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Got a RFI in. I have always done lead abatement, when it is strictly lead abatement and not in conjuction with construction as an enviromental service contract (various agencies). Thus using the prevailing Service Wage rates. We have a contract where we are removing lead based paint off the wood trim on the exterior of buildings. This would include columns in front, window frames, etc. A very minor part of the project is to repair columns fill in cracks in the wood etc. Then repainting the exterior wood trim of the buildings. You are not changing the structure. You are removing lead based paint, filling in some cracks with wood filler, and repainting it with non lead based paint.

Would you consider this project service or construction?

Checked wage rates - maintenance painting is in the service wage rates.

While there is not a specific category for lead paint removal in the service wage rates, there is a specific category for hazardous waste removal for construction in the area.

I was always taught that the type of contract when you have these mixed contracts is determined by the most expensive part of it. In this case, it is expected that the removal of lead paint and repainting is the most expensive part.

I'm not confused about the painting part of it - clearly service as this is maintenance. Just not so sure on the removal of lead paint.

What do you determine. A survey of Contracting Officers is mixed.

TIA

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In case you are wondering, I was going off the NAICS codes 562211 Hazardous Waste Treament and Disposal 562211 $6 million and Environmental Remediation Services 562910 500 employees. Both fall under the NAICS category for The Administrative and Support and Waste Management and Remediation Services. So I need a good answer because this contractor is a huge PIA and wants to protest everything (he tried to protest a source selection contract because he felt he should have gotten it because he was the lowest bid. Cost was a factor, but he did not rate as highly on other factors and thus was not the most qualified and did not get the contract).

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I'd say Construction because it is alteration or repair of real property. The definition of Construction in 2.101 states: "(including dredging, excavating, and painting)..." I've seen agency regulations that specify painting over a certain square footage is considered construction, so touch-up or spot painting wouldn't necessarily be classified as construction (i.e. maintenance painting). But by combining these two, I think you have clearly crossed into the construction arena.

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Got a RFI in. I have always done lead abatement, when it is strictly lead abatement and not in conjuction with construction as an enviromental service contract (various agencies). Thus using the prevailing Service Wage rates. We have a contract where we are removing lead based paint off the wood trim on the exterior of buildings. This would include columns in front, window frames, etc. A very minor part of the project is to repair columns fill in cracks in the wood etc. Then repainting the exterior wood trim of the buildings. You are not changing the structure. You are removing lead based paint, filling in some cracks with wood filler, and repainting it with non lead based paint.

Would you consider this project service or construction?

Checked wage rates - maintenance painting is in the service wage rates.

While there is not a specific category for lead paint removal in the service wage rates, there is a specific category for hazardous waste removal for construction in the area.

I was always taught that the type of contract when you have these mixed contracts is determined by the most expensive part of it. In this case, it is expected that the removal of lead paint and repainting is the most expensive part.

I'm not confused about the painting part of it - clearly service as this is maintenance. Just not so sure on the removal of lead paint.

What do you determine. A survey of Contracting Officers is mixed.

TIA

You say that "clearly" the painting is a service. I'm not at a computer to provide the citation, but the FAR discusses the distinction between small paint jobs as a service and painting as construction. Repainting existing services isn't the determining factor. A contract to repaint buildings would generally be considered construction. What is the basis for saying that it is clear that the re-painting portion is a service? Is there only a small amount of painting involved or is there a lot of trim painting on numerous buildings?

Have you asked the Department of Labor what they consider the type of work to be?

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You say that "clearly" the painting is a service. I'm not at a computer to provide the citation, but the FAR discusses the distinction between small paint jobs as a service and painting as construction. Repainting existing services isn't the determining factor. A contract to repaint buildings would generally be considered construction. What is the basis for saying that it is clear that the re-painting portion is a service? Is there only a small amount of painting involved or is there a lot of trim painting on numerous buildings?

Have you asked the Department of Labor what they consider the type of work to be?

Sorry I meant to say "Repainting existing surfaces isn't the determining factor to distinguish between construction or services."

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The painting consists of wood trim along the roof line, window casings, door frames, and columns. The buildings are all brick Georgian type buildings. So it isn't a lot of painting. Really just repainting those areas. Not like painting the outside of a woodframe house. The SQFT is not big. The roof trim is probably 3-4 iches wide all around the roof.

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The painting consists of wood trim along the roof line, window casings, door frames, and columns. The buildings are all brick Georgian type buildings. So it isn't a lot of painting. Really just repainting those areas. Not like painting the outside of a woodframe house. The SQFT is not big. The roof trim is probably 3-4 iches wide all around the roof.

Reading between the lines, I'm assuming that there are several buildings involved and that installation of scaffolding will be required to reach the soffit,upper trim, especially on the porches and eaves.

You can't properly abate lead paint off of such surfaces on a ladder and painting the upper trim would take forever using a ladder. I assume that the scaffold will be used for both operatioins.

