75408 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 

DEPARTMENT OF LABOR

Wage and Hour Division 

29 CFR Parts 1 and 4

[RIN 1215–AB47] 

Service Contract Act Wage 

Determination OnLine Request 

Process

AGENCY: Wage and Hour Division, 

Employment Standards Administration, 

Labor.

ACTION: Proposed rule.

SUMMARY: The Department of Labor 

(DOL) proposes amending two 

regulations to allow full implementation 

of the Wage Determinations OnLine 

(WDOL) Internet Web site (http://

www.wdol.gov), reflect changes in a title 

and various statutory citations as well as 

update a list of Wage and Hour Division 

(WHD) Regional Offices. See

SUPPLEMENTARY INFORMATION for 

additional information about where the 

DOL makes this proposed rule available.

DATES: Submit comments on or before 

January 18, 2005.

ADDRESSES: You may mail or otherwise 

hand-deliver comments to Alfred B. 

Robinson, Jr., Acting Administrator, 

Wage and Hour Division (Attention: 

Office of Wage Determinations), 

Employment Standards Administration, 

U.S. Department of Labor, Room S–

3028, 200 Constitution Avenue, NW., 

Washington, DC 20210. You should 

enclose a self-addressed, stamped post 

card, if you want notification that the 

DOL received your comments. See

SUPPLEMENTARY INFORMATION for 

information about submitting comments 

electronically by mail, e-mail, facsimile 

(‘‘FAX’’) machine or the http://

www.regulations.gov Web site. The DOL 

encourages you to submit comments by 

mail early or to transmit them 

electronically, because security 

concerns continue to cause delays in 

delivering mail to the Washington, DC 

area.

FOR FURTHER INFORMATION CONTACT:

William W. Gross, Director, Office of 

Wage Determinations, Wage and Hour 

Division, Employment Standards 

Administration, U.S. Department of 

Labor, Room S–3028, 200 Constitution 

Avenue, NW., Washington, DC 20210, 

telephone (202) 693–0062. This is not a 

toll-free number. 

You may direct questions of 

interpretation and/or enforcement of 

regulations issued by this agency or 

referenced in this notice to the nearest 

WHD District Office. Locate the nearest 

office by calling the WHD toll-free help 

line at 1–866–4US–WAGE (1–866–487–

9243) between 8 a.m. and 5 p.m. in your 

local time zone, or log onto the agency 

Web site for a nationwide listing of 

WHD District and Area Offices at:

http://www.dol.gov/esa/contacts/whd/

america2.htm.

SUPPLEMENTARY INFORMATION:

I. Electronic Access and Filing 

This proposed rule is available 

through the Federal Register and

http://www.regulations.gov Web site—

which will allow you to find, review 

and submit comments on Federal 

documents that are open for comment 

and published in the Federal Register. 

You may also access this proposed rule 

via the WHD home page at http://

www.dol.gov/esa/regs/fedreg/proposed/

whdpro.htm.

You may submit comments by mail, email, ‘‘FAX’’ or the http://

www.regulations.gov Web site. You may 

e-mail comments to WHD-REG-1215-

AB47@dol.gov or ‘‘FAX’’ them to (202) 

693–1302. This is not a toll-free number. 

Submit comments as an ASCII file, 

avoiding the use of special characters or 

encryption. You may also submit 

comments or attachments in Microsoft 

Word format. Identify all comments in 

electronic form by the docket number 

(1215–AB47). You should not submit 

comments on diskette or similar media, 

because security equipment may cause 

the loss or corruption of data. 

II. Paperwork Reduction Act 

This regulation is not subject to the 

Paperwork Reduction Act, because it 

contains no new information collection 

requirements and does not modify any 

existing requirements. 

III. Statutory and Regulatory 

Framework 

The McNamara-O’Hara Service 

Contract Act, as amended (SCA), 41 

U.S.C. 351 et seq., requires contractors 

and subcontractors performing services 

on prime contracts in excess of $2,500 

to pay service employees in various 

classes no less than the wage rates and 

fringe benefits found prevailing in the 

locality as determined by the Secretary 

of Labor, or his authorized 

representative, or the rates (including 

prospective increases) contained in a 

predecessor contractor’s collective 

bargaining agreement. The DOL issues 

wage determinations on a contract-bycontract basis in response to specific 

requests from contracting agencies. 

SCA section 4, 41 U.S.C. 353, 

provides the Secretary of Labor with 

authority to enforce the Act, make rules 

and regulations, issue orders, hold 

hearings, make decisions based upon 

findings of fact and take other 

appropriate action. Regulations 29 CFR 

part 4 contains the DOL rules relating to 

SCA administration. Regulation 29 CFR 

4.4 requires any Federal contracting 

agency to file with the WHD its notice 

of intention to make a service contract 

(Form SF–98), if the agency believes the 

contract may be subject to the SCA. The 

WHD uses contracting agency filings to 

issue appropriate wage determinations.

Section 1 of the Davis-Bacon Act 

(DBA), as amended, 40 U.S.C. 3141 et 

seq., requires that each contract over 

$2,000 to which the United States or the 

District of Columbia is a party for the 

construction, alteration, or repair of 

public buildings or public works shall 

contain a clause setting forth the 

minimum wages to be paid to various 

classes of laborers and mechanics 

employed under the contract. Under 

DBA provisions, contractors or their 

subcontractors are to pay workers 

employed directly upon the site of the 

work no less than the locally prevailing 

wages and fringe benefits paid on 

projects of a similar character. The DBA 

directs the Secretary of Labor to 

determine such local prevailing wage 

rates and requires contractors to post the 

scale of wages to be paid in a prominent 

and easily accessible place at the site of 

the work. 

In Reorganization Plan No. 14 of 1950 

(5 U.S.C. App., effective May 24, 1950, 

15 FR 3176, 64 Stat. 1267), Congress 

directed the DOL to prescribe 

appropriate standards, regulations and 

procedures to be observed by Federal 

agencies responsible for the 

administration of the Davis-Bacon and 

Related Acts (DBRA) in order to assure 

coordination of administration and 

consistency of enforcement. 

Regulations, 29 CFR part 1, set forth 

the procedures for making and applying 

determinations of prevailing wage rates 

and fringe benefits pursuant to the DBA 

and any other Federal statute providing 

for determinations of such wages 

(Related Acts) by the DOL in accordance 

with the provisions of the DBA. 

Regulation 29 CFR 1.5 sets forth the 

procedure Federal agencies must use to 

request wage determinations. Regulation 

29 CFR 1.6 explains their use and 

effectiveness. 

The ‘‘Anti-Kickback’’ section of the 

Copeland Act, 40 U.S.C. 3145, precludes 

covered Federal construction 

contractors and subcontractors from in 

any way inducing an employee to give 

up any part of the compensation to 

which he or she is entitled under his or 

her contract of employment. The 

Copeland Act also requires covered 

Federal contractors and subcontractors 

to submit weekly statements of the 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 75409

wages paid to each employee 

performing on covered work during the 

preceding payroll period. 

