Federal Acquisition Regulation; FAR Case 2005-033, Implementation of Wage Determinations OnLine (WDOL), 36930-36935 [06-5708]
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Act, 5 U.S.C. 601 et seq., because the
number of small entities providing
commercial items with noncommercial
modifications costing more than
$500,000 is expected to be very low.
Although comments submitted on the
interim rule prompted several technical
amendments necessary to correct the
rule, this expectation remains
unchanged.
FAR 15.403–1(c)(3) if the total price of
all such modifications under a
particular contract action exceeds the
greater of $500,000 or 5 percent of the
total price of the contract.
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[FR Doc. 06–5710 Filed 6–27–06; 8:45 am]
BILLING CODE 6820–EP–S
C. Paperwork Reduction Act
DEPARTMENT OF DEFENSE
The Paperwork Reduction Act does
not apply because the rule does not
impose any information collection
requirements that require the approval
of the Office of Management and Budget
under 44 U.S.C. 3501, et seq.
GENERAL SERVICES
ADMINISTRATION
List of Subjects in 48 CFR Part 15
48 CFR Parts 4, 22, 47, 52, and 53
Government procurement.
[FAC 2005–10; FAR Case 2005–033; Item
IV; Docket 2006–0020, Sequence 11]
Dated: June 20, 2006.
Ralph De Stefano,
Director, Contract Policy Division.
RIN 9000–AK47
Therefore, DoD, GSA, and NASA
amend 48 CFR part 15 as set forth
below:
I
Federal Acquisition Regulation; FAR
Case 2005–033, Implementation of
Wage Determinations OnLine (WDOL)
PART 15—CONTRACTING BY
NEGOTIATION
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule.
AGENCIES:
1. The authority citation for 48 CFR
part 15 continues to read as follows:
I
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
2. Section 15.403–1 is amended by
revising paragraphs (c)(3)(ii)(A), (B), and
(C) to read as follows:
I
15.403–1 Prohibition on obtaining cost or
pricing data (10 U.S.C. 2306a and 41 U.S.C.
254b).
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(c) * * *
(3) Commercial items. (i) * * *
(ii) * * *
(A) For acquisitions funded by any
agency other than DoD, NASA, or Coast
Guard, such modifications of a
commercial item are exempt from the
requirement for submission of cost or
pricing data.
(B) For acquisitions funded by DoD,
NASA, or Coast Guard, such
modifications of a commercial item are
exempt from the requirement for
submission of cost or pricing data
provided the total price of all such
modifications under a particular
contract action does not exceed the
greater of $500,000 or 5 percent of the
total price of the contract.
(C) For acquisitions funded by DoD,
NASA, or Coast Guard such
modifications of a commercial item are
not exempt from the requirement for
submission of cost or pricing data on the
basis of the exemption provided for at
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NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed on an interim
rule amending the Federal Acquisition
Regulation (FAR) to implement the
Wage Determinations OnLine (WDOL)
internet website as the source for
Federal contracting agencies to obtain
wage determinations issued by the
Department of Labor (DOL) for service
contracts subject to the McNamaraO’Hara Service Contract Act (SCA) and
for construction contracts subject to the
Davis-Bacon Act (DBA).
DATES: Effective Date: June 28, 2006.
Comment Date: Interested parties
should submit written comments to the
FAR Secretariat on or before August 28,
2006 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments
identified by FAC 2005–10, FAR case
2005–033, by any of the following
methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Agency Web site: https://
www.acquisition.gov/far/
ProposedRules/ proposed.htm. Click on
the FAR case number to submit
comments.
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• E-mail: farcase.2005–033@gsa.gov.
Include FAC 2005–10, FAR case 2005–
033 in the subject line of the message.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(VIR), 1800 F Street, NW, Room 4035,
ATTN: Laurieann Duarte, Washington,
DC 20405.
Instructions: Please submit comments
only and cite FAC 2005–10, FAR case
2005–033, in all correspondence related
to this case. All comments received will
be posted without change to https://
www.acquisition.gov/far/
ProposedRules/comments.htm
including any personal and/or business
confidential information provided.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Ms.
Gloria Sochon, Procurement Analyst, at
(202) 219–0311. Please cite FAC 2005–
10, FAR case 2005–033. For information
pertaining to status or publication
schedules, contact the FAR Secretariat
at (202) 501–4755.
SUPPLEMENTARY INFORMATION:
A. Background
In the August 26, 2005 Federal
Register (70 FR 50888), the DOL issued
a final rule to amend Title 29 CFR parts
1 and 4 to allow for full implementation
of the Wage Determinations OnLine
(WDOL) Internet Website (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 SCA and for construction
contracts subject to the DBA. The
Councils are not seeking comments on
the DOL rule, which has already been
issued in final, but are requesting
comments as to whether the FAR policy
in this rule implementing the DOL rule
is clear. This interim rule amends FAR
Part 22 to direct Federal contracting
agencies to obtain wage determinations
issued by the DOL for contracts subject
to the SCA and DBA from the WDOL
website.
This interim rule incorporates new
geographical jurisdictions for DOL’s
Wage and Hour Regional Offices and
eliminates FAR references to the
Government Printing Office (GPO)
publication of general wage
determinations. The Contracting Officer
(CO) will be able to access the WDOL
website (https://www.wdol.gov) to find
the applicable wage determination for a
contract action subject to the SCA or
DBA. If the WDOL database does not
contain the applicable wage
determination for a SCA contract action,
the CO must use the e98 process to
request a wage determination from DOL.
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The e98 means a DOL approved
electronic application, (also available at
https://www.wdol.gov), whereby a CO
submits pertinent information to the
DOL and requests a wage determination
directly from the Wage and Hour
Division. If the WDOL database does not
contain the applicable wage
determination for a DBA contract action,
the CO must request a wage
determination by submitting a SF–308
to the Wage and Hour Division. The
DOL made an administrative
determination that providing Federal
contracting agencies with an electronic
submission option for the infrequent
instances in which an agency files a SF–
308 does not justify the considerable
expense that developing such a system
would entail. To substantiate its
decision, the DOL noted that in FY
2004, it processed less than 100 SF–
308’s.
This FAR rule eliminates the
requirement for the CO to submit a copy
of collective bargaining agreements
(CBAs) to the DOL for the purpose of
obtaining a wage determination under
Section 4(c) of the SCA, unless directed
by the DOL to do so. The CO instead,
is required to prepare a wage
determination using the WDOL process,
and to incorporate the complete CBA
and all its attachments into the
solicitation or contract action. The wage
determination prepared by the CO is a
one page document that references the
CBA by the name of the incumbent
contractor and the name of the union,
and stipulates that the economic terms
of the CBA will apply as the SCA
minimum wages and monetary benefits
for the contract resulting from the
solicitation pursuant to DOL Regulation
29 CFR subpart 4.1b.
This interim rule also deletes the
clause at 52.222–47, SCA Minimum
Wages and Fringe Benefits Applicable to
Successor Contract Pursuant to
Predecessor Contractor Collective
Bargaining Agreement (CBA), because
with the WDOL process it is no longer
necessary. In addition, FAR clause
52.222–49, Service Contract Act-Place of
Performance Unknown, is revised to
make conforming changes to FAR
references; and Standard Forms 98, 98a
and 99 are deleted from FAR Part 53 in
their entirety.
This is not a significant regulatory
action and, therefore, is not subject to
review under Section 6(b) of Executive
Order 12866, Regulatory Planning and
Review, dated September 30, 1993. The
rule is not a major rule under 5 U.S.C.
804.
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B. Regulatory Flexibility Act
This interim rule is not expected to
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.,
because the rule involves internal
Government processes between the DOL
and Federal contracting.
During the design phase of
WDOL.gov, the WDOL Task Force
coordinated with a number of labor
organizations, contractors, the Contract
Services Association and various
Federal contracting agencies to address
and satisfy any concerns about the effect
of the rule on all interested parties
including small entities.
