W912EP18R0042_Amendment_0005.pdf

AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT

Except as provided herein, all terms and conditions of the document referenced in Item 9A or 10A, as heretofore changed, remains unchanged and in full force and effect.

15A. NAME AND TITLE OF SIGNER (Type or print)

30-105-04EXCEPTION TO SF 30

APPROVED BY OIRM 11-84

STANDARD FORM 30 (Rev. 10-83) Prescribed by GSA

FAR (48 CFR) 53.243

HERBERT HOOVER DIKE REHABILITATION, STRUCTURE REPLACEMENT S-284 (HP-5) RECONSTRUCTION, GLADES COUNTY, FLORIDA

A. SEE CONTINUATION SHEET FOR AMENDMENT DETAILS.

B. THE PROPOSAL DUE DATE REMAIN UNCHANGED 29 JANUARY 2019 @ 2:00 P.M. LOCAL TIME.

ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED

1. CONTRACT ID CODE PAGE OF PAGES

1 19

16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)

16C. DATE SIGNED

BY 22-Jan-2019

16B. UNITED STATES OF AMERICA15C. DATE SIGNED15B. CONTRACTOR/OFFEROR

(Signature of Contracting Officer)(Signature of person authorized to sign)

8. NAME AND ADDRESS OF CONTRACTOR (No., Street , County, State and Zip Code) X W912EP18R0042

X 9B. DATED (SEE ITEM 11)

06-Dec-2018

10B. DATED (SEE ITEM 13)

9A. AMENDMENT OF SOLICITATION NO.

11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS

X The above numbered solicitation is amended as set forth in Item 14. The hour and date specified for receipt of Offer is extended, X is not extended.

Offer must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended by one of the following methods:

(a) By completing Items 8 and 15, and returning 1 copies of the amendment; (b) By acknowledging receipt of this amendment on each copy of the offer submitted;

or (c) By separate letter or telegram which includes a reference to the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN

REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change an offer already submitted, such change may be made by telegram or letter, provided each telegram or letter makes reference to the solicitation and this amendment, and is received prior to the opening hour and date specified.

12. ACCOUNTING AND APPROPRIATION DATA (If required)

13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.

IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.

A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: (Specify authority) THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE

CONTRACT ORDER NO. IN ITEM 10A.

B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation date, etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(B).

C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY OF:

D. OTHER (Specify type of modification and authority)

E. IMPORTANT: Contractor is not, is required to sign this document and return copies to the issuing office.

14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section headings, including solicitation/contract subject matter where feasible.)

10A. MOD. OF CONTRACT/ORDER NO.

2. AMENDMENT/MODIFICATION NO. 5. PROJECT NO.(If applicable)

6. ISSUED BY

3. EFFECTIVE DATE

22-Jan-2019

CODE

USA ENGINEER DISTRICT, JACKSONVILLE

CONTRACTING DIVISION

701 SAN MARCO BLVD

JACKSONVILLE FL 32207-8175

W912EP 7. ADMINISTERED BY (If other than item 6)

4. REQUISITION/PURCHASE REQ. NO.

CODE

See Item 6

FACILITY CODECODE

EMAIL:TEL:

SF 30 CONTINUATION

SHEET

Herbert Hoover Dike Rehabilitation, Structure Replacement S-284 (HP-5) Reconstruction

Amendment 0005

SUMMARY OF CHANGES

1. SPECIFICATIONS:

The text changes have been updated with additions noted by underlined text and deletions noted by line/cross-outs, and pertain only to changes made by this amendment. The entire section is replaced if there is any change. The Project Table of Contents and Submittal Register are replaced without underlines and cross-outs if there are changes to these documents.

Changes to Specifications:

Volume 1 of 2 – Technical Specifications:

DELETE Section 00800A Wage Determinations and Other Attachments in their entirety and REPLACE with the attached revised Section 00800A.

Volume 2 of 2 – Technical Specifications:

No Changes

2. DRAWINGS:

No Changes

(End of Summary of Changes)

W912EP-18-R-0042 Amendment 0005

Section 00800A - WAGE DETERMINATIONS & OTHER ATTACHMENTS

52.200-1 LIST OF CONSTRUCTION CONTRACT ATTACHMENTS

NO. TITLE DATE NO. OF PAGES

1 NOTE 1

2 General Decision Number FL190092 01/04/2019 4 3 Department of Labor AAM 213 and FAQs re Additional Classifications 03/22/2013 11

W912EP-18-R-0042 00800A-1 Amendment 0005

NOTE _NOTE NOTE

THIS SOLICITATION INCORPORATES ONLY THE HEAVY

CONSTRUCTION WAGE DETERMINATION FOR GLADES

COUNTY, FL

AS THE WAGE DETERMINATION IS LIMITED IN SCOPE – YOU

SHOULD PROJECT ANY ADDITIONAL CLASSIFICATIONS

REQUIRED TO COMPLETE THE PROJECT.

IF AWARDED THE CONTRACT – THESE ADDITIONAL

CLASSIFICATIONS (CONFORMANCES) SHOULD BE

REQUESTED SHORTLY FOLLOWING YOUR NOTICE TO

PROCEED.