Public Law 107–217 recodified Title 

40 of the U.S. Code and changed the 

statutory citations for the DBRA and the 

Copeland Act. 

IV. Discussion of the Proposed Rule 

The DOL proposes to update its 

regulations to have contracting agencies 

use the WDOL Internet Web site to meet 

their obligation to obtain DBA general 

wage determinations from the WHD. 

Under the proposal, the WHD will 

publish wage determinations solely 

through WDOL and will no longer 

publish notice of changes in the Federal 

Register and the Government Printing 

Office (GPO) will no longer publish 

paper copies of general wage 

determinations. WDOL offers users the 

opportunity to request e-mail notice of 

future revisions to a wage determination 

they have selected for a specific period 

of time, or until a specific date. The 

term WDOL shall mean the Government 

Internet Web site for both DBA and SCA 

wage determinations or any other 

Internet Web site or electronic means 

that the Department of Labor may 

approve for these purposes. 

For SCA wage determinations, the 

DOL proposes to eliminate the paper 

Form SF–98 and replace it with an 

electronic ‘‘e98,’’ process by which 

contracting agencies may continue to 

request SCA wage determinations from 

the WHD. The DOL also proposes to 

allow use of WDOL as an alternative 

means of obtaining SCA wage 

determinations. 

The DOL further proposes to update 

the statutory citations for laws 

providing the authority for regulations 

29 CFR part 1 and in the appendix that 

lists various acts to which the 

regulations apply. These last proposed 

changes simply reflect Public Law 107–

217 that has recodified Title 40 of the 

U.S. Code. Finally, the proposed rule 

will update the title of the Assistant 

Secretary for Employment Standards in 

a definition, as well as addresses and 

other contact information in an 

appendix. 

V. Background 

The development of WDOL requires 

an update to existing regulations to 

allow contracting agencies fully to 

realize the process improvements and 

savings that WDOL provides. This 

proposed rule will also create a basis for 

updating related information in the 

Federal Acquisition Regulations (FAR) 

to be compatible with the DOL rule. 

WDOL does not affect how the WHD 

determines prevailing wages under 

either the SCA or the DBA. 

29 CFR Part 1 

Since 1985, the current regulations 

prescribing procedures for obtaining 

DBA wage determinations have not been 

revised. The current rules provide that 

DBA general wage determinations are 

published by the GPO in a series of 

volumes broken out by different 

geographic areas of the country. On a 

weekly basis, the WHD publishes a 

notice in the Federal Register of the 

wage determination updates that GPO 

would publish the following week. 

Users can subscribe to the GPO 

publication service and receive all 

weekly updates by mail. Subscription 

purchases can be limited to individual 

volumes or could be for all DBA general 

wage determinations. 

Shortly after the publication of the 

current regulations, many contracting 

agencies began inquiring about the 

possibility of accessing electronic copies 

of the published general wage 

determinations. As a result, the WHD 

entered into an agreement with the 

Department of Commerce, National 

Technical Information Service (NTIS) to 

make the DBA general wage 

determinations available online through 

WDOL. However, because the paper 

volumes of the DBA general wage 

determinations were still published and 

because the wage determinations on the 

NTIS site were identical to those 

contained in the GPO publication, the 

DBA regulations were not revised to add 

a reference to the NTIS site. 

In 2002, the GPO approached the 

WHD about the possibility of publishing 

DBA Wage determinations 

electronically. The GPO sought to 

decrease its printing workload and was 

willing to make DBA general wage 

determinations available electronically 

at no cost to the user. By providing free 

access to DBA general wage 

determinations, the GPO was hoping to 

decrease the number of paper 

subscriptions, thereby decreasing their 

printing workload. Again, because the 

printed wage determinations were still 

being published, the regulations were 

not changed.

The proposed rule reflects the 

technological advances since 1985 and 

the wide use of electronic 

communication and information 

sharing, and adopts the WDOL Web site 

as the single source for DBA general 

wage determinations. The proposed rule 

will eliminate the notices currently 

published in the Federal Register. 

Notice of future modifications and 

supersedeas general wage 

determinations will be posted on 

WDOL. The proposed rule will also 

eliminate references to GPO publication 

of general wage determinations, 

although GPO may continue, at their 

discretion, to publish general wage 

determinations. The proposed rule 

would retain the requirement in the 

current regulations under 29 CFR 1.5 

that Federal contracting agencies 

request a wage determination by 

preparing and mailing Form SF–308 to 

the Department of Labor, for those 

infrequent situations when a DBA 

general wage determination is not 

available through WDOL. DOL 

processed fewer than 100 Forms SF–308 

in FY 2004, and the Department does 

not believe providing Federal agencies 

with an electronic submission option in 

these rare cases warrants the 

considerable expense developing such a 

system would require. 

29 CFR Part 4 

Since 1965, the SCA implementing 

regulations have required that a Federal 

contracting agency request SCA wage 

determinations for each contract. Form 

SF–98 was developed for this request 

and response process. In part, this 

individual request and response system 

was employed under the SCA because 

of the wide variety of service contracts 

covered under the Act. Unlike the DBA, 

which applied to contracts primarily 

from a single industry (i.e., the 

construction industry), the SCA applied 

to contracts for a much broader range of 

industries and occupations. While 

Bureau of Labor Statistics cross-industry 

survey data were used to establish the 

wage determination rates for most SCA 

covered contracts, the unique 

requirements of some contracts 

demanded that more specialized and 

targeted wage determinations be issued. 

The SF–98 process gave the DOL the 

ability to consider the specific contract 

services and issue the SCA wage 

determination that was most 

appropriate for those services. 

In 1972, the SCA was amended and a 

number of new provisions affecting the 

issuance of SCA wage determinations 

were added. Among the new provisions 

were requirements for issuing wage 

determinations based upon the 

predecessor contractor’s collective 

bargaining agreement, giving due 

consideration to Federal wage rates 

when issuing SCA wage determinations 

and mandating the issuance of wage 

determinations for most covered 

contracts. The individualized SF–98 

request and response process fit with 

these new statutory requirements and 

that process was retained when the 

regulations were revised to reflect the 

75410 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 

1972 SCA amendments. The SF–98–A 

submission requirement was added to 

the regulations at that time to facilitate 

the communication of information 

pertaining to the new due consideration 

and mandatory issuance provisions of 

the amended SCA. (See 29 CFR 4.4(b).) 

Although there have not been any 

major changes to the regulatory SF–98 

request and response process since the 

regulations were revised following the 

1972 amendments, the DOL has 

continued to work with contracting 

agencies to develop better and more 

efficient mechanisms for agencies to 

obtain SCA wage determinations. With 

the advent and expansion of the Internet 

in the mid-1990s, several contracting 

agencies approached the WHD 

requesting the ability to access and 

download SCA wage determinations. 

The vast majority of the covered service 

contracts awarded by these agencies 

were either options or renewals, and the 

applicable SCA wage determinations for 

these contracts were well established. 

