Davis-Bacon Conformance Process

THE DAVIS-BACON CONTRACT CLAUSE STIPULATED AT 29 CFR 5.5(a)(1)(iii)

(Reiterated in the FAR at 48 CFR 52.222-6)

(A) The contracting officer must require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract be classified in conformance with the wage determination. Conformance of additional classification and wage rate and fringe benefits is appropriate 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 used 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.

(B) The conformance process may not be used to split, subdivide, or otherwise avoid application of classifications listed in the wage determination.

(C) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken will be sent by the contracting officer by email to DBAconformance@dol.gov. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30–day period that additional time is necessary.

(D) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer will, by email to DBAconformance@dol.gov , refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for a determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30–day period that additional time is necessary.

(E) The contracting officer must promptly notify the contractor of the action taken by the Wage and Hour Division under 29 CFR 5.5 (a)(1)(iii)(C) and (D). The contractor must furnish a written copy of such determination to each affected worker or it must be posted as a part of the wage determination. The wage rate (including fringe benefits where appropriate) determined pursuant to 29 CFR 5.5 (a)(1)(iii)(C) or (D) must be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.

CONFORMANCE/ADDITIONAL CLASSIFICATION REQUEST PROCESS

Contracting agency role

Pre-bid/pre-award

• Look at the wage determination:
  • Compare classifications on the wage determination with anticipated work to be performed to identify missing classes that may be needed.
  • If virtually all the work is to be performed by one or more missing classifications, use Standard Form (SF) 308 to request appropriate predetermined wage rates for incorporation in the bid specifications.
• Tell contractors about the possible need to request additional classes and rates after award:
  • Ensure that the Davis-Bacon clauses are in the solicitation, including the conformance criteria: the work to be performed by the classification requested is not performed by a classification in the wage determination; the classification is utilized in the area by the construction industry; and the proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (See 29 CFR 5.5(a) and FAR at 48 CFR 22.407 and 52.222-6(c).)
  • During pre-bid/pre-award conferences discuss the conformance criteria and advise contractors concerning how conformance requests are processed and how proposed wage rates are evaluated.
  • Call the contracting agency’s labor advisor or WHD for guidance where questions/disputes arise regarding proper application of Davis-Bacon wage determinations to specific upcoming projects.

After contract award

• Identify additional classes that may be needed:
  • Discuss the wage determination and conformance criteria in pre-construction conference.
  • Review certified payrolls for classes not listed on the wage determination.
  • Conduct on-site inspections/worker interviews in order to determine whether any workers are performing work in classes not listed on the contract wage determination.
  • Consider subcontractor inquiries about missing classifications/rates.
  • Consider complaints by workers/unions/other third parties.
• Work with the contractors and other affected parties to help develop the conformance request:
  • Provide request form (SF-1444 or similar) to the contractor. Instructions on how to complete the form are pre-printed on the form. (The SF-1444 can be downloaded from the “Forms” section on the SAM website (https://sam.gov/content/wage-determinations) and it is in the FAR at 48 CFR 53.301-1444.) A copy is shown at the end of this chapter of the Prevailing Wage Resource Book.
  • Consider the views of affected parties:
    • Prime contractor
    • Subcontractor (if applicable)
    • Worker(s) (if known)
    • Union representative (if the workers are represented by a union)
  • Review the contractor’s request for additional classes and rates in accordance with conformance criteria and ensure that all required information is furnished.
    • The work to be performed is not performed by a classification already listed on the applicable wage determination.
    • The proposed rate bears a reasonable relationship to the rates in the wage determination.
      
