[Federal Register Volume 70, Number 165 (Friday, August 26, 2005)]
[Rules and Regulations]
[Pages 50888-50899]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16779]



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Part IV





Department of Labor





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Employment Standards Administration



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Wage and Hour Division



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29 CFR Parts 1 and 4



Service Contract Act Wage Determination OnLine Request Process; Final 
Rule

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules 
and Regulations

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DEPARTMENT OF LABOR

Employment Standards Administration

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: Final rule.

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SUMMARY: The Department of Labor (DOL) is amending two regulations to 
allow for full implementation of the Wage Determinations OnLine (WDOL) 
Internet Web site (http://www.wdol.gov) as the source for federal 
contracting agencies to use when obtaining wage determinations issued 
by the DOL for service contracts subject to the McNamara-O'Hara Service 
Contract Act (SCA) and for construction contracts subject to the Davis-
Bacon Act and Related Acts (DBRA).

DATES: These rules are effective on September 26, 2005.

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 Wage and Hour Division 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. 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.

II. Section 508 of the Rehabilitation Act

    The Wage Determinations OnLine (WDOL) Internet Web site (http://www.wdol.gov), an electronic information resource, is subject to and 
will be developed and maintained in accordance with the accessibility 
requirements of Section 508 of the Rehabilitation Act, 29 U.S.C. 794d.

III. Summary of Changes

    The SCA 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 
authorized representative), or the rates (including prospective 
increases) contained in a predecessor contractor's collective 
bargaining agreement.
    SCA section 4, 41 U.S.C. 353, authorizes the Secretary of Labor to 
enforce the Act, make rules and regulations, issue orders, hold 
hearings, make decisions based upon findings of fact and take other 
appropriate action. The DOL rules relating to SCA administration are 
contained in Regulations, 29 CFR part 4.
    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. The DBA requires 
contractors or their subcontractors 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 as determined 
by the Secretary of Labor.
    Regulations, 29 CFR part 1, contain 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 (the Davis-Bacon Related Acts) by the DOL 
in accordance with the provisions of the DBA.
    The DOL published a Notice of Proposed Rulemaking in the Federal 
Register on December 16, 2004 (69 FR 75408), proposing to update its 
regulations to have contracting agencies use the WDOL Internet website 
to meet their obligation to obtain DBA general wage determinations from 
the Wage and Hour Division (WHD). The DOL proposed to publish wage 
determinations solely through WDOL and to discontinue publishing notice 
of changes in the Federal Register and to no longer publish paper 
copies of general wage determinations through the Government Printing 
Office (GPO). 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.
    For SCA wage determinations, the DOL proposed 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 proposed to allow use of WDOL as an 
alternative means of obtaining SCA wage determinations. The DOL further 
proposed to update pertinent statutory citations for applicable laws to 
reflect amendments to Title 40 of the U.S. Code and to make other minor 
editorial revisions and updates to its regulations.
    The development of WDOL required an update of the existing 
regulations, which now also provides 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 DBA.

29 CFR Part 1

    The proposed rule adopted the WDOL website as the single source for 
obtaining DBA general wage determinations and eliminated publication of 
notices in the Federal Register. Notice of future modifications and 
supersedeas general wage determinations will be posted on WDOL. The 
proposed rule also eliminated references to GPO publication of general 
wage determinations, although GPO may continue, at its discretion, to 
publish general wage determinations. The proposed rule retained 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. The DOL processed fewer than 100 Forms SF-308 in FY 2004, 
and did not believe providing Federal agencies with an electronic 
submission option in these rare cases justified the considerable 
expense that developing such a system would require.

29 CFR Part 4

    The proposal drew upon technological advances of recent years and 
the wide use of electronic communication and information sharing. It 
replaced the paper Standard

[[Page 50889]]

Form SF-98 request and response process for obtaining SCA wage 
determinations with an electronic e98 process and enabled contracting 
agencies alternatively to use the WDOL website to obtain SCA wage 
determinations.
    The DOL has been working 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 seeking 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 National Technical Information 
Service (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. This led to the WHD entering 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 a Form SF-98 after the fact.
    This MOU program further implemented 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 follow-up and advise 
contracting agencies when wage determinations were revised or updated. 
Because the MOU program proved to be quite successful, it subsequently 
was expanded to numerous other agencies.
    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 email 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 web-based 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).)