By this time, the WHD had developed 

a standard set of SCA wage 

determinations that applied to most of 

these contracts. The NTIS had posted 

these wage determinations on the 

Internet for information purposes, and 

the agencies requested the ability to 

download and use these standard wage 

determinations in appropriate 

situations. After some discussion, the 

WHD entered into Memoranda of 

Understanding (MOUs) with several 

agencies to allow them to use these 

standard wage determinations without 

first submitting an SF–98. Under the 

MOUs, the agencies agreed to train their 

personnel in the proper selection and 

use of SCA wage determinations. The 

agencies also agreed to monitor the SCA 

wage determinations database and to 

use any subsequent revisions of the 

applicable wage determinations that 

were issued before the applicable 

procurement dates specified in the SCA 

regulations. After the agency selected an 

applicable SCA wage determination, it 

would notify the WHD of its selection 

by the submission of an SF–98 after the 

fact. 

This MOU program greatly enhanced 

the remedial purpose of the SCA by 

requiring that participating agencies 

monitor the SCA wage determination 

database and use the latest revisions 

published in a timely manner before 

award or commencement of the 

contract. With the paper Form SF–98, 

the WHD had no mechanism to followup and advise contracting agencies 

when wage determinations were 

revised. For example, if a solicitation 

were issued in May and the WHD 

responded to the SF–98 with the then 

current wage determination, the WHD 

would not have advised the agency of 

an update of the wage determination 

that occurred in July. As a result, the 

wage determination applied to the 

contract starting on October 1st would 

have been the wage determination 

current in May rather than the revised 

wage determination issued in July. The 

MOU program was proven to be quite 

successful, and it subsequently was 

expanded to numerous other agencies. 

Following the success of the MOU 

program, an interagency work group 

composed of representatives from the 

Office of Management and Budget, 

Department of the Army, Department of 

the Air Force, Department of the Navy, 

Army Corps of Engineers, General 

Services Administration, NTIS and the 

Department of Energy began 

development of a new online system 

designed to consolidate the best 

practices of agencies operating under 

the MOU program. The work group also 

looked at adding non-standard wage 

determinations to the online system. 

Principal objectives of the work group 

were the elimination of the paper Form 

SF–98 and the availability of wage 

determinations electronically. 

At the same time, the WHD was 

developing an electronic request and 

response system to replace Form SF–98. 

The WHD began live tests of the ‘‘e98’’

system in FY 2003. During FY 2003, the 

WHD received and responded to more 

than 12,000 ‘‘e98’’ submissions. A 

computer responds to a significant 

number of the ‘‘e98’’ requests 

immediately while the requester is 

online. The remaining requests are 

referred to an analyst and the response 

is usually sent later the same day or the 

next day. For all requests, the ‘‘e98’’

system is designed to track individual 

requests by the procurement dates listed 

on the request, and when a wage 

determination that would affect a 

particular procurement is revised, an 

amended e-mail response is sent to the 

contracting agency. 

The site developed by the WDOL 

work group integrates the ‘‘e98’’ process 

with the best practices developed under 

the MOU program. WDOL offers users a 

number of unique features in a webbased environment. The site includes: 

(1) Guidance to contracting officers on 

selecting the appropriate wage 

determination for each contract action; 

(2) access to the most current SCA and 

DBA wage determinations, as well as an 

alert service for notification of future 

revisions to particular wage 

determinations; and, (3) access to 

databases containing archived wage 

determinations under both the SCA and 

DBA.

To facilitate contracting officers 

selecting the appropriate SCA wage 

determination, the WDOL site leads the 

requester through a ‘‘decision tree’’

consisting of a series of questions. Based 

upon the responses to these questions, 

the WDOL site will either identify an 

SCA wage determination or direct the 

requester to submit an ‘‘e98.’’ A link to 

the ‘‘e98’’ site is provided. In addition, 

the WDOL site gives the requester the 

option of going directly to the ‘‘e98’’ site 

without having to go through the 

‘‘decision tree’’ selection process. If a 

contracting officer has any question 

regarding the selection of the proper 

SCA wage determination, the WDOL 

site directs the contracting officer to the 

‘‘e98.’’

As clearly indicated on the WDOL 

Web site, compliance with the decision 

tree selection process and the guidance 

provided by the User’s Guide does not 

relieve the contracting officer or other 

program user of the requirement to 

carefully review the contract or 

solicitation, the FAR and its 

Supplements, other Federal agency 

acquisition regulations or the DOL 

regulations related to these actions. If 

the DOL discovers and determines, 

whether before or after contract award, 

that the correct SCA wage determination 

was not included in a covered contract, 

the contracting officer, within 30 days of 

notification by the DOL, is required to 

include in the contract the applicable 

wage determination issued by the DOL. 

(See 29 CFR 4.5(c)(2).) 

The proposed rule reflects the 

technological advances since 1972 and 

the wide use of electronic 

communication and information 

sharing, and replaces the paper SF–98 

with an electronic ‘‘e98’’ and enables 

contracting agencies alternatively to use 

the WDOL Web site to obtain SCA wage 

determinations. 

VI. Regulatory Flexibility, Executive 

Order 12866; Small Business 

Regulatory Enforcement Fairness Act 

The proposed regulation affects 

Federal agency procurement procedures 

and 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. The agency has certified to this 

effect to the Chief Counsel for Advocacy 

of the U.S. Small Business 

Administration. 

This proposed rule has been 

determined to be a significant 

rulemaking, although not economically 

significant or major, and has therefore 

been reviewed by OMB. 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 75411

VII. Unfunded Mandates Reform Act

For purposes of the Unfunded 

Mandates Reform Act of 1995, 2 U.S.C. 

1532, 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. 

VIII. Executive Order 13132 

(Federalism) 

The rule does not have federalism 

implications as outlined in Executive 

Order 13132 regarding federalism. 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. 

IX. Executive Order 13175, Indian 

Tribal Governments 

This rule does not have ‘‘tribal 

implications’’ under Executive Order 

13175 and does not require a tribal 

summary impact statement. The rule 

does not have ‘‘substantial direct effects 

on one or more Indian tribes, on the 

relationship between the Federal 

government and Indian tribes or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’

X. Effects on Families 

The undersigned hereby certifies that 

the rule will not adversely affect the 

well-being of families, as discussed 

under section 654 of the Treasury and 

General Government Appropriations 

Act, 1999. 

XI. Executive Order 13045, Protection 

of Children 

This rule has no environmental health 

risk or safety risk that may 

disproportionately affect children. 

XII. Environmental Impact Assessment 

A review of this rule in accordance 

with the requirements of the National 

Environmental Policy Act of 1969 

(NEPA), 42 U.S.C. 4321 et seq.; the 

regulations of the Council on 

Environmental Quality, 40 CFR 1500 et 

seq.; and the Departmental NEPA 

procedures, 29 CFR part 11, indicate the 

rule will not have a significant impact 

on the quality of the human 

environment. There is, thus, no 

corresponding environmental 

assessment or an environmental impact 

statement. 

XIII. Executive Order 13211, Energy 

Supply 

This rule is not subject to Executive 

Order 13211. It will not have a 

significant adverse effect on the supply, 

distribution or use of energy. 