EXECUTIVE ORDER (EO) 13658 ESTABLISHES AN HOURLY MINIMUM WAGE

OF

$10.60 FOR 2019 THAT APPLIES TO ALL CONTRACTS SUBJECT TO THE

DAVIS- BACON ACT FOR ALL HOURS PERFORMED ON THE CONTRACT IN

CALENDAR YEAR 2019.

*** PLEASE NOTE THE ADDITIONAL INFORMATION REGARDING

CLASSIFICATION CONFORMANCES FROM DEPARTMENT OF LABOR

FOLLOWING THE WAGE DETERMINATION ***

IF YOU HAVE ANY QUESTIONS CONCERNING THE

APPLICATION OF THE WAGE DETERMINATION FURNISHED

FOR THIS PROJECT, PLEASE CONTACT:

Fran Russell Contractor Industrial Relations Specialist Jacksonville District U.S. Army Corps of Engineers fran.g.russell@usace.army.mil

W912EP-18-R-0042 00800A-2

General Decision Number: FL190092 01/04/2019 FL92

Superseded General Decision Number: FL20180135

State: Florida

Construction Type: Heavy

County: Glades County in Florida.

HEAVY CONSTRUCTION PROJECTS (Including Sewer and Water Lines)

Note: Under Executive Order (EO) 13658, an hourly minimum wage of $10.60 for calendar year 2019 applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2015.

If this contract is covered by the EO, the contractor must pay all workers in any classification listed on this wage determination at least $10.60 per hour (or the applicable wage rate listed on this wage determination, if it is higher) for all hours spent performing on the contract in calendar year 2019. If this contract is covered by the EO and a classification considered necessary for performance of work on the contract does not appear on this wage determination, the contractor must pay workers in that classification at least the wage rate determined through the conformance process set forth in 29 CFR 5.5(a)(1)(ii) (or the EO minimum wage rate, if it is higher than the conformed wage rate). The EO minimum wage rate will be adjusted annually. Please note that this EO applies to the above-mentioned types of contracts entered into by the federal government that are subject to the Davis-Bacon Act itself, but it does not apply to contracts subject only to the Davis-Bacon Related Acts, including those set forth at 29 CFR 5.1(a)(2)-(60). Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts.

Modification Number Publication Date 0 01/04/2019

* PAIN0452-009 08/01/2014

Rates Fringes

PAINTER: Brush and Spray........$ 19.50 8.83

SUFL2009-131 06/24/2009

Rates Fringes

LABORER: Common or General......$ 9.34 1.85

LABORER: Pipelayer..............$ 11.58 0.00

OPERATOR: Backhoe/Excavator.....$ 12.25 1.33

OPERATOR: Bulldozer.............$ 13.30 1.92

W912EP-18-R-0042 00800A-3

OPERATOR: Loader................$ 14.13 1.94

TRUCK DRIVER: Distributor, Dump, Lowboy and Tandem..........$ 14.00 0.00

WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental.

Note: Executive Order (EO) 13706, Establishing Paid Sick Leave for Federal Contractors applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2017. If this contract is covered by the EO, the contractor must provide employees with 1 hour of paid sick leave for every 30 hours they work, up to 56 hours of paid sick leave each year.

Employees must be permitted to use paid sick leave for their own illness, injury or other health-related needs, including preventive care; to assist a family member (or person who is like family to the employee) who is ill, injured, or has other health-related needs, including preventive care; or for reasons resulting from, or to assist a family member (or person who is like family to the employee) who is a victim of, domestic violence, sexual assault, or stalking. Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts.

Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) (ii)).

The body of each wage determination lists the classification and wage rates that have been found to be prevailing for the cited type(s) of construction in the area covered by the wage determination. The classifications are listed in alphabetical order of "identifiers" that indicate whether the particular rate is a union rate (current union negotiated rate for local), a survey rate (weighted average rate) or a union average rate (weighted union average rate).

Union Rate Identifiers

A four letter classification abbreviation identifier enclosed in dotted lines beginning with characters other than "SU" or "UAVG" denotes that the union classification and rate were prevailing for that classification in the survey. Example:

PLUM0198-005 07/01/2014. PLUM is an abbreviation identifier of the union which prevailed in the survey for this classification, which in this example would be Plumbers. 0198 indicates the local union number or district council number where applicable, i.e., Plumbers Local 0198. The next number, 005 in the example, is an internal number used in processing the wage determination. 07/01/2014 is the effective date of the most current negotiated rate, which in this example is July 1, 2014.

W912EP-18-R-0042 00800A-4 Amend,ent 0005

Union prevailing wage rates are updated to reflect all rate changes in the collective bargaining agreement (CBA) governing this classification and rate.

Survey Rate Identifiers

Classifications listed under the "SU" identifier indicate that no one rate prevailed for this classification in the survey and the published rate is derived by computing a weighted average rate based on all the rates reported in the survey for that classification. As this weighted average rate includes all rates reported in the survey, it may include both union and non-union rates. Example: SULA2012-007 5/13/2014. SU indicates the rates are survey rates based on a weighted average calculation of rates and are not majority rates. LA indicates the State of Louisiana. 2012 is the year of survey on which these classifications and rates are based. The next number, 007 in the example, is an internal number used in producing the wage determination. 5/13/2014 indicates the survey completion date for the classifications and rates under that identifier.

