agreed or disagreed with the proposed classifications or wage rates. In addition, the SF-1444 did not indicate whether the interested parties (i.e., the employees, contractor and contracting officer) agreed on the three Metal Building Assembler classifications. Id.; see also 29 C.F.R. §5.5(a)(1)(v)(B).

   Law Company provided documentation in support of the requested classifications and wage rates. First was a listing of wage rates, dated January 27, 1994, purporting to demonstrate the payment of an $8.50 hourly wage rate for "Metal Bldg." construction under the State of Texas "Emergency Prison Bed Program" in Amarillo and Childress, Texas. AR Tab F, Flap E. Law Company also attached a portion of a DBA wage determination, No. KS940009, applicable to construction in Sedgwick County, Kansas. AR Tab F, Flap F. This wage determination applicable to building construction projects (not including residential construction of single family dwellings and apartments up to and including four stories) includes a classification for "Metal Building Assemblers (Prefab Buildings Excluding Structural Buildings)" with a listed hourly wage rate of $7.65 and no provision for fringe benefits. Id.

   With respect to the merits of the conformance request, the Section Chief rejected the relevance of Law Company's wage information on workers erecting metal buildings in Texas and Sedgwick County, Kansas. That data, stated the Section Chief, did "not provide a basis for a conclusion that a metal building assembler classification had been found to be prevailing on building construction in Leavenworth County, Kansas." Id. at p. 2.

August 2, 1996 ruling. AR Tab B. The request briefly noted the prior history of the conformance request and the supporting documentation originally submitted by Law Company. Further noted were the VA contracting officer's recommendation for approval of the conformed classifications and his caveat to the Wage and Hour Division that he would "accept" the proposed Metal Building Assembler rates unless notified to the contrary within 30 calendar days. Law Company argued that the Wage and Hour Division was required either to rule on the conformance request or advise of the need for additional time to reach a decision within 30 days of the original submission, pursuant to the regulations governing DBA conformance actions. In addition, Law Company asserted that in light of the lengthy time period in which the conformance request had been pending before the Wage and Hour Division, it was reasonable for the contracting officer, Law Company and its subcontractors to conclude that they could pay workers based on the proposed Metal Building Assembler wage rates. Law Company presented neither additional information in support of the conformed classifications nor rebuttal to the Wage and Hour Division's evidence concerning employment of union sheet metal workers to perform the disputed work in Leavenworth County, Kansas during the period prior to commencement of construction of the Project.

   On February 19, 1998, the Wage and Hour Division's National Office Program Administrator (Administrator) issued a final ruling on Law Company's request for reconsideration of the Section Chief's August 2, 1996 initial determination. AR Tab A. In large part, the Administrator's 1998 determination reiterated the reasoning contained in the Section Chief's 1996 ruling. The Administrator rejected the contention that the VA's contracting officer had the authority to accept the proposed conformed classifications and rates in the absence of contrary advise from the Wage and Hour Division within 30 days. Citing the Wage Appeals Board's decisions in Swanson's Glass, WAB Case No. 89-20, Apr. 29, 1991 and Mike J. Thiel, WAB Case No. 92- 24, July 22, 1994, the Administrator declared that the Wage and Hour Division's rulings on conformance requests were "authoritative whether or not issued within 30 days." Id. at pp. 2-3. On the merits of the conformance request, the Administrator reiterated that work to be performed by the requested classifications could be performed by a classification already found within the wage determination, and that approval of the Metal Building Assembler classifications and wage rates therefore would be "clearly inconsistent" with the regulatory criteria for approval of conformed classifications. Id. at 2. Finally, Law Company was notified of its right pursuant to 29 C.F.R. §1.9 and Part 7 to seek review before this Board. On March 19, 1998, the Petition for Review in this case was filed.

A.   Overview of the Davis-Bacon wage determination and conformance processes

40 U.S.C. §276a. The Secretary of Labor's designee, the Administrator, Wage and Hour Division, is charged with the compilation of schedules of wages and fringe benefits which prevail for various classifications of laborers and mechanics in localities where covered construction projects are performed. Regulations establishing the procedures for predetermining wages and fringe benefits are found at 29 C.F.R. Part 1. The wages established under these procedures are published in wage determinations which are incorporated into covered bid packages and contracts for construction by a contracting agency's contracting officer. See 29 C.F.R. §5.5(a).