Therefore, an Initial Regulatory
Flexibility Analysis has not been
performed. The Councils will consider
comments from small entities
concerning the affected FAR parts 22,
47, 52, and 53 in accordance with 5
U.S.C. 610. Interested parties must
submit such comments separately and
should cite 5 U.S.C 601, et seq. (FAC
2005–10, FAR case 2005–033), in
correspondence.
Dated: June 20, 2006.
Ralph De Stefano,
Director, Contract Policy Division.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 4, 22, 47, 52, and
53 as set forth below:
I 1. The authority citation for 48 CFR
parts 4, 22, 47, 52, and 53 continues to
read as follows:
I
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
PART 4—ADMINISTRATIVE MATTERS
2. Amend section 4.1202 by revising
paragraph (q) to read as follows:
I
4.1202 Solicitation provision and contract
clause.
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(q) 52.222–48, Exemption from
Application of Service Contract Act
Provisions—Contractor Certification.
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PART 22—APPLICATION OF LABOR
LAWS TO GOVERNMENT
ACQUISITIONS
3. Amend section 22.001 by revising
the section heading, and by adding, in
alphabetical order, the definitions ‘‘e98’’
and ‘‘Wage Determinations OnLine
(WDOL)’’ to read as follows:
I
C. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the changes to the
FAR do not impose information
collection requirements that require the
approval of the Office of Management
and Budget under 44 U.S.C. 3501, et
seq.
22.001
D. Determination to Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of Defense
(DoD), The Administrator of General
Services (GSA), and the Administrator
of the National Aeronautics and Space
Administration (NASA) that urgent and
compelling reasons exist to promulgate
this interim rule without prior
opportunity for public comment. This
action is necessary because the rule
allows agencies to use the WDOL
website as the source for obtaining wage
determinations issued by DOL for
service contracts subject to the SCA and
DBA. Thus, the rule will streamline and
improve the internal operating
procedures of the Government. The rule
will not have a significant cost or
administrative impact on contractors or
offerors. However, pursuant to Public
Law 98–577 and FAR 1.501, the
Councils will consider public comments
received in response to this interim rule
in the formation of the final rule.
22.102–2
List of Subjects in 48 CFR Parts 22, 47,
52, and 53
Government procurement.
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Definitions.
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e98 means the Department of Labor’s
approved electronic application (https://
www.wdol.gov), whereby a contracting
officer submits pertinent information to
the Department of Labor and requests a
Service Contract Act wage
determination directly from the Wage
and Hour Division.
Wage Determinations OnLine (WDOL)
means the Government Internet website
for both Davis-Bacon Act and Service
Contract Act wage determinations
available at https://www.wdol.gov.
I 4. Amend section 22.102–2 by
revising paragraph (c) to read as follows:
Administration.
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(c) The U.S. Department of Labor is
responsible for the administration and
enforcement of the Occupational Safety
and Health Act. The Department of
Labor’s Wage and Hour Division is
responsible for administration and
enforcement of numerous wage and
hour statutes including Davis-Bacon and
Related Acts, McNamara-O’Hara Service
Contract Act, Walsh-Healey Public
Contracts Act, Copeland Act, and
Contract Work Hours and Safety
Standards Act. Contracting officers
should contact the Wage and Hour
Division’s regional offices when
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required by the subparts relating to
these statutes unless otherwise
specified. Addresses for these offices
may be found at 29 CFR 1, Appendix B.
I 5. Amend section 22.404–1 by
revising paragraph (a) to read as follows:
22.404–1
Types of wage determinations.
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(a) General wage determinations. (1)
A general wage determination contains
prevailing wage rates for the types of
construction designated in the
determination, and is used in contracts
performed within a specified
geographical area. General wage
determinations contain no expiration
date and remain valid until modified,
superseded, or canceled by the
Department of Labor. Once incorporated
in a contract, a general wage
determination normally remains
effective for the life of the contract,
unless the contracting officer exercises
an option to extend the term of the
contract (see 22.404–12). These
determinations shall be used whenever
possible. They are issued at the
discretion of the Department of Labor
either upon receipt of an agency request
or on the Department of Labor’s own
initiative.
(2) General wage determinations are
published on the WDOL website.
General wage determinations are
effective on the publication date of the
wage determination or upon receipt of
the wage determination by the
contracting agency, whichever occurs
first. ‘‘Publication’’ within the meaning
of this section shall occur on the first
date the wage determination is
published on the WDOL. Archived
Davis-Bacon Act general wage
determinations that are no longer
current may be accessed in the
‘‘Archived DB WD’’ database on WDOL
for information purposes only.
Contracting officers may not use an
archived wage determination in a
contract action without obtaining prior
approval of the Department of Labor. To
obtain prior approval, contact the
Department of Labor, Wage and Hour
Division, using https://www.dol.gov/esa,
or contact the procurement agency labor
advisor listed on https://www.wdol.gov.
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I 6. Amend section 22.404–3 by
revising paragraph (a); and the
paragraph heading and the first sentence
of the introductory text of paragraph (b)
to read as follows:
22.404–3 Procedures for requesting wage
determinations.
(a) General wage determinations. If
there is a general wage determination on
the WDOL website applicable to the
project, the agency may use it without
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notifying the Department of Labor.
When necessary, a request for a general
wage determination may be made by
submitting Standard Form (SF) 308,
Request for Determination and Response
to Request (see 53.301–308), to the
Administrator, Wage and Hour Division,
Attention: Branch of Construction
Contract Wage Determinations, 200
Constitution Avenue, NW, Washington,
DC 20210.
(b) Project wage determinations. If a
general wage determination is not
available on WDOL, a contracting
agency shall submit requests for project
wage determinations on SF 308 to the
Department of Labor. * * *
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I 7. Amend section 22.404–6 by—
I a. Revising paragraph (a)(3);
I b. Revising paragraph (b)(1)(i), the
first sentence of (b)(1)(ii), (b)(2), and the
first and second sentences of (b)(6);
I c. Revising paragraph (c)(1); and
I d. Revising paragraph (d)(1)(ii).
I The revised text reads as follows:
22.404–6 Modifications of wage
determinations.
(a) General. * * *
(3) The need for inclusion of the
modification of a general wage
determination for the primary site of the
work in a solicitation is determined by
the date the modified wage
determination is published on the
WDOL, or by the date the agency
receives actual written notice of the
modification from the Department of
Labor, whichever occurs first. (Note the
distinction between receipt by the
agency (modification is effective) and
receipt by the contracting officer, which
may occur later.) During the course of
the solicitation, the contracting officer
shall monitor the WDOL website to
determine whether the applicable wage
determination has been revised.
Revisions published on the WDOL
website or otherwise communicated to
the contracting officer within the
timeframes prescribed at 22.404–6(b)
and (c) are applicable and must be
included in the resulting contract.
Monitoring can be accomplished by use
of the WDOL website’s ‘‘Alert Service’’.
(b) * * *
(1) * * *
(i) It is received by the contracting
agency, or is published on the WDOL,
10 or more calendar days before the date
of bid opening; or
(ii) It is received by the contracting
agency, or is published on the WDOL,
less than 10 calendar days before the
date of bid opening, unless the
contracting officer finds that there is not
reasonable time available before bid
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opening to notify the prospective
bidders. * * *
(2) All written actions modifying
wage determinations received by the
contracting agency after bid opening, or
modifications to general wage
determinations published on the WDOL
after bid opening, shall not be effective
and shall not be included in the
solicitation (but see paragraph (b)(6) of
this subsection).
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(6) If an award is not made within 90
days after bid opening, any modification
to a general wage determination which
is published on the WDOL before
award, shall be effective for any
resultant contract unless an extension of
the 90–day period is obtained from the
Administrator, Wage and Hour Division.
An agency head may request such an
extension from the Administrator. * * *
(c) * * *
(1) All written actions modifying
wage determinations received by the
contracting agency before contract
award, or modifications to general wage
determinations published on the WDOL
before award, shall be effective.
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(d) * * *
(1) * * *
(ii) The Department of Labor
publishes the modification to a general
wage determination on the WDOL
before exercise of the option.