XIV. Executive Order 12630, 

Constitutionally Protected Property 

Rights 

This rule is not subject to Executive 

Order 12630, because it does not 

involve implementation of a policy 

‘‘that has takings implications’’ or that 

could impose limitations on private 

property use. 

XV. Executive Order 12988, Civil 

Justice Reform Analysis 

This rule was drafted and reviewed in 

accordance with Executive Order 12988 

and will not unduly burden the Federal 

court system. The rule was: (1) 

Reviewed to eliminate drafting errors 

and ambiguities; (2) written to minimize 

litigation; and (3) written to provide a 

clear legal standard for affected conduct 

and to promote burden reduction. 

XVI. Request for Comments 

In accordance with rulemaking 

requirements found at 5 U.S.C. 553, the 

DOL is providing interested persons an 

opportunity to comment on these 

proposed rules.

List of Subjects 

29 CFR Part 1 

Administrative practice and 

procedure, Government contracts, 

Investigations, Labor, Minimum wages, 

Recordkeeping requirements, Reporting 

requirements, Wages. 

29 CFR Part 4 

Administrative practice and 

procedure, Government contracts, 

Investigations, Labor, Minimum wages, 

Penalties, Recordkeeping requirements, 

Reporting requirements, Wages.

Signed in Washington, DC, this 9th day of 

December, 2004. 

Alfred B. Robinson, Jr., 

Acting Administrator, Wage and Hour 

Division.

For the reasons set out in the 

preamble, the DOL proposes to amend 

Title 29, parts 1 and 4 as set forth below: 

Title 29—Labor

PART 1—PROCEDURES FOR 

PREDETERMINATION OF WAGE 

RATES 

1. The authority citation for part 1 is 

proposed to be revised to read as 

follows:

Authority: 5 U.S.C. 301; R.S. 161, 64 Stat. 

1267; Reorganization Plan No. 14 of 1950, 5 

U.S.C. appendix; 40 U.S.C. 3141 et seq.; 40 

U.S.C. 3145; 40 U.S.C. 3148; and the laws 

listed in appendix A of this part.

2. Paragraph (e) is proposed to be 

added to § 1.2 to read as follows:

§ 1.2 Definitions.1

* * * * *

(e) The term Wage Determinations 

OnLine (WDOL) shall mean the 

Government Internet Web site for both 

Davis-Bacon Act and Service Contract 

Act wage determinations available at 

http://www.wdol.gov. In addition, 

WDOL provides compliance assistance 

information. The term will also apply to 

any other Internet Web site or electronic 

means that the Department of Labor may 

approve for these purposes. 

3. Paragraphs (a) and (b) of § 1.5 are 

proposed to be revised to read as 

follows:

§ 1.5 Procedure for requesting wage 

determinations. 

(a) The Department of Labor publishes 

general wage determinations under the 

Davis-Bacon Act on the WDOL Internet 

Web site. If there is a general wage 

determination applicable to the project, 

the agency may use it without notifying 

the Department of Labor, Provided, That 

questions concerning its use shall be 

referred to the Department of Labor in 

accordance with § 1.6(b). 

(b)(1) If a general wage determination 

is not available, the Federal agency shall 

request a wage determination under the 

Davis-Bacon Act or any of its related 

prevailing wage statutes by submitting 

Form SF–308 to the Department of 

Labor at this address: U.S. Department 

of Labor, Employment Standards 

Administration, Wage and Hour 

Division, Branch of Construction 

Contract Wage Determination, 

Washington, DC 20210. 

In preparing Form SF–308, the agency 

shall check only those classifications 

that will be needed in the performance 

of the work. Inserting a note such as 

‘‘entire schedule’’ or ‘‘all applicable 

classifications’’ is not sufficient. 

Additional classifications needed that 

are not on the form may be typed in the 

blank spaces or on a separate list and 

attached to the form. 

(2) In completing SF–308, the agency 

shall furnish: 

(i) A sufficiently detailed description 

of the work to indicate the type of 

construction involved. Additional 

description or separate attachment, if 

necessary for identification of type of 

project, shall be furnished. 

(ii) The county (or other civil 

subdivision) and State in which the 

proposed project is located. 

(3) Such request for a wage 

determination shall be accompanied by 

any pertinent wage payment 

information that may be available. 

75412 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 

When the requesting agency is a State 

highway department under the FederalAid Highway Acts as codified in 23 

U.S.C. 113, such agency shall also 

include its recommendations as to the 

wages which are prevailing for each 

classification of laborers and mechanics 

on similar construction in the area.

* * * * *

4. Paragraphs (a)(2), (c)(3)(iv) and 

(c)(3)(v) of § 1.6 are proposed to be 

revised to read as follows:

§ 1.6 Use and effectiveness of wage 

determinations. 

(a) * * *

(2) General wage determinations 

issued pursuant to § 1.5(a), notice of 

which is published on WDOL, shall 

contain no expiration date.

* * * * *

(c) * * * 

(3) * * * 

(iv) If under paragraph (c)(3)(i) of this 

section the contract has not been 

awarded within 90 days after bid 

opening, or if under paragraph (c)(3)(ii) 

or (iii) of this section construction has 

not begun within 90 days after initial 

endorsement or the signing of the 

agreement to enter into a housing 

assistance payments contract, any 

modification, notice of which is 

published on WDOL prior to award of 

the contract or the beginning of 

construction, as appropriate, shall be 

effective with respect to that contract 

unless the head of the agency or his or 

her designee requests and obtains an 

extension of the 90-day period from the 

Administrator. Such request shall be 

supported by a written finding, which 

shall include a brief statement of the 

factual support, that the extension is 

necessary and proper in the public 

interest to prevent injustice or undue 

hardship or to avoid serious impairment 

in the conduct of Government business. 

The Administrator will either grant or 

deny the request for an extension after 

consideration of all the circumstances. 

(v) A modification to a general wage 

determination is ‘‘published’’ within the 

meaning of this section on the date 

notice of a modification or a 

supersedeas wage determination is 

published on WDOL or on the date the 

agency receives actual written notice of 

the modification from the Department of 

Labor, whichever occurs first.

* * * * *

5. Items 19 and 20 in Appendix A of 

part 1 are proposed to be revised to read 

as follows:

Appendix A to Part 1

* * * * *

19. National Visitors Center Facilities Act 

of 1968 (sec. 110, 32 Stat.).

Note: Section applying labor standards 

provisions of the Davis-Bacon Act repealed 

August 21, 2002, by 116 Stat. 1318, Pub. L. 

107–217.

20. Appalachian Regional Development 

Act of 1965 (sec. 402, 79 Stat. 21; 40 U.S.C. 

14701).