   If a bidder believes that the classifications or wage rates listed in a wage determination are incorrect, it is incumbent upon the bidder to challenge the substantive correctness of the wage determination prior to the award of the contract, in order "to ensure that competing contractors know in advance of bidding what rates must be paid so that they may bid on an equal basis." In re Kapetan, Inc., WAB Case No. 87-33, Sep. 2, 1988, slip op. at 8 and the cases cited therein. Procedures for requesting reconsideration of a wage determination are found at 29 C.F.R. §1.8. The advance determination of Davis-Bacon prevailing wage rates, and the uniform distribution of these wage rates to all companies bidding on a federal construction project, is an important consideration in promoting fairness in the procurement system:

[A]ll bidders for federal construction projects are provided with the same information concerning the minimum wage rates that must be paid on a federal construction procurement. Just as the Davis-Bacon prevailing wage requirements promote "the principle that all prospective federal construction contractors be on a 'level playing field' in the bidding process," In the Matter of AC and S, Inc., WAB Case No. 93-16, March 31, 1994, the process of including the applicable wage determination in the construction project bid package and contract insures that all bidders are developing their bid proposals with the same expectations regarding the prevailing wage and fringe benefit rates that will be paid on the project.

Pizzagalli Construction Co., ARB Case No. 98-090, May 28, 1999, slip op. at 5.

   There is, however, a process which allows for the addition of classifications and wage rates after award of a contract where it is discovered that a classification necessary to performance of the contract has been omitted from an applicable wage determination. This procedure is known as the conformance process, by which such missing classifications may be "conformed" to the wage determination. The regulations establishing the Davis-Bacon conformance procedures are found at 29 C.F.R. §5.5(a)(1)(v). As noted above, a proposed job classification and wage rate can be added through the conformance process only if it meets each element of the regulation's three-part test:

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

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

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

   The Davis-Bacon regulations specify two separate, although similar, procedures for processing contractor conformance requests. The first applicable to situations where the contractor, employees and contracting officer all agree on the proposed classifications and wages (29 C.F.R. §5.5(a)(1)(v)(B)) is not relevant to the present dispute. The second procedure applies when, as in this case, the contracting officer, contractor and employees do not reach agreement on the proposed conformed rate:

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

29 C.F.R. §5.5(a)(1)(v)(C).

B.   The Merits of Law Company's Petition for Review

   We agree with the Administrator. The contracting agency's contractual relationship is with the prime contractor, which bears responsibility for subcontractor legal compliance with the Davis-Bacon Act and regulations. We do not view the general contractor-subcontractor distinction as significant, and discern no unfairness to Law Company flowing from its status as the general contractor on the Project.

   2. "Approval of the contracting officer"

   Law Company also argues that the instant conformance case is distinguishable from Thiel and Swanson because in this case, the VA contracting officer allegedly "approved" the conformance action (see Pet'r Brf. at 13) and informed Law Company that the Metal Building Assembler classification and wage rate could be used if "DOL failed to act on the request in a timely manner." See Pet'r Brf. at 14. In contrast, the company observes, the opinions in Thiel and Swanson do not suggest "approval" of the conformance requests by the respective contracting officers.

regulations divests the Administrator of authority to act on a conformance request. This theory was considered and rejected repeatedly by our predecessor, the Wage Appeals Board, which long held that the 30-day time limitation contained in the conformance procedure regulation is not jurisdictional and that the Wage and Hour Division's failure to comply with the limitation does not deprive the Administrator of authority and responsibility for issuing final conformance determinations in accordance with the substantive requirements of the regulation:

[T]he 30-day provision is not jurisdictional, and does not bar the Wage and Hour Division from taking action outside the 30-day time period. Indeed, the regulations expressly reference the possibility that additional time may be needed to complete action on the classification and wage rate request. Furthermore, the regulations do not specify that the failure of the Administrator to act within 30 days is effectively the Administrator's approval of or acquiescence in the proposed classification or wage rate. In sum, the 30-day time period referenced . . . does not provide a basis for Petitioner to presume that in the absence of a response from the Administrator, the request for additional classifications had been approved.

More Drywall, WAB Case No. 90-20, Apr. 29, 1991, slip op. at 5 citing Swanson's Glass, supra, at 5.

   Law Company characterizes the issue as a question of waiver, implying that the Administrator effectively is granting himself a waiver from the Davis-Bacon Act regulations when a conformance determination is issued out-of-time. In support of this proposition, Law Company cites the Supreme Court's ruling in American Farm Lines v. Black Ball Freight Services, 397 U.S. 532 (1970), and an unreported decision of a federal district court in Woerner v. Small Business Administration, 1990 WL 109018 (D.D.C. 1990). We disagree that either case is controlling in the present case.