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22.608
[Amended]
8. Amend section 22.608 by removing
from the parenthetical in paragraph (b)
‘‘22.609’’ and adding ‘‘29 CFR part 1,
Appendix B’’ in its place.
I
22.609
I
[Removed and Reserved]
9. Remove and reserve section 22.609.
22.1001
[Amended]
10. Amend section 22.1001 by
removing the definition ‘‘Notice’’.
I 11. Amend 22.1002–3 by revising
paragraph (b) to read as follows:
I
22.1002–3 Wage determinations based on
collective bargaining agreements.
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(b) Paragraphs in this Subpart 22.10
which deal with this statutory
requirement and the Department of
Labor’s implementing regulations are
22.1010, concerning notification to
contractors and bargaining
representatives of procurement dates;
22.1012–2, explaining when a collective
bargaining agreement will not apply due
to late receipt by the contracting officer;
and 22.1013 and 22.1021, explaining
when the application of a collective
bargaining agreement can be challenged
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due to a variance with prevailing rates
or lack of arm’s length bargaining.
22.1003–4
[Amended]
12. Amend section 22.1003–4 at
paragraph (b)(4)(ii)(D) by removing
‘‘22.1006(e)’’ and adding ‘‘22.1006(d)’’
in its place.
I
22.1004
[Amended]
13. Amend section 22.1004 at
paragraph (b) by removing ‘‘29 CFR part
4, subpart B’’ and inserting ‘‘29 CFR part
4, subparts A and B’’ in its place.
I
22.1006
[Amended]
14. Amend section 22.1006 by
removing and reserving paragraph (d);
and in paragraph (e)(1) by adding ‘‘—
Contractor Certification’’ following
‘‘Provisions’’.
I 15. Amend section 22.1007 by
revising the section heading and the
introductory paragraph; and by
removing the parenthetical from the end
of paragraph (c)(2). The revised text
reads as follows:
I
22.1007 Requirement to obtain wage
determinations.
The contracting officer shall obtain
wage determinations for the following
service contracts:
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I 16. Revise sections 22.1008 and
22.1008–1 to read as follows:
22.1008 Procedures for obtaining wage
determinations.
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22.1008–1
Obtaining wage determinations.
(a) Contracting officers may obtain
most prevailing wage determinations
using the WDOL website. Contracting
officers may also use the Department of
Labor’s e98 electronic process, located
on the WDOL website, to request a wage
determination directly from the
Department of Labor. If the WDOL
database does not contain the applicable
prevailing wage determination for a
contract action, the contracting officer
must use the e98 process to request a
wage determination from the
Department of Labor.
(b) In using the e98 process to obtain
prevailing wage determinations,
contracting officers shall provide as
complete and accurate information on
the e98 as possible. Contracting officers
shall ensure that the email address
submitted on an e98 request is accurate.
(c) The contracting officer must
anticipate the amount of time required
to gather the information necessary to
obtain a wage determination, including
sufficient time, if necessary, to contact
the Department of Labor to request wage
determinations that are not available
through use of the WDOL.
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(d) Although the WDOL website
provides assistance to the contracting
agency to select the correct wage
determination, the contracting agency
remains responsible for the wage
determination selected. If the
contracting agency has used the e98
process, the Department of Labor will
respond to the contracting agency based
on the information provided on the e98.
The contracting agency may rely upon
the Department of Labor response as the
correct wage determination for the
contract.
(e) To obtain the applicable wage
determination for each contract action,
the contracting officer shall determine
the following information concerning
the service employees expected to be
employed by the contractor and any
subcontractors in performing the
contract:
(1) Determine the classes of service
employees to be utilized in performance
of the contract using the Wage and Hour
Division’s Service Contract Act
Directory of Occupations (Directory).
The Directory can be found on WDOL’s
Library Page, and is for sale by the
Superintendent of Documents, U.S.
Government Printing Office.
(2) Determine the locality where the
services will be performed (see
22.1009).
(3) Determine whether Section 4(c) of
the Act applies (see 22.1008–2, 22.1010
and 22.1012–2).
(4) Determine the wage rate that
would be paid each class if employed by
the agency and subject to the wage
provisions of 5 U.S.C. 5341 and/or 5332
(see 22.1016).
(f) If the contracting officer has
questions regarding the procedures for
obtaining a wage determination, or
questions regarding the selection of a
wage determination, the contracting
officer should request assistance from
the agency labor advisor.
22.1008–2
[Removed]
22.1008–3
[Redesignated as 22.1008–2]
17a. Remove section 22.1008–2 and
redesignate 22.1008–3 as 22.1008–2.
I 17b. In addition to the amendment
above, amend the newly designated
section 22.1008–2 by—
I a. Revising the second sentence of
paragraph (a);
I b. Amending paragraphs (c)(2)(i)(A)
and (B) by removing ‘‘22.1012–3’’ and
adding ‘‘22.1012–2’’ in its place;
I c. Redesignating paragraph (d) as
(d)(1) and removing the last sentence of
the paragraph; and adding paragraphs
(d)(2) and (d)(3);
I d. Redesignating paragraphs (e)(1) and
(2) as (e)(i) and (e)(ii), respectively, and
I
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36933
paragraph (e) as (e)(1); and adding
paragraph (e)(2); and
I e. Revising the introductory text of
paragraph (g).
I The revised text reads as follows:
22.1008–2 Section 4(c) successorship with
incumbent contractor collective bargaining
agreement.
(a) * * * The contracting officer shall
determine whether there is a
predecessor contract covered by the Act
and, if so, whether the incumbent prime
contractor or its subcontractors and any
of their employees have a collective
bargaining agreement.
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(d)(1) * * *
(2) If the contracting officer has timely
received the collective bargaining
agreement, the contracting officer may
use the WDOL website to prepare a
wage determination referencing the
agreement and incorporate that wage
determination, attached to a complete
copy of the collective bargaining
agreement, into the successor contract
action. In using the WDOL process, it is
not necessary to submit a copy of the
collective bargaining agreement to the
Department of Labor unless requested to
do so.
(3) The contracting officer may also
use the e98 process on WDOL to request
that the Department of Labor prepare
the cover wage determination. The
Department of Labor’s response to the
e98 may include a request for the
contracting officer to submit a complete
copy of the collective bargaining
agreement. Any questions regarding the
applicability of the Act to a collective
bargaining agreement should be directed
to the agency labor advisor.
(e)(1) * * *
(2) If the contracting officer’s review
(see 22.1013) indicates that monetary
provisions of the collective bargaining
agreement may be substantially at
variance or may not have been reached
as a result of arm’s length bargaining,
the contracting officer shall immediately
contact the agency labor advisor to
consider if further action is warranted.
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(g) If the collective bargaining
agreement does not apply to all service
employees under the contract, the
contracting officer shall access WDOL to
obtain the prevailing wage
determination for those service
employee classifications that are not
covered by the collective bargaining
agreement. The contracting officer shall
separately list in the solicitation and
contract the service employee
classifications—
*
*
*
*
*
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Federal Register / Vol. 71, No. 124 / Wednesday, June 28, 2006 / Rules and Regulations
22.1008–4 through 22.1008–7
[Removed]
18. Remove sections 22.1008–4
through 22.1008–7.
I 19. Revise sections 22.1009–3 and
22.1009–4 to read as follows:
I
22.1009–3 All possible places of
performance identified.
(a) If the contracting officer can
identify all the possible places or areas
of performance (even though the actual
place of performance will not be known
until the successful offeror is chosen),
the contracting officer shall obtain a
wage determination for each locality
where services may be performed (see
22.1008).
(b) If the contracting officer
subsequently learns of any potential
offerors in previously unidentified
places before the closing date for
submission of offers, the contracting
officer shall—
(1) Obtain wage determinations for
the additional places of performance
and amend the solicitation to include all
wage determinations. If necessary, the
contracting officer shall extend the time
for submission of final offers; and
(2) Follow the procedures in 22.1009–
4.
rwilkins on PROD1PC63 with RULES_3
22.1009–4 All possible places of
performance not identified.
