[Federal Register: June 8, 2005 (Volume 70, Number 109)]
[Rules and Regulations]
[Page 33662-33671]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jn05-34]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 22, 52, and 53
[FAC 2005-04; FAR Case 2002-004; Item VI]
RIN 9000-AJ79
Federal Acquisition Regulation; Labor Standards for Contracts
Involving Construction
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to implement the
revised definitions of ``construction'' and ``site of the work'' in the
Department of Labor (DoL) regulations. In addition, the Councils have
clarified several definitions relating to labor standards for contracts
involving construction and made requirements for flow down of labor
clauses more precise.
DATES: Effective Date: July 8, 2005.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755
for information pertaining to status or publication schedules. For
clarification of content, contact Ms. Linda Nelson, Procurement
Analyst, at (202) 501-1900. The TTY Federal Relay Number for further
information is 1-800-877-8973. Please cite FAC 2005-04, FAR case 2002-
004.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule constitutes the implementation in the FAR of the
DoL rule revising the terms ``construction, prosecution, completion or
repair'' (29 CFR 5.2(j) and ``site of the work'' (29 CFR 5.2(l)). The
DoL final rule (65 FR 80268) was published on December 23, 2000, and
became effective on January 19, 2001. In addition, the Councils have
clarified several definitions relating to labor standards for contracts
involving construction and made requirements for flow down of labor
clauses more precise.
The proposed rule was published in the Federal Register at 68 FR
74403, December 23, 2003. The Councils received comments in response to
the proposed rule from 161 respondents. Responses to the more
significant comments are as follows:
1. Support extension of Davis-Bacon Act (DBA) to secondary sites of
the work.
The first category includes general comments in support of
extending the DBA to secondary sites for various reasons. Among the
reasons under this category given by the respondents in support of the
rule are because it:
Helps workers;
Prevents companies from circumventing the DBA;
Addresses the realities of new construction techniques in
the construction industry;
Correctly implements DoL final rule, which is not
inconsistent with previous court cases.
The Councils concur. No further response is necessary.
2. Oppose the extension of the DBA to secondary sites.
Many respondents opposed extension of the DBA to a secondary site,
because--
It is too difficult to administer-confusing, burdensome,
beyond logistic capability;
It will increase costs of construction;
Court decisions demonstrate that the DoL rule is invalid;
The Councils have the authority to reject the DoL rule; or
The respondent opposes the DBA entirely. Let the market
prevail.
The Councils do not concur. It is apparent that many of the
respondents misunderstood the concept of the ``secondary site of the
work''. This concept only includes a site where ``a significant portion
of the building or work is constructed.'' This does not cover the
manufacture or sale of construction material to be used at the site,
but only actual construction that is unique and integrally related to
the final building or work. The Councils anticipate that very few
construction projects will have a secondary site of the work.
With regard to increased cost to the contractor, this is not
necessarily the case because the contractor should take all the labor
costs into consideration in submitting his offer. With regard to
increased cost to the Government, this is a benefit to the workers that
the Government is willing to provide in accordance with the law.
Questions as to the validity of the DoL rule are outside the scope
of this case. This rule implements the DoL rule, which has already been
subject to notice and comment.
Comments regarding the benefits and value of the DBA itself are
also outside the scope of this case.
3. Oppose retroactive application of wage rates at secondary site,
without change in contract price or estimated cost.
Many respondents considered that this so-called ``retroactive''
aspect of the FAR rule was unfair to contractors, and goes beyond the
DoL rule. These respondents were concerned about the term ``retroactive
application'' which was used in the preamble to the proposed rule.
These respondents mistakenly interpreted ``retroactive'' in this
context to mean that the DBA rates would be applied retroactively to
secondary sites on existing contracts. One respondent stated that the
rule would require back pay through the year 2000 (effective date of
the DoL rule) for secondary sites of current projects and pay in future
payrolls at secondary sites through the remainder of the term of the
contract. Combined with the misapprehension about what constitutes a
secondary site, the small businesses fear bankruptcy with the
implementation of the DoL rule in the FAR.
The Councils do not concur. The FAR rule is not retroactive. It
does not apply to existing contracts or projects. It only applies to
new solicitations or contracts entered into after the effective date of
the FAR rule. See FAR 1.108(d). If these clauses were incorporated into
a contract retroactively, then there would be an appropriate adjustment
to the contract price. In new solicitations issued after the effective
date of this rule, the contractor is forewarned that the DBA is
applicable to the secondary site of the work pursuant to the
solicitation provision 52.222-5, Davis-Bacon Act--Secondary Site of the
Work. Moreover, the contract clause 52.222-6,
[[Page 33663]]
Davis-Bacon Act, also stipulates that DBA coverage extends ``to any
other site where a significant portion of the building or work is
constructed, provided that such site is located in the United States
and established specifically for the performance of the contract or
project.'' This regulatory language is intended to force contractors to
come forward if they intend to use a secondary site. DoL says these
instances should be rare. This will not be a regular occurrence. An
example discussed in the DOL rule preamble is constructing a segment of
a dam the size of a football field and floating it down a river. If a
contractor intends to establish a secondary site of the work, and not
disclose this information to the Government until after contract award
with the preconceived objective to request a price adjustment to cover
the increased DBA wages, this could skew the procurement process to the
disadvantage of the other offerors. The contractor is in a position to
anticipate the possible establishment of a secondary site of the work
based on its entrepreneurial ability during preparation of his proposal
or after it has been awarded the contract. The solicitation provision
and contract clauses provide advanced and clear guidance and
stipulations to the contractor on all the effects of a secondary site
of work from the moment he intends to establish it.