      See AAM No. 213.
  • Be sure that the criteria for the approval of additional classifications and wage rates have been satisfied.
  • Determine whether affected parties are in agreement or have dispute(s).
    • Attempt to resolve disputes in accordance with conformance criteria, if possible.
    • Develop agency recommendation and documentation of disputes (if any).
• Submit conformance request for DOL review and ruling:
  • Include the following:
    • Completed SF-1444 (or similar form or letter)
    • Related documentation and agency recommendation
    • Copy of contract wage determination(s). WHD policy requires the submission of the contract wage determination with the conformance request.
  • Submit by e-mail only. Please scan the completed form and all supporting documents into a “PDF” file and attach to the email. Include the Contracting Officer’s name, address, telephone, and email address. Submit the email to: DBAconformance@dol.gov. An automated confirmation response will be generated upon receipt of your submission.
  • For assistance with completing form SF-1444, questions concerning the conformance process, or to check the status of a conformance request, please contact the WHD Branch of Construction Wage Determinations (BCWD) wage analyst with responsibility for the state where your project is located.
  • A list of analysts and their states can be found at the following website: https://www.dol.gov/agencies/whd/government-contracts/state-assignments.
  • The BCWD responds to most requests within 30 days.
• Communicate with DOL after submitting conformance request, as appropriate:
  • Lack of a DOL response within 30 days does not mean that the request has been approved. Contact the WHD BCWD either by e-mail or by phone (at a phone number listed at the WHD BCWD website noted above) if no response is received within 30 days. All conformances are processed and responses issued to the contracting agency by email.
  • Respond promptly to DOL requests for additional information that may be needed to process the request.
• Communicate DOL determination to the contractor and other interested parties:
  • The contracting agency is responsible for providing the conformance determination to the prime contractor. The prime contractor and its subcontractors shall post approved additional classifications and wage rates at the site of the work in a prominent and accessible place where they can be easily seen by the workers.
• Advise the contractor and other interested parties of the reconsideration and appeal processes, as appropriate:
  • WHD Administrator review and reconsideration of a BWCD conformance determination may be sought pursuant to 29 CFR 5.13. An interested party may appeal a final ruling of the Administrator pursuant to the provisions of 29 CFR part 7. Prior to review and reconsideration by the WHD Administrator, BCWD may conduct a second-level review of a conformance decision if requested by an interested party.
    • Note: Disputes arising out of the labor standards provisions of DBRA-covered contracts are not subject to the general disputes clause in any such contract. Such disputes, including disputes between the contractor (or any of its subcontractors) and the contracting agency, DOL, or the workers or their representatives must be resolved in accordance with DOL procedures set forth in 29 CFR parts 5, 6, and 7. 29 CFR 5.5(a)(9) (reiterated at FAR 48 CFR 52.222-14).

CONFORMANCE CHECKLIST FOR CONTRACTING AGENCIES

• Agency officials should provide the following information when requesting additional classifications and wage rates:
  1. The Contract Number, Project Number or HUD Identifying Number
     SF-1444: Block 5
  2. The bid opening date (if advertised)
     SF-1444: Block 6
  3. The award date of the contract
     SF-1444: Block 7
  4. The date the contract work started (if started)
     SF-1444: Block 8
  5. Prime/General contractor
     SF-1444: Block 3
  6. Subcontractor (if any)
     SF-1444: Block 10
  7. The project location: city, county, and state
     SF-1444: Block 12
  8. Brief description of project work
     SF-1444: Block 11
  9. Contract Wage Decision No(s)
     SF-1444: Block 13
     
     Modification No. (for each WD, if multiple)
     Date of modification (for each WD, if multiple)
  10. Proposed classification(s); description of duties if other than a basic trade.
      SF-1444: Block 13a
  11. Review separate instructions for apprentices, helpers, welders, working supervisors, technical workers, and supervisory employees.
  12. Proposed rates:
      SF-1444: Block 13c
      Basic Hourly Rate(s)
      Fringe Benefits (if any)
  13. Documentation that the interested parties are in agreement or their views regarding any dispute.
      SF-1444: Blocks 14, 15, 16 for contractors, workers, and representatives, respectively.
      
      Contractor(s) signatures
      SF-1444: Blocks 14 and 15
      
      Workers’ or representative signature (if known when the request is submitted).
      SF-1444: Block 16
      (If the contractor is party to a collective bargaining agreement, the union representative may sign for the workers, or the collective bargaining agreement may be submitted.)
      
      If there are parties in disagreement, documentation of their views should also be attached.
  14. Agency signature and recommendation
      Contracting officer/agency signature
      No action will be taken on the request if the agency does not sign and provide its agreement/disagreement regarding the request, or its position regarding a dispute between interested parties.
  15. Agency contact person’s name, address, and phone number (clearly legible please).
• All proposed additional classification/conformance actions must be submitted to the WHD for review. The WHD may approve, modify, or disapprove any proposed additional classifications.