If the contracting officer believes that
there may be offerors interested in
performing in unidentified places or
areas, the contracting officer may use
the following procedures:
(a) Include the following information
in the synopsis and solicitation:
(1) That the place of performance is
unknown.
(2) The possible places or areas of
performance that the contracting officer
has already identified.
(3) That the contracting officer will
obtain wage determinations for
additional possible places of
performance if asked to do so in writing.
(4) The time and date by which
offerors must notify the contracting
officer of additional places of
performance.
(b) Include the information required
by paragraphs (a)(2) and (a)(4) of this
section in the clause at 52.222–49,
Service Contract Act-Place of
Performance Unknown (see 22.1006(f)).
The closing date for receipt of offerors’
requests for wage determinations for
additional possible places of
performance should allow reasonable
time for potential offerors to review the
solicitation and determine their interest
in competing. Generally, 10 to 15 days
from the date of issuance of the
solicitation may be considered a
reasonable period of time.
VerDate Aug<31>2005
17:14 Jun 27, 2006
Jkt 208001
(c) The procedures in 14.304 shall
apply to late receipt of offerors’ requests
for wage determinations for additional
places of performance. However, late
receipt of an offeror’s request for a wage
determination for additional places of
performance does not preclude the
offeror’s competing for the proposed
acquisition.
(d) If the contracting officer receives
any timely requests for wage
determinations for additional places of
performance the contracting officer
shall—
(1) Obtain wage determinations for
the additional places of performance;
and
(2) Amend the solicitation to include
all wage determinations and, if
necessary, extend the time for
submission of final offers.
(e) If the successful offeror did not
make a timely request for a wage
determination and will perform in a
place of performance for which the
contracting officer therefore did not
request a wage determination, the
contracting officer shall—
(1) Award the contract;
(2) Obtain a wage determination; and
(3) Incorporate the wage
determination in the contract,
retroactive to the date of contract award
and with no adjustment in contract
price, pursuant to the clause at 52.222–
49, Service Contract—Place of
Performance Unknown.
(i) For purposes of using WDOL, the
time of receipt by the contracting agency
shall be the first day of publication of
the revised prevailing wage
determination on the website.
(ii) For purposes of using the e98
process, the time of receipt by the
contracting agency shall be the date the
agency receives actual notice of a new
or revised prevailing wage
determination from the Department of
Labor as an e98 response.
(2) In selecting a prevailing wage
determination from the WDOL website
for use in a solicitation or other contract
action, the contracting officer shall
monitor the WDOL website to determine
whether the applicable wage
determination has been revised.
Revisions published on the WDOL
website or otherwise communicated to
the contracting officer within the
timeframes prescribed at 22.1012–1(b)
and (c) are effective and must be
included in the resulting contract.
Monitoring can be accomplished by use
of the WDOL website’s ‘‘Alert Service’’.
(b) The following shall apply when
contracting by sealed bidding: a revised
prevailing wage determination shall not
be effective if it is received by the
contracting agency less than 10 days
before the opening of bids, and the
contracting officer finds that there is not
reasonable time to incorporate the
revision in the solicitation.
22.1010 [Amended]
(c) For contractual actions other than
I 20. Amend section 22.1010 by
sealed bidding, a revised prevailing
removing from paragraph (b) ‘‘22.1012–
wage determination received by the
3(a)’’ and adding ‘‘22.1012–2(a)’’ in its
contracting agency after award of a new
place.
contract or a modification as specified
in 22.1007(b) shall not be effective
22.1011 through 22.1011–2 [Removed and
provided that the start of performance is
Reserved]
within 30 days of the award or the
I 21. Remove and reserve section
specified modification. If the contract
22.1011, which consists of 22.1011–1
does not specify a start of performance
and 22.1011–2.
date which is within 30 days of the
I 22. Revise sections 22.1012 and
award or the specified modification, and
22.1012–1 to read as follows:
if contract performance does not
22.1012 Applicability of revisions to wage
commence within 30 days of the award
determinations.
or the specified modification, any
22.1012–1 Prevailing wage determinations. revision received by the contracting
agency not less than 10 days before
(a)(1) The Wage and Hour
commencement of the work shall be
Administrator may issue revisions to
effective.
prevailing wage determinations
(d) If the contracting officer has
periodically. The need for inclusion of
a revised prevailing wage determination submitted an e98 to the Department of
Labor requesting a prevailing wage
in a solicitation, contract or contract
determination and has not received a
modification (see 22.1007) is
response within 10 days, the contracting
determined by the date of receipt of the
officer shall contact the Wage and Hour
revised prevailing wage determination
Division by telephone to determine
by the contracting agency. (Note the
when the wage determination can be
distinction between receipt by the
expected. (The telephone number is
agency and receipt by the contracting
provided on the e98 website.)
officer which may occur later.)
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28JNR3
Federal Register / Vol. 71, No. 124 / Wednesday, June 28, 2006 / Rules and Regulations
22.1012–2
[Removed]
22.1012–3
[Redesignated as 22.1012–2]
22.1012–4 and 22.1012–5
[Removed]
23a. Remove sections 22.1012–2,
22.1012–4 and 22.1012–5; and
redesignate 22.1012–3 as 22.1012–2.
I 23b. In addition to the amendment
above, revise the redesignated section
22.1012–2 to read as follows:
I
rwilkins on PROD1PC63 with RULES_3
22.1012–2 Wage determinations based on
collective bargaining agreements.
(a) In sealed bidding, a new or
changed collective bargaining agreement
shall not be effective under section 4(c)
of the Act if the contracting agency has
received notice of the terms of the new
or changed collective bargaining
agreement less than 10 days before bid
opening and the contracting officer
determines that there is not reasonable
time to incorporate the new or changed
terms of the collective bargaining
agreement in the solicitation.
(b) For contractual actions other than
sealed bidding, a new or changed
collective bargaining agreement shall
not be effective under section 4(c) of the
Act if notice of the terms of the new or
changed collective bargaining agreement
is received by the contracting agency
after award of a successor contract or a
modification as specified in 22.1007(b),
provided that the contract start of
performance is within 30 days of the
award of the contract or of the specified
modification. If the contract does not
specify a start of performance date
which is within 30 days of the award of
the contract or of the specified
modification, or if contract performance
does not commence within 30 days of
the award of the contract or of the
specified modification, any notice of the
terms of a new or changed collective
bargaining agreement received by the
agency not less than 10 days before
commencement of the work shall be
effective for purposes of the successor
contract under section 4(c) of the Act.
(c) The limitations in paragraphs (a)
and (b) of this subsection shall apply
only if timely notification required in
22.1010 has been given.
(d) If the contracting officer has
submitted an e98 to Department of
Labor requesting a wage determination
based on a collective bargaining
agreement and has not received a
response from the Department of Labor
within 10 days, the contracting officer
shall contact the Wage and Hour
Division by telephone to determine
when the wage determination can be
expected. (The telephone number is
provided on the e98 website.) If the
Department of Labor is unable to
provide the wage determination by the
VerDate Aug<31>2005
17:14 Jun 27, 2006
Jkt 208001
latest date needed to maintain the
acquisition schedule, the contracting
officer shall incorporate the collective
bargaining agreement itself in a
solicitation or other contract action (e.g.,
exercise of option) and include a wage
determination referencing that
collective bargaining agreement created
by use of the WDOL website (see
22.1008–2(d)(2)).
I 24. Revise section 22.1014 to read as
follows:
22.1014 Delay over 60 days in bid opening
or commencement of work.
If a wage determination was obtained
through the e98 process, and bid
opening, or commencement of work
under a negotiated contract has been
delayed, for whatever reason, more than
60 days from the date indicated on the
previously submitted e98, the
contracting officer shall submit a new
e98. Any revision of a wage
determination received by the
contracting agency as a result of that
communication shall supersede the
earlier response as the wage
determination applicable to the
particular acquisition subject to the time
frames in 22.1012–1(b) and (c).