4. Oppose application of DBA wage rates for transportation of
materials from secondary site of the work to primary site of the work.
One respondent asserted that the proposed revision improperly
covers drivers of materials for time spent transporting materials or
pre-fabricated construction components between the newly expanded
``secondary'' site and the traditional site of the work. Another
respondent contended that if a wage determination is to be applied to
workers at secondary sites, it should at least be the wage
determination for the secondary site.
The Councils do not concur. The Davis-Bacon Act covers
transportation of the significant portion(s) of the public building or
public work that were constructed at a covered secondary site of the
work and are then moved to the primary site of the work where the
building or work will remain when it is completed. The transportation
of other materials and supplies between the two covered sites is not
subject to DBA coverage, and is not provided for in the DoL rule nor
the FAR rule. With regard to covering the transportation of a
significant portion of the building or work between covered sites, the
FAR rule is implementing the DoL final rule. With respect to which wage
determinations should apply to the transportation of a significant
portion of the building or work constructed at the secondary site of
the work between the two covered sites, the decision to apply the wage
determination for the primary site of the work for these situations
represents a reasonable interpretation of the remedial purposes of the
DBA. Even though DoL did not include in its final rule which wage
determination was applicable in this circumstance, DoL did include in
the preamble to the final rule, an administrative determination to
enforce ``the wage determination for the area in which the construction
will remain when completed.'' (See 65 FR 80276, December 20, 2000).
This is consistent with the language included in the FAR implementation
of the DoL rule.
5. Councils failed to comply with the Regulatory Flexibility Act.
Must perform Initial Regulatory Flexibility Analysis and publish it for
public comment.
Numerous respondents asserted that the Regulatory Flexibility Act
requires that an analysis of the cost of this rule to small business
must occur and be published for comment. The respondents state that the
FAR Council has failed to comply with the Regulatory Flexibility Act
because the rule will have a significant economic impact on small
business. Most construction firms are small businesses (98%), and the
retroactive aspects of the rule without any adjustment in contract
price will have a devastating impact on small businesses.
The Councils have reviewed the Final Regulatory Flexibility
Analysis of the Department of Labor and support the DoL determination
in the Final Regulatory Flexibility Analysis that its regulation would
not have a significant economic impact on a substantial number of small
entities (see 65 FR 80277, Dec 20, 2000). The implementation in the FAR
is within the framework provisions of the DoL rule. For further
analysis of impact of this final rule, see Paragraph B. of this notice,
which addresses the Regulatory Flexibility Act.
With regard to the so-called ``retroactive'' aspect of the FAR
rule, which would increase the impact beyond that of the DoL rule, see
the response to comment category 3. above.
6. Requests for substantive changes made by various respondents to
clarify or strengthen the rule. Some respondents suggested the
following changes to the FAR rule:
a. Specify in the provision that the contracting agency has the
right to apply DBA to a site that the DoL or the agency determines to
be a secondary site.
b. Define what is a ``significant portion of the work''
c. Include liquidated damages if contractor sets up a site, claims
the site is permanent and previously established, then dismantles it at
the end of the project.
d. Do not require the contractor to determine the applicability of
a wage determination.
e. Do not limit ``site of the work'' geographically.
The Councils respond to these suggestions as follows:
a. The Councils do not concur. The Councils note that the DBA
provision is directed to the offeror, requesting that the offeror
identify any planned secondary site. It is not necessary to state in
the provision that the contracting officer has the right to apply the
DBA to a site that the DoL or the agency determined to be a secondary
site because it is implicit in the law that DoL has the statutory
authority to make this determination regarding the application of the
DBA. Also, the contracting officer has the authority to make these
determinations under the FAR. If a DBA wage coverage determination made
on a secondary site by the DoL or the contracting officer is
inconsistent, or in violation of the law, or the regulation, the
contractor has the prerogative to administratively appeal this
determination to the DoL Administrative Review Board in accordance with
the FAR clause at 52.222-14, Disputes Concerning Labor Standards.
b. The Councils do not concur. The Councils do not have the
jurisdiction to define this concept that was introduced in the DoL
rule. The FAR rule implements the DoL final rule. The DoL rule does not
define ``significant portion of the work'', because in DoL's view the
size and the nature of the specific project will dictate what
constitutes ``a significant portion'' under the provision. If an
offeror or the cognizant agency is unsure whether a site meets the
criteria of secondary site of the work, the agency should consult with
DoL.
c. The Councils do not concur. This measure is not necessary
because it is not possible to ``set up'' a ``previously established
site.'' If the site was not previously established before award but
meets the other criteria for DBA site of the work, it cannot be
exempted from consideration as a DBA wage covered site of the work.
d. The Councils partially concur. The final rule revises the
provision at FAR 52.222-5, Davis-Bacon Act--Secondary
[[Page 33664]]
Site of the Work, to stipulate in paragraph (a)(2) that if the offeror
is uncertain if a planned work site satisfies the criteria for a
secondary site of the work, the offeror shall request a wage
determination for a secondary site from the contracting officer. This
is intended to reduce the instances in which the DoL comes in after the
fact and declares a site to be a secondary site of the work. In
addition, the Councils revised the language in paragraph (b)(1) of the
provision to require that if the wage determination provided by the
Government for work at the primary site of the work is not applicable
to the secondary site of the work, the offeror shall request a wage
determination from the contracting officer, rather than requiring the
offeror to seek the correct wage determination on line.
e. The Councils do not concur. The FAR rule is implementing the DoL
final rule. DoL already considered and rejected this comment in the
formulation of its final rule. DoL is constrained by case law.