III. Summary of Comments

    DOL received five comments in response to the Notice of Proposed 
Rulemaking, discussed further below, from the: Office of the Under 
Secretary of Defense (DOD); Army Corps of Engineers (Army); Department 
of the Navy, Office of the Assistant Secretary for Research, 
Development and Acquisition (Navy); Contract Services Association 
(CSA); and International Association of Machinists and Aerospace 
Workers. All comments generally support the automated environment for 
obtaining wage determinations that underlies the proposed rule; 
however, several comments recommend minor revisions. Some of the 
recommendations address issues that are beyond the scope of the 
proposed rule.
    The CSA urges removing the references in proposed Sec. Sec.  1.2(e) 
and 4.1a(i) that ``the term WDOL will apply to any other Internet Web 
site or electronic means that the Department of Labor may approve for 
these purposes,'' in addition to http://www.wdol.gov. The CSA believes 
the definition may cause potential confusion among contractors and 
contracting agencies. These sections define the term, ``WDOL.'' The 
proposed rule allows more flexibility and accommodates future 
technological advances without the delays that might otherwise be 
associated with procedural regulatory changes. The final rule retains 
the references.
    The Navy urges revising or eliminating the current requirement in 
Sec.  1.4 for contracting agencies to provide the DOL with an annual 
summary of their construction plans for the coming year. The final rule 
retains the requirement. The Navy believes much of the information 
provided in these