Spot painting and small painting jobs of a few hours effort in conjunction with wall repairs are likely services. I'd say that this painting scope is considered construction. But ask those who really make such determinations - the DOL.

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If there are several days worth of painting efforts, DOL will most likely consider it to be "construction", based upon my experience (although I haven't checked in a few years).

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Guest jrt132

I don't believe the OP said what agency this is for, but DFARS 222.402-70( d) states:

"(d) Repairs versus maintenance. Some contract work may be characterized as either DBA painting/repairs or SCA maintenance. For example, replacing broken windows, spot painting, or minor patching of a wall could be covered by either the DBA or the SCA. In those instances where a contract service call or order requires construction trade skills (i.e., carpenter, plumber, painter, etc.), but it is unclear whether the work required is SCA maintenance or DBA painting/repairs, apply the following rules?

(1) Individual service calls or orders which will require a total of 32 or more work-hours to perform shall be considered to be repair work subject to the DBA.

(2) Individual service calls or orders which will require less than 32 work-hours to perform shall be considered to be maintenance subject to the SCA.

(3) Painting work of 200 square feet or more to be performed under an individual service call or order shall be considered to be subject to the DBA regardless of the total work-hours required."

If this is not a DOD procurement than FAR 22.402( b )( 2 )( i ) might help:

"(2) The requirements of this subpart do not apply if --

(i) The construction work is incidental to the furnishing of supplies, equipment, or services (for example, the requirements do not apply to simple installation or alteration at a public building or public work that is incidental to furnishing supplies or equipment under a supply contract; however, if a substantial and segregable amount of construction, alteration, or repair is required, such as for installation of heavy generators or large refrigerator systems or for plant modification or rearrangement, the requirements of this subpart apply); or"

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Ok and the winning answer is - talked with DOL and SBA (two different specialists in two different offices) both agencies said the NAICS code is the appropriate code of 562910 for environmental remediation services. The bulk of the contract is the removal of lead paint, which is a service under maintenance and repair. If there is not a classification listed in the service wage rates, the contractor has to do the conformance process. Every single person when looking at the scope, knowing the buildings involved, and discussing it said it is a service contract including those in management and engineering. So I that is what we are going with. In addition, the work being done does not have to happen in order for a construction project to take place. The contractor is NOT protesting the NAICS code. He is saying that because the construction wage rates are higher in the area it should be construction. Which is not a reason to make a contract a construction contract. The rates are the minimum paid. He can pay the contractor whatever he wants as long as he is paying them the minimum.

Oh and I am at a civilian agency. We don't use the DFAR (Thank God).

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Sounds like you've done your due diligence by consulting with the SBA and DOL. On a personal note, I've only been doing construction for the last 18 months. As I look back at some of the things I've done when I was working services (roughly 20 years), I realize I've been doing construction a lot longer - just didn't realize it. :D It's funny how your perspective changes once you've been exposed to different areas of contracting.

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Ok and the winning answer is - talked with DOL and SBA (two different specialists in two different offices) both agencies said the NAICS code is the appropriate code of 562910 for environmental remediation services. The bulk of the contract is the removal of lead paint, which is a service under maintenance and repair. If there is not a classification listed in the service wage rates, the contractor has to do the conformance process. Every single person when looking at the scope, knowing the buildings involved, and discussing it said it is a service contract including those in management and engineering. So I that is what we are going with. In addition, the work being done does not have to happen in order for a construction project to take place. The contractor is NOT protesting the NAICS code. He is saying that because the construction wage rates are higher in the area it should be construction. Which is not a reason to make a contract a construction contract. The rates are the minimum paid. He can pay the contractor whatever he wants as long as he is paying them the minimum.

Oh and I am at a civilian agency. We don't use the DFAR (Thank God).

Ok, great. Glad you checked with DOL.

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Guest Vern Edwards

missgamecock:

I don't know whom you spoke with at DOL and SBA, and I won't say they're wrong, but see DOL Memorandum No. 153, August 6, 1990, to: "All Government Contracting Agencies of the Federal Government and the District of Columbia," subject: "Application of the Davis-Bacon Act to Contracts for Asbestos and/or Paint Removal":

This memorandum clarifies the application of Government contract labor standards coverage to contracts calling for asbestos or paint removal from public buildings or public works and structural components thereof. We have learned that some contracting agencies are incorporating the Davis-Bacon Act (DBA) requirements in these contracts while others are including the McNamara-O'Hara Service Contract Act requirements. To ensure greater consistency, we are providing unitary guidance on the subject.

***

We have determined, after substantial review, that removal of asbestos or paint from public buildings or public works constitutes building alteration within the statutory language of DBA because asbestos or paint removal clearly alters those buildings or works, regardless of whether subsequent reinsulating or repainting is being considered. This view is consistent with previous determinations that contracts for sandblasting or hydrostatic cleaning of public buildings are subject to DBA.