The Councils are also adopting other clarifying changes, of which
the most significant change is revision of the ``site of the work''
definition at FAR 22.401 and in the clause at FAR 52.222-6, Davis-Bacon
Act, to include the requirement for a secondary site of work to be
located in the United States. The DBA does not apply outside the United
States. This was not an issue as long as the rules did not permit a
secondary site of the work that is geographically removed from the
primary site of the work. If the secondary site of the work is not
located in the United States it would not qualify for DBA coverage.
Therefore, since the Councils have removed the statement in the DBA
secondary site of the work provision that the offeror shall notify the
contracting officer ``if the Davis-Bacon Act is applicable to the
secondary site of the work, '' the definition of ``site of the work''
must be more restrictive.
This is a significant regulatory action and, therefore, was subject
to review under Section 6(b) of Executive Order 12866, Regulatory
Planning and Review, dated September 30, 1993. This rule is not a major
rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the Councils support
the DoL determination in the Final Regulatory Flexibility Analysis that
its regulation would not have a significant economic impact on a
substantial number of small entities (see 65 FR 80277, December 20,
2000). The implementation in the FAR is within the framework provisions
of the DoL rule.
In accordance with the DoL final rule, this FAR rule requires
contractors to pay Davis-Bacon wages at a secondary site of the work,
if there is a secondary site of the work. A secondary site of the work
exists only if a significant portion of the building or work is
constructed there and the site is established specifically for the
performance of the contract or project. This is an issue not
contemplated under the current regulatory language. However, we concur
with the DoL estimate that such instances will be rare. We estimate
that this will result in a negligible increase in application of Davis-
Bacon wages, because we estimate that less than 5 sites will qualify as
secondary sites, out of approximately 14,000 construction contracts per
year.
Furthermore, with regard to dedicated facilities such as
fabrication plants, mobile factories, batch plants, borrow pits, job
headquarters, tool yards, etc., Davis-Bacon wages will now apply only
if the dedicated facilities are ``adjacent or virtually adjacent to the
site of the work.'' Currently the FAR states that the dedicated
facilities must be ``so located in proximity to the actual construction
location that it would be reasonable to include them.'' We estimate
that this change will result in a negligible decrease in payment of
Davis-Bacon wages, because usually these types of dedicated facilities
are located adjacent to the site of the work, for economic reasons as
well as security. Usually disputes regarding dedicated facilities have
revolved around the functional test rather than the geographic test. We
estimate that this change in definition will impact less than 100 sites
out of 14,000 construction contracts per year.
Under this final rule, off-site transportation of materials,
supplies, tools, is generally not covered. Contractors must only pay
Davis-Bacon wage rates to employees that are transporting portions of
the building or work between the secondary site of the work and the
primary site of the work (an extremely rare occurrence, as stated
above) or between the adjacent dedicated facility and the site of the
construction. Furthermore, there are now a few less dedicated
facilities that count as part of the ``site of the work'' and they are
all adjacent rather than just ``in proximity''.
We estimate that these changes with regard to transportation will
only slightly reduce the application of Davis-Bacon wages for
transportation, because paying Davis-Bacon wages for off-site
transportation of materials is currently a rare occurrence. Contractors
must currently pay Davis-Bacon wage rates if an employee of the
construction contractor or subcontractor is transporting materials or
supplies to or from the building or work and (in accordance with court
decisions) such employee spends more than a ``de minimus'' amount of
time at the site of the work. However, most suppliers deliver materials
to the construction site (rather than using an employee of the
construction contractor to transport) and construction contractor
employees that are transporting such bulk materials as sand, dirt, or
snow to or from the site usually do not spend more time at the site
than is required for a pick-up or delivery.
Therefore, we concur with the conclusion of the DoL that the number
of projects affected by these changes is very limited and the
prevailing wage implications are not substantial, especially with
regard to the transportation activities attendant to these types of
projects.
There were public comments filed on the impact on small business.
One commenter provided extensive comments which also covered particular
nuances of the Regulatory Flexibility Act not covered by other
commenters. The substance of these comments has been addressed above in
the discussion of public comments in Section A., paragraphs 3. through
5.
C. Executive Order 12866; Small Business Regulatory Enforcement
Fairness Act; Unfunded Mandates Reform Act
Because of the interests expressed by some commenters, the final
rule is nonetheless being treated as a significant rule. However, the
rule is not economically significant and does not require preparation
of a full regulatory impact analysis. This rule implements a Department
of Labor rule which was not expected to have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy, a section of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or tribal
governments or communities. Therefore this rule also is not expected to
have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a section of the
economy, productivity, competition, jobs, the
[[Page 33665]]
environment, public health or safety, or State, local, or tribal
governments or communities.
The modifications to regulatory language in this final rule
implement the Department of Labor rule which limited coverage of off-
site material and supply work from Davis-Bacon prevailing wage
requirements as a result of appellate court rulings. In addition, this
final rule implements the Department of Labor's limited amendment to
the site of the work definition to address an issue not contemplated
under then current regulatory language--those instances where
significant portions of buildings or works may be constructed at
secondary sites which are not in the vicinity of the project's final
resting place. The Department of Labor believed that such instances
will be rare, and that any increased costs which may arise on such
projects would be offset by the savings resulting from the other
changes that limit coverage.