22.1017
36935
29. Amend section 52.222–48 by
revising the section and clause headings
as set forth below.
I
52.222–48 Exemption from Application of
Service Contract Act Provisions—
Contractor Certification.
*
*
*
*
*
EXEMPTION FROM APPLICATION OF
SERVICE CONTRACT ACT PROVISIONS—
CONTRACTOR CERTIFICATION (JUN 2006)
*
*
*
52.222–49
*
*
[Amended]
30. Amend section 52.222–49 by
removing from the introductory text
‘‘and 22.1009–4(c)’’.
I
PART 53—FORMS
53.222
[Amended]
31. Amend section 53.222 by
removing ‘‘99,’’ from the section
heading; and removing and reserving
paragraph (b).
I
53.301
[Amended]
32. Remove sections 53.301–98,
53.301–98a, and 53.301–99.
[REMOVE SF’S 98, 98A AND 99]
I
[FR Doc. 06–5708 Filed 6–27–06; 8:45 am]
BILLING CODE 6820–EP–S
[Removed and Reserved]
25. Remove and reserve section
22.1017.
DEPARTMENT OF DEFENSE
PART 47—TRANSPORTATION
GENERAL SERVICES
ADMINISTRATION
I
26. Amend section 47.202 by revising
paragraph (a) to read as follows:
I
47.202
Presolicitation planning.
*
*
*
*
*
(a) The Service Contract Act of 1965
(SCA) requirement to obtain a wage
determination by accessing the Wage
Determination OnLine website (https://
www.wdol.gov) using the WDOL process
or by submitting a request directly to the
Department of Labor on this website
using the e98 process before the
issuance of an invitation for bid, request
for proposal, or commencement of
negotiations for any contract exceeding
$2,500 that may be subject to the SCA
(see Subpart 22.10);
*
*
*
*
*
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
52.212–5
[Amended]
27. Amend section 52.212–5 by
revising the date of the clause to read
‘‘(JUN 2006)’’; and by removing
paragraph (c)(5).
I
52.222–47
[Removed and Reserved]
28. Remove and reserve section
52.222–47.
I
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NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 25 and 52
[FAC 2005–10; FAR Case 2006–006; Item
V; Docket 2006–0020, Sequence 10]
RIN 9000–AK49
Federal Acquisition Regulation; FAR
Case 2006–006, Free Trade
Agreements—El Salvador, Honduras,
and Nicaragua
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule with request for
comments.
AGENCIES:
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed on an interim
rule amending the Federal Acquisition
Regulation (FAR) to implement the
Dominican Republic-Central AmericaUnited States Free Trade Agreement
with respect to El Salvador, Honduras,
and Nicaragua.
E:\FR\FM\28JNR3.SGM
28JNR3
]]>Agencies
[Federal Register Volume 71, Number 124 (Wednesday, June 28, 2006)]
[Rules and Regulations]
[Pages 36930-36935]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-5708]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 4, 22, 47, 52, and 53
[FAC 2005-10; FAR Case 2005-033; Item IV; Docket 2006-0020, Sequence
11]
RIN 9000-AK47
Federal Acquisition Regulation; FAR Case 2005-033, Implementation
of Wage Determinations OnLine (WDOL)
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on an interim
rule amending the Federal Acquisition Regulation (FAR) to implement the
Wage Determinations OnLine (WDOL) internet website as the source for
Federal contracting agencies to obtain wage determinations issued by
the Department of Labor (DOL) for service contracts subject to the
McNamara-O'Hara Service Contract Act (SCA) and for construction
contracts subject to the Davis-Bacon Act (DBA).
DATES: Effective Date: June 28, 2006.
Comment Date: Interested parties should submit written comments to
the FAR Secretariat on or before August 28, 2006 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-10, FAR case 2005-
033, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Agency Web site: https://www.acquisition.gov/far/
ProposedRules/proposed.htm. Click on the FAR case number to submit
comments.
E-mail: farcase.2005-033@gsa.gov. Include FAC 2005-10, FAR
case 2005-033 in the subject line of the message.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann
Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2005-10, FAR
case 2005-033, in all correspondence related to this case. All comments
received will be posted without change to https://www.acquisition.gov/
far/ProposedRules/comments.htm including any personal and/or business
confidential information provided.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Gloria Sochon, Procurement Analyst, at (202) 219-0311. Please cite
FAC 2005-10, FAR case 2005-033. For information pertaining to status or
publication schedules, contact the FAR Secretariat at (202) 501-4755.
SUPPLEMENTARY INFORMATION:
A. Background
In the August 26, 2005 Federal Register (70 FR 50888), the DOL
issued a final rule to amend Title 29 CFR parts 1 and 4 to allow for
full implementation of the Wage Determinations OnLine (WDOL) Internet
Website (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 SCA and for construction contracts
subject to the DBA. The Councils are not seeking comments on the DOL
rule, which has already been issued in final, but are requesting
comments as to whether the FAR policy in this rule implementing the DOL
rule is clear. This interim rule amends FAR Part 22 to direct Federal
contracting agencies to obtain wage determinations issued by the DOL
for contracts subject to the SCA and DBA from the WDOL website.
This interim rule incorporates new geographical jurisdictions for
DOL's Wage and Hour Regional Offices and eliminates FAR references to
the Government Printing Office (GPO) publication of general wage
determinations. The Contracting Officer (CO) will be able to access the
WDOL website (https://www.wdol.gov) to find the applicable wage
determination for a contract action subject to the SCA or DBA. If the
WDOL database does not contain the applicable wage determination for a
SCA contract action, the CO must use the e98 process to request a wage
determination from DOL.
[[Page 36931]]
The e98 means a DOL approved electronic application, (also available
at https://www.wdol.gov), whereby a CO submits pertinent information to
the DOL and requests a wage determination directly from the Wage and
Hour Division. If the WDOL database does not contain the applicable
wage determination for a DBA contract action, the CO must request a
wage determination by submitting a SF-308 to the Wage and Hour
Division. The DOL made an administrative determination that providing
Federal contracting agencies with an electronic submission option for
the infrequent instances in which an agency files a SF-308 does not
justify the considerable expense that developing such a system would
entail. To substantiate its decision, the DOL noted that in FY 2004, it
processed less than 100 SF-308's.
This FAR rule eliminates the requirement for the CO to submit a
copy of collective bargaining agreements (CBAs) to the DOL for the
purpose of obtaining a wage determination under Section 4(c) of the
SCA, unless directed by the DOL to do so. The CO instead, is required
to prepare a wage determination using the WDOL process, and to
incorporate the complete CBA and all its attachments into the
solicitation or contract action. The wage determination prepared by the
CO is a one page document that references the CBA by the name of the
incumbent contractor and the name of the union, and stipulates that the
economic terms of the CBA will apply as the SCA minimum wages and
monetary benefits for the contract resulting from the solicitation
pursuant to DOL Regulation 29 CFR subpart 4.1b.
This interim rule also deletes the clause at 52.222-47, SCA Minimum
Wages and Fringe Benefits Applicable to Successor Contract Pursuant to
Predecessor Contractor Collective Bargaining Agreement (CBA), because
with the WDOL process it is no longer necessary. In addition, FAR
clause 52.222-49, Service Contract Act-Place of Performance Unknown, is
revised to make conforming changes to FAR references; and Standard
Forms 98, 98a and 99 are deleted from FAR Part 53 in their entirety.
This is not a significant regulatory action and, therefore, is not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. The rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
This interim rule is not expected to 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., because the rule
involves internal Government processes between the DOL and Federal
contracting.
During the design phase of WDOL.gov, the WDOL Task Force
coordinated with a number of labor organizations, contractors, the
Contract Services Association and various Federal contracting agencies
to address and satisfy any concerns about the effect of the rule on all
interested parties including small entities.