CRITERIA FOR APPROVAL OF ADDITIONAL CLASSIFICATIONS AND WAGE RATES

• This section describes the detailed process for determining whether a request for an additional classification and wage rate can be approved. All the following criteria must be met:
  • The work to be performed by the classification requested is not performed by a classification in the wage determination.
  • The classification is used in the area by the construction industry.
  • The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.
    
    29 CFR 5.5(a)(1)(iii).
• Where this process is not followed by the contracting agency, delays can be anticipated in DOL processing of additional classification requests.
• Note: See separate guidance below for helpers, apprentices, and welders.

  Step 1: Is the requested classification already listed in the contract wage determination for the appropriate county and type of construction?

  If so, the classification and rate listed in the wage determination apply.

  Step 2: Are the duties of the proposed classification within the scope of one or more classifications on the contract wage determination?

  Note: If multiple wage determinations are included in the contract, reference is to work performed by classification(s) already in the wage determination on the portion of the project for which the additional classification is requested. (An additional classification must be requested if the needed classification is missing from the wage determination applicable to that portion of the project; the contractor may not use the equivalent classification from one of the other wage determinations applicable to the contract.)

  Step 3: If yes, is the wage determination classification that may apply a union or non- union rate?

  (A) If the classification in the applicable wage determination lists a union rate (the identifier above the classification will indicate the union source of the rate), then only information from the union segment of the industry for the type of construction in the area is relevant in determining whether the requested classification should be denied and the classification listed on the wage determination used for the work.

  (B) If the classification in the applicable wage determination lists a weighted average rate (indicated by a “SU . . .” identifier above the relevant classification listing), then a weighted average rate for the classification has been determined to be prevailing for the given type of construction in the area, and only the practices from the types of contractors (non-union and union) that made up the weighted average in the area may be used as a basis for determining whether the requested classification should be denied and the classification listed on the wage determination used for the work.

  (C) If more than one classification in the applicable wage determination may perform the work, determining whether one of those classifications should be used, and the requested classification denied, depends on an examination of each in accordance with steps 3(A) and 3(B).

  Step 4: For each classification in question, is there evidence that the duties in question were performed by workers employed by contractors in a classification on the wage determination on similar construction in the area during the year prior to bid opening/award of this contract? (See Fry Brothers Corp., WAB Case No. 76-6, dated June 14, 1977, and American Building Automation, ARB Case No. 00-067, dated March 30, 2001 (and cases cited therein)). A brief synopsis of these cases is provided below. (See Reference Case No. 1.)

  For example:

  • For a building construction project, if the contract wage determination contains a union rate for the classification that may perform the duties in question, is there evidence that union workers in that classification performed those duties on building construction in the area during the year prior to award of this contract?
  • On a highway construction project, if the contract wage determination contains a weighted average rate for a classification that may perform the duties in question, and the weighted average rate is comprised only of non-union data, is there evidence that non-union workers employed by non-union contractors in that classification performed the duties in question on highway construction project(s) in the area during the year prior to award of the contract?

  Step 5: If there is such evidence, the request for the additional classification must be denied, as a classification already in the contract wage determination performs the work for which the additional classification was requested.

  Example A - The wage determination classifications/rates are union:

  • If a union rate is listed for a classification in the wage determination that may perform the duties in question, and if union worker(s) can be shown to have performed the duties in question in that classification on the same type of construction in the same area during the year prior to award of the contract in question, then in light of the first criterion for approval of an additional classification, the request for the additional classification must be denied.

    NOTE:

    A claim that the applicable union agreement applies to such work is normally not an adequate basis for denying the additional classification request when the work performed falls outside of what would generally be considered core craft work. Specific information identifying project(s) on which the union workers in that classification performed such work, and identifying the contractor who employed them on such project(s), typically is needed to establish that the work in question was performed by a classification in the contract wage determination.

    Such data generally is needed to support denial of a proposed classification on the basis that work is performed in the area by the classification already listed in the applicable contract wage determination. When there is evidence that union contractors in the area have established a local area practice of employing the union workers in a prevailing classification already listed in the contract wage determination when they perform the work for which an additional classification is requested, their project-based evidence is the basis for denial of the requested classification. While it is important to have evidence that the union classification

    listed in the wage determination has been used to perform the duties in question, it is generally not necessary to demonstrate anew that the wage determination classification and rate already listed in the contract wage determination is prevailing in the area for the work at issue in a request for approval of a different classification and rate for the work in question. See American Building Automation, ARB Case No. 00- 067 (March 30, 2001). (A synopsis of the ARB decision in that case is provided below.)