The DoD, GSA, and NASA also conclude that the rule is not a ``major
rule'' requiring approval by the Congress under the Small Business
Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.).
DoD, GSA, and NASA agree with the Department of Labor assessment that
this rule will not likely result in (1) an annual effect on the economy
of $100 million or more; (2) a major increase in costs or prices for
consumers, individual industries, Federal, State or local government
agencies, or geographic regions; or (3) significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of U.S.-based enterprises to compete with foreign-based
enterprises in domestic or export markets.
For purposes of the Unfunded Mandates Reform Act of 1995, this rule
does not include any Federal mandate that may result in excess of $100
million in expenditures by state, local and tribal governments in the
aggregate, or by the private sector. Furthermore, the requirements of
the Unfunded Mandates Reform Act, 2 U.S.C. 1532, do not apply here
because the rule does not include a Federal mandate. The term Federal
mandate is defined to include either a Federal intergovernmental
mandate or a Federal private sector mandate (2 U.S.C. 658(6)). Except
in limited circumstances not applicable here, those terms do not
include an enforceable duty which is a duty arising from participation
in a voluntary program (2 U.S.C. 658(7)(A)). A decision by a contractor
to bid on Federal and Federally assisted construction contracts is
purely voluntary in nature, and the contractor's duty to meet Davis-
Bacon Act requirements arises from participation in a voluntary Federal
program.
D. Executive Order 13132 (Federalism)
DoD, GSA, and NASA have reviewed this rule in accordance with
Executive Order 13132 regarding federalism, and have determined that it
does not have federalism implications. The rule does not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
E. 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.
List of Subjects in 48 CFR Parts 22, 52, and 53
Government procurement.
Dated: May 27, 2005.
Julia B. Wise,
Director, Contract Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 22, 52, and 53 as set
forth below:
0
1. The authority citation for 48 CFR parts 22, 52, and 53 is revised 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 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
0
2. Amend section 22.401 by--
0
a. Adding, in alphabetical order, the definitions ``Apprentice'' and
``Trainee;''
0
b. Removing from the first sentence of the definition ``Building or
work'' the word ``generally;'' and
0
c. Revising the definitions ``Construction, alteration, or repair'',
``Laborers or mechanics'' and ``Site of the work.''
0
The added and revised text reads as follows:
22.401 Definitions.
* * * * *
Apprentice means a person--
(1) Employed and individually registered in a bona fide
apprenticeship program registered with the U.S. Department of Labor,
Employment and Training Administration, Office of Apprenticeship
Training, Employer, and Labor Services (OATELS), or with a State
Apprenticeship Agency recognized by OATELS; or
(2) Who is in the first 90 days of probationary employment as an
apprentice in an apprenticeship program, and is not individually
registered in the program, but who has been certified by the OATELS or
a State Apprenticeship Agency (where appropriate) to be eligible for
probationary employment as an apprentice.
* * * * *
Construction, alteration, or repair means all types of work done by
laborers and mechanics employed by the construction contractor or
construction subcontractor on a particular building or work at the site
thereof, including without limitations--
(1) Altering, remodeling, installation (if appropriate) on the site
of the work of items fabricated off-site;
(2) Painting and decorating;
(3) Manufacturing or furnishing of materials, articles, supplies,
or equipment on the site of the building or work;
(4) Transportation of materials and supplies between the site of
the work within the meaning of paragraphs (1)(i) and (ii) of the ``site
of the work'' definition of this section, and a facility which is
dedicated to the construction of the building or work and is deemed
part of the site of the work within the meaning of paragraph (2) of the
``site of work'' definition of this section; and
(5) Transportation of portions of the building or work between a
secondary site where a significant portion of the building or work is
constructed, which is part of the ``site of the work'' definition in
paragraph (1)(ii) of this section, and the physical place or places
where the building or work will remain (paragraph (1)(i) in the ``site
of the work'' definition of this section).
Laborers or mechanics.--(1) Means--
(i) Workers, utilized by a contractor or subcontractor at any tier,
whose duties are manual or physical in nature (including those workers
who use tools or who are performing the work of a trade), as
distinguished from mental or managerial;
(ii) Apprentices, trainees, helpers, and, in the case of contracts
subject to the Contract Work Hours and Safety Standards Act, watchmen
and guards;
(iii) Working foremen who devote more than 20 percent of their time
during a workweek performing duties of a laborer or mechanic, and who
do not meet the criteria of 29 CFR part 541, for the time so spent; and
(iv) Every person performing the duties of a laborer or mechanic,
[[Page 33666]]
regardless of any contractual relationship alleged to exist between the
contractor and those individuals; and
(2) Does not include workers whose duties are primarily executive,
supervisory (except as provided in paragraph (1)(iii) of this
definition), administrative, or clerical, rather than manual. Persons
employed in a bona fide executive, administrative, or professional
capacity as defined in 29 CFR part 541 are not deemed to be laborers or
mechanics.