Survey wage rates are not updated and remain in effect until a new survey is conducted.

Union Average Rate Identifiers

Classification(s) listed under the UAVG identifier indicate that no single majority rate prevailed for those classifications; however, 100% of the data reported for the classifications was union data. EXAMPLE: UAVG-OH-0010 08/29/2014. UAVG indicates that the rate is a weighted union average rate. OH indicates the state. The next number, 0010 in the example, is an internal number used in producing the wage determination. 08/29/2014 indicates the survey completion date for the classifications and rates under that identifier.

A UAVG rate will be updated once a year, usually in January of each year, to reflect a weighted average of the current negotiated/CBA rate of the union locals from which the rate is based.

WAGE DETERMINATION APPEALS PROCESS

1.) Has there been an initial decision in the matter? This can be:

* an existing published wage determination

* a survey underlying a wage determination

* a Wage and Hour Division letter setting forth a position on a wage determination matter

* a conformance (additional classification and rate) ruling

On survey related matters, initial contact, including requests for summaries of surveys, should be with the Wage and Hour Regional Office for the area in which the survey was conducted because those Regional Offices have responsibility for the Davis-Bacon survey program. If the response from this initial contact is not satisfactory, then the process described in 2.)

and 3.) should be followed.

W912EP-18-R-0042 00800A-5

With regard to any other matter not yet ripe for the formal process described here, initial contact should be with the Branch of Construction Wage Determinations. Write to:

Branch of Construction Wage Determinations Wage and Hour Division U.S. Department of Labor 200 Constitution Avenue, N.W.

Washington, DC 20210

2.) If the answer to the question in 1.) is yes, then an interested party (those affected by the action) can request review and reconsideration from the Wage and Hour Administrator (See 29 CFR Part 1.8 and 29 CFR Part 7). Write to:

Wage and Hour Administrator U.S. Department of Labor 200 Constitution Avenue, N.W.

Washington, DC 20210

The request should be accompanied by a full statement of the interested party's position and by any information (wage payment data, project description, area practice material, etc.) that the requestor considers relevant to the issue.

3.) If the decision of the Administrator is not favorable, an interested party may appeal directly to the Administrative Review Board (formerly the Wage Appeals Board). Write to:

Administrative Review Board U.S. Department of Labor 200 Constitution Avenue, N.W.

Washington, DC 20210

4.) All decisions by the Administrative Review Board are final.

END OF GENERAL DECISION

W912EP-18-R-0042 00800A-6 Amendment 0005

U.S. Department of Labor Wage and Hour Division Washington, D.C. 20210

MAR 2 2 2013

MEMORANDUM NO. 213

TO:

FROM:

ALL CONTRACTING AGENCIES OF THE FEDERAL

GOVERNMENT AND THE DISTRICT OF COLUMBIA

~M--~~ Acting Deputy Administrator

SUBJECT: Application of the Davis-Bacon and Related Acts requirement that wage rates for additional classifications, when "conformed" to an existing wage determination, bear a "reasonable relationship" to the wage rates in that wage determination

This Memorandum is notification from the Department of Labor's Wage and Hour Division (WHD) of the proper application of the Davis-Bacon and Related Acts (DBRA) requirements for wage rates for additional classifications that are "conformed" to an existing wage determination by agency contracting officers. The regulations at 29 C.F.R. § 5.5(a)(l)(ii)(A) provide that contracting officers shall approve an additional classification and its proposed wage rate in conformance with an existing wage determination only when the work to be performed by the proposed classification is not performed by a classification in the wage determination and the proposed wage rate bears a "reasonable relationship" to the wages rates in the wage determination. Although this Memorandum primarily focuses on the "reasonable relationship" requirement, it is essential at the threshold to reiterate that a conformance is not appropriate when the work of the proposed classification is already performed by a classification on the wage determination. The conformance process is narrow in scope and has the limited purpose of establishing a new classification when it is necessary to do so because work needed to perform the contract is not performed by an existing classification. See Cambridge Plaza, ARB Case No.

07-102 (ARB Oct. 29, 2009). Accordingly, the WHD will not add a new classification through a conformance action unless the first criterion for issuance of a conformance is satisfied, i.e., the proposed work in question is not performed by any classification in the existing wage determination. 29 C.F.R. § 5.5(a)(l)(ii)(A)(l).

In those circumstances in which the duties of the proposed classification are not performed by any classification in the existing wage determination, the WHD will consider whether the proposed wage rate bears a "reasonable relationship" to the wage rates in the wage determination. In the past, WHD has generally approved proposed wage rates for a conformed skilled craft and a power equipment operator when such rates were not less than the rate for the lowest classification in the respective category on the contract wage determination. The practice of using the lowest rate in the relevant category as a benchmark also occurred on occasion with laborers and truck drivers. In keeping with the remedial purpose of the DBRA and the governing

W912EP-18-R-0042 00800A-7

regulations, the wage rate of the lowest skilled craft, laborer, power equipment operator, or truck driver classification on the contract wage determination has no longer been an automatic benchmark when reviewing conformance requests. WHD's approach of not using the lowest wage rate as a benchmark has been progressively implemented over the last year.