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reports could be extracted from various reports used for other 
purposes. These construction reports are not related to the process for 
obtaining wage determinations and are not part of the proposed rule. In 
the past, the WHD has used these reports to identify localities with 
the greatest need for new Davis-Bacon wage surveys. Although the WHD is 
testing new processes that might allow regularly scheduled Davis-Bacon 
wage surveys of all areas of the country, it is not yet clear that such 
processes will totally eliminate the need for some targeted surveys. In 
addition, it is not clear that the other sources identified by the Navy 
would provide the same level of detail and information as called for 
under Sec.  1.4 of the Regulations. The DOL does not believe that 
further action on this recommendation is warranted at this time and 
that the suggestion would necessitate reopening the notice and comment 
process. The DOL will give careful consideration to the Navy's 
recommendation, if it undertakes further rulemaking regarding the 
Davis-Bacon Act in the future.
    The DOD and Navy recommend replacing the detailed discussion in 
Sec.  1.5(b) regarding the requirements for completing Form SF-308 with 
a more general statement and provide for an electronic submission 
option. The final rule retains the existing provision, because the DOL 
does not believe providing Federal agencies with an electronic 
submission option for the rare instances in which an agency files Form 
SF-308 justifies the considerable expense that developing such a system 
would require. The DOL processed fewer than 100 Forms SF-308 in FY 
2004.
    The CSA recommends amending the definition of ``wage 
determination'' in Sec.  4.1a(h) to clarify the effective date and 
applicability of wage determinations. This definition is not part of 
the proposed regulatory changes. The Administrative Procedure Act 
(APA), 5 U.S.C. 553, normally requires notice and an opportunity for 
public comment when an agency amends a substantive rule. The APA, 
however, contains exceptions to the notice and comment provisions for 
(1) ``interpretive rules, general statements of policy, or rules of 
agency organization, procedure, or practice'' and (2) rules where the 
agency for good cause finds that notice and public comment are 
``impracticable, unnecessary, or contrary to the public interest.'' 
Agencies may immediately adopt rules subject to the exceptions. The 
suggested change regarding the date on which a wage determination 
becomes effective, without including a reference to the applicability 
of the determination, helps to clarify the WDOL process and augments 
Sec.  4.4(c)(1) of the proposed rule. The section makes clear that a 
contracting agency using the WDOL process bears full responsibility for 
selecting the correct wage determination. The rule, however, also 
requires the contracting agency to amend a contract if the DOL 
subsequently determines the contracting agency applied an incorrect 
wage determination to a specific contract; thus, an inapplicable wage 
determination does not become applicable because the contracting agency 
has inserted it into the contracting action. The final rule 
incorporates the suggestion to include when a wage determination 
becomes effective by adding a new sentence to the existing definition 
for wage determination in Sec.  4.1a(h) to read, ``A wage determination 
is effective upon its publication on the WDOL website or when a Federal 
agency receives a response from the Department of Labor to an e98.'' 
The DOL hereby finds, pursuant to 5 U.S.C. 553(b)(3)(B), that notice 
and public comment procedures on this clarification of the definition 
of ``wage determination'' in Sec.  4.1a(h) are impracticable and 
unnecessary and would not further the public interest.
    The DOD and Navy want the definition for the term, ``e98,'' in 
Sec.  4.1a(j) to include the Internet address for WDOL. The agencies 
believe such a change would help clarify how to locate the e98. The DOL 
agrees this could improve access to the e98. The final rule includes 
the Web site.
    The CSA believes proposed Sec.  4.3(c) requires minor clarification 
by adding the word, ``revision,'' to the discussion of methods by which 
an existing wage determination may become obsolete in the last 
sentence. The CSA points out that the remainder of the section 
discusses ``revisions'' of wage determinations. The DOL agrees the 
change may help in understanding the requirement, and the final rule 
incorporates this change. The CSA also recommends relocating the 
proposed description in Sec.  4.3(c) of what a wage determination 
includes and its significance to the definitions found in Sec.  4.1a. 
The final rule retains the description in its present location, because 
the DOL believes the overall discussion of wage determinations in Sec.  
4.3 remains a more appropriate context for information found in a wage 
determination and its significance.
    The CSA also urges revising proposed Sec.  4.3(e) to (1) make all 
effective SCA wage determinations and any underlying collective 
bargaining agreements and locality wage determinations available for 
public inspection at all WHD District Offices and (2) clarify the 
availability of archived wage determinations through WDOL. The proposed 
regulation provides for the DOL to make wage determinations available 
for public inspection through the National and five Regional Offices of 
the WHD during regular business hours and through WDOL. The proposed 
WDOL rule parallels the ``public inspection'' provisions that exist in 
the current rule geared for review of only paper documents and, adds an 
on-line viewing feature available through WDOL. The final rule does not 
provide for public inspection of wage determinations at WHD District 
Offices but does highlight the availability of archived copies of wage 
determinations through WDOL. WHD District Offices are not staffed in a 
way that would allow public inspections of wage determinations in the 
District Offices. In addition, the proposed change would require the 
agency to either maintain a supply of printed copies of all wage 
determinations available or a computer available for public use at each 
District Office. Adoption of the recommendation would impose a 
regulatory requirement to make staff available and print copies of all 
wage determinations in each District Office and could impose a new 
demand for resources not presently available. Persons in outlying areas 
may access wage determinations through the Internet and facilities to 
access the Internet are available at public libraries. Availability of 
a DOL computer for public inspection could also present potential 
security concerns for DOL's information technology systems. The WDOL 
website does have a capability to allow the viewing of archival copies 
of wage determinations that are not current, and the final rule makes 
that availability clear. The DOL has also incorporated this suggestion 
in Sec.  1.6(c)(3)(v), with respect to Davis-Bacon wage determinations.
    The DOL has received several suggestions regarding Sec.  4.4, 
Obtaining a wage determination. The CSA urges inserting ``applicable,'' 
when referring to wage determinations in effect for a particular 
contracting action in Sec.  4.4(a). The CSA wants this change since the 
FAR SCA price adjustment clause uses ``applicable'' to describe the 
basis for changing pricing when a new wage determination takes effect, 
tribunals use ``applicable'' when determining which wage determination 
is appropriate for price adjustment, and DOL uses the term for 
enforcement purposes. The final rule does not include the reference.