* * * * *
Site of the work.--(1) Means--
(i) The primary site of the work. The physical place or places
where the construction called for in the contract will remain when work
on it is completed; and
(ii) The secondary site of the work, if any. Any other site where a
significant portion of the building or work is constructed, provided
that such site is--
(A) Located in the United States; and
(B) Established specifically for the performance of the contract or
project;
(2) Except as provided in paragraph (3) of this definition,
includes fabrication plants, mobile factories, batch plants, borrow
pits, job headquarters, tool yards, etc., provided--
(i) They are dedicated exclusively, or nearly so, to performance of
the contract or project; and
(ii) They are adjacent or virtually adjacent to the ``primary site
of the work'' as defined in paragraphs (1)(i) of ``the secondary site
of the work'' as defined in paragraph (1)(ii) of this definition;
(3) Does not include permanent home offices, branch plant
establishments, fabrication plants, or tool yards of a contractor or
subcontractor whose locations and continuance in operation are
determined wholly without regard to a particular Federal contract or
project. In addition, fabrication plants, batch plants, borrow pits,
job headquarters, yards, etc., of a commercial or material supplier
which are established by a supplier of materials for the project before
opening of bids and not on the project site, are not included in the
``site of the work.'' Such permanent, previously established facilities
are not a part of the ``site of the work'', even if the operations for
a period of time may be dedicated exclusively, or nearly so, to the
performance of a contract.
Trainee means a person registered and receiving on-the-job training
in a construction occupation under a program which has been approved in
advance by the U.S. Department of Labor, Employment and Training
Administration, Office of Apprenticeship Training, Employer, and Labor
Services (OATELS), as meeting its standards for on-the-job training
programs and which has been so certified by that Administration.
* * * * *
0
3. Amend section 22.404-3 by revising paragraph (c) to read as follows:
22.404-3 Procedures for requesting wage determinations.
* * * * *
(c) Time for submission of requests. (1) The time required by the
Department of Labor for processing requests for project wage
determinations varies according to the facts and circumstances in each
case. An agency should expect the processing to take at least 30 days.
Accordingly, agencies should submit requests for project wage
determinations for the primary site of the work to the Department of
Labor at least 45 days (60 days if possible) before issuing the
solicitation or exercising an option to extend the term of a contract.
(2) Agencies should promptly submit to the Department of Labor an
offeror's request for a project wage determination for a secondary site
of the work.
* * * * *
22.404-4 [Amended]
0
4. Amend section 22.404-4 by revising the section heading as set forth
below; and amending paragraphs (a), (b), and (c) by adding ``for the
primary site of the work'' after ``determination'' each time it
appears.
22.404-4 Solicitations issued without wage determinations for the
primary site of the work.
* * * * *
0
5. Amend section 22.404-5 by--
0
a. Revising the first sentence of paragraphs (b)(1), (b)(2)
introductory text, and (b)(2)(i);
0
b. Revising paragraph (b)(2)(ii);
0
c. Revising the first sentence of paragraphs (c)(2) and (c)(3); and
0
d. Revising paragraph (c)(4).
0
The revised text reads as follows:
22.404-5 Expiration of project wage determinations.
* * * * *
(b) * * *
(1) If a project wage determination for the primary site of the
work expires before bid opening, or if it appears before bid opening
that a project wage determination may expire before award, the
contracting officer shall request a new determination early enough to
ensure its receipt before bid opening. * * *
(2) If a project wage determination for the primary site of the
work expires after bid opening but before award, the contracting
officer shall request an extension of the project wage determination
expiration date from the Administrator, Wage and Hour Division. * * *
(i) If the new determination for the primary site of the work
changes any wage rates for classifications to be used in the contract,
the contracting officer may cancel the solicitation only in accordance
with 14.404-1. * * *
(ii) If the new determination for the primary site of the work does
not change any wage rates, the contracting officer shall award the
contract and modify it to include the number and date of the new
determination. (See 43.103(b)(1).)
(c) * * *
(2) The contracting officer need not delay opening and reviewing
proposals or discussing them with the offerors while a new
determination for the primary site of the work is being obtained. * * *
(3) If the new determination for the primary site of the work
changes any wage rates, the contracting officer shall amend the
solicitation to incorporate the new determination, and furnish the wage
rate information to all prospective offerors that were sent a
solicitation if the closing date for receipt of proposals has not yet
occurred, or to all offerors that submitted proposals if the closing
date has passed. * * *
(4) If the new determination for the primary site of the work does
not change any wage rates, the contracting officer shall amend the
solicitation to include the number and date of the new determination
and award the contract.
0
6. Amend section 22.404-6 by revising the second sentence of paragraph
(a)(2), the first sentence of paragraph (a)(3), the first sentence of
paragraph (b)(3), and paragraph (b)(4) to read as follows:
22.404-6 Modifications of wage determinations.
(a) * * *
(2) * * * The need to include a modification of a project wage
determination for the primary site of the work in a solicitation is
determined by the time of receipt of the modification by the
contracting agency. * * *
(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 publication date of the notice in the Federal
Register, or by the time of receipt of the modification (annotated with
the date and time immediately upon receipt) by the contracting agency,
whichever occurs first. * * *
(b) * * *
[[Page 33667]]
(3) If an effective modification of the wage determination for the
primary site of the work is received by the contracting officer before
bid opening, the contracting officer shall postpone the bid opening, if
necessary, to allow a reasonable time to amend the solicitation to
incorporate the modification and permit bidders to amend their bids. *
* *
(4) If an effective modification of the wage determination for the
primary site of the work is received by the contracting officer after
bid opening, but before award, the contracting officer shall follow the
procedures in 22.404-5(b)(2)(i) or (ii).
* * * * *
0
7. Amend section 22.404-8 by revising the introductory text of
paragraph (a) and paragraph (a)(2); and in paragraphs (b)(1)
introductory text, (b)(2), and (c) by adding ``of an improper wage
determination for the primary site of the work'' after
``notification''.
