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WolfmaN365

SF 1413 Statement of Acknowledgement Requirements

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BLUF:  Is a subcontractor doing service related work on a construction contract required to abide  to the flow down constructions clauses contained in the basic contract or are they exempt from these requirements since their work is covered under a SCA Wage Decision? 

I have a Construction Contract for the demo and building of a new Pier and the dredging of the area around the new pier and the footprint of the old pier.  During the dredging phase of the project UXO's were discovered along with some Deck Marking and Radio luminescence equipment gauges that triggered a Geiger counter at the recycling center.  The sub-contractor doing radiation remediation is now saying that they do not have to follow the flow down clauses nor require their 2nd and 3rd tier sub-contractor to submit a SF 1413 since their work is not construction in nature and they are not subject to the Davis bacon Act Wage Decision.  The radiation remediation is the only part of this contract that is covered under a SCA and that is due to the fact there are no Rad Techs under the DB Wage decision.   

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Is a subcontractor doing service related work on a construction contract required to abide  to the flow down constructions clauses contained in the basic contract or are they exempt from these requirements since their work is covered under a SCA Wage Decision?

The answer depends on the facts--whether the work the subcontractor is doing is "construction," as defined in FAR 22.401. If the work is properly covered by the SCA, then it's not construction, and it's not covered by the Davis-Bacon Act clauses.

Let me ask: Have you studied FAR Subpart 22.4? Do you understand what it says?

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Some hints in your read of FAR 22.4.........prescription and wording of FAR Clauses 52.222-6 and 52.222-11 along with  FAR 22.406.

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I believe that Carl is hinting that you should be requesting a wage decision from DOL. I suggest that DOL be requested to determine whether the hazardous material removal work is a service or construction under the circumstances. If construction, you'd follow the DOL/FAR procedures to obtain a wage rate. 

From a read of the OP, it appears that the sub is stating that the work is service. Demo work itself, can be a service or construction, depends upon whether construction will follow. As for the associated hazmat work, DOL should be capable  of making the determination. 

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The original post didn't clarify whether any hazmat removal was within the original scope of the contract work. Our HQ Office of Counsel years ago put out Corps-wide legal opinion that hazmat work is out of scope if not originally anticipated in the contract, thus requiring a supplemental agreement of the parties. Construction contractors' general liability insurance and other insurance requir special endorsement or riders for such work. Bonds would also normally exclude such work without additional coverage. There is a long term risk of health/workmanship comp claims or litigation by former employees or by the public. The insurers and bonding companies mayor may not agree to cover such work  

This may or may not have any bearing on this labor issue and the specific work might or might not have been correctly included or ladded later. 

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19 hours ago, WolfmaN365 said:

I have a Construction Contract for the demo and building of a new Pier and the dredging of the area around the new pier and the footprint of the old pier.  During the dredging phase of the project UXO's were discovered along with some Deck Marking and Radio luminescence equipment gauges that triggered a Geiger counter at the recycling center. 

Joel:

Wouldn't that be a differing site condition? Would the Corps issue a stop work order or terminate the contract for pier construction, award a new contract for Hazmat removal, and then proceed with the pier construction?

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Depends upon the specifics. Likely a differing site condition but not work than can be unilaterally added by change or directed.  

In my experience, it would usually be a mutual decision between the Corps, the Contractor, the Surety and the insurers as to whether they were capable of and willing to take on the new work and associated risk. Generally, speciality subs will perform the work. But we have introduced new OSHA safety and RCRA, etc. rules and regulations, terms and conditions.

Usually, we would try to minimize or avoid disrupting or impacting the on-going project that would occur if we brought in a new, separate contractor. So, as I recall, we used the exception to full and open competition under 6.302-2, for unusual and compelling urgency to add the new work to the existing contract by out of scope supplemental agreement.  

We had one contractor on a good sized civil works creek restoration contract assert that they had encountered a cardinal change when they discovered an old dump site along the creek and found some syringes and other medical waste. They insisted that it was a RCRA action that would majorly impact them and that they wanted to reform the contract and would submit claims for disruption and impact. Upon my investigation and research of the then applicable OSHA and RCRA, etc. rules, there had to be more than 55 gallons of the waste before it would be considered a RCRA site and all the Hazmat and OSHA part 29 safety rules came into play. There wasn't anywhere near that much. We called his bluff and said if he wouldn't handle the waste under the appropriate rules (basically pick up the stuff, wearing gloves,  long sleeves and face masks and put it in a 55 gallon drum, then take it to the Emelle Hazardous waste facility near Birmingham, AL, ) then we would terminate that portion of the contract for convenience and get someone else to complete it. 

He acquiesced and dropped his objections. 

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