* * * * *

6. Appendix B of part 1 is proposed 

to be revised to read as follows:

Appendix B to Part 1

Northeast Region 

For the States of Connecticut, Delaware, 

District of Columbia, Maine, Maryland, 

Massachusetts, New Hampshire, New Jersey, 

New York, Pennsylvania, Puerto Rico, Rhode 

Island, Vermont, Virgin Islands, Virginia and 

West Virginia: 

Regional Administrator, Wage and Hour 

Division, Employment Standards 

Administration, U.S. Department of Labor, 

Curtis Center, 170 South Independence Mall 

West, Room 850 West, Philadelphia, PA 

19106 (Telephone: (215) 861–5800, fax: (215) 

861–5840). 

Southeast Region 

For the States of Alabama, Florida, Georgia, 

Kentucky, Mississippi, North Carolina, South 

Carolina and Tennessee: 

Regional Administrator, Wage and Hour 

Division, Employment Standards 

Administration, U.S. Department of Labor, 61 

Forsyth Street, SW., Room 7M40, Atlanta, GA 

30303 (Telephone (404) 893–4531, fax: (404) 

893–4524). 

Midwest Region 

For the States of Illinois, Indiana, Iowa, 

Kansas, Michigan, Minnesota, Missouri, 

Nebraska, Ohio and Wisconsin: 

Regional Administrator, Wage and Hour 

Division, Employment Standards 

Administration, U.S. Department of Labor, 

230 South Dearborn Street, Room 530, 

Chicago, IL 60604–1591 (Telephone: (312) 

596–7180, fax: (312) 596–7205). 

Southwest Region 

For the States of Arkansas, Colorado, 

Louisiana, Montana, New Mexico, North 

Dakota, Oklahoma, South Dakota, Texas, 

Utah and Wyoming: 

Regional Administrator, Wage and Hour 

Division, Employment Standards 

Administration, U.S. Department of Labor, 

525 South Griffin Street, Suite 800, Dallas, 

TX 75202–5007 (Telephone: (972) 850–2600, 

fax: (972) 850–2601). 

Western Region 

For the States of Alaska, American Samoa, 

Arizona, California, Guam, Hawaii, Idaho, 

Nevada, Oregon and Washington: 

Regional Administrator, Wage and Hour 

Division, Employment Standards 

Administration, U.S. Department of Labor, 71 

Stevenson Street, Suite 930, San Francisco, 

CA 94105. (Telephone: (415) 848–6600, fax: 

(415) 848–6655).

Appendix C to Part 1 [Removed] 

7. Appendix C of part 1 is proposed 

to be deleted.

PART 4—LABOR STANDARDS FOR 

FEDERAL SERVICE CONTRACTS 

8. The authority citation for part 4 

continues to read as follows:

Authority: 41 U.S.C. 351 et seq.; 41 U.S.C. 

38 and 39; 5 U.S.C. 301.

Subpart A—Service Contract Labor 

Standards Provisions and Procedures 

9. In § 4.1a, paragraph (b) is proposed 

to be revised and paragraphs (i) and (j) 

are proposed to be added to read as 

follows:

§ 4.1a Definitions and use of terms.

* * * * *

(b) Secretary includes the Secretary of 

Labor, the Assistant Secretary for 

Employment Standards, and their 

authorized representatives.

* * * * *

(i) Wage Determinations OnLine 

(WDOL) means the Government Internet 

Web site for both Davis-Bacon Act and 

Service Contract Act wage 

determinations available at http://

www.wdol.gov. In addition, WDOL 

provides compliance assistance 

information and a link to submit an 

‘‘e98’’ or any electronic means the 

Department of Labor may approve for 

this purpose. The term will also apply 

to any other Internet Web site or 

electronic means that the Department of 

Labor may approve for these purposes. 

(j) The ‘‘e98’’ means a Department of 

Labor approved electronic application, 

whereby a contracting officer submits 

pertinent information to the Department 

of Labor and requests a wage 

determination directly from the Wage 

and Hour Division. The term will also 

apply to any other process or system the 

Department of Labor may establish for 

this purpose. 

10. In § 4.3, paragraphs (b) through (d) 

are proposed to be revised and 

paragraph (e) is proposed to be added to 

read as follows:

§ 4.3 Wage determinations.

* * * * *

(b) As described in subpart B of this 

part, two types of wage determinations 

are issued under the Act: Prevailing in 

the locality or Collective Bargaining 

Agreement (Successorship) wage 

determinations. The facts related to a 

specific solicitation and contract will 

determine the type of wage 

determination applicable to that 

procurement. In addition, different 

types of prevailing wage determinations 

may be issued depending upon the 

nature of the contract. While prevailing 

wage determinations based upon crossindustry survey data are applicable to 

most contracts covered by the Act, in 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 75413

some cases the Department of Labor 

may issue industry specific wage 

determinations for application to 

specific types of service contracts. In 

addition, the geographic scope of 

contracts is often different and the 

geographic scope of the underlying 

survey data for the wage determinations 

applicable to those contracts may be 

different.

(c) Such wage determinations will set 

forth for the various classes of service 

employees to be employed in furnishing 

services under such contracts in the 

appropriate localities, minimum 

monetary wage rates to be paid and 

minimum fringe benefits to be furnished 

them during the periods when they are 

engaged in the performance of such 

contracts, including, where appropriate 

under the Act, provisions for 

adjustments in such minimum rates and 

benefits to be placed in effect under 

such contracts at specified future times. 

The wage rates and fringe benefits set 

forth in such wage determinations shall 

be determined in accordance with the 

provisions of sections 2(a)(1), (2), and 

(5), 4(c) and 4(d) of the Act from those 

prevailing in the locality for such 

employees, with due consideration of 

the rates that would be paid for direct 

Federal employment of any classes of 

such employees whose wages, if 

federally employed, would be 

determined as provided in 5 U.S.C. 5341 

or 5 U.S.C. 5332, or from pertinent 

collective bargaining agreements with 

respect to the implementation of section 

4(c). The wage rates and fringe benefits 

so determined for any class of service 

employees to be engaged in furnishing 

covered contract services in a locality 

shall be made applicable by contract to 

all service employees of such class 

employed to perform such services in 

the locality under any contract subject 

to section 2(a) of the Act which is 

entered into thereafter and before such 

determination has been rendered 

obsolete by a withdrawal, modification, 

or supersedure. 

(d) Generally, wage determinations 

issued for solicitations or negotiations 

for any contract where the place of 

performance is unknown will contain 

minimum monetary wages and fringe 

benefits for the various geographic 

localities where the work may be 

performed which were identified in the 

initial solicitation. (See § 4.4(a)(3)(i).) 

(e) Wage determinations will be 

available for public inspection during 

business hours at the Wage and Hour 

Division, Employment Standards 

Administration, U.S. Department of 

Labor, Washington, DC, and copies will 

be made available on request at Regional 

Offices of the Wage and Hour Division. 

In addition, most prevailing wage 

determinations are available online from 

WDOL. 

11. Section 4.4 is proposed to be 

revised to read as follows:

§ 4.4 Obtaining a wage determination. 