22.404-8 Notification of improper wage determination before award.
(a) The following written notifications by the Department of Labor
shall be effective immediately without regard to 22.404-6 if received
by the contracting officer prior to award:
* * * * *
(2) A wage determination is withdrawn by the Administrative Review
Board.
* * * * *
22.406-9 [Amended]
0
8. Amend section 22.406-9 by--
0
a. Removing from the heading of paragraph (c)(1) ``Secretary of the
Treasury'' and adding ``Comptroller General'' in its place; and
removing from the last sentence of paragraph (c)(1) ``Secretary of the
Treasury'' and adding ``Comptroller General (Claims Section)'' in its
place; and
0
b. Removing from paragraph (c)(3) ``Secretary of the Treasury'' and
adding ``Comptroller General'' in its place.
0
9. Amend section 22.407 by--
0
a. Revising the heading as set forth below;
0
b. Removing from the introductory text of paragraph (a) ``The
contracting officer shall insert'' and adding ``Insert'' in its place;
0
c. Removing from paragraphs (a)(1) through (a)(10) ``The clause at'';
0
d. Removing from paragraph (b) ``The contracting officer shall insert''
and adding ``Insert'' in its place;
0
e. Removing from the second sentence of paragraph (c) ``the contracting
officer shall'';
0
f. Removing from paragraph (d) ``The contracting officer shall insert''
and adding ``Insert'' in its place; and
0
g. Adding paragraph (h) to read as follows:
22.407 Solicitation provision and contract clauses.
* * * * *
(h) Insert the provision at 52.222-5, Davis Bacon Act--Secondary
Site of the Work, in solicitations in excess of $2,000 for construction
within the United States.
PART 52--SOLICIATION PROVISIONS AND CONTRACT CLAUSES
0
10. Amend section 52.212-5 by revising the date of the clause; and in
paragraph (c)(1) and (e)(1)(vi) by removing ``(May 1989)'' and adding
``(JUL 2005)'' in its place. The revised text reads as follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR
EXECUTIVE ORDERS--COMMERCIAL ITEMS (JUL 2005)
* * * * *
0
11. Amend section 52.213-4 by revising the date of the clause; and in
paragraph (b)(1)(vi) by removing ``(May 1989)'' and adding ``(JUL
2005)'' in its place. The revised text reads as follows:
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Items).
* * * * *
TERMS AND CONDITIONS--SIMPLIFIED ACQUISITIONS OTHER THAN COMMERCIAL
ITEMS (JUL 2005)
* * * * *
0
12. Amend section 52.222-4 by revising the date of the clause and
paragraph (e) to read as follows:
52.222-4 Contract Work Hours and Safety Standards Act--Overtime
Compensation.
* * * * *
CONTRACT WORK HOURS AND SAFETY STANDARDS ACT--OVERTIME COMPENSATION
(JUL 2005)
* * * * *
(e) Subcontracts. The Contractor shall insert the provisions set
forth in paragraphs (a) through (d) of this clause in subcontracts
that may require or involve the employment of laborers and mechanics
and require subcontractors to include these provisions in any such
lower tier subcontracts. The Contractor shall be responsible for
compliance by any subcontractor or lower-tier subcontractor with the
provisions set forth in paragraphs (a) through (d) of this clause.
(End of clause)
0
13. Add text to section 52.222-5 to read as follows:
52.222-5 Davis-Bacon Act--Secondary Site of the Work.
As prescribed in 22.407(h), insert the following provision:
DAVIS-BACON ACT--SECONDARY SITE OF THE WORK (JUL 2005)
(a)(1) The offeror shall notify the Government if the offeror
intends to perform work at any secondary site of the work, as
defined in paragraph (a)(1)(ii) of the FAR clause at 52.222-6,
Davis-Bacon Act, of this solicitation.
(2) If the offeror is unsure if a planned work site satisfies
the criteria for a secondary site of the work, the offeror shall
request a determination from the Contracting Officer.
(b)(1) If the wage determination provided by the Government for
work at the primary site of the work is not applicable to the
secondary site of the work, the offeror shall request a wage
determination from the Contracting Officer.
(2) The due date for receipt of offers will not be extended as a
result of an offeror's request for a wage determination for a
secondary site of the work.
(End of provision)
0
14. Amend section 52.222-6 by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraphs (a) through (d) as paragraphs (b) through
(e);
0
c. Adding a new paragraph (a);
0
d. Revising the newly designated paragraph (b); and
0
e. Removing from the newly designated paragraph (c)(4) ``(b)(2)'' and
``(b)(3)'' and adding ``(c)(2)'' and ``(c)(3) ''in their places,
respectively.
0
The revised and added text reads as follows:
52.222-6 Davis-Bacon Act.