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The DOL believes the proposed regulation sufficiently outlines the 
relevant applicable requirements and the reasons for not adopting a 
similar suggestion discussed in relation to Sec.  4.1a(h) also apply to 
this situation.
    The CSA also suggests adding the issuance of any task order issued 
pursuant to a GSA Schedule contract or blanket purchase agreement for 
commercial services to the illustrative list of contracting actions for 
which a contracting agency must obtain a wage determination in Sec.  
4.4(a)(1). The CSA believes adding the reference may be prudent, given 
the continuing growth of GSA Schedule and commercial service 
contracting. The final rule does not add the example. The DOL believes 
naming GSA schedule contracts and blanket purchase agreements may cause 
some confusion, because no individual task or purchase order determines 
the amount of the contract. The existing provisions of Sec.  4.142 
provides guidance by stating these contracts would ordinarily 
constitute contracts within the intent of the Act under judicially 
established principles.
    A third CSA recommendation encourages adding a statement in Sec.  
4.4(a)(3)(i) highlighting that a contracting agency may select a wage 
determination through WDOL, in addition to obtaining it from DOL. The 
final rule does not include the additional statement. The proposed rule 
requires a contracting agency to obtain a wage determination for each 
location in which work may be performed, if the place of performance is 
unknown at the time of solicitation. In addition to the e98 process, 
contracting agencies may obtain wage determinations from DOL through 
WDOL. Section 4.4 (a)(2) provides a general discussion of the methods 
and Sec.  4.4(b) and (c) provide specific discussions of the different 
ways in which a contracting agency may obtain a wage determination. In 
a related recommendation, the CSA suggests removing the provision in 
this section that requires use of the wage determination incorporated 
in the contract documents. The CSA believes the wage determinations 
apply to service employees in specific localities, not to contractors. 
The CSA also presents a view that, when a contractor relocates work, 
contracting agencies should use the WDOL or e98 process to obtain a new 
wage determination for the location in which the work performance 
actually takes place. The final rule retains the provision. The DOL 
does not believe that further action on this recommendation is 
warranted at this time and it would necessitate reopening the notice 
and comment process.
    The DOD and Navy recommend revising Sec.  4.4(b)(1) to have WDOL 
use the applicable solicitation or contract number for tracking 
purposes, instead of the WDOL system assigning a unique number. The 
final rule does not incorporate this recommendation, because it would 
require redesign of the WDOL system and how it interfaces with internal 
DOL programs, as well as considerable additional resources that are 
presently not available.
    The DOD and Navy also recommend changing the proposed requirement 
in Sec.  4.4(b)(3) for a contracting agency to monitor email addresses 
to having contracting agencies resubmit an e98 with a new email address 
each time an email address changes. These agencies also believe the DOL 
should establish an internal policy of requesting electronic delivery 
and read receipts. The final rule retains the monitoring requirement 
and does not establish a policy of requesting electronic delivery and 
read receipts. The proposed rule makes clear that contracting agencies 
obtaining wage determinations through WDOL bear the responsibility for 
insuring they incorporate the correct wage determination into any 
contracting action. The rule also provides flexibility to contracting 
agencies in how they accomplish that standard. The ``email monitoring 
provision'' of proposed Sec.  4.4(b)(3) is similar to the proposed 
Sec.  4.4(c)(3) requirement for contracting agencies to monitor the 
WDOL website to determine whether the applicable wage determination has 
been revised. There may also be situations, such as periods of leave 
(e.g., 2-week vacation), during which contracting agencies may not 
believe it practical to update email addresses; thus, to require 
resubmission of an e98 in all cases could be unduly burdensome. The 
WDOL website provides a method for contracting agencies to contact the 
Division. The DOL believes the WDOL contact process is sufficient.
    The DOD and Navy recommend replacing the phrase ``geographic area'' 
in Sec. Sec.  4.4(b)(5) and (c)(4) with ``locality,'' to make the 
wording consistent with Sec.  4.163(i). The DOL agrees and the final 
rule reflects the modification.
    The DOD and Navy also seek to revise Sec.  4.4(b)(5) and 4.5(d) to 
have the contracting officer follow up with the DOL, if the contracting 
agency has not received a response within 10 business days of the 
submission of the original e98 notice or within 15 business days of the 
submission of the collective bargaining agreement. They further suggest 
the regulation specify an email address and a telephone number where 
such follow up should be made. The DOL has not adopted the suggested 
changes in the final rule. Proposed Sec.  4.4(b)(1) provides for the 
requester to receive a response indicating the request has been 
referred to an analyst, if the DOL does not provide a final response to 
an e98 while the requester is online. The e98 will be assigned a unique 
serial number to facilitate follow-up should that become necessary. 
Although the regulations do not provide specific timeframes for a 
further response by an analyst, the initial e98 response states that a 
further response will be provided within five days. The additional 
response is usually provided on the same day or the next day; however 
some cases may require additional time. When the DOL requires 
additional time or information, the analyst working on the request will 
provide an interim reply informing the requestor of the need and that 
further response will come from the email address of the analyst 
working on the e98 request. If the contracting officer needs to follow-
up on his/her e98, it would be more efficient to address such follow-up 
directly to the analyst working on the e98. In those rare instances 
where the contracting officer does not receive at least an interim 
response from an analyst within five days of submission, the 
instructions for the e98 provide both an email address and a telephone 
number where requests for assistance or a status report may be sent. 
The DOL believes including telephone numbers and email addresses in the 
regulations is not the most efficient way to ensure contracting 
officers have access to the current address and telephone number, 
because such information may change. The DOL also believes contracting 
officers accustomed to using the internet for submitting e98s will most 
likely return to the e98 website, rather than turn to the DOL 
regulations to seek an email address or telephone number to follow-up 
on their e98 submission. The DOL believes that these matters are 
adequately addressed within the e98 system and the proposed 
regulations.
    The CSA recommends adding a reference to the ``changes'' clause in 
an SCA contract to the requirement in Sec.  4.4(c)(1) for contracting 
agencies to amend contracts by incorporating the correct wage 
determination as determined by DOL. The CSA believes the change is 
appropriate, because the proposed regulations (1) affect Federal agency 
procurement procedures and (2) are for contracting agencies. The final 
rule does not contain such a provision. The DOL believes the proposed 
rule adequately states the obligations contracting agencies have when a