    If there is evidence that the duties for which an additional classification is proposed have been performed using the union classification in the wage determination, then the work in question must be classified in accordance with the union classification in the contract wage determination, and at least the rate specified there, including fringe benefits, shall be paid to all workers performing work in the classification under the contract from the first day on which work has been performed.

    If there is no evidence that the duties in question were performed by the classification in the contract wage determination, move to Step 6, below.

  Example B - The wage determination classifications/rates are non-union:

  • If a weighted average rate based on non-union wage data is listed in the contract wage determination for a classification that may perform the duties in question and non-union workers in the classification can be shown to have performed those duties on the same type of construction in the same area prior to award of the contract, then the request for the additional classification must be denied.

  Step 6: If the duties of the proposed classification are not performed by a classification on the wage determination, it must then be determined whether or not the proposed conformed rate requested bears a reasonable relationship to the wage rates already listed in the applicable contract wage determination schedule for the given county and type of construction. Please see AAM No. 213 for detailed guidance.

  (A) Proposed rates should be compared to those already listed for classifications within appropriate categories. Thus, proposed rates for skilled classifications should be compared to those listed for skilled classifications on the wage determination; proposed rates for power equipment operators should be compared to those listed for power equipment operators; proposed laborers to laborers; and proposed truck drivers to truck drivers.

  (B) A determination of whether union or non-union sector rates predominate in the appropriate category (skilled classifications, power equipment operators, laborers, or truck drivers) should be made.

  (C) After reviewing the entirety of the rates within the appropriate category and sector(s), a rate that bears a reasonable relationship to those rates in the wage determination must be determined.

  (D) A determination of whether any other considerations also apply should be made. 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 generally consider only those existing skilled classification rates that are higher than the laborer rates to determine the proposed rate.

  Please see relevant decisions in appeals board cases, below:

  (A) Skilled craft rates should bear a reasonable relationship to other skilled craft rates, and conformance requests for skilled classifications generally should be based only on wage rates for skilled classifications in the contract wage determination (i.e., excluding laborers, truck drivers, and power equipment operators) and should not be approved at wage rates below those warranted under AAM and ARB precedent applying AAM 213. (See, e.g., Terrebonne Parish, ARB No. 2017-0056, 2020 WL 5902440 (Sept. 4, 2020); reference case no. 3, below.)

  (B) Rates for additional laborer, truck driver, and power equipment operator classes should normally be compared with other laborers, truck drivers, and power equipment operators, respectively. (See Tower Construction, WAB Case No 94-17, dated February 28, 1995; reference case no. 2, below.)

APPRENTICES, HELPERS, AND WELDERS

Apprentices

• Additional classifications and wage rates are not needed for bona fide apprentices working on Davis-Bacon covered contracts. Rates for apprentices are not listed on Davis-Bacon wage determinations. Apprentices are permitted to work at less than the wage rates listed in the contract wage determination for the classification of work they perform only if they meet the requirements of 29 CFR 5.5(a)(4), such as being registered or certified in an appropriate apprenticeship program. (See FAR at 48 CFR 22.401 Definitions, “Laborers or mechanics,” paragraphs (1) and (2), and 48 CFR 52.222-6.)

Helpers

• Generally, conformance requests for helpers will not be approved unless the duties performed are clearly defined and distinct from those of any other classification on the wage determination, the use of such helpers is an established prevailing practice in the area, and the helper is not employed as a trainee in an informal training program. In addition, the conformance process cannot be used to add a “helper” classification where any work to be performed by the helper is performed by a classification in the wage determination. 29 CFR 5.2 and 5.5(a)(1)(iii)(A).

Welders

• Additional classifications are not generally needed for welders. Welding is commonly considered incidental to the work of workers for whom classifications are issued. Thus, it is appropriate for welders to be classified in the same classification as the workers who are performing the duties to which the welding work is incidental (for example, ironworkers, plumbers, sheet metal workers, etc.). However, welders may sometimes represent a separate sub- classification and in those cases, may be conformed.