* * * * *
DAVIS-BACON ACT (JUL 2005)
(a) Definition.--Site of the work--(1) Means--
(i) The primary site of the work. The physical place or places
where the construction called for in the contract will remain when
work on it is completed; and
(ii) The secondary site of the work, if any. Any other site
where a significant portion of the building or work is constructed,
provided that such site is--
(A) Located in the United States; and
(B) Established specifically for the performance of the contract
or project;
(2) Except as provided in paragraph (3) of this definition,
includes any fabrication plants, mobile factories, batch plants,
borrow pits, job headquarters, tool yards, etc., provided--
(i) They are dedicated exclusively, or nearly so, to performance
of the contract or project; and
(ii) They are adjacent or virtually adjacent to the ``primary
site of the work'' as defined in paragraph (a)(1)(i), or the
``secondary site
[[Page 33668]]
of the work'' as defined in paragraph (a)(1)(ii) of this definition;
(3) Does not include permanent home offices, branch plant
establishments, fabrication plants, or tool yards of a Contractor or
subcontractor whose locations and continuance in operation are
determined wholly without regard to a particular Federal contract or
project. In addition, fabrication plants, batch plants, borrow pits,
job headquarters, yards, etc., of a commercial or material supplier
which are established by a supplier of materials for the project
before opening of bids and not on the Project site, are not included
in the ``site of the work.'' Such permanent, previously established
facilities are not a part of the ``site of the work'' even if the
operations for a period of time may be dedicated exclusively or
nearly so, to the performance of a contract.
(b)(1) All laborers and mechanics employed or working upon the
site of the work will be paid unconditionally and not less often
than once a week, and without subsequent deduction or rebate on any
account (except such payroll deductions as are permitted by
regulations issued by the Secretary of Labor under the Copeland Act
(29 CFR part 3)), the full amount of wages and bona fide fringe
benefits (or cash equivalents thereof) due at time of payment
computed at rates not less than those contained in the wage
determination of the Secretary of Labor which is attached hereto and
made a part hereof, or as may be incorporated for a secondary site
of the work, regardless of any contractual relationship which may be
alleged to exist between the Contractor and such laborers and
mechanics. Any wage determination incorporated for a secondary site
of the work shall be effective from the first day on which work
under the contract was performed at that site and shall be
incorporated without any adjustment in contract price or estimated
cost. Laborers employed by the construction Contractor or
construction subcontractor that are transporting portions of the
building or work between the secondary site of the work and the
primary site of the work shall be paid in accordance with the wage
determination applicable to the primary site of the work.
(2) Contributions made or costs reasonably anticipated for bona
fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on
behalf of laborers or mechanics are considered wages paid to such
laborers or mechanics, subject to the provisions of paragraph (e) of
this clause; also, regular contributions made or costs incurred for
more than a weekly period (but not less often than quarterly) under
plans, funds, or programs which cover the particular weekly period,
are deemed to be constructively made or incurred during such period.
(3) Such laborers and mechanics shall be paid not less than the
appropriate wage rate and fringe benefits in the wage determination
for the classification of work actually performed, without regard to
skill, except as provided in the clause entitled Apprentices and
Trainees. Laborers or mechanics performing work in more than one
classification may be compensated at the rate specified for each
classification for the time actually worked therein; provided that
the employer's payroll records accurately set forth the time spent
in each classification in which work is performed.
(4) The wage determination (including any additional
classifications and wage rates conformed under paragraph (c) of this
clause) and the Davis-Bacon poster (WH-1321) shall be posted at all
times by the Contractor and its subcontractors at the primary site
of the work and the secondary site of the work, if any, in a
prominent and accessible place where it can be easily seen by the
workers.
* * * * *
0
15. Amend section 52.222-9 by revising the date of the clause and
paragraphs (a) and (b) to read as follows:
52.222-9 Apprentices and Trainees.
* * * * *
APPRENTICES AND TRAINEES (JUL 2005)
(a) Apprentices. (1) An apprentice will be permitted to work at
less than the predetermined rate for the work performed when
employed--
(i) Pursuant to and individually registered in a bona fide
apprenticeship program registered with the U.S. Department of Labor,
Employment and Training Administration, Office of Apprenticeship
Training, Employer, and Labor Services (OATELS) or with a State
Apprenticeship Agency recognized by the OATELS; or
(ii) In the first 90 days of probationary employment as an
apprentice in such an apprenticeship program, even though not
individually registered in the program, if certified by the OATELS
or a State Apprenticeship Agency (where appropriate) to be eligible
for probationary employment as an apprentice.
(2) The allowable ratio of apprentices to journeymen on the job
site in any craft classification shall not be greater than the ratio
permitted to the Contractor as to the entire work force under the
registered program.
(3) Any worker listed on a payroll at an apprentice wage rate,
who is not registered or otherwise employed as stated in paragraph
(a)(1) of this clause, shall be paid not less than the applicable
wage determination for the classification of work actually
performed. In addition, any apprentice performing work on the job
site in excess of the ratio permitted under the registered program
shall be paid not less than the applicable wage rate on the wage
determination for the work actually performed.
(4) Where a Contractor is performing construction on a project
in a locality other than that in which its program is registered,
the ratios and wage rates (expressed in percentages of the
journeyman's hourly rate) specified in the Contractor's or
subcontractor's registered program shall be observed. Every
apprentice must be paid at not less than the rate specified in the
registered program for the apprentice's level of progress, expressed
as a percentage of the journeyman hourly rate specified in the
applicable wage determination.
(5) Apprentices shall be paid fringe benefits in accordance with
the provisions of the apprenticeship program. If the apprenticeship
program does not specify fringe benefits, apprentices must be paid
the full amount of fringe benefits listed on the wage determination
for the applicable classification. If the Administrator determines
that a different practice prevails for the applicable apprentice
classification, fringes shall be paid in accordance with that
determination.
(6) In the event OATELS, or a State Apprenticeship Agency
recognized by OATELS, withdraws approval of an apprenticeship
program, the Contractor will no longer be permitted to utilize
apprentices at less than the applicable predetermined rate for the
work performed until an acceptable program is approved.
