, Wage and Hour Division, Employment
Standards Administration, U.S. Department of Labor, 61 Forsyth
Street, SW., Room 7M40, Atlanta, GA 30303 (Telephone 404-893-4531,
FAX: 404-893-4524).
Midwest Region
For the States of Illinois, Indiana, Iowa, Kansas, Michigan,
Minnesota, Missouri, Nebraska, Ohio and Wisconsin:
Regional Administrator, Wage and Hour Division, Employment
Standards Administration, U.S. Department of Labor, 230 South
Dearborn Street, Room 530, Chicago, IL 60604-1591 (Telephone: 312-
596-7180, FAX: 312-596-7205).
Southwest Region
For the States of Arkansas, Colorado, Louisiana, Montana, New
Mexico, North Dakota, Oklahoma, South Dakota, Texas, Utah and
Wyoming:
Regional Administrator, Wage and Hour Division, Employment
Standards Administration, U.S. Department of Labor, 525 South
Griffin Street, Suite 800, Dallas, TX 75202-5007 (Telephone: 972-
850-2600, FAX: 972-850-2601).
Western Region
For the States of Alaska, American Samoa, Arizona, California,
Guam, Hawaii, Idaho, Nevada, Oregon and Washington:
Regional Administrator, Wage and Hour Division, Employment
Standards Administration, U.S. Department of Labor, 71 Stevenson
Street, Suite 930, San Francisco, CA 94105, (Telephone: 415-848-
6600, FAX: 415-848-6655).
0
7. Appendix C of part 1 is deleted.
PART 4--LABOR STANDARDS FOR FEDERAL SERVICE CONTRACTS
0
8. The authority citation for part 4 continues to read as follows:
Authority: 41 U.S.C. 351 et seq.; 41 U.S.C. 38 and 39; 5 U.S.C.
301.
Subpart A--Service Contract Labor Standards Provisions and
Procedures
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9. In Sec. 4.1a, paragraphs (b) and (h) are revised and paragraphs (i)
and (j) are added, to read as follows:
Sec. 4.1a Definitions and use of terms.
(b) Secretary includes the Secretary of Labor, the Assistant
Secretary for Employment Standards, and their authorized
representatives.
* * * * *
(h) Wage determination includes any determination of minimum wage
rates or fringe benefits made pursuant to the provisions of sections
2(a) and/or 4(c) of the Act for application to the employment in a
locality of any class or classes of service employees in the
performance of any contract in excess of $2,500 which is subject to the
provisions of the Service Contract Act of 1965. A wage determination is
effective upon its publication on the WDOL Web site or when a Federal
agency receives a response from the Department of Labor to an e98.
(i) Wage Determinations OnLine (WDOL) means the Government Internet
Web site for both Davis-Bacon Act and Service Contract Act wage
determinations available at https://www.wdol.gov. In addition, WDOL
provides compliance assistance information and a link to submit an e98
or any electronic means the Department of Labor may approve for this
purpose. The term will also apply to any other Internet Web site or
electronic means that the Department of Labor may approve for these
purposes.
(j) The e98 means a Department of Labor approved electronic
application (https://www.wdol.gov), whereby a contracting officer
submits pertinent information to the Department of Labor and requests a
wage determination directly from the Wage and Hour Division. The term
will also apply to any other process or system the Department of Labor
may establish for this purpose.
0
10. In Sec. 4.3, paragraphs (b) through (d) are revised and paragraph
(e) is added, to read as follows:
Sec. 4.3 Wage determinations.
* * * * *
(b) As described in subpart B of this part--Wage Determination
Procedures, two types of wage determinations are issued under the Act:
Prevailing in the locality or Collective Bargaining Agreement
(Successorship) wage determinations. The facts related to a specific
solicitation and contract will determine the type of wage determination
applicable to that procurement. In addition, different types of
prevailing wage determinations may be issued depending upon the nature
of the contract. While prevailing wage determinations based upon cross-
industry survey data are applicable to most contracts covered by the
Act, in some cases the Department of Labor may issue industry specific
wage determinations for application to specific types of service
contracts. In addition, the geographic scope of contracts is often
different and the geographic scope of the underlying survey data for
the wage determinations applicable to those contracts may be different.
(c) Such wage determinations will set forth for the various classes
of service employees to be employed in furnishing services under such
contracts in the appropriate localities, minimum monetary wage rates to
be paid and minimum fringe benefits to be furnished them during the
periods when they are engaged in the performance of such contracts,
including, where appropriate under the Act, provisions for adjustments
in such minimum rates and benefits to be placed in effect under such
contracts at specified future times. The wage rates and fringe benefits
set forth in such wage determinations shall be determined in accordance
with the provisions of sections 2(a)(1), (2), and (5), 4(c) and 4(d) of
the Act from those prevailing in the locality for such employees, with
due consideration of the rates that would be paid for direct Federal
employment of any classes of such employees whose wages, if Federally
employed, would be determined as provided in 5 U.S.C. 5341 or 5 U.S.C.