Accordingly, any Federal or District of Columbia contract in excess of $2,000 that calls for asbestos or paint removal is subject to DBA and must include its stipulations and the applicable wage determination.

The memo is posted at DOL's website, on the page entitled, "Significant All Agency Memos Issued by DOL," specifically, at: http://www.wdol.gov/aam/AAM153.pdf.

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missgamecock:

I don't know who you spoke with at DOL and SBA, and I won't say they're wrong, but see DOL Memorandum No. 153, August 6, 1990, to: "All Government Contracting Agencies of the Federal Government and the District of Columbia," subject: "Application of the Davis-Bacon Act to Contracts for Asbestos and/or Paint Removal":

The memo is posted at DOL's website, on the page entitled, "Significant All Agency Memos Issued by DOL," specifically, at: http://www.wdol.gov/aam/AAM153.pdf.

That might be a reason why there is no SCA wage rate for lead paint removal. Regarding the repainting work, I still think the amount of painting is subject to DBA construction labor rates. I assumed (perhaps wrongly) that missgamecock checked with DOL about that, too with an adequate explanation of the amount of painting effort involved. We have contracts with both DBA and SCA labor requirements, regardless of whether the overall contract is service or construction.

Since I dont have access to the FAR or DOL CFRs this week (playing with my grandchildren), I didn't want to argue too much. I sense that she doesnt want to get involved with a construction contract type for this work. She did apparently take my advice and (unfortunately) contact DOL.

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Guest Vern Edwards

A couple of thoughts:

1. I'd be wary about "checking" with DOL by putting my question to some DOL employee who might or might not know the rules, especially if the determination might be protested, and extra-especially if the protest might come from a large contractor who must know the rules in order to survive. (Think how many contracting officers don't know the FAR.) The fact that some person works for an agency does not mean that he or she knows the correct answer. Checking through formal channels won't be quick, but it's more likely to yield a correct answer.

2. The kind of question that's been asked here might not be answered in the CFR. It's more likely to be addressed by some policy memo. Several agencies, e.g., DCAA and the IRS, issue policy memos, "guidance," or bulletins that explain in detail how some rule is to be interpreted and applied. Your research is not done until you have checked for such material, which the internet makes easier today.

I assume that the memo I have pointed out is still in effect, because it is still listed at DOL's site. The only way to be absolutely sure is to ask through formal channels. However, if you rely on a policy memo posted at the enforcement agency's website, you have a good explanation for your decision, a better explanation than "I asked an agency employee."

Finally, I'm not sure what the NAICS codes have to do with the missgamecock's question. Construction, for purposes of the Davis-Bacon Act, is defined at 29 CFR ? 5.2(j). It makes no mention of NAICS codes, and it explicitly includes painting. Why refer to NAICS codes?

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A couple of thoughts:

1. I'd be wary about "checking" with DOL by putting my question to some DOL employee who might or might not know the rules, especially if the determination might be protested, and extra-especially if the protest might come from a large contractor who must know the rules in order to survive. (Think how many contracting officers don't know the FAR.) The fact that some person works for an agency does not mean that he or she knows the correct answer. Checking through formal channels won't be quick, but it's more likely to yield a correct answer.

2. The kind of question that's been asked here might not be answered in the CFR. It's more likely to be addressed by some policy memo. Several agencies, e.g., DCAA and the IRS, issue policy memos, "guidance," or bulletins that explain in detail how some rule is to be interpreted and applied. Your research is not done until you have checked for such material, which the internet makes easier today.

I assume that the memo I have pointed out is still in effect, because it is still listed at DOL's site. The only way to be absolutely sure is to ask through formal channels. However, if you rely on a policy memo posted at the enforcement agency's website, you have a good explanation for your decision, a better explanation than "I asked an agency employee."

Finally, I'm not sure what the NAICS codes have to do with the missgamecock's question. Construction, for purposes of the Davis-Bacon Act, is defined at 29 CFR ? 5.2(j). It makes no mention of NAICS codes, and it explicitly includes painting. Why refer to NAICS codes?

So, bottom line? Check your agency's labor advisor listed at http://www.wdol.gov/ala.aspx?

In this case, it appears that the lead-based paint removal is construction per DOL official policy.

I still think that the extent of painting required may be construction, regardless of whether one is in DoD or not. But I'm only guessing how big the effort is. Guessing that there are more than one building and guessed that if there are "columns", then these are probably multistory buildings. In such a case, scaffolding is probably involved, which adds labor time. But heck, it might only be a couple of one story brick houses, accessible by step ladder. I believe (again from a DoD perspective) "Maintenance painting" is intended to be for relatively small painting efforts, like painting a new wall or two or repainting a wall, spot painting, etc. Why would DoD building paint projects be that much different from other agencies?

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