(a)(1) Sections 2(a)(1) and (2) of the 

Act require that every contract and any 

bid specification therefore in excess of 

$2,500 contain a wage determination 

specifying the minimum monetary 

wages and fringe benefits to be paid to 

service employees performing work on 

the contract. The contracting agency, 

therefore, must obtain a wage 

determination prior to: 

(i) Any invitation for bids; 

(ii) Request for proposals; 

(iii) Commencement of negotiations; 

(iv) Exercise of option or contract 

extension; 

(v) Annual anniversary date of a 

multi-year contract subject to annual 

fiscal appropriations of the Congress; or 

(vi) Each biennial anniversary date of 

a multi-year contract not subject to such 

annual appropriations, if so authorized 

by the Wage and Hour Division. 

(2) As described in § 4.4(b), wage 

determinations may be obtained from 

the Department of Labor by 

electronically submitting an ‘‘e98’’

describing the proposed contract and 

the occupations expected to be 

employed on the contract. Based upon 

the information provided on the ‘‘e98,’’

the Department of Labor will respond 

with the wage determination or wage 

determinations that the contracting 

agency may rely upon as the correct 

wage determination(s) for the contract 

described in the ‘‘e98.’’ Alternatively, 

contracting agencies may select and 

obtain a wage determination using 

WDOL. (See § 4.4(c).) Although the 

WDOL Web site provides assistance to 

the agency to select the correct wage 

determination for the contract, the 

agency remains responsible for the wage 

determination selected.

(3)(i) Where the place of performance 

of a contract for services subject to the 

Act is unknown at the time of 

solicitation, the solicitation need not 

initially contain a wage determination. 

The contracting agency, upon 

identification of firms participating in 

the procurement in response to an 

initial solicitation, shall obtain a wage 

determination for each location where 

the work may be performed as indicated 

by participating firms. An applicable 

wage determination must be obtained 

for each firm participating in the 

bidding for the location in which it 

would perform the contract. The 

appropriate wage determination shall be 

incorporated in the resultant contract 

documents and shall be applicable to all 

work performed thereunder (regardless 

of whether the successful contractor 

subsequently changes the place(s) of 

contract performance). 

(ii) There may be unusual situations, 

as determined by the Department of 

Labor upon consultation with a 

contracting agency, where the procedure 

in paragraph (a)(3)(i) of this section is 

not practicable in a particular situation. 

In these situations, the Department may 

authorize a modified procedure which 

may result in the subsequent issuance of 

wage determinations for one or more 

composite localities. 

(4) In no event may a contract subject 

to the Act on which more than five (5) 

service employees are contemplated to 

be employed be awarded without an 

appropriate wage determination. (See 

section 10 of the Act.) 

(b) ‘‘e98’’ process—

(1) The ‘‘e98’’ is an electronic 

application used by contracting agencies 

to request wage determinations directly 

from the Wage and Hour Division. The 

WHD uses computers to analyze 

information provided on the ‘‘e98’’ and 

to provide a response while the 

requester is online, if the analysis 

determines that an existing wage 

determination is currently applicable to 

the procurement. The response will 

assign a unique serial number to the 

‘‘e98’’ and the response will provide a 

link to an electronic copy of the 

applicable wage determination(s). If the 

initial computer analysis cannot 

identify the applicable wage 

determination for the request, an online 

response will be provided indicating 

that the request has been referred to an 

analyst. Again, the online response will 

assign a unique serial number to the 

‘‘e98.’’ After an analyst has reviewed the 

request, a further response will be sent 

to the e-mail address identified on the 

‘‘e98.’’ In most cases, the further 

response will provide an attachment 

with a copy of the applicable wage 

determination(s). In some cases, 

however, additional information may be 

required and the additional information 

will be requested via e-mail. After an 

applicable wage determination is sent in 

response to an ‘‘e98,’’ the ‘‘e98’’ system 

continues to monitor the request and if 

the applicable wage determination is 

revised in time to affect the 

procurement, an amended response will 

be sent to the e-mail address identified 

on the ‘‘e98.’’

(2) When completing an ‘‘e98,’’ it is 

important that all information requested 

be completed accurately and fully. 

However, several sections are 

particularly important. Since most 

responses are provided via e-mail, a 

75414 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 

correct e-mail address is critically 

important. Accurate procurement dates 

are essential for the follow-up response 

system to operate effectively. An 

accurate estimate of the number of 

service employees to be employed 

under the contract is also important 

because section 10 of the Act requires 

that a wage determination be issued for 

all contracts that involve more than five 

service employees. 

(3) Since the ‘‘e98’’ system 

automatically provides an amended 

response if the applicable wage 

determination is revised, the e-mail 

address listed on the ‘‘e98’’ must be 

monitored during the full solicitation 

stage of the procurement. 

Communications sent to the e-mail 

address provided are deemed to be 

received by the contracting agency. A 

contracting agency must update the email address through the ‘‘help’’ process 

identified on the ‘‘e98,’’ if the agency no 

longer intends to monitor the e-mail 

address.

(4) For invitations to bid, if the bid 

opening date is delayed by more than 

sixty (60) days, or if contract 

commencement is delayed by more than 

sixty (60) days for all other contract 

actions, the contracting agency shall 

submit a revised ‘‘e98.’’

(5) If the services to be furnished 

under the proposed contract will be 

substantially the same as services being 

furnished in the same locality by an 

incumbent contractor whose contract 

the proposed contract will succeed, and 

if such incumbent contractor is 

furnishing such services through the use 

of service employees whose wage rates 

and fringe benefits are the subject of one 

or more collective bargaining 

agreements, the contracting agency shall 

reference the union and the collective 

bargaining agreement on the ‘‘e98.’’ The 

requester will receive an e-mail 

response giving instructions for 

submitting a copy of each such 

collective bargaining agreement together 

with any related documents specifying 

the wage rates and fringe benefits 

currently or prospectively payable 

under such agreement. After receipt of 

the collective bargaining agreement, the 

Wage and Hour Division will provide a 

further e-mail response attaching a copy 

of the wage determination based upon 

the collective bargaining agreement. If 

the place of contract performance is 

unknown, the contracting agency will 

submit the collective bargaining 

agreement of the incumbent contractor 

for incorporation into a wage 

determination applicable to a potential 

bidder located in the same geographic 

area as the predecessor contractor. If 

such services are being furnished at 

more than one locality and the 

collectively bargained wage rates and 

fringe benefits are different at different 

localities or do not apply to one or more 

localities, the agency shall identify the 

localities to which such agreements 

have application. If the collective 

bargaining agreement does not apply to 

all service employees under the 

contract, the agency shall identify the 

employees and/or work subject to the 

collective bargaining agreement. In the 

event the agency has reason to believe 

that any such collective bargaining 

agreement was not entered into as a 

result of arm’s-length negotiations, a full 

statement of the facts so indicating shall 

be transmitted with the copy of such 

agreement. (See § 4.11.) 

If the agency has information 

indicating that any such collectively 

bargained wage rates and fringe benefits 

are substantially at variance with those 

prevailing for services of a similar 

character in the locality, the agency 

shall so advise the Wage and Hour 

Division and, if it believes a hearing 

thereon pursuant to section 4(c) of the 

Act is warranted, shall file its request 

for such hearing pursuant to § 4.10 at 

the time of filing the ‘‘e98.’’