[[Page 50892]]

contracting agency incorporates an incorrect wage determination and 
that the FAR is the appropriate vehicle to address the concern raised 
by the CSA.
    The CSA suggests the DOL refer to ``information,'' instead of 
``document,'' in Sec.  4.5(a)(1), and the final rule reflects this 
recommendation. The CSA believes the change would make the regulation 
more consistent with the purpose of the regulation, to take advantage 
of wide use of electronic communication and information sharing. The 
types of ``documents'' contemplated by the proposed rule are the wage 
determination, including revisions received timely, for the contracting 
action. The DOL believes contracting agencies currently routinely use 
paper copies of wage determinations for insertion into contracting 
actions; however, the proposed rule would not preclude use of 
electronic documents. DOL, however, believes the more common use of 
``documents'' as referring to paper and the broader use of 
``information'' and ``data'' for information technology purposes make a 
sufficiently compelling case to adopt the suggestion.
    The CSA urges the DOL to divide Sec.  4.5(a)(2) into a general 
introductory statement and two subsections pertaining to special 
circumstances. The final rule incorporates this recommendation, because 
the DOL agrees this may increase understanding of the regulatory 
requirements. The CSA also recommends the DOL reduce the 10-day time 
frame discussed in the second sentence of Sec.  4.5(a)(2). The CSA 
believes a 5-day period would still allow contracting agencies time to 
provide electronic notification to offerors of the amended solicitation 
and still allow offerors sufficient time to amend their proposals. The 
final rule does not include this second change. The current and 
proposed rule allow agencies to make a determination that there is not 
a reasonable time to notify bidders of a revised wage determination, if 
the agency receives notice of the revision less than 10 days before the 
bid opening. The DOL believes use of electronic communication may cause 
contracting agencies to have fewer instances in which they will make a 
finding of insufficient time; however, it remains appropriate for 
contracting agencies to have an ability to exercise this discretion 
based on varying factual circumstances. The CSA further seeks to change 
this section by (1) making any revised wage determinations received 
after final proposal revisions inapplicable to negotiated procurements 
and (2) adding a provision requiring contracting agencies to make 
modifications within half the time currently allowed and (3) requiring 
corresponding adjustment in the contract price. The final rule does not 
include the requested changes, because they exceed the intended scope 
of the proposed rule, and the DOL believes further action on this 
recommendation would require reopening the notice and comment process. 
The DOD and Navy suggest removal of the fourth sentence of this 
proposed section, as initially drafted, which provides that, if (1) the 
contract does not specify a start of performance date which is within 
30 days from the award and/or (2) performance of such procurement does 
not commence within this 30-day period, the DOL 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. The agencies 
believe on-line access to wage determinations through WDOL and the e98 
process make it unnecessary to continue the requirement for contracting 
agencies to submit blanket notifications to the DOL for all contracts 
specifying a start of performance date of more than 30 days, originally 
developed under the paper Form SF-98 process. The final rule does not 
include the notification requirement, but the remainder of the 
requirement has been retained.
    The CSA urges that Sec.  4.5(a)(3) highlight that a contracting 