The Conformance Process

In accordance with 29 C.F.R. § 5.5(a)(l)(ii)(A), the contracting officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination.

The contracting officer shall approve an additional classification and a wage rate (including fringe benefits) for the classification only when the following criteria have been met:

(1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and

(2) The classification is utilized in the area by the construction industry; and

(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.

Further, ifthe contractor, the laborers or mechanics (if known) to be employed in the classification or their representatives, and the contracting agency agree on the classification and wage rate proposed, a report of the action taken is sent by the contracting officer to the Administrator of WHD for approval, denial, or modification. The Administrator (or an authorized representative) shall respond within 30 days of receipt, or the contracting officer will be notified that more time is necessary. See 29 C.F.R. § 5.5(a)(l)(ii)(B). In the event that the contractor, the laborers or mechanics (if known) to be employed in the classification or their representatives, and the contracting agency do not agree on the classification and wage rate proposed, the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator ofWHD for determination. The Administrator (or an authorized representative) shall issue a determination within 30 days of receipt and so advise the contracting officer, or the contracting officer will be notified that more time is necessary. See 29 C.F.R. § 5.5(a)(l)(ii)(C).

"Reasonable Relationship"

WHD previously typically approved conformance requests from contracting officers for wage rates (including fringe benefits) for skilled classifications and power equipment operators by automatically using as a benchmark the lowest rate for a skilled classification or power equipment operator, respectively, in the applicable wage determination. The practice of using the lowest rate in the relevant category as a benchmark also occurred on occasion with laborers and truck drivers. WHD has concluded, however, that it better reflects the regulatory requirement that "the proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination" to consider the entirety of the rates within the relevant category on the wage determination and to not generally use as a benchmark the lowest rate within that category. The regulation at 29 C.F.R. §

W912EP-18-R-0042 00800A-8 Amendment 0005

5.5(a)(l)(ii)(A)(3) requires that the proposed wage rate bear a reasonable relationship to the "wage rates" on the wage determination and not to a particular rate or the lowest rate.

The category in which the requested additional classification falls is relevant to the reasonable relationship analysis. As background, classifications in wage determinations fall into four general categories: skilled crafts, laborers, power equipment operators, and truck drivers. To determine a "reasonable relationship," the requested additional classification is compared to the classifications on the applicable wage determination within the same category. A proposed skilled craft classification is compared to skilled classifications in the wage determination; a proposed laborer classification is compared to existing laborer classifications; a proposed power equipment operator classification is compared to existing power equipment operator classifications; and a proposed truck driver classification is compared to existing truck driver classifications. See Mistick Construction, ARB Case No. 02-004 (June 24, 2003); Tower Construction, WAB Case No. 94-17 (Feb. 28, 1995). 1 Thus, when considering a conformance request for a skilled classification, WHD generally considers the entirety of the rates for the skilled classifications on the applicable wage determination and looks to where the proposed wage rate falls within the rates listed on the wage determination. Occasionally, however, a wage determination may contain some wage rates for laborer classifications that are higher than some wage rates for the skilled classifications or power equipment operators (likely because the laborers' rates reflect union prevailing rates and the skilled crafts' or power equipment operators' rates reflect weighted average prevailing rates). On such occasions, the contracting officer should look to those skilled classifications whose rates are higher than the laborer classifications' rates. See MZ. Contractors Co., WAB Case No. 92-06 (Aug. 25, 1992). If, however, most of the skilled classifications' or power equipment operators' rates are lower than the laborer classifications' rates, then it may be reasonable to propose a rate that reflects the skilled classifications' rates even if they are lower than the laborer classifications' rates.

Additionally, whether the wage rates in the applicable category (skilled craft, laborer, power equipment operator, truck driver) in the wage determination are predominantly union prevailing wage rates or predominantly weighted average prevailing wage rates should be considered when proposing rates for an additional classification. For example, if a wage determination contains predominantly union prevailing wage rates for skilled classifications, it typically would be appropriate to look to the union sector skilled classifications in the wage determination and the rates for those classifications when proposing a wage rate for the additional classification.

Conversely, if a wage determination contains predominantly weighted average prevailing wage rates for skilled classifications, it typically would be appropriate to look to the weighted average/ non-union sector skilled classifications in the wage determination and the rates for those classifications when proposing a wage rate for the additional classification. If the wage rates in the applicable category are roughly half union prevailing rates and half weighted average prevailing rates, it would typically be appropriate to look to the lowest union rate and the highest weighted average rate (assuming the union rates are higher than the weighted average rates) when proposing a wage rate.

1 Copies of Administrative Review Board (ARB) and Wage Appeals Board (WAB) decisions can be obtained from: www.oalj.dol.gov/libdba.htm.

W912EP-18-R-0042 00800A-9 Amendment 0005

While the majority of conformance requests are within the skilled classification category, the governing regulations and the principles outlined in this Memorandum apply to the other categories of workers - laborers, power equipment operators, and truck drivers. To meet the "reasonable relationship" test for a conformed power equipment operator or truck driver classification, the proposed wage rate should bear a reasonable relationship to the entirety of rates within the respective classification, and in particular to the union or weighted average rates in the classification (assuming union or weighted average rates prevail for the classification).