Therefore, an Initial Regulatory Flexibility Analysis has not been
performed. The Councils will consider comments from small entities
concerning the affected FAR parts 22, 47, 52, and 53 in accordance with
5 U.S.C. 610. Interested parties must submit such comments separately
and should cite 5 U.S.C 601, et seq. (FAC 2005-10, FAR case 2005-033),
in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
the approval of the Office of Management and Budget under 44 U.S.C.
3501, et seq.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), The Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because the rule allows agencies to use the WDOL website
as the source for obtaining wage determinations issued by DOL for
service contracts subject to the SCA and DBA. Thus, the rule will
streamline and improve the internal operating procedures of the
Government. The rule will not have a significant cost or administrative
impact on contractors or offerors. However, pursuant to Public Law 98-
577 and FAR 1.501, the Councils will consider public comments received
in response to this interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 22, 47, 52, and 53
Government procurement.
Dated: June 20, 2006.
Ralph De Stefano,
Director, Contract Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 4, 22, 47, 52, and 53
as set forth below:
0
1. The authority citation for 48 CFR parts 4, 22, 47, 52, and 53
continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 4--ADMINISTRATIVE MATTERS
0
2. Amend section 4.1202 by revising paragraph (q) to read as follows:
4.1202 Solicitation provision and contract clause.
* * * * *
(q) 52.222-48, Exemption from Application of Service Contract Act
Provisions--Contractor Certification.
* * * * *
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
0
3. Amend section 22.001 by revising the section heading, and by adding,
in alphabetical order, the definitions ``e98'' and ``Wage
Determinations OnLine (WDOL)'' to read as follows:
22.001 Definitions.
* * * * *
e98 means the Department of Labor's approved electronic application
(https://www.wdol.gov), whereby a contracting officer submits pertinent
information to the Department of Labor and requests a Service Contract
Act wage determination directly from the Wage and Hour Division.
Wage Determinations OnLine (WDOL) means the Government Internet
website for both Davis-Bacon Act and Service Contract Act wage
determinations available at https://www.wdol.gov.
0
4. Amend section 22.102-2 by revising paragraph (c) to read as follows:
22.102-2 Administration.
* * * * *
(c) The U.S. Department of Labor is responsible for the
administration and enforcement of the Occupational Safety and Health
Act. The Department of Labor's Wage and Hour Division is responsible
for administration and enforcement of numerous wage and hour statutes
including Davis-Bacon and Related Acts, McNamara-O'Hara Service
Contract Act, Walsh-Healey Public Contracts Act, Copeland Act, and
Contract Work Hours and Safety Standards Act. Contracting officers
should contact the Wage and Hour Division's regional offices when
[[Page 36932]]
required by the subparts relating to these statutes unless otherwise
specified. Addresses for these offices may be found at 29 CFR 1,
Appendix B.
0
5. Amend section 22.404-1 by revising paragraph (a) to read as follows:
22.404-1 Types of wage determinations.
(a) General wage determinations. (1) A general wage determination
contains prevailing wage rates for the types of construction designated
in the determination, and is used in contracts performed within a
specified geographical area. General wage determinations contain no
expiration date and remain valid until modified, superseded, or
canceled by the Department of Labor. Once incorporated in a contract, a
general wage determination normally remains effective for the life of
the contract, unless the contracting officer exercises an option to
extend the term of the contract (see 22.404-12). These determinations
shall be used whenever possible. They are issued at the discretion of
the Department of Labor either upon receipt of an agency request or on
the Department of Labor's own initiative.
(2) General wage determinations are published on the WDOL website.
General wage determinations are effective on the publication date of
the wage determination or upon receipt of the wage determination by the
contracting agency, whichever occurs first. ``Publication'' within the
meaning of this section shall occur on the first date the wage
determination is published on the WDOL. Archived Davis-Bacon Act
general wage determinations that are no longer current may be accessed
in the ``Archived DB WD'' database on WDOL for information purposes
only. Contracting officers may not use an archived wage determination
in a contract action without obtaining prior approval of the Department
of Labor. To obtain prior approval, contact the Department of Labor,
Wage and Hour Division, using https://www.dol.gov/esa, or contact the
procurement agency labor advisor listed on https://www.wdol.gov.
* * * * *
0
6. Amend section 22.404-3 by revising paragraph (a); and the paragraph
heading and the first sentence of the introductory text of paragraph
(b) to read as follows:
22.404-3 Procedures for requesting wage determinations.
(a) General wage determinations. If there is a general wage
determination on the WDOL website applicable to the project, the agency
may use it without notifying the Department of Labor. When necessary, a
request for a general wage determination may be made by submitting
Standard Form (SF) 308, Request for Determination and Response to
Request (see 53.301-308), to the Administrator, Wage and Hour Division,
Attention: Branch of Construction Contract Wage Determinations, 200
Constitution Avenue, NW, Washington, DC 20210.
(b) Project wage determinations. If a general wage determination is
not available on WDOL, a contracting agency shall submit requests for
project wage determinations on SF 308 to the Department of Labor. * * *
* * * * *
0
7. Amend section 22.404-6 by--
0
a. Revising paragraph (a)(3);
0
b. Revising paragraph (b)(1)(i), the first sentence of (b)(1)(ii),
(b)(2), and the first and second sentences of (b)(6);
0
c. Revising paragraph (c)(1); and
0
d. Revising paragraph (d)(1)(ii).
0
The revised text reads as follows:
22.404-6 Modifications of wage determinations.
(a) General. * * *
(3) The need for inclusion of the modification of a general wage
determination for the primary site of the work in a solicitation is
determined by the date the modified wage determination is published on
the WDOL, or by the date the agency receives actual written notice of
the modification from the Department of Labor, whichever occurs first.
(Note the distinction between receipt by the agency (modification is
effective) and receipt by the contracting officer, which may occur
later.) During the course of the solicitation, the contracting officer
shall monitor the WDOL website to determine whether the applicable wage
determination has been revised. Revisions published on the WDOL website
or otherwise communicated to the contracting officer within the
timeframes prescribed at 22.404-6(b) and (c) are applicable and must be
included in the resulting contract. Monitoring can be accomplished by
use of the WDOL website's ``Alert Service''.
(b) * * *
(1) * * *
(i) It is received by the contracting agency, or is published on
the WDOL, 10 or more calendar days before the date of bid opening; or
(ii) It is received by the contracting agency, or is published on
the WDOL, less than 10 calendar days before the date of bid opening,
unless the contracting officer finds that there is not reasonable time
available before bid opening to notify the prospective bidders. * * *
(2) All written actions modifying wage determinations received by
the contracting agency after bid opening, or modifications to general
wage determinations published on the WDOL after bid opening, shall not
be effective and shall not be included in the solicitation (but see
paragraph (b)(6) of this subsection).
* * * * *
(6) If an award is not made within 90 days after bid opening, any
modification to a general wage determination which is published on the
WDOL before award, shall be effective for any resultant contract unless
an extension of the 90-day period is obtained from the Administrator,
Wage and Hour Division. An agency head may request such an extension
from the Administrator. * * *
(c) * * *
(1) All written actions modifying wage determinations received by
the contracting agency before contract award, or modifications to
general wage determinations published on the WDOL before award, shall
be effective.
* * * * *
(d) * * *
(1) * * *
(ii) The Department of Labor publishes the modification to a
general wage determination on the WDOL before exercise of the option.
* * * * *
22.608 [Amended]
0
8. Amend section 22.608 by removing from the parenthetical in paragraph
(b) ``22.609'' and adding ``29 CFR part 1, Appendix B'' in its place.
22.609 [Removed and Reserved]
0
9. Remove and reserve section 22.609.
22.1001 [Amended]
0
10. Amend section 22.1001 by removing the definition ``Notice''.
0
11. Amend 22.1002-3 by revising paragraph (b) to read as follows:
22.1002-3 Wage determinations based on collective bargaining
agreements.
* * * * *
(b) Paragraphs in this Subpart 22.10 which deal with this statutory
requirement and the Department of Labor's implementing regulations are
22.1010, concerning notification to contractors and bargaining
representatives of procurement dates; 22.1012-2, explaining when a
collective bargaining agreement will not apply due to late receipt by
the contracting officer; and 22.1013 and 22.1021, explaining when the
application of a collective bargaining agreement can be challenged
[[Page 36933]]
due to a variance with prevailing rates or lack of arm's length
bargaining.