agency has received an initial or a revised wage determination on the 
date the DOL (1) posts the determination to the WDOL Web site or (2) 
sends the determination through the e98 response process. The CSA 
believes it is critical to emphasize that a wage determination becomes 
effective when published on the WDOL Web site, and not only when the 
contracting agency receives an e98 response from DOL, since proposed 
Sec.  4.4, Obtaining a wage determination, addresses identification of 
the initial wage determination (whether by the WDOL or e98 process). 
The final rule now includes references to the initial wage 
determination and e98 process in Sec.  4.5(a)(3). The proposed rule 
only mentions the date of publication on WDOL or date on which an 
agency receives a revised determination from the DOL; however, the 
proposed rule does not indicate that contracting agencies may also 
receive initial wage determinations through the e98 process. The DOL 
agrees the clarification proposed by the CSA could reduce confusion 
over the date of receipt and make it more congruous with Sec.  4.4.
    The CSA recommends revising Sec.  4.5(c) by referring to an 
``applicable'' wage determination, changing the time frame for 
inserting the appropriate wage determination from 30 to 15 days from 
the date of the DOL notification and incorporating a reference to the 
changes clause of the contract. The final rule does not adopt these 
changes, for reasons previously explained.
    The DOD and Navy recommend Sec.  4.5(d) direct the contracting 
officer to incorporate a complete copy of the collective bargaining 
agreement into the contract action, if a timely response to the e98 has 
not been received and the e98 involves a collective bargaining 
agreement. The final rule does not include this prescription, because 
it may not be the most efficient approach in all cases and the existing 
proposal provides adequate guidance and greater flexibility in 
addressing the underlying concern. Proposed Sec.  4.5(d) provides that 
the WHD should be contacted for guidance in cases where the contracting 
agency has filed an e98 and has not received a response. While it is 
possible that the guidance will be to include the entire collective 
bargaining agreement in the contract action, such action may not be 
necessary in all cases.
    The DOD, Army and Navy also express a belief that the Sec.  4.8 
requirement regarding use of Form SF-99 (Notice of Award of Contract) 
is no longer needed and its continuation creates an unnecessary 
duplication of contract reporting, in view of the enhanced reporting 
capabilities of the Federal Procurement Data System (FPDS). The 
agencies ask the DOL to eliminate the reporting requirement. The 
proposed rule does not include any changes in Sec.  4.8 or this 
reporting requirement. The SCA coverage threshold for application of 
SCA wage determinations is $2,500; however, Sec.  4.8 of the current 
rule requires that when a contract over $10,000 is awarded and the 
agency does not report the award to the FPDS via Form SF-279 (FPDS 
Individual Contract Action Report) or its equivalent, the agency is 
expected to furnish a Form SF-99 to the Wage and Hour Division unless 
it makes other arrangements for notifying the Division of such awards. 
The $10,000 reporting threshold was adopted in the SCA rules in 1983 to 
be consistent with the then-applicable small purchase threshold and 
reporting requirements of the FPDS. Prior to 1983, a Form SF-99 was 
required for all SCA contracts in excess of S2,500. This procedural 
rule, thus, originally established a reporting requirement between a 
federal contracting agency and the DOL only if the contract award data 
was not already being reported to the FPDS, thereby eliminating any 
duplication of reporting requirements and reducing existing