When a conformance for a laborer classification is requested, WHD generally continues to use the common laborer rate already existing in the wage determination as a benchmark for the proposed rate.

Each conformance request and corresponding wage determination involves particular circumstances and therefore should be evaluated as such. The full range of wage rates on the wage determination for the appropriate category should be reviewed in the manner discussed above. When seeking conformed classifications and wage rates, the contractor and the contracting officer should not rely on a wage determination or conformance granted to another party regardless of the similarity of the work in question. See, e.g., Inland Waters Pollution Control, Inc., WAB Case No. 94-12 (Sept. 30, 1994). Moreover, the contractor and the contracting officer should not prospectively rely on WHD's prior approval ofrates for application to a contract performed at the same location. See E&M Sales, Inc., WAB Case No.

91-17 (Oct. 4, 1991 ). Although atypical, use of the "lowest skilled" rate may of course be appropriate when that rate in fact bears a reasonable relationship to the wage rates contained in the wage determination for the appropriate category. See, e.g., Tower Construction, WAB Case No. 94-17 (Feb. 28, 1995) (conformed wage rate, which equaled lowest skilled rate on wage determination, was reasonable).

In sum, contracting agencies should take the following steps when proposing a wage rate for a classification to be conformed to an existing wage determination:

• First, the contracting agency should determine the category (skilled crafts, laborers, power equipment operators, or truck drivers) of the classification which is being conformed.

• Second, the contracting agency should determine for that category whether union or weighted average/non-union sector rates prevail in the existing wage determination.

• Third, after reviewing the entirety of the rates within the appropriate sector in the applicable category, the contracting agency should determine a rate that bears a reasonable relationship to those rates on the wage determination.

• Fourth, the contracting agency should determine whether any of the considerations identified in this Memorandum apply (or whether any other relevant considerations apply). For example, if the classification being conformed is a skilled classification and some of the wage rates for skilled classifications in the wage determination are lower than the rates for laborer classifications, then the contracting agency should use those existing skilled classification rates that are higher than the laborer rates to determine the

W912EP-18-R-0042 00800A-10 Amendment 0005 proposed rate. And if the classification which is being conformed is a laborer classification, the proposed wage rate should generally use the existing common laborer wage rate as a benchmark.

Conclusion

The WHD Administrator has historically maintained broad discretion under the regulations to make determinations regarding proposed wage rates for additional classifications that are conformed to existing wage determinations. This broad discretion has been confirmed by the ARB and its predecessors, as illustrated by the decisions cited in this Memorandum, among others. In exercising that discretion, WHD ensures that wage rates (including fringe benefits) for the classification to be conformed bear a reasonable relationship to the range of rates for the classifications in the wage determination in the same category (skilled classifications, power equipment operators, laborers, and truck drivers), and not automatically to the lowest rate in the applicable category. Consistent with the governing regulations, contracting agencies should ensure that they request wage rates (including fringe benefits) for additional classifications in accordance with the principles set forth in this Memorandum. By following the guidance in this AAM, contracting agencies and contractors will benefit by receiving approvals from WHD that ensure consistency in conformed wage rates and increase efficiencies in government.

In conjunction with the guidance provided in this AAM, WHD has posted on www.dol.gov/whd/govcontracts/dbra.htm a series of frequently asked questions that include examples which will provide additional guidance regarding the reasonable relationship requirement in the conformance process. WHD also is updating its Prevailing Wage Resource Book and will provide compliance assistance on DBRA conformances at future Prevailing Wage Conferences. In addition, WHD's Branch of Construction Wage Determinations is available to assist with any questions.

W912EP-18-R-0042 00800A-11 Amendment 0005

United States Department of Labor Wage and Hour Division Wage and Hour Division (WHD)

Frequently Asked Questions: Conformances

THE DAVIS-BACON ACT

PROTECTING WAGE EQUALITY SINCE 1931

Since its enactment in 1931, the Davis-Bacon Act (DBA) has provided critical wage protections for construction workers and has guaranteed a level playing field for construction contractors bidding on federal projects.

The federal government constructs buildings, builds dams, and funds housing projects. State highway departments pave roads with federal funds from the Federal Highway Administration. Local and state governments build water treatment plants, modernize schools, and renovate airports with the support of federal funds.

The DBA ensures that construction workers on federal or federally assisted construction projects will not see their wages and benefits undercut by government spending practices. The DBA exists to prevent the infusion of federal dollars into local communities from depressing local wages. DBA provides a wage floor that protects construction workers’ pay, and sets a level playing field for contractors who are bidding on federally funded projects. As important, these standards enable local contractors and their employees to compete for local projects by protecting against under-bidding by contractors from other areas who might import workers or offer the same jobs for less pay.

CONFORMANCES

The Department of Labor’s Wage and Hour Division (WHD) determines locally prevailing wage and fringe benefit rates through the conduct of wage surveys on government contracts covered by the Davis-Bacon Act. Published wage determinations for each county in the country list the wages and benefits that have been found to be prevailing for each classification of worker for which there is sufficient wage payment data.

Data collection for these surveys is dependent upon the voluntary submission of information from contractors and third parties that have performed construction work within the geographic scope of the wage survey. At times, the survey collection efforts will not yield sufficient data to establish a rate for every existing classification of work. When this happens, WHD cannot establish a rate for that job classification on the wage determination.