(6) If the proposed contract is for a 

multi-year period subject to other than 

annual appropriations, the contracting 

agency shall provide a statement in the 

comments section of the ‘‘e98’’

concerning the type of funding and the 

contemplated term of the proposed 

contract. Unless otherwise advised by 

the Wage and Hour Division that a wage 

determination must be obtained on the 

annual anniversary date, a new wage 

determination shall be obtained on each 

biennial anniversary date of the 

proposed multi-year contract in the 

event its term is for a period in excess 

of two years. 

(c) WDOL process—

(1) Contracting agencies may use the 

WDOL Web site to select the applicable 

prevailing wage determination for the 

procurement. The WDOL site provides 

assistance to the agency in the selection 

of the correct wage determination. The 

contracting agency, however, is fully 

responsible for selecting the correct 

wage determination. If the Department 

of Labor subsequently determines that 

an incorrect wage determination was 

applied to a specific contract, the 

contracting agency, in accordance with 

§ 4.5, shall amend the contract to 

incorporate the correct wage 

determination as determined by the 

Department of Labor.

(2) If an applicable prevailing wage 

determination is not available on the 

WDOL site, the contracting agency must 

submit an ‘‘e98’’ in accordance with 

§ 4.4(b). 

(3) The contracting agency shall 

monitor the WDOL site to determine 

whether the applicable wage 

determination has been revised. 

Revisions published on the WDOL site 

or otherwise communicated to the 

contracting officer within the 

timeframes prescribed in § 4.5(a)(2) are 

applicable and must be included in the 

resulting contract. 

(4) If the services to be furnished 

under the proposed contract will be 

substantially the same as services being 

furnished in the same locality by an 

incumbent contractor whose contract 

the proposed contract will succeed, and 

if such incumbent contractor is 

furnishing such services through the use 

of service employees whose wage rates 

and fringe benefits are the subject of one 

or more collective bargaining 

agreements, the contracting agency may 

prepare a wage determination that 

references the collective bargaining 

agreement by incorporating that wage 

determination, with a complete copy of 

the collective bargaining agreement 

attached thereto, into the successor 

contract action. It need not submit a 

copy of the collective bargaining 

agreement to the Department of Labor 

unless requested to do so. If the place 

of contract performance is unknown, the 

contracting agency will prepare a wage 

determination on WDOL and attach the 

collective bargaining agreement of the 

incumbent contractor and make both the 

wage determination and collective 

bargaining agreement applicable to a 

potential bidder located in the same 

geographic area as the predecessor 

contractor. (See § 4.4(a)(3).) If such 

services are being furnished at more 

than one locality and the collectively 

bargained wage rates and fringe benefits 

are different at different localities or do 

not apply to one or more localities, the 

agency shall identify the localities to 

which such agreements have 

application. If the collective bargaining 

agreement does not apply to all service 

employees under the contract, the 

agency shall identify the employees 

and/or work subject to the collective 

bargaining agreement. In the event the 

agency has reason to believe that any 

such collective bargaining agreement 

was not entered into as a result of arm’slength negotiations, a full statement of 

the facts so indicating shall be 

transmitted to the Wage and Hour 

Division with the copy of such 

agreement. (See § 4.11.) If the agency 

has information indicating that any such 

collectively bargained wage rates and 

fringe benefits are substantially at 

variance with those prevailing for 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 75415

services of a similar character in the 

locality, the agency shall so advise the 

Wage and Hour Division and, if it 

believes a hearing thereon pursuant to 

section 4(c) of the Act is warranted, 

shall file its request for such hearing 

pursuant to § 4.10. A wage 

determination based upon the collective 

bargaining agreement must be included 

in the contract until a hearing or a final 

ruling of the Administrator determines 

that the collective bargaining agreement 

was not reached as the result of arm’slength negotiations or was substantially 

at variance with locally prevailing rates. 

Any questions regarding timeliness or 

applicability of collective bargaining 

agreements must be referred to the 

Department of Labor for resolution. 

(5) If the proposed contract is for a 

multi-year period subject to other than 

annual appropriations, the contracting 

agency shall, unless otherwise advised 

by the Wage and Hour Division, obtain 

a new wage determination on each 

biennial anniversary date of the 

proposed multi-year contract in the 

event its term is for a period in excess 

of two years.

12. Section 4.5 is proposed to be 

amended by revising paragraphs (a), (c), 

and (d) to read as follows:

§ 4.5 Contract specification of determined 

minimum wages and fringe benefits. 

(a) Any contract in excess of $2,500 

shall contain, as an attachment, the 

applicable, currently effective wage 

determination specifying the minimum 

wages and fringe benefits for service 

employees to be employed thereunder, 

including any document referred to in 

paragraphs (a)(1) or (2) of this section; 

(1) Any wage determination from the 

Wage and Hour Division, Employment 

Standards Administration, Department 

of Labor, responsive to the contracting 

agency’s submission of an ‘‘e98’’ or 

obtained through WDOL under § 4.4; or 

(2) Any revision of a wage 

determination issued prior to the award 

of the contract or contracts which 

specifies minimum wage rates or fringe 

benefits for classes of service employees 

whose wages or fringe benefits were not 

previously covered by wage 

determinations, or which changes 

previously determined minimum wage 

rates and fringe benefits for service 

employees employed on covered 

contracts in the locality. However, 

revisions received by the Federal agency 

later than 10 days before the opening of 

bids, in the case of contracts entered 

into pursuant to competitive bidding 

procedures, shall not be effective if the 

Federal agency finds that there is not a 

reasonable time still available to notify 

bidders of the revision. In the case of 

procurements entered into pursuant to 

negotiations (or in the case of the 

execution of an option or an extension 

of the initial contract term), revisions 

received by the agency after award (or 

execution of an option or extension of 

term, as the case may be) of the contract 

shall not be effective provided that the 

contract start of performance is within 

30 days of such award (or execution of 

an option or extension of term). If the 

contract does not specify a start of 

performance date which is within 30 

days from the award, and/or if 

performance of such procurement does 

not commence within this 30-day 

period, the Department of Labor shall be 

notified and any notice of a revision 

received by the agency not less than 10 

days before commencement of the 

contract shall be effective. In situations 

arising under section 4(c) of the Act, the 

provisions in § 4.1b(b) apply. 

(3) For purposes of using WDOL 

databases containing prevailing wage 

determinations, the date of receipt by 

the contracting agency will be the date 

of publication on the WDOL Web site or 

on the date the agency receives actual 

notice of a revised wage determination 

from the Department of Labor, 

whichever occurs first. 

(b) * * * * * 

(c) Where the Department of Labor 

discovers and determines, whether 

before or subsequent to a contract 

award, that a contracting agency made 

an erroneous determination that the 

Service Contract Act did not apply to a 

particular procurement and/or failed to 

include an appropriate wage 

determination in a covered contract, the 

contracting agency, within 30 days of 

notification by the Department of Labor, 

shall include in the contract the 

stipulations contained in § 4.6 and any 

applicable wage determination issued 

by the Administrator or his authorized 

representative through the exercise of 

any and all authority that may be 

needed (including, where necessary, its 

authority to negotiate or amend, its 

authority to pay any necessary 

additional costs, and its authority under 

any contract provision authorizing 

changes, cancellation, and termination). 