[[Page 50893]]

paperwork and reporting burdens on the agencies. The FPDS reporting 
threshold via Form SF-279, however, has since been increased to 
$25,000. The change in the FPDS reporting threshold, thus, has created 
the additional reporting burden. In any event, in the interest of 
eliminating any unanticipated paperwork and reporting burdens imposed 
by Sec.  4.8, the DOL has decided to discontinue the use of Standard 
Form 99 and eliminate the reporting requirement entirely. The APA 
exception to the notice-and-comment procedures applies to this 
situation. The DOL finds, pursuant to 5 U.S.C. 553(b)(3)(B), that 
notice and public comment procedures on this procedural reporting rule 
are impracticable and unnecessary and would not further the public 
interest. Accordingly, the final rule removes and reserves Sec.  4.8 
and the DOL will discontinue using Form SF-99.
    The CSA suggests removal of Sec.  4.50(a)(2), in the absence of any 
correlation between the provision and the wide use of electronic 
communication and information sharing, or moving the discussion to 
Sec.  4.56, Review and reconsideration of wage determinations. The 
final rule retains this provision as proposed without change. The 
section stresses that (1) various prevailing wage determinations may 
apply in a particular locality and (2) the application of these 
different prevailing wage determinations will depend upon the nature of 
the contracts to which they are applied. These differences and 
variations in wage determinations require that contracting agencies 
observe the proper protocol required by the WDOL processes when 
selecting the appropriate wage determination. The provisions of Sec.  
4.56 provide an appeal right for any interested party affected by a 
wage determination to request the Wage and Hour Administrator to review 
and reconsider it.
    The CSA also urges revising the last sentence of Sec.  4.54(b), to 
provide for the issuance of wage determinations for various localities 
identified by the contracting agency as set forth in Sec.  4.4(a)(3)(i) 
``using the e98 process or 4.4(c) using the WDOL process.'' The final 
rule does not adopt the suggested change. Section 4.54 discusses 
situations where 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. The Sec.  4.4(a) introductory discussion of obtaining 
wage determinations applies equally to wage determinations obtained 
through either the e98 or WDOL processes, respectively explained in 
Sec.  4.4 (b) and (c).
    The CSA recommends inserting a requirement in Sec.  4.55(a) for the 
WHD to review wage determinations no less often than once every two 
years and also seeks other changes, consistent with the recommendation 
for Sec.  4.54. The final rule does not include these changes. The 
current and proposed regulations require periodic review of wage 
determinations but do not impose the maximum two-year interval between 
such reviews. The general requirement in SCA section 4(d) for the 
periodic update of wage determinations directs the contracting agencies 
to update wage determinations in awarded multi-year contracts. It is 
not a directive to DOL to update its wage determination database no 
less often than every two years. The DOL has not made these remaining 
changes, for the reasons discussed.
    The CSA recommends adding a reference to the ``changes'' clause in 
an SCA contract to Sec.  4.144(c)(1), pertaining to contract 
modifications affecting the amount of a contract. The final rule does 
not add the reference for the reasons previously stated. The proposed 
section merely conforms the provision to the e98 process and reflects 
the current regulation in all other respects.
    The CSA makes a general recommendation to substitute ``website'' 
for ``Internet Web site'' and to remove quotation marks from e98. The 
final rule incorporates these plain language changes. The final rule 
does not adopt the CSA recommendation to replace ``Government'' with 
``Department of Labor,'' because the DOL does not host the WDOL Web 
site.

IV. Regulatory Flexibility, Executive Order 12866; Small Business 
Regulatory Enforcement Fairness Act

    This 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 certified to this effect to the Chief 
Counsel for Advocacy of the U.S. Small Business Administration.
    This rule has been treated as a significant rulemaking, although 
not economically significant or major, and has, therefore, been 
reviewed by OMB.

V. 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.

VI. Executive Order 13132 (Federalism)

    The rule does not have federalism implications as outlined in 
Executive Order 13132. 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.

VII. 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.''

VIII. 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.

IX. Executive Order 13045, Protection of Children

    This rule has no environmental health risk or safety risk that may 
disproportionately affect children.

X. 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, 
indicates 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.

XI. 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.

[[Page 50894]]

XII. 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.

XIII. 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.

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 at Washington, DC, this 18th day of August, 2005.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Alfred B. Robinson, Jr.,
Deputy Administrator, Wage and Hour Division.

0
For the reasons set forth above, title 29, parts 1 and 4, of the Code 
of Federal Regulations are amended as set forth below.

TITLE 29--LABOR

PART 1--PROCEDURES FOR PREDETERMINATION OF WAGE RATES

0
1. The authority citation for part 1 is 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.


0
2. Paragraph (e) is added to section 1.2 to read as follows:


Sec.  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.

0
3. Paragraphs (a) and (b) of Sec.  1.5 are revised to read as follows:


Sec.  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 Sec.  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. When the 
requesting agency is a State highway department under the Federal-Aid 
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.
* * * * *

0
4. Paragraphs (a)(2), (c)(3)(iv) and (c)(3)(v) of Sec.  1.6 are revised 
to read as follows:


Sec.  1.6  Use and effectiveness of wage determinations.

    (a) * * *
    (2) General wage determinations issued pursuant to Sec.  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. Archived versions of 
Davis-Bacon and Related Acts wage determinations that are no longer 
current may be accessed in the ``Archived DB WD'' database of WDOL for 
information purposes only. Contracting officers should not use an 
archived wage determination in a contract action without prior approval 
of the Department of Labor.
* * * * *

0
5. Items 19 and 20 in Appendix A of part 1 are revised to read as 
follows:

Appendix A to Part 1

* * * * *

[[Page 50895]]

    19. National Visitors Center Facilities Act of 1968 (sec. 110, 
82 Stat. 45; 40 U.S.C. 808).

    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).
* * * * *


0
6. Appendix B of Part 1 is 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).