When a contractor performs work on a DBA-covered contract and the applicable wage determination does not provide a rate for a classification of work to be performed, the needed classification and wage rate must be added in conformance to the contract wage determination. This is the conformance process.

Accurate and current wage rates are the cornerstone of the DBA’s protections, and provide the framework around which prevailing wage requirements protect contractors, employees, and local economies. The Wage and Hour Division has been working to improve opportunities for stakeholder participation; to improve outreach before surveys; and to improve the quality of the wage determinations that result.

Below are what WHD anticipates will be frequently asked questions about our revised conformance practice, which better reflects our regulatory requirements and was implemented to support improvements in the wage determination process overall. The attached All Agency Memorandum describes the process in detail. Please refer to this memorandum for an explanation of the requirements, and for examples of different scenarios associated with conformance requests.

WHD is available to provide further assistance if agencies request additional support under this revised process.

Frequently Asked Questions

Davis-Bacon and Related Acts (DBRA) Conformance Process and the “Reasonable Relationship” Regulatory Requirement

1. What is a conformance and why is it necessary?

A conformance is the addition of a classification of laborers or mechanics and the corresponding wage rate (hourly rate and fringe benefits) not listed on a DBRA wage determination that is incorporated into a DBRA covered contract. A conformance under the governing regulations at 29 C.F.R., section 5.5(a)(1) (ii)(A) (“governing regulations”) is necessary to ensure that laborers and mechanics are compensated in accordance with the DBRA. Conformances are not appropriate when the work of the proposed classification is already performed by a classification on the wage determination. Rather, the conformance process has the limited purpose of establishing a new classification when it is necessary to do so because work needed to perform the contract is not performed by an existing classification.

2. Where can the SF-1444 form and prevailing wage decisions be found and where is a conformance request submitted?

The SF-1444 Request for Additional Classification and prevailing wage determinations may be found online at www.wdol.gov. A conformance request must be submitted to the following Department of Labor (DOL) public email box: WHD-CBACONFORMANCE_INCOMING@dol.gov. Once submitted, an auto-acknowledgment will be sent to the submitter.

3. Who initiates the conformance process and who submits the conformance to DOL?

The governing regulations specify that the contracting agency shall require that any class of laborers or mechanics not listed in the wage determination and who are employed on a DBRA-covered contract shall be classified in conformance with the wage determination. The conformance request is initiated by the contractor (performing the covered work) and is reviewed by the contracting agency before that agency submits it to DOL.

4. What are the criteria that determine the contracting agency approval and submission of a conformance to DOL?

The governing regulations require that the following three criteria be met:

1. The work to be performed by the classification requested is not performed by a classification in the wage determination; and

2. The classification is utilized in the area by the construction industry; and

3. The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.

W912EP-18-R-0042 00800A-12 Amendment 0005

5. What is being implemented regarding “reasonable relationship”?

In the past, the Wage and Hour Division (WHD) has generally approved proposed wage rates for a conformed skilled craft, laborer, power equipment operator, and truck driver classification when such rates are not less than the rate for the lowest classification in the respective category on the contract wage determination. In keeping with the remedial purpose of the DBRA and the governing regulations, the wage rate of the lowest skilled craft, laborer, power equipment operator, or truck driver classification on the contract wage determination has no longer been an automatic benchmark when reviewing conformance requests. When the work is performed by a classification on the wage determination, the conformance request is not required and employees must be paid at the wage rate for the craft performing the work.

6. How is “reasonable relationship” defined?

WHD has concluded that it better reflects the regulatory requirement that “the proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination” to consider the entirety of the rates within the relevant category (skilled classification, laborer, power equipment operator, or truck driver) on the wage determination and to not generally use as a benchmark the lowest rate within that category. The regulation at 29 C.F.R. § 5.5(a)(1)(ii)(A)(3) requires that the proposed wage rate bear a reasonable relationship to the “wage rates” on the wage determination and not to a particular rate or the lowest rate.

A proposed skilled craft classification is compared to skilled classifications in the wage determination; a proposed laborer classification is compared to existing laborer classifications; a proposed power equipment operator classification is compared to existing power equipment operator classifications; and a proposed truck driver classification is compared to existing truck driver classifications.

When considering a conformance request for a skilled classification, WHD generally considers the entirety of the rates for the skilled classifications on the applicable wage determination and looks to where the proposed wage rate falls within the rates listed on the wage determination. Occasionally, however, a wage determination may contain some wage rates for laborer classifications that are higher than some wage rates for the skilled classifications or power equipment operators (likely because the laborers’ rates reflect union prevailing rates and the skilled crafts’ or power equipment operators’ rates reflect weighted average wage rates). On such occasions, the contracting officer should look to those skilled classifications whose rates are higher than the laborer classifications’ rates. If, however, most of the skilled classifications’ or power equipment operators’ rates are lower than the laborer classifications’ rates, then it may be reasonable to propose a rate that reflects the skilled classifications’ rates even if they are lower than the laborer classifications’ rates.