With respect to any contract subject to 

section 10 of the Act, the Administrator 

may require retroactive application of 

such wage determination. (See 53 

Comp. Gen. 412, (1973); Curtiss-Wright 

Corp. v. McLucas, 381 F. Supp. 657 (D 

NJ 1974); Marine Engineers Beneficial 

Assn., District 2 v. Military Sealift 

Command, 86 CCH Labor Cases ¶ 33,782 

(D DC 1979); Brinks, Inc. v. Board of 

Governors of the Federal Reserve 

System, 466 F. Supp. 112 (D DC 1979), 

466 F. Supp. 116 (D DC 1979).) (See also 

32 CFR 1–403.) 

(d) In cases where the contracting 

agency has filed an ‘‘e98’’ and has not 

received a response from the 

Department of Labor, the contracting 

agency shall, with respect to any 

contract for which section 10 to the Act 

and § 4.3 for this part mandate the 

inclusion of an applicable wage 

determination, contact the Wage and 

Hour Division by telephone for 

guidance.

Subpart B—Wage Determination 

Procedures 

13. Section 4.50 is proposed to be 

revised to read as follows:

§ 4.50 Types of wage and fringe benefit 

determinations. 

The Administrator specifies the 

minimum monetary wages and fringe 

benefits to be paid as required under the 

Act in two types of determinations: 

(a) Prevailing in the locality. (1) 

Determinations that set forth minimum 

monetary wages and fringe benefits 

determined to be prevailing for various 

classes of service employees in the 

locality (sections 2(a)(1) and 2(a)(2) of 

the Act) after giving ‘‘due 

consideration’’ to the rates applicable to 

such service employees if directly hired 

by the Federal Government (section 

2(a)(5) of the Act). 

(2) The prevailing wage 

determinations applicable to most 

contracts covered by the Act are based 

upon cross-industry survey data. 

However, in some cases the Department 

of Labor may issue industry specific 

wage determinations for application to 

specific types of service contracts. In 

addition, the geographic scope of 

contracts is often different and the 

geographic scope of the underlying 

survey data for the wage determinations 

applicable to those contracts may be 

different. Therefore, a variety of 

different prevailing wage 

determinations may be applicable in a 

particular locality. The application of 

these different prevailing wage 

determinations will depend upon the 

nature of the contracts to which they are 

applied. 

(b) Collective Bargaining Agreement—

(Successorship). Determinations that set 

forth the wage rates and fringe benefits, 

including accrued and prospective 

increases, contained in a collective 

bargaining agreement applicable to the 

service employees who performed on a 

predecessor contract in the same 

locality. (See sections 2(a)(1) and (2) as 

well as 4(c) of the Act.)

14. Paragraph (b) of § 4.54 is proposed 

to be revised to read as follows:

75416 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Proposed Rules 

§ 4.54 Locality basis of wage and fringe 

benefit determinations.

* * * * *

(b) Where the services are to be 

performed for a Federal agency at the 

site of the successful bidder, in contrast 

to services to be performed at a specific 

Federal facility or installation, or in the 

locality of such installation, the location 

where the work will be performed often 

cannot be ascertained at the time of bid 

advertisement or solicitation. In such 

instances, wage determinations will 

generally be issued for the various 

localities identified by the agency as set 

forth in § 4.4(a)(3)(i).

* * * * *

15. Paragraphs (a) and (b) of § 4.55 are 

proposed to be revised to read as 

follows:

§ 4.55 Issuance and revision of wage 

determinations. 

(a) Determinations will be reviewed 

periodically and where prevailing wage 

rates or fringe benefits have changed, 

such changes will be reflected in revised 

determinations. For example, in a 

locality where it is determined that the 

wage rate which prevails for a particular 

class of service employees is the rate 

specified in a collective bargaining 

agreement(s) applicable in that locality, 

and such agreement(s) specifies 

increases in such rates to be effective on 

specific dates, the determinations would 

be revised to reflect such changes as 

they become effective. Revised 

determinations shall be applicable to 

contracts in accordance with the 

provisions of § 4.5(a) of subpart A. 

(b) Determinations issued by the Wage 

and Hour Division with respect to 

particular contracts are required to be 

incorporated in the invitations for bids 

or requests for proposals or quotations 

issued by the contracting agencies, and 

are to be incorporated in the contract 

specifications in accordance with § 4.5 

of subpart A. In this manner, 

prospective contractors and 

subcontractors are advised of the 

minimum monetary wages and fringe 

benefits required under the most 

recently applicable determination to be 

paid the service employees who perform 

the contract work. These requirements 

are, of course, the same for all bidders 

so none will be placed at a competitive 

disadvantage.

* * * * *

Subpart C—Application of the 

McNamara-O’Hara Service Contract 

Act

16. Paragraphs (e)(1)(iv)(A) and 

(e)(2)(iii)(A) of § 4.123 are proposed to 

be revised to read as follows:

§ 4.123 Administrative limitations, 

variances, tolerances and exemptions.

* * * * *

(e) * * * 

(1) * * * 

(iv)(A) If the Administrator 

determines after award of the prime 

contract that any of the requirements in 

paragraph (e)(1) of this section for 

exemption has not been met, the 

exemption will be deemed inapplicable, 

and the contract shall become subject to 

the Service Contract Act, effective as of 

the date of the Administrator’s 

determination. In such case, the 

corrective procedures in § 4.5(c) shall be 

followed.

* * * * *

(2) * * * 

(iii)(A) If the Administrator 

determines after award of the prime 

contract that any of the requirements in 

paragraph (e)(2) for exemption has not 

been met, the exemption will be deemed 

inapplicable, and the contract shall 

become subject to the Service Contract 

Act. In such case, the corrective 

procedures in § 4.5(c) shall be followed.

* * * * *

17. Section 4.144 is proposed to be 

revised to read as follows:

§ 4.144 Contract modifications affecting 

amount. 

Where a contract that was originally 

issued in an amount not in excess of 

$2,500 is later modified so that its 

amount may exceed that figure, all the 

provisions of section 2(a) of the Act, and 

the regulations thereunder, are 

applicable from the date of modification 

to the date of contract completion. In 

the event of such modification, the 

contracting officer shall immediately 

obtain a wage determination from the 

Department of Labor using the ‘‘e98’’

application or directly from WDOL, and 

insert the required contract clauses and 

any wage determination issued into the 

contract. In the event that a contract for 

services subject to the Act in excess of 

$2,500 is modified so that it cannot 

exceed $2,500, compliance with the 

provisions of section 2(a) of the Act and 

the contract clauses required thereunder 

ceases to be an obligation of the 

contractor when such modification 

becomes effective.

[FR Doc. 04–27422 Filed 12–15–04; 8:45 am] 

BILLING CODE 4510–27–P