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Jamaal Valentine

Wage Rate Requirements (Construction)

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SCENARIO: Unpriced, mutliple-award IDIQs, five year ordering period (no options), and general wage determination was applied to the basic contract at time of award. 

40 U.S.C. chapter 31, subchapter IV, Wage Rate Requirements (Construction), formerly known as the Davis-Bacon Act

QUESTION: At what point, if ever, do you incorporate any updated Wage Determinations?

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Since it's unpriced the wage determination should be current when you award the task order.  Normally you'd send out the current wage determination with the task order RFP and verify it is still current prior to making the award.

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15 hours ago, Jamaal Valentine said:

QUESTION: At what point, if ever, do you incorporate any updated Wage Determinations?

The CO either modifies the contract to incorporate the WD and adjust contract price after receiving post award notification of a wage modification, or the CO solely adds the WD number and date if the WD doesn't increase or decrease the wage rates.

22.404-6 Modifications of wage determinations.

 (b) The following applies when contracting by sealed bidding:

(5) If an effective modification is received by the contracting officer after award, the contracting officer shall modify the contract to incorporate the wage modification retroactive to the date of award and equitably adjust the contract price for any increased or decreased cost of performance resulting from any changed wage rates. If the modification does not change any wage rates and would not warrant contract price adjustment, the contracting officer shall modify the contract to include the number and date of the modification.

 (c) The following applies when contracting by negotiation:

 (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.

(2) If an effective wage modification is received by the contracting officer before award, the contracting officer shall follow the procedures in 22.404-5(c)(3) or (4).

(3) If an effective wage modification is received by the contracting officer after award, the contracting officer shall follow the procedures in 22.404-6(b)(5).

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17 hours ago, Jamaal Valentine said:

QUESTION: At what point, if ever, do you incorporate any updated Wage Determinations?

 I do not think you incorporate any updated determination.   

While the IDIQ is un-priced yet the IDIQ contained the appropriate general wage determination, and if that general determination was included based on all other stipulations for inclusion (appropriate geographical area etc.) and the IDIQ does not have options I find no FAR or USDOL reference that provides a "trigger" to incorporate a new determination.  Rather "22.404-1 Types of wage determinations. (a) General wage determinations." provides in part at "(1)...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)." 

FAR 22.404-6 by my read only applies if the 10 day receipt stipulations apply or if the contract award is delayed beyond 90 days.

To an extent, and beyond my FAR 22.404-1 reference it would seem that prescriptions of the FAR for inclusion of the Davis-Bacon (sorry I am old school) Wage Determination price adjustment clauses, 52.222-30 thru 32, and the clauses themselves speak to "options" and clause 52.222-6 is absent any wording about price adjustments support my conclusion.

Noting that a contractor has the ultimate responsibility to comply and USDOL has the ultimate responsibility to enforce, to ensure whatever conclusion you may come to on your interesting question is a fair and appropriate one I would suggest that you pose your question to the USDOL.

 

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Jamaal,

This is a very complicated area.  Proceed with caution.  Be fully aware that procedures for SCA wage determinations do not apply to DB wage determinations.

There are two kinds of DB wage determinations, project and general.  The rules for each are different.  Your original posting specified a general wage determination.  Okay.  Let's only pay attention to general wage determinations.

Understand that FAR Subpart 22.4 was written before task order contracts were common, so you have to adapt the 22.4 text to your reality as best you can. 

The general rule for general wage determinations is that they last for the entire period of the construction project.  See FAR 22.404-1(a):  "Once incorporated into 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."

So for a single construction project using a general wage determination, even a contract with a three- or five-year period of performance, the general rule is that you will not update the wage determination during the entire period of performance.

19 hours ago, Jamaal Valentine said:

QUESTION: At what point, if ever, do you incorporate any updated Wage Determinations?

ANSWER:  Never, assuming a construction contract with no options and a general wage determination.

What about modifications to wage determinations?  DOL does modify wage determinations to make them current.  However, for a construction contract with no options and a general wage determination, you will never incorporate the modifications into your contract.

A previous poster pointed to FAR 22.404-6(b)(5), but I demur.  That citation applies only to "effective" modifications.  For a construction contract with no options and a general wage determination, all post-award WD modifications will not be "effective" and are not to be incorporated into the contract.  Generally, a modification is only "effective" if it is issued before bid opening (for sealed bidding, see FAR 22.404-6(b)(2): "All written actions modifying wage determinations received by the contracting officer after bid opening, or modifications to general wage determinations published on the WDOL after bid opening, shall not be effective...") or before contract award (for contracting by negotiation, see FAR 22.404-6(c)(1), where "effective" means "received by the contracting officer before contract award, or . . . published on the WDOL before award...").  Generally, for a construction contract with no options and a general wage determination, a DB WD modification that arises after contract award (or bid opening, for sealed bid actions) is not effective and is never incorporated.

The above are general rules -- there are a few exceptions that are covered in the FAR.

Please take some time to digest this input -- this input may differ from input you have received from others.

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I think C Culham and I were writing at the same time -- I'm glad we came to the same end result for the original poster's question (no updating of contract for modified wage determinations).  Carl and I both have real experience with construction contracts.

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I agree, in part, with ji20874 and C Culham (I didn't want to bias responses); however, I would advise others to contact their agency labor advisors and/or the Department of Labor. 

For example, see the Air Force Davis-Bacon Desktop Guide for guidance on handling SABER contracts and task orders (p. 13).

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