Additionally, whether the wage rates in the applicable category (skilled craft, laborer, power equipment operator, truck driver) in the wage determination are predominantly union prevailing wage rates or predominantly weighted average prevailing wage rates should be considered when proposing rates for an additional classification. For example, if a wage determination contains predominantly union prevailing wage rates for skilled classifications, it typically would be appropriate to look to the union sector skilled classifications in the wage determination and the rates for those classifications when proposing a wage rate for the additional classification. Conversely, if a wage determination contains predominantly weighted average prevailing wage rates for skilled classifications, it typically would be appropriate to look to the non-union sector skilled classifications in the wage determination and the rates for those classifications when proposing a wage rate for the additional classification. If the wage rates in the applicable category are roughly half union prevailing rates and half weighted average prevailing rates, it would typically be appropriate to look to the lowest union rate and the highest non-union rate (assuming the union rates are higher than the non-union rates) when proposing a wage rate.

7. What is the process for determining whether a proposed wage rate bears a reasonable relationship to the wage rates in the wage determination?

The first step is to review the classifications on the wage determination to ensure that the requested classification’s work is not performed by a classification on the wage determination. If the work is performed by a classification on the wage determination, a conformance is not needed, and the wage rate for the classification on the wage determination must be paid. If the work is not performed by a classification on the wage determination, then proceed through the conformance process.

The next step is to determine the category (skilled, laborer, power equipment operator, truck driver). A determination would then be made regarding what the predominant “sector” (“union majority” wage rates or “su” weighted average wage rates) is for the subject category on the wage determinations.

The process of determining whether a proposed conformed wage rate bears a reasonable relationship to the wage rates in the wage determination is illustrated in the examples set forth below.

8. How is a classification conformed and what is considered “reasonable” when there are multiple classifications within a category on the wage determination? Is it permissible to just use the “lowest skilled” or “lowest” wage rate in the category as a rule?

No, it is not permissible to automatically use the lowest in a category by default. The range of rates on the wage determination for the particular category and sector must be considered. The process for conforming a “reasonable” wage rate is illustrated in the examples below.

Skilled Classification Example 1 A conformed rate for a skilled craft, a “Painter,” was requested at a proposed hourly rate of $20.99 plus $10.04 in fringe benefits and was denied.

The following skilled classifications were on the WD:

Classification Sector Hourly Wage Fringe Benefit Total Wage Rate

Carpenter (Including Cement Form Work) union $26.06 $10.56 $36.62

Cable Splicer union $28.62 3% + $12.98 $42.46

Electrician union $28.37 $13.98 $42.35

Ironworkers: Rebar, Structural, Fence Erector union $31.09 $19.60 $50.69

Cement Mason/Finisher su $20.22 $7.98 $28.20

In this example, the classification requested is a skilled classification and only skilled classifications on the wage determination should be considered when conforming a skilled classification and wage rate. A determination would then be made regarding what the predominant “sector” (union majority “union” wage rates or “su” weighted average wage rates) is for skilled classifications on the wage determination. (Wage determinations contain an explanation of how to determine if a wage rate is a union wage rate or a weighted average wage rate.) In this example, the first four classifications are union majority classifications.

The last classification is “su.” The wage determination is predominantly from the union sector for the applicable county.

WHD denied the proposed rate because the total rate requested ($31.03) was considered to not bear a reasonable relationship to the relevant wage rates in the wage determination. There is a “range of rates” that would meet the test of our regulatory requirement of “bearing a reasonable relationship” in this situation.

Any of the following rates or a wage rate within the range of these rates would “bear a reasonable relationship” to the relevant wage rates in the wage determination1:

W912EP-18-R-0042 00800A-13 Amendment 0005

Classification Sector Hourly Wage Fringe Benefit Total Wage Rate

Carpenter (Including Cement Form Work) union $26.06 $10.56 $36.62

Cable Splicer union $28.62 3% + $12.98 $42.46

Electrician union $28.37 $13.98 $42.35

Ironworkers: Rebar, Structural, Fence Erector union $31.09 $19.60 $50.69

Skilled Classification Example 2 A skilled craft, “Sprinkler Fitter,” was requested at a proposed hourly rate of $25.00 plus $11.00 in fringe benefits and was approved.

The following skilled classifications were on the wage determination1:

Classification Sector Hourly Wage Fringe Benefit Total Wage Rate

Asbestos Worker union $32.17 $16.25 $48.42

Bricklayer union $26.28 $12.31 $38.59

Carpenter union $26.06 $11.84 $37.90

Electrician union $28.62 $14.84 $43.46

Ironworker (Ornamental, Reinforcing, And Structural) union $31.35 $20.10 $51.45

Drywall Finisher/Taper union $22.78 $8.88 $31.66

Glazier union $17.46 $7.12 $24.58

Floor Layer: Carpet and Vinyl union $15.50 $4.22 $19.72

Plasterer union $25.43 $11.97 $37.40

Plumber union $34.86 $16.19 $51.05

Roofer (Including Tearoff) union $23.10 $9.95 $33.05

Sheet Metal Worker union $27.51 $16.90 $44.41

Carpenter (Acoustical Ceiling Installation Only) su $18.00 $1.43 $19.43

Carpenter (Drywall Hanging Only) su $20.62 $0.00 $20.62

Carpenter (Form Work Only) su $18.63 $2.65 $21.28

Painter (Brush Only) su $13.00 $0.50 $13.50

Painter (Roller) su $22.62 $0.25 $22.87

Painter (Spray) su $22.47 $0.00 $22.47

Tile Setter su $14.83 $0.00 $14.83

General Laborer union $23.81 $10.30 $34.11

A determination regarding the predominant sector would be made as described in questions 7 and 8. The first twelve classifications are union majority. The last seven classifications are “su.” The wage determination is predominantly union majority wage rates. As a reminder, skilled classifications will be conformed at a higher wage rate than the General Laborer on the wage determination, except in the rare circumstance where almost all skilled classifications’ wage rates are below the General Laborer wage rate.