5332, or from pertinent collective bargaining agreements with respect
to the implementation of section 4(c). The wage rates and fringe
benefits so determined for any class of service employees to be engaged
in furnishing covered contract services in a locality shall be made
applicable by contract to all service employees of such class employed
to perform such services in the locality under any contract subject to
section 2(a) of the Act which is entered into thereafter and before
such determination has been rendered obsolete by a withdrawal,
modification, revision, or supersedure.
(d) Generally, wage determinations issued for solicitations or
negotiations for any contract where the place of
[[Page 50896]]
performance is unknown will contain minimum monetary wages and fringe
benefits for the various geographic localities where the work may be
performed which were identified in the initial solicitation. (See Sec.
4.4(a)(3)(i).)
(e) Wage determinations will be available for public inspection
during business hours at the Wage and Hour Division, Employment
Standards Administration, U.S. Department of Labor, Washington, DC, and
copies will be made available on request at Regional Offices of the
Wage and Hour Division. In addition, most prevailing wage
determinations are available online from WDOL. Archived versions of SCA
wage determinations that are no longer current may be accessed in the
``Archived SCA WD'' database of WDOL for information purposes only.
Contracting officers should not use an archived wage determination in a
contract action without prior approval of the Department of Labor.
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11. Section 4.4 is revised to read as follows:
Sec. 4.4 Obtaining a wage determination.
(a)(1) Sections 2(a)(1) and (2) of the Act require that every
contract and any bid specification therefore in excess of $2,500
contain a wage determination specifying the minimum monetary wages and
fringe benefits to be paid to service employees performing work on the
contract. The contracting agency, therefore, must obtain a wage
determination prior to:
(i) Any invitation for bids;
(ii) Request for proposals;
(iii) Commencement of negotiations;
(iv) Exercise of option or contract extension;
(v) Annual anniversary date of a multi-year contract subject to
annual fiscal appropriations of the Congress; or
(vi) Each biennial anniversary date of a multi-year contract not
subject to such annual appropriations, if so authorized by the Wage and
Hour Division.
(2) As described in Sec. 4.4(b), wage determinations may be
obtained from the Department of Labor by electronically submitting an
e98 describing the proposed contract and the occupations expected to be
employed on the contract. Based upon the information provided on the
e98, the Department of Labor will respond with the wage determination
or wage determinations that the contracting agency may rely upon as the
correct wage determination(s) for the contract described in the e98.
Alternatively, contracting agencies may select and obtain a wage
determination using WDOL. (See Sec. 4.4(c).) Although the WDOL Web
site provides assistance to the agency to select the correct wage
determination for the contract, the agency remains responsible for the
wage determination selected.
(3)(i) Where the place of performance of a contract for services
subject to the Act is unknown at the time of solicitation, the
solicitation need not initially contain a wage determination. The
contracting agency, upon identification of firms participating in the
procurement in response to an initial solicitation, shall obtain a wage
determination for each location where the work may be performed as
indicated by participating firms. An applicable wage determination must
be obtained for each firm participating in the bidding for the location
in which it would perform the contract. The appropriate wage
determination shall be incorporated in the resultant contract documents
and shall be applicable to all work performed thereunder (regardless of
whether the successful contractor subsequently changes the place(s) of
contract performance).
(ii) There may be unusual situations, as determined by the
Department of Labor upon consultation with a contracting agency, where
the procedure in paragraph (a)(3)(i) of this section is not practicable
in a particular situation. In these situations, the Department may
authorize a modified procedure that may result in the subsequent
issuance of wage determinations for one or more composite localities.
(4) In no event may a contract subject to the Act on which more
than five (5) service employees are contemplated to be employed be
awarded without an appropriate wage determination. (See section 10 of
the Act.)
(b) e98 process--
(1) The e98 is an electronic application used by contracting
agencies to request wage determinations directly from the Wage and Hour
Division. The Division uses computers to analyze information provided
on the e98 and to provide a response while the requester is online, if
the analysis determines that an existing wage determination is
currently applicable to the procurement. The response will assign a
unique serial number to the e98 and the response will provide a link to
an electronic copy of the applicable wage determination(s). If the
initial computer analysis cannot identify the applicable wage
determination for the request, an online response will be provided
indicating that the request has been referred to an analyst. Again, the
online response will assign a unique serial number to the e98. After an
analyst has reviewed the request, a further response will be sent to
the email address identified on the e98. In most cases, the further
response will provide an attachment with a copy of the applicable wage
determination(s). In some cases, however, additional information may be
required and the additional information will be requested via email.
After an applica