22.1003-4 [Amended]
0
12. Amend section 22.1003-4 at paragraph (b)(4)(ii)(D) by removing
``22.1006(e)'' and adding ``22.1006(d)'' in its place.
22.1004 [Amended]
0
13. Amend section 22.1004 at paragraph (b) by removing ``29 CFR part 4,
subpart B'' and inserting ``29 CFR part 4, subparts A and B'' in its
place.
22.1006 [Amended]
0
14. Amend section 22.1006 by removing and reserving paragraph (d); and
in paragraph (e)(1) by adding ``--Contractor Certification'' following
``Provisions''.
0
15. Amend section 22.1007 by revising the section heading and the
introductory paragraph; and by removing the parenthetical from the end
of paragraph (c)(2). The revised text reads as follows:
22.1007 Requirement to obtain wage determinations.
The contracting officer shall obtain wage determinations for the
following service contracts:
* * * * *
0
16. Revise sections 22.1008 and 22.1008-1 to read as follows:
22.1008 Procedures for obtaining wage determinations.
22.1008-1 Obtaining wage determinations.
(a) Contracting officers may obtain most prevailing wage
determinations using the WDOL website. Contracting officers may also
use the Department of Labor's e98 electronic process, located on the
WDOL website, to request a wage determination directly from the
Department of Labor. If the WDOL database does not contain the
applicable prevailing wage determination for a contract action, the
contracting officer must use the e98 process to request a wage
determination from the Department of Labor.
(b) In using the e98 process to obtain prevailing wage
determinations, contracting officers shall provide as complete and
accurate information on the e98 as possible. Contracting officers shall
ensure that the email address submitted on an e98 request is accurate.
(c) The contracting officer must anticipate the amount of time
required to gather the information necessary to obtain a wage
determination, including sufficient time, if necessary, to contact the
Department of Labor to request wage determinations that are not
available through use of the WDOL.
(d) Although the WDOL website provides assistance to the
contracting agency to select the correct wage determination, the
contracting agency remains responsible for the wage determination
selected. If the contracting agency has used the e98 process, the
Department of Labor will respond to the contracting agency based on the
information provided on the e98. The contracting agency may rely upon
the Department of Labor response as the correct wage determination for
the contract.
(e) To obtain the applicable wage determination for each contract
action, the contracting officer shall determine the following
information concerning the service employees expected to be employed by
the contractor and any subcontractors in performing the contract:
(1) Determine the classes of service employees to be utilized in
performance of the contract using the Wage and Hour Division's Service
Contract Act Directory of Occupations (Directory). The Directory can be
found on WDOL's Library Page, and is for sale by the Superintendent of
Documents, U.S. Government Printing Office.
(2) Determine the locality where the services will be performed
(see 22.1009).
(3) Determine whether Section 4(c) of the Act applies (see 22.1008-
2, 22.1010 and 22.1012-2).
(4) Determine the wage rate that would be paid each class if
employed by the agency and subject to the wage provisions of 5 U.S.C.
5341 and/or 5332 (see 22.1016).
(f) If the contracting officer has questions regarding the
procedures for obtaining a wage determination, or questions regarding
the selection of a wage determination, the contracting officer should
request assistance from the agency labor advisor.
22.1008-2 [Removed]
22.1008-3 [Redesignated as 22.1008-2]
0
17a. Remove section 22.1008-2 and redesignate 22.1008-3 as 22.1008-2.
0
17b. In addition to the amendment above, amend the newly designated
section 22.1008-2 by--
0
a. Revising the second sentence of paragraph (a);
0
b. Amending paragraphs (c)(2)(i)(A) and (B) by removing ``22.1012-3''
and adding ``22.1012-2'' in its place;
0
c. Redesignating paragraph (d) as (d)(1) and removing the last sentence
of the paragraph; and adding paragraphs (d)(2) and (d)(3);
0
d. Redesignating paragraphs (e)(1) and (2) as (e)(i) and (e)(ii),
respectively, and paragraph (e) as (e)(1); and adding paragraph (e)(2);
and
0
e. Revising the introductory text of paragraph (g).
0
The revised text reads as follows:
22.1008-2 Section 4(c) successorship with incumbent contractor
collective bargaining agreement.
(a) * * * The contracting officer shall determine whether there is
a predecessor contract covered by the Act and, if so, whether the
incumbent prime contractor or its subcontractors and any of their
employees have a collective bargaining agreement.
* * * * *
(d)(1) * * *
(2) If the contracting officer has timely received the collective
bargaining agreement, the contracting officer may use the WDOL website
to prepare a wage determination referencing the agreement and
incorporate that wage determination, attached to a complete copy of the
collective bargaining agreement, into the successor contract action. In
using the WDOL process, it is not necessary to submit a copy of the
collective bargaining agreement to the Department of Labor unless
requested to do so.
(3) The contracting officer may also use the e98 process on WDOL to
request that the Department of Labor prepare the cover wage
determination. The Department of Labor's response to the e98 may
include a request for the contracting officer to submit a complete copy
of the collective bargaining agreement. Any questions regarding the
applicability of the Act to a collective bargaining agreement should be
directed to the agency labor advisor.
(e)(1) * * *
(2) If the contracting officer's review (see 22.1013) indicates
that monetary provisions of the collective bargaining agreement may be
substantially at variance or may not have been reached as a result of
arm's length bargaining, the contracting officer shall immediately
contact the agency labor advisor to consider if further action is
warranted.
* * * * *
(g) If the collective bargaining agreement does not apply to all
service employees under the contract, the contracting officer shall
access WDOL to obtain the prevailing wage determination for those
service employee classifications that are not covered by the collective
bargaining agreement. The contracting officer shall separately list in
the solicitation and contract the service employee classifications--
* * * * *
[[Page 36934]]
22.1008-4 through 22.1008-7 [Removed]
0
18. Remove sections 22.1008-4 through 22.1008-7.
0
19. Revise sections 22.1009-3 and 22.1009-4 to read as follows:
22.1009-3 All possible places of performance identified.
(a) If the contracting officer can identify all the possible places
or areas of performance (even though the actual place of performance
will not be known until the successful offeror is chosen), the
contracting officer shall obtain a wage determination for each locality
where services may be performed (see 22.1008).
(b) If the contracting officer subsequently learns of any potential
offerors in previously unidentified places before the closing date for
submission of offers, the contracting officer shall--
(1) Obtain wage determinations for the additional places of
performance and amend the solicitation to include all wage
determinations. If necessary, the contracting officer shall extend the
time for submission of final offers; and
(2) Follow the procedures in 22.1009-4.
22.1009-4 All possible places of performance not identified.
If the contracting officer believes that there may be offerors
interested in performing in unidentified places or areas, the
contracting officer may use the following procedures:
(a) Include the following information in the synopsis and
solicitation:
(1) That the place of performance is unknown.
(2) The possible places or areas of performance that the
contracting officer has already identified.
(3) That the contracting officer will obtain wage determinations
for additional possible places of performance if asked to do so in
writing.
(4) The time and date by which offerors must notify the contracting
officer of additional places of performance.
(b) Include the information required by paragraphs (a)(2) and
(a)(4) of this section in the clause at 52.222-49, Service Contract
Act-Place of Performance Unknown (see 22.1006(f)). The closing date for
receipt of offerors' requests for wage determinations for additional
possible places of performance should allow reasonable time for
potential offerors to review the solicitation and determine their
interest in competing. Generally, 10 to 15 days from the date of
issuance of the solicitation may be considered a reasonable period of
time.
(c) The procedures in 14.304 shall apply to late receipt of
offerors' requests for wage determinations for additional places of
performance. However, late receipt of an offeror's request for a wage
determination for additional places of performance does not preclude
the offeror's competing for the proposed acquisition.