   In American Farm Lines the Court was presented with the issue whether the Interstate Commerce Commission (ICC) could waive agency application procedures established under its regulations. In discussing the ICC regulations at issue, the Court noted that

[t]he rules were not intended primarily to confer important procedural benefits upon individuals in the face of otherwise unfettered discretion . . . nor is this a case in which an agency required by rule to exercise independent discretion has failed to do so. . . . Thus there is no reason to exempt this case from the general principle that "[i]t is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it. The action of either in such a case is not reviewable except upon a showing of substantial prejudice to the complaining party."

397 U.S. 538-539 (citations omitted; emphasis added). In Law Company's view, it follows that

an agency cannot "waive" its procedural regulations in an instance where the result would be prejudicial to the party. The Woerner case, involving the failure of the Small Business Administration to respond timely to a filing submitted by the National Aeronautics and Space Administration, generally supports this proposition. Law Company asserts that the Wage and Hour Division's delay in processing the conformance request resulted in substantial prejudice to the company, and that the Administrator therefore was bound to issue a determination within the 30-day time limitation of the Davis-Bacon regulations.

   We disagree with Law Company's contention that the Wage and Hour Division was barred from issuing a decision on the conformance request once the 30-day time limitation of 29 C.F.R. §5.5(a)(1)(v) passed, for several reasons.

   First, the Administrator is correct in suggesting that the situation presented by the 30-day limitation is more properly viewed in light of the Supreme Court's decision in Brock v. Pierce County, 476 U.S. 252 (1986), rather than American Farm Lines. In Pierce County, the Court declined to hold void a Department of Labor investigation of questionable grant costs funded under the Comprehensive Employment and Training Act (CETA). A provision of CETA required that after becoming aware of possible misuse of grant funds the Secretary of Labor "shall" determine "the truth of the allegation or belief involved not later than 120 days after receiving the complaint." 29 U.S.C. §816(b) (1976 ed. Supp. V) (repealed). In the Pierce County case, the Department of Labor failed to conclude the investigation within the 120-day limitation period specified in the statute. In a unanimous decision, the Supreme Court ruled that the Department of Labor's investigation was not void, despite having been concluded after the 120-day deadline had passed:

[The Court has] frequently articulated the "great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided." . . . We would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake. When, as here, there are less drastic remedies available to meet a . . . deadline, courts should not assume that Congress intended the agency to lose its power to act.

476 U.S. at 260; citations and footnote omitted. The Court went on to hold that CETA's 120-day provision was not jurisdictional and, further, that the Department's own regulations implementing the time limit but which did "not specify any consequences of a failure to meet that deadline" were not jurisdictional and, like CETA itself, did not prevent Department of Labor action outside the 120-day period. 476 U.S. at 265.

   The Board regularly has distinguished between time limitations in statutes or regulations that are either mandatory or directory. For example, we recently rejected an administrative law judge's determination in a case brought under the Immigration Nursing Relief Act of 1989, 8 U.S.C. §§1101 et seq. (1994), in which the ALJ denied the Wage and Hour Administrator an opportunity to conduct discovery because this further investigation into the employer's records would have occurred beyond the 180-day time limitation prescribed by the regulation at 20 C.F.R. §655.405(c). In reaching this result, we observed that:

The 180-day limitation for conducting investigations at issue in the instant case carries none of the indicia that would divest the Administrator of the authority to investigate after expiration of the limitation. While their language may be mandatory, the statutory and regulatory provisions imposing the investigatory time limitation nowhere specify the consequences of a failure to meet the limitation. Ordinarily, if there is congressional or administrative intent to foreclose action in the event that a time limitation is not met, the statute or regulations specify consequences that flow from the failure to meet the limitation. Brock v. Pierce County, 476 U.S. 253, 259 (1986) (parallel limitations without specified consequences in Comprehensive Employment and Training Act and implementing regulations were "intended to spur the Secretary to action, not to limit the scope of his authority"). Nothing in the legislative or regulatory history of the matters at issue here suggests an intent to bar agency action beyond the limitations period. Conducting an investigation and issuing a determination may pose unanticipated difficulties, and the ability of the Administrator to meet the limitation may be subject to factors beyond his control. Absent any statement of contrary intent, such a limitation provides a projected timetable for agency action on a given complaint, rather than curtailing the agency's authority to resolve complaints if the time limitation is not met. Mandatory language that an agency "shall" act within a limitations period, standing alone, "does not divest [the agency] of jurisdiction to act after that time." Id. at 266.