(b) Trainees. (1) Except as provided in 29 CFR 5.16, trainees
will not be permitted to work at less than the predetermined rate
for the work performed unless they are employed pursuant to and
individually registered in a program which has received prior
approval, evidenced by formal certification by the U.S. Department
of Labor, Employment and Training Administration, Office of
Apprenticeship Training, Employer, and Labor Services (OATELS). The
ratio of trainees to journeymen on the job site shall not be greater
than permitted under the plan approved by OATELS.
(2) Every trainee must be paid at not less than the rate
specified in the approved program for the trainee's level of
progress, expressed as a percentage of the journeyman hourly rate
specified in the applicable wage determination. Trainees shall be
paid fringe benefits in accordance with the provisions of the
trainee program. If the trainee program does not mention fringe
benefits, trainees shall be paid the full amount of fringe benefits
listed in the wage determination unless the Administrator of the
Wage and Hour Division determines that there is an apprenticeship
program associated with the corresponding journeyman wage rate in
the wage determination which provides for less than full fringe
benefits for apprentices. Any employee listed on the payroll at a
trainee rate who is not registered and participating in a training
plan approved by the OATELS shall be paid not less than the
applicable wage rate in the wage determination for the
classification of work actually performed. In addition, any trainee
performing work on the job site in excess of the ratio permitted
under the registered program shall be paid not less than the
applicable wage rate in the wage determination for the work actually
performed.
(3) In the event OATELS withdraws approval of a training
program, the Contractor will no longer be permitted to utilize
trainees at less than the applicable predetermined rate for the work
performed until an acceptable program is approved.
* * * * *
0
16. Revise the clause in section 52.222-11 to read as follows:
52.222-11 Subcontracts (Labor Standards).
* * * * *
SUBCONTRACTS (LABOR STANDARDS) (JUL 2005)
(a) Definition. Construction, alteration or repair, as used in
this clause, means all types
[[Page 33669]]
of work done by laborers and mechanics employed by the construction
Contractor or construction subcontractor on a particular building or
work at the site thereof, including without limitation--
(1) Altering, remodeling, installation (if appropriate) on the
site of the work of items fabricated off-site;
(2) Painting and decorating;
(3) Manufacturing or furnishing of materials, articles,
supplies, or equipment on the site of the building or work;
(4) Transportation of materials and supplies between the site of
the work within the meaning of paragraphs (a)(1)(i) and (ii) of the
``site of the work'' as defined in the FAR clause at 52.222-6,
Davis-Bacon Act of this contract, and a facility which is dedicated
to the construction of the building or work and is deemed part of
the site of the work within the meaning of paragraph (2) of the
``site of work'' definition; and
(5) Transportation of portions of the building or work between a
secondary site where a significant portion of the building or work
is constructed, which is part of the ``site of the work'' definition
in paragraph (a)(1)(ii) of the FAR clause at 52.222-6, Davis-Bacon
Act, and the physical place or places where the building or work
will remain (paragraph (a)(1)(i) of the FAR clause at 52.222-6, in
the ``site of the work'' definition).
(b) The Contractor shall insert in any subcontracts for
construction, alterations and repairs within the United States the
clauses entitled--
(1) Davis-Bacon Act;
(2) Contract Work Hours and Safety Standards Act--Overtime
Compensation (if the clause is included in this contract);
(3) Apprentices and Trainees;
(4) Payrolls and Basic Records;
(5) Compliance with Copeland Act Requirements;
(6) Withholding of Funds;
(7) Subcontracts (Labor Standards);
(8) Contract Termination--Debarment;
(9) Disputes Concerning Labor Standards;
(10) Compliance with Davis-Bacon and Related Act Regulations;
and
(11) Certification of Eligibility.
(c) The prime Contractor shall be responsible for compliance by
any subcontractor or lower tier subcontractor performing
construction within the United States with all the contract clauses
cited in paragraph (b).
(d)(1) Within 14 days after award of the contract, the
Contractor shall deliver to the Contracting Officer a completed
Standard Form (SF) 1413, Statement and Acknowledgment, for each
subcontract for construction within the United States, including the
subcontractor's signed and dated acknowledgment that the clauses set
forth in paragraph (b) of this clause have been included in the
subcontract.
(2) Within 14 days after the award of any subsequently awarded
subcontract the Contractor shall deliver to the Contracting Officer
an updated completed SF 1413 for such additional subcontract.
(e) The Contractor shall insert the substance of this clause,
including this paragraph (e) in all subcontracts for construction
within the United States.
(End of clause)
52.222-41 [Amended]
0
17. Amend section 52.222-41 by revising the date of the clause to read
``(JUL 2005)''; and in the first sentence of paragraph (r) of the
clause by removing ``Bureau of Apprenticeship and Training, Employment
and Training Administration'' and adding ``Office of Apprenticeship
Training, Employer, and Labor Services (OATELS)'' in its place.
PART 53--FORMS
53.222 [Amended]
0
18. Amend section 53.222 in paragraph (e) by removing ``(Rev. 6/89)''
and adding ``(Rev. 7/2005)'' in its place; and removing the last
sentence.
0
19. Amend section 53.301-1413 by revising the form to read as follows:
53.301-1413 Statement and Acknowledgement.
[[Page 33670]]
[GRAPHIC] [TIFF OMITTED] TR08JN05.000
[[Page 33671]]
[FR Doc. 05-11186 Filed 6-7-05; 8:45 am]