(d) If the contracting officer receives any timely requests for
wage determinations for additional places of performance the
contracting officer shall--
(1) Obtain wage determinations for the additional places of
performance; and
(2) Amend the solicitation to include all wage determinations and,
if necessary, extend the time for submission of final offers.
(e) If the successful offeror did not make a timely request for a
wage determination and will perform in a place of performance for which
the contracting officer therefore did not request a wage determination,
the contracting officer shall--
(1) Award the contract;
(2) Obtain a wage determination; and
(3) Incorporate the wage determination in the contract, retroactive
to the date of contract award and with no adjustment in contract price,
pursuant to the clause at 52.222-49, Service Contract--Place of
Performance Unknown.
22.1010 [Amended]
0
20. Amend section 22.1010 by removing from paragraph (b) ``22.1012-
3(a)'' and adding ``22.1012-2(a)'' in its place.
22.1011 through 22.1011-2 [Removed and Reserved]
0
21. Remove and reserve section 22.1011, which consists of 22.1011-1 and
22.1011-2.
0
22. Revise sections 22.1012 and 22.1012-1 to read as follows:
22.1012 Applicability of revisions to wage determinations.
22.1012-1 Prevailing wage determinations.
(a)(1) The Wage and Hour Administrator may issue revisions to
prevailing wage determinations periodically. The need for inclusion of
a revised prevailing wage determination in a solicitation, contract or
contract modification (see 22.1007) is determined by the date of
receipt of the revised prevailing wage determination by the contracting
agency. (Note the distinction between receipt by the agency and receipt
by the contracting officer which may occur later.)
(i) For purposes of using WDOL, the time of receipt by the
contracting agency shall be the first day of publication of the revised
prevailing wage determination on the website.
(ii) For purposes of using the e98 process, the time of receipt by
the contracting agency shall be the date the agency receives actual
notice of a new or revised prevailing wage determination from the
Department of Labor as an e98 response.
(2) In selecting a prevailing wage determination from the WDOL
website for use in a solicitation or other contract action, the
contracting officer shall monitor the WDOL website to determine whether
the applicable wage determination has been revised. Revisions published
on the WDOL website or otherwise communicated to the contracting
officer within the timeframes prescribed at 22.1012-1(b) and (c) are
effective and must be included in the resulting contract. Monitoring
can be accomplished by use of the WDOL website's ``Alert Service''.
(b) The following shall apply when contracting by sealed bidding: a
revised prevailing wage determination shall not be effective if it is
received by the contracting agency less than 10 days before the opening
of bids, and the contracting officer finds that there is not reasonable
time to incorporate the revision in the solicitation.
(c) For contractual actions other than sealed bidding, a revised
prevailing wage determination received by the contracting agency after
award of a new contract or a modification as specified in 22.1007(b)
shall not be effective provided that the start of performance is within
30 days of the award or the specified modification. If the contract
does not specify a start of performance date which is within 30 days of
the award or the specified modification, and if contract performance
does not commence within 30 days of the award or the specified
modification, any revision received by the contracting agency not less
than 10 days before commencement of the work shall be effective.
(d) If the contracting officer has submitted an e98 to the
Department of Labor requesting a prevailing wage determination and has
not received a response within 10 days, the contracting officer shall
contact the Wage and Hour Division by telephone to determine when the
wage determination can be expected. (The telephone number is provided
on the e98 website.)
[[Page 36935]]
22.1012-2 [Removed]
22.1012-3 [Redesignated as 22.1012-2]
22.1012-4 and 22.1012-5 [Removed]
0
23a. Remove sections 22.1012-2, 22.1012-4 and 22.1012-5; and
redesignate 22.1012-3 as 22.1012-2.
0
23b. In addition to the amendment above, revise the redesignated
section 22.1012-2 to read as follows:
22.1012-2 Wage determinations based on collective bargaining
agreements.
(a) In sealed bidding, a new or changed collective bargaining
agreement shall not be effective under section 4(c) of the Act if the
contracting agency has received notice of the terms of the new or
changed collective bargaining agreement less than 10 days before bid
opening and the contracting officer determines that there is not
reasonable time to incorporate the new or changed terms of the
collective bargaining agreement in the solicitation.
(b) For contractual actions other than sealed bidding, a new or
changed collective bargaining agreement shall not be effective under
section 4(c) of the Act if notice of the terms of the new or changed
collective bargaining agreement is received by the contracting agency
after award of a successor contract or a modification as specified in
22.1007(b), provided that the contract start of performance is within
30 days of the award of the contract or of the specified modification.
If the contract does not specify a start of performance date which is
within 30 days of the award of the contract or of the specified
modification, or if contract performance does not commence within 30
days of the award of the contract or of the specified modification, any
notice of the terms of a new or changed collective bargaining agreement
received by the agency not less than 10 days before commencement of the
work shall be effective for purposes of the successor contract under
section 4(c) of the Act.
(c) The limitations in paragraphs (a) and (b) of this subsection
shall apply only if timely notification required in 22.1010 has been
given.
(d) If the contracting officer has submitted an e98 to Department
of Labor requesting a wage determination based on a collective
bargaining agreement and has not received a response from the
Department of Labor within 10 days, the contracting officer shall
contact the Wage and Hour Division by telephone to determine when the
wage determination can be expected. (The telephone number is provided
on the e98 website.) If the Department of Labor is unable to provide
the wage determination by the latest date needed to maintain the
acquisition schedule, the contracting officer shall incorporate the
collective bargaining agreement itself in a solicitation or other
contract action (e.g., exercise of option) and include a wage
determination referencing that collective bargaining agreement created
by use of the WDOL website (see 22.1008-2(d)(2)).
0
24. Revise section 22.1014 to read as follows:
22.1014 Delay over 60 days in bid opening or commencement of work.
If a wage determination was obtained through the e98 process, and
bid opening, or commencement of work under a negotiated contract has
been delayed, for whatever reason, more than 60 days from the date
indicated on the previously submitted e98, the contracting officer
shall submit a new e98. Any revision of a wage determination received
by the contracting agency as a result of that communication shall
supersede the earlier response as the wage determination applicable to
the particular acquisition subject to the time frames in 22.1012-1(b)
and (c).
22.1017 [Removed and Reserved]
0
25. Remove and reserve section 22.1017.
PART 47--TRANSPORTATION
0
26. Amend section 47.202 by revising paragraph (a) to read as follows:
47.202 Presolicitation planning.
* * * * *
(a) The Service Contract Act of 1965 (SCA) requirement to obtain a
wage determination by accessing the Wage Determination OnLine website
(https://www.wdol.gov) using the WDOL process or by submitting a request
directly to the Department of Labor on this website using the e98
process before the issuance of an invitation for bid, request for
proposal, or commencement of negotiations for any contract exceeding
$2,500 that may be subject to the SCA (see Subpart 22.10);
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.212-5 [Amended]
0
27. Amend section 52.212-5 by revising the date of the clause to read
``(JUN 2006)''; and by removing paragraph (c)(5).
52.222-47 [Removed and Reserved]
0
28. Remove and reserve section 52.222-47.
0
29. Amend section 52.222-48 by revising the section and clause headings
as set forth below.
52.222-48 Exemption from Application of Service Contract Act
Provisions--Contractor Certification.
* * * * *
EXEMPTION FROM APPLICATION OF SERVICE CONTRACT ACT PROVISIONS--
CONTRACTOR CERTIFICATION (JUN 2006)
* * * * *
52.222-49 [Amended]
0
30. Amend section 52.222-49 by removing from the introductory text
``and 22.1009-4(c)''.
PART 53--FORMS
53.222 [Amended]
0
31. Amend section 53.222 by removing ``99,'' from the section heading;
and removing and reserving paragraph (b).
53.301 [Amended]
0
32. Remove sections 53.301-98, 53.301-98a, and 53.301-99.
[REMOVE SF'S 98, 98A AND 99]
[FR Doc. 06-5708 Filed 6-27-06; 8:45 am]
BILLING CODE 6820-EP-S
