Back to Basics – the Davis-Bacon Act Conformance Process
“How to be a nonconformist, like everyone else.”
--Elissa Jane Karg, https://www.themarginalian.org/2013/09/30/how-to-be-a-nonconformist-elissa-jane-karg/ (by the daughter of one of my mother’s best friends).
A client asked me to write a step-by-step guide to Davis-Bacon Act (“DBA”) conformances. A conformance is the process for setting a prevailing wage and fringe benefit standard for job positions missing from a wage determination. Of course, I cannot give away my client’s work product, but I thought (perhaps) a simpler explanation of the DBA conformance process might be valuable to the public.
Back in the day, my mentor, Gilbert J. Ginsberg used to teach folks who attended our DBA seminars for Federal Publications that conformances were rarely needed for Davis-Bacon covered construction work, The idea was that construction trades were mostly clearly defined. Everyone intuitively knows what an electrician, plumber, or laborer is. There was little perceived need for conformances. Then, to our surprise, we noticed that there were more conformance disputes involving the DBA, than was the case for the Service Contract Act (“SCA”).
CRITERIA FOR CONFORMANCE
The governing regulations require that the following three criteria be met for any DBA conformance action:
· The work to be performed by the classification requested is not performed by a classification in the wage determination; and
· The classification is utilized in the area by the construction industry; and
· The proposed wage rate, including any bona fide fringe benefits, bears a
reasonable relationship to the wage rates contained in the wage
determination.
If you meet this test, then you can conform a position. The conformance is made to the wage determination rates and classifications found in the wage determination (“WD”) found in the government contract. There are different kinds of DBA WDs -- residential, building, heavy, or highway. See AAM 130 and 131 for project classification. https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/memo-131.pdf.
No conformance is required if job can be slotted into an existing job on the WD. If a worker does some of the duties of a job position listed on the WD then pay that WD rate. The Department of labor (“DOL”) generally will not conform a position for job listed on the WD even if it only does some of the listed positions job duties. Conformance of junior or trainee positions for listed journeyman jobs is also generally NOT permitted unless there is identifiable practice of doing so in the locality where the work is performed. That includes so-called helpers. A conformance cannot be used to artificially split or subdivide existing classifications. If a worker performs a hybrid job involving two existing classifications, no conformance will be allowed, and the contractor or its subcontractor should just keep track of hours worked in each job classification and pay accordingly (or pay the highest rate if they cannot keep track of the hours worked).
DEVELOPING JOB DESCRIRPTIONS
If the job classification is truly missing, then you need to obtain or develop a job description. Look at the federal government’s Office of Personnel Management ("OPM") website and review the Handbook of Occupational Groups and Families, Part II, Outline of Position Classification Plan for Trade, Craft, or Labor Job Families. Try to find a federal wage system (“FWS”) position which matches the missing job. https://www.opm.gov/policy-data-oversight/classification-qualifications/classifying-general-schedule-positions/occupationalhandbook.pdf.
If the position has more than one level of skilled labor, then note how the federal government grades job classifications. https://www.opm.gov/policy-data-oversight/classification-qualifications/classifying-federal-wage-system-positions/fwsintro.pdf.
Identify the Trade/Craft Family: Construction work falls under various FWS families, such as:
3600 Structural & Finishing Work (Roofing, tile, masonry).
4200 Plumbing & Pipefitting.
4600 Wood Work (Carpentry, crate making).
2800 Electrical Installation & Maintenance.
3800 Metal Work.
If you can find a matching federal job position, then use the portion of that FWS job description which matches the duties of the missing position to create your own job description and note the Federal Grade Equivalency ("FGE") level of the occupation to be conformed. If no equivalent can be found, then draft up your own job description.
THE 3 MAJOR DBA CONFORMANCE STEPS
For DBA covered contracts, here is how to determine the category of the missing job classification –
Step 1: Classifications in DBA wage determinations fall into four general job family categories: skilled crafts, laborers, power equipment operators, and truck drivers. To determine a "reasonable relationship," the requested additional classification is compared to the classifications on the applicable wage determination within the same category.
A proposed skilled craft classification is compared to skilled classifications in the wage determination; a proposed laborer classification is compared to existing laborer classifications; a proposed power equipment operator classification is compared to existing power equipment operator classifications; and a proposed truck driver classification is compared to existing truck driver classifications.