REFERENCED APPEALS BOARD CASES

REFERENCE CASE NO. 1

Fry Brothers Corp., WAB Case No. 76-6 (June 14, 1977)

Pursuant to the WAB decision in Fry Brothers Corp., WAB Case No. 76-6, dated June 14, 1977, the proper classification for work performed on a particular Davis-Bacon covered project by laborers and mechanics is that classification used by contractors whose wage rates were found to be prevailing in the area and incorporated in the applicable wage determination. Accordingly, under the Fry Brothers Corp. decision, the classification practices used in the appropriate sector for such construction projects in the area in question must be used to determine the proper classification for work on this project.

Note: The above synopsis is provided for information purposes only. The full text of the decision can be obtained from the ARB and is available at:

https://www.oalj.dol.gov/PUBLIC/DBA_SCA/DECISIONS/ARB_DECISIONS/DBA/76WB06W.HTM

REFERENCE CASE NO. 2

Tower Construction, WAB Case No 94-17 (February 28, 1995)

In this case, the WAB confirmed the Administrator’s ruling concerning the appropriate rate to be approved when the missing classification is in a separate and distinct subgroup.

The Board stated as follows:

In administering the conformance process Wage and Hour further groups classifications within the broad category of power equipment operators and distinguishes them from other skilled classifications since the operators are a ‘separate and distinct subgroup of construction worker classifications.’ [citation omitted]. Thus, when conforming omitted power equipment operator rates, Wage and Hour only looks to listed equipment operator rates for determining a reasonable relationship. Conversely, omitted skilled classifications are not conformed at operator rates. The unique skills and duties of power equipment operators are sufficiently distinguishable from the skills of mechanics in skilled construction trades, such that the Administrator’s rejection of the equipment operator rates was well within the discretion granted her under the regulation . . . .

In this case, the Board also reiterated important positions it had stated in prior rulings, to the effect that:

a party seeking conformed classifications and rates ‘may not rely on a wage determination granted to another party regardless of the similarity of the work in question.’ Inland Waters Pollution Control, Inc., WAB Case No. 94-12 (Sept. 30, 1994) slip op. at pp. 7-8.”

and further that:

a contractor could not prospectively rely on Wage and Hour’s prior approval of conformed classifications and rates for application to a contract performed at the same location. E&M Sales, Inc., WAB Case No. 91-17 (Oct. 4, 1991).

Note: The above synopsis is provided for information purposes only. The full text of the decision can be obtained from the ARB and is available at:

https://www.oalj.dol.gov/PUBLIC/DBA_SCA/DECISIONS/ARB_DECISIONS/DBA/94WB17W.HTM

REFERENCE CASE NO. 3

Terrebonne Parish, ARB No. 2017-0056, 2020 WL 5902440 (Sept. 4, 2020)

The Administrative Review Board (ARB) determined in this case that the Administrator did not abuse their discretion in rejecting an employer’s conformance request. The ARB explained that AAM 213 instructs that if a wage determination contains predominantly union prevailing wage rates, it is appropriate to examine the union sector classifications in the wage determination. Six of the nine skilled classification wage rates in the wage determination were union-negotiated wage rates, so the Administrator reasonably considered only these rates in rejecting the employer’s proposed wage rates and determining the appropriate conformed wage rate. The ARB further rejected the employer’s argument that the Mechanical Insulator job classification was not a skilled classification and concluded that, in determining an appropriate wage rate for a skilled classification, the Administrator is not required to engage in a detailed comparison of the skill level for the relevant classification and is to instead generally compare wage rates for proposed skilled classifications to those wage rates for skilled classifications contained in the applicable wage determination. The ARB also denied the employer’s claim that the Administrator failed to consider lower wage rates that the Administrator had previously approved in other conformance requests, explaining that contractors may not rely on wage rates previously approved in response to similar conformance requests and that WHD is required to determine whether a proposed rate bears a reasonable relationship to the rates contained in the WD applicable to the contract under consideration.

Conformance requests under AAM 213 are also addressed in several other recent ARB decisions, including the following:

System Tech, Inc., ARB No. 202-0029, 2021 WL 2407470 (May 25, 2021) (holding that the Administrator’s ruling that the proposed wage rate did not bear a reasonable relationship to the wage rates in the applicable wage determination was a reasonable exercise of their discretion where the proposed rate was substantially lower than nearly every union skilled classification rate in the wage determination, and reaffirming that the Administrator was not required to engage in detailed comparisons of job duties or skill levels of the different classifications found in the applicable wage determination in establishing a conformed rate for the requested wage classification.).