The proposed conformed total wage rate for Sprinkler Fitter at $36.00 would be approved because it is higher than the General Laborer rate and falls within the union sector of wage rates and is considered to bear a reasonable relationship to relevant wage rates in the wage determination.

Any of the following rates or a wage rate within the range of these rates would “bear a reasonable relationship” to the relevant wage rates in the wage determination1:

Classification Sector Hourly Wage Fringe Benefit Total Wage Rate

Asbestos Worker union $32.17 $16.25 $48.42

Bricklayer union $26.28 $12.31 $38.59

Carpenter union $26.06 $11.84 $37.90

Electrician union $28.62 $14.84 $43.46

Ironworker (Ornamental, Reinforcing, And Structural) union $31.35 $20.10 $51.45

Plasterer union $25.43 $11.97 $37.40

Plumber union $34.86 $16.19 $51.05

Sheet Metal Worker union $27.51 $16.90 $44.41

Skilled Classification Example 3 A skilled classification, a “Carpenter,” was requested at a proposed hourly rate of $18.89 plus $1.93 in fringe benefits and was denied.

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The wage determination has the following skilled classifications on the wage determination:

Classification Sector Hourly Wage Fringe Benefit Total Wage Rate

Telecommunications Technician union $29.75 $19.03 $48.78

Plasterer union $34.03 $14.67 $48.70

Cement Mason/Concrete Finisher union $37.90 $20.38 $58.28

Electrician su $24.75 $10.00 $34.75

Plumber su $18.89 $1.93 $20.82

Sheet Metal Worker su $19.50 $5.49 $24.99

Determine if the wage determination is predominantly union majority or “su.” The first three classifications are union. The last three classifications are “su.”

The proposed total wage rate was not approved at $20.82 for the Carpenter classification because the total requested wage rate ($20.82) was considered to not bear a reasonable relationship to the relevant wage rates in the wage determination as it was the “lowest skilled” wage rate.

There is a “range of rates” that would meet the test of our regulatory requirement of “bearing a reasonable relationship” in this example. Any of the following rates or a wage rate within the range of these rates would be approved:

Classification Sector Hourly Wage Fringe Benefit Total Wage Rate

Telecommunications Technician union $29.75 $19.03 $48.78

Plasterer union $34.03 $14.67 $48.70

Cement Mason/Concrete Finisher union $37.90 $20.38 $58.28

Electrician su $24.75 $10.00 $34.75

Power Equipment Operator Example I A power equipment operator, “Roller Operator,” was requested at a proposed hourly rate of $16.94 plus $0.26 in fringe benefits and was approved.

The following Power Equipment Operators are on the WD:

Classification Sector Hourly Wage Fringe Benefit Total Rate

Bulldozer union $19.54 $5.44 $24.98

Forklift union $19.40 $5.44 $24.84

Backhoe su $19.14 $4.08 $23.22

Bobcat/Skid Loader su $13.77 $0.00 $13.77

Grader/Blade su $18.56 $0.00 $18.56

Loader (Front End) su $14.62 $1.28 $15.90

Tractor su $14.74 $0.26 $15.00

Determine if the Power Equipment Operators on the wage determination are predominantly union “su.” The first two classifications are union. The last five classifications are “su.”

The rate was approved because the proposed total wage rate of $17.20 was considered to bear a reasonable relationship when compared to the “su” Power Equipment Operators on the wage determination.

Any of the following rates or a wage rate within the range of these rates would “bear a reasonable relationship” to the relevant wage rates in the wage determination1:

Classification Sector Hourly Wage Fringe Benefit Total Wage Rate

Grader/Blade su $18.56 $0.00 $18.56

Loader (Front End) su $14.62 $1.28 $15.90

Power Equipment Operator Example 2 A power equipment operator, “Crane Operator,” was requested at a proposed hourly rate of $15.86 plus $3.59 in fringe benefits and was denied.

Classification Sector Hourly Wage Fringe Benefit Total Wage Rate

Mechanic union $23.82 $9.22 $33.04

Motor Grader: Blade-Finish union $23.97 $9.22 $33.19

Motor Grader: Blade Rough union $23.67 $9.22 $32.89

Roller (over 5 tons) union $23.67 $9.22 $32.89

Roller (under 5 tons) union $23.32 $9.22 $32.54

Trackhoe union $23.82 $9.22 $33.04

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Backhoe su $15.93 $3.58 $19.51

Bobcat/Skid Loader su $20.22 $4.41 $24.63

Bulldozer su $15.08 $4.44 $19.52

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