Step 2 is to determine the Union/Non-Union Status. Are both union-based rates and non-union rates enumerated on the WD? (You can tell by reviewing the notations below each rate on the WD to see if they reference a union Collective Bargaining Agreement). You needs to understand the labor classification identifier. The labor classification identifier provides information about how the prevailing wage was calculated:
Those that begin with “SU” denote a prevailing wage that is not based exclusively on union wage rates.
Those that begin with “UAVG” indicate that while no single union rate prevailed for those labor classifications, the average is based upon only union wage data.
Those that begin with anything other than “SU” or “UAVG” indicate that a CBA-based rate prevailed. For example, a union rate identified as PLUM0198-005 07/01/2020 has the following meaning:
PLUM = the prevailing wage rate is based on a Plumbers union collective bargaining agreement.
0198 = the local union (or district council where applicable).
005 = internal number used in producing the wage determination.
07/01/2020 = the effective date of the most current negotiated (CBA) rate.
If a wage determination contains predominantly union prevailing wage rates for job classifications, it typically would be appropriate to look only to the union sector skilled classifications in the wage determination and the rates for those classifications when proposing a wage rate for the additional classification. If not, then use only the non-union weighted average/non-union sector rates in the same job family to conform a rate.
Step 3 to determining rates focuses on whether a category roughly evenly divided into union and non-union rates. If the wage rates in the applicable category are roughly half union prevailing rates and half weighted average prevailing rates, it would typically be appropriate to look to the lowest union rate and the highest weighted average rate (assuming the union rates are higher than the weighted average rates) when proposing a wage rate.
Finally, calculate the fringe benefit by averaging the benefits set forth in the WD for the closest in grade positions in the same job family and union/non-union sector rules identified in AAM 213.
Do not rely on a wage determination or conformance granted to another party regardless of the similarity of the work in question. See All Agency Memorandum (“AAM”) 213 for more information. https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/AAM213.pdf
See also the AGC guidance and examples of several skilled position conformance at pages 5-15. https://www.agc.org/sites/default/files/WHD-AAM-213-Conformance-FAQs-2.pdf .
SUMMARY
DOL offers the following summary of AAM 213 steps:
First, determine the category (skilled crafts, laborers, power equipment operators, or truck drivers) of the classification which is being conformed.
Second, the contracting agency should determine for that category whether union or weighted average/non-union sector rates prevail in the existing wage determination.
Third, after reviewing the entirety of the rates within the appropriate sector in the applicable category, the contracting agency should determine a rate that bears a reasonable relationship to those rates on the wage determination.
Fourth, the contracting agency should determine whether any of the considerations identified in AAM 213 apply For example, if the classification being conformed is a skilled classification and some of the wage rates for skilled classifications in the wage determination are lower than the rates for laborer classifications, then the contracting agency should use those existing skilled classification rates that are higher than the laborer rates to determine the proposed rate. And if the classification which is being conformed is a laborer classification, the proposed wage rate should generally use the existing common laborer wage rate as a benchmark.
Once you have done the above, now you can prepare and submit a SF-1444, a subject we will leave for some perhaps future blog. If you need help doing the conformance or filling out the SF-1444 then think about retaining counsel.
RESOURCES
Of course, I have not exhausted all the intricacies of the conformance process. If you want to know more about it, here are some conformance resources:
All Agency Memorandum 213 (https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/AAM213.pdf) and https://www.dol.gov/agencies/whd/government-contracts/construction/faq/conformance.
The Associated General Contractors has a very good explanation of AAM 213. See https://www.agc.org/sites/default/files/WHD-AAM-213-Conformance-FAQs-2.pdf.
There are no other good DBA conformance guides. But there is a Service Contract Act Guide which can be consulted and many of the same principles can be applied to DBA conformances See https://www.dol.gov/whd/regs/compliance/wage/SCADirV5/SCA_Conformance_Guide.pdf.
And DOL has a SCA Conformance Process section on its website. See https://www.dol.gov/agencies/whd/government-contracts/prevailing-wage-resource-book/sca-conformance-process.
DOL also has a Prevailing Wage Resource Book and Tab 8 thereof deals with requests for additional classifications. See https://www.dol.gov/agencies/whd/government-contracts/prevailing-wage-resource-book/dbra-conformance-process.
There are private web-based resources too, including inter alia https://static1.squarespace.com/static/5a6619f32278e7a092c86335/t/5a66670bec212d41b15df913/1516660491472/The+Conformance+Process.pdf.
Finally, SAM.gov has a checklist for DBA conformances: https://sam.gov/wage-determinations/resources/dba-conformances.