0
7. Appendix C of part 1 is deleted.

PART 4--LABOR STANDARDS FOR FEDERAL SERVICE CONTRACTS

0
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

0
9. In Sec.  4.1a, paragraphs (b) and (h) are revised and paragraphs (i) 
and (j) are added, to read as follows:


Sec.  4.1a  Definitions and use of terms.

    (b) Secretary includes the Secretary of Labor, the Assistant 
Secretary for Employment Standards, and their authorized 
representatives.
* * * * *
    (h) Wage determination includes any determination of minimum wage 
rates or fringe benefits made pursuant to the provisions of sections 
2(a) and/or 4(c) of the Act for application to the employment in a 
locality of any class or classes of service employees in the 
performance of any contract in excess of $2,500 which is subject to the 
provisions of the Service Contract Act of 1965. A wage determination is 
effective upon its publication on the WDOL Web site or when a Federal 
agency receives a response from the Department of Labor to an e98.
    (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 (http://www.wdol.gov), 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.

0
10. In Sec.  4.3, paragraphs (b) through (d) are revised and paragraph 
(e) is added, to read as follows:


Sec.  4.3  Wage determinations.

* * * * *
    (b) As described in subpart B of this part--Wage Determination 
Procedures, 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 cross-
industry survey data are applicable to most contracts covered by the 
Act, 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.
    (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, revision, or supersedure.
    (d) Generally, wage determinations issued for solicitations or 
negotiations for any contract where the place of

[[Page 50896]]

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 Sec.  
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. Archived versions of SCA 
wage determinations that are no longer current may be accessed in the 
``Archived SCA WD'' database of WDOL for information purposes only. 
Contracting officers should not use an archived wage determination in a 
contract action without prior approval of the Department of Labor.

0
11. Section 4.4 is revised to read as follows:


Sec.  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 Sec.  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 Sec.  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 that 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 Division 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 email 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 email. 
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 email 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 
email, a correct email 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 email address 
listed on the e98 must be monitored during the full solicitation stage 
of the procurement. Communications sent to the email 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 
email 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

[[Page 50897]]

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 locality 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 
Sec.  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 
Sec.  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 Sec.  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 Sec.  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 Sec.  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 locality as the predecessor 
contractor. (See section 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's-length 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 Sec.  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 Sec.  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's-length 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.

0
12. Section 4.5 is amended by revising paragraphs (a), (c), and (d) to 
read as follows:


Sec.  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 information 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 Sec.  4.4; or

[[Page 50898]]

    (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.
    (i) 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.
    (ii) 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). Any notice of a revision 
received by the agency not less than 10 days before commencement of the 
contract shall be effective, if:
    (A) The contract does not specify a start of performance date which 
is within 30 days from the award; and/or
    (B) Performance of such procurement does not commence within this 
30-day period.
    (iii) In situations arising under section 4(c) of the Act, the 
provisions in Sec.  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 an initial or revised wage determination from 
the Department of Labor through the e98 process, whichever occurs 
first.
* * * * *
    (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 Sec.  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 Sec.  4.3 for this part mandate the inclusion of an applicable 
wage determination, contact the Wage and Hour Division by e-mail or 
telephone for guidance.


Sec.  4.8  [Removed and Reserved]

0
13. Section 4.8 is removed and reserved.

Subpart B--Wage Determination Procedures

0
14. Section 4.50 is revised to read as follows:


Sec.  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.)

0
15. Paragraph (b) of Sec.  4.54 is revised to read as follows:


Sec.  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 Sec.  4.4(a)(3)(i).
* * * * *

0
16. Paragraphs (a) and (b) of Sec.  4.55 are revised to read as 
follows:


Sec.  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 Sec.  
4.5(a) of subpart A.

[[Page 50899]]

    (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 Sec.  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 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

0
17. Paragraphs (e)(1)(iv)(A) and (e)(2)(iii)(A) of Sec.  4.123 are 
revised to read as follows:


Sec.  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 Sec.  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) 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. In such case, the corrective procedures in Sec.  4.5(c) 
shall be followed.
* * * * *

0
18. Section 4.144 is revised to read as follows:


Sec.  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. 05-16779 Filed 8-25-05; 8:45 am]
BILLING CODE 4510-27-P