Baltimore Waterproofing, ARB No. 2022-0053, 2023 WL 4560919 (June 27, 2023) (holding that the Administrator appropriately looked to the wage determination’s union rates to determine the conformed job classification when eight of the eleven skilled classifications on the wage determination were union rates; rejecting the employer’s attempted reliance on a wage rate issued by Baltimore City because the conformed wage rate must bear a reasonable relationship to the DBA rates contained in the wage determination applicable to the contract at issue, not to rates that may apply under a different wage schedule; and reaffirming that challenges to the wage rates in a wage determination must be brought prior to contract award).

Note: The above synopses are provided for information purposes only. The full text of the decisions can be obtained from the ARB website.

REFERENCE CASE NO. 4

American Building Automation, ARB Case No. 00-067 (March 30, 2001)

In this case, the ARB concluded that the WHD Administrator properly denied a request for the addition of a “Building Automation and Controls Technician” (BACT) classification. The Administrator determined that the work of the proposed BACT classification was performed by another classification already found within the wage determination, and the ARB affirmed the Administrator’s denial of the conformance request.

The subcontractor who requested the BACT classification asserted that the work involved did not fall squarely within any single trade classification in the wage determination and that such workers had to be knowledgeable in all of the traditional trades, including electrical, mechanical, telecommunications and networks. The Davis-Bacon wage determination in the contract in question included a union wage rate for the plumber classification. Believing that the work to be performed by the proposed BACT classification might fall within the work performed by employees classified as plumbers, the WHD inquired into trade jurisdiction practices under the collective bargaining agreement negotiated by the Plumbers’ local union. The union provided a copy of its collective bargaining agreement and documentation of several construction projects where this work had been performed by workers classified and paid as plumbers. Based on this data, the Administrator determined that the first criterion for establishing a new classification under the conformance process was not satisfied because the duties of the proposed classification were performed by a classification listed on the contract wage determination.

In its decision affirming the Administrator’s determination, the ARB noted that “[a] conformance request does not call for a de novo evaluation of prevailing local practices or wage rates, questions that might appropriately be raised in a pre-award request for review and reconsideration of a wage determination under 29 C.F.R. § 1.8” and that:

[I]t is well-established that in a conformance situation the Division is not required to determine that a classification in the wage determination actually is the prevailing craft for the tasks in question, only that there is evidence to establish that the classification actually performs the disputed tasks in the locality. (Citations to prior ARB and WAB decisions omitted.)

Note: The above synopsis is provided for information purposes only. The full text of the decision can be obtained from the ARB and is available at:

https://www.oalj.dol.gov/PUBLIC/DBA_SCA/DECISIONS/ARB_DECISIONS/DBA/00_067.HTM

REFERENCE CASE NO. 5

Swanson’s Glass, WAB Case No. 89-20 (April 29, 1991)

In this case, the WAB affirmed the WHD Administrator’s denial of a request for the addition of a glazier classification on the ground that the contractor’s proposed rate did not bear a reasonable relationship to the rates on the wage determination.

The WAB further characterized the petitioner’s argument that the proposed glazier wage rate was “in reasonable conformity with the prevailing wage rate for glaziers for this locality” as essentially challenging the applicable wage determination, and emphasized that “the Board has consistently ruled that in order for a challenge to a wage determination to be timely, the challenge must be made prior to contract award (or the start of construction if there is no

contract award).”

The contractor’s contention that the contracting officer approved its proposed rate was also rejected. The WAB noted that the conformance regulations do not give the contracting officer final approval, and even if the contracting agency had described its actions as authoritative approval, erroneous contracting agency advice does not bar the DOL from requiring payment of the appropriate rate.

The Board also stated the WHD’s failure to deny the requested classification within the 30- day timeframe contemplated by the regulations is not determinative, since this regulation is not jurisdictional. The conformance regulations do not provide that any failure by the Administrator to act within 30 days constitutes approval or acquiescence in the proposed classification or wage rate, and the absence of a response from the Administrator in the 30- day time period referenced in the conformance regulations at Section 5.5(a)(1) therefore does not provide a basis to presume the requested classification and wage rate have been approved.

Note: The above synopsis is provided for information purposes only. The full text of the decision can be obtained from the ARB and is available at:

https://www.oalj.dol.gov/PUBLIC/DBA_SCA/DECISIONS/ARB_DECISIONS/DBA/89WB20W.HTM