investigating and adjudicating whistleblower complaints under the Energy Reorganization Act). The DBA conformance regulations do not include any provision suggesting that action by the Administrator is foreclosed if the 30-day time limitation is not met. Based on Pierce County and its progeny, we conclude that the time limitations of 29 C.F.R. §5.5(a)(1)(v) are directory, and that the Administrator is not divested of jurisdiction to issue a conformance decision after the time period has elapsed.

   Even if we were to review this case under the analysis of the American Farm Lines case, as urged by Law Company, we would reach the same result because we do not view the 30-day conformance provision as conferring any, let alone "important," procedural benefits upon interested parties requesting conformed classifications. Rather, the 30-day rule is intended to facilitate the orderly transaction of business of the Wage and Hour Division, and it is appropriate to relax or modify the provision in the interest of justice. The goal of the Davis-Bacon Act is to insure that federal construction dollars do not undermine locally prevailing wage rates; the intended beneficiaries of the Act are the laborers and mechanics working on federal and federally-assisted construction contracts. U.S. v. Binghamton Construction Co., 347 U.S. 171 (1954). If Law Company's Petition for Review were to be granted, the employees working on the Project would be denied a portion of their lawful wages a result that is contrary to the statute itself. Moreover, Law Company would reap a windfall when compared to the other contractors who submitted bids on the VA hospital project, who presumably based their bids on the wage rates in the published wage determination.

   "Extent of delay" In comparing the instant matter to Swanson's Glass and Thiel, Law Company notes that in these two earlier cases the Wage and Hour Division's action on the conformance request were only three or four months out of time, rather than the 22 months at issue here. This argument apparently relates to the Supreme Court's statement in American Farm Lines that agencies have broad discretion to relax procedural regulations, and that this discretion will not be reviewed by the courts "except upon a showing of substantial prejudice to the complaining party." 397 U.S. 538-539. Law Company asserts that it has been substantially prejudiced by the delay in this instance.

   We do not condone the fact that nearly 22 months elapsed in this conformance dispute without initial action on the Wage and Hour Division's part. However, substantial delays in the conformance process have been affirmed in the past. For instance, a delay of nearly 19 months was found not to be fatal to the Wage and Hour Division's conformance ruling in Iron Workers II, WAB Case No. 90-26, Mar. 20, 1992. We share the sentiments expressed in Iron Workers II when, affirming the Administrator, the Wage Appeals Board noted that "[b]y so doing, the Board does not express its approval of the routine issuance of conformance rulings beyond the 30-day time period but instead simply recognizes that the Department's own regulations do not preclude the Wage and Hour Division from acting outside that 30-day period." Id. at p. 11.

   We are not persuaded that Law Company has been prejudiced by the Wage and

Hour Division's handling of the conformance request. We note first that Law Company submitted its bid on the VA hospital project with full knowledge that the Davis-Bacon wage determination incorporated into the bid specifications did not include any "Metal Building Assembler" classifications. Nothing in the record indicates that Law Company initiated any action prior to the bid to add the allegedly "omitted" Metal Building Assembler classifications to the wage determination. Second, Law Company did not even submit its conformance request to the VA until more than a year after construction had begun at the hospital. Third, after submitting the SF-1444, Law Company did not take any action when it failed to receive a ruling on its request. Petitioner could have contacted the contracting officer to follow up on the conformance application, or could itself have contacted the Wage and Hour Division directly to check on the status of the request. Finally, Law Company itself must be faulted for contributing to some of the delay in this case, given that the contractor did not seek reconsideration of the Wage and Hour Division's initial ruling for more than 15 months after receiving the Section Chief's adverse ruling.

   For the foregoing reasons, we find that the Wage and Hour Division's failure to act on Law Company's conformance request within the 30-day time limitation specified in the Davis- Bacon conformance regulations does not bar the Wage and Hour Division from issuing a decision outside the time period. The Petition for Review therefore is denied and the Administrator's ruling letter of February 19, 1998 is affirmed.

   SO ORDERED.

      PAUL GREENBERG
      Chair

      E. COOPER BROWN
      Member

      CYNTHIA L. ATTWOOD
      Member