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CCASE:
TRL SYSTEMS
DDATE:
19860807
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
TRL SYSTEMS WAB Case No. 86-08
Sherman Indian School
Riverside, CA BIA Contract Dated: August 7, 1986
No. 14-20-0150-1906
BEFORE: Alvin Bramow, Chairman, Thomas X. Dunn, Member
Stuart Rothman, Member, concurring
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition
of TRL Systems (hereinafter TRL) seeking review of a ruling of
the Assistant Administrator, Wage and Hour Division, refusing
to add to wage determination CA84-5007 the classification and
wage rate for protective signal installer (fire alarm technician)
as requested by TRL.
In February, 1985, the Dale C. Eckert Corporation was
awarded a contract by the Bureau of Indian Affairs, U.S. Department
of the Interior, (BIA) to perform construction on the Sherman
Indian School in Riverside County, California. This contract
included construction of a new athletic field house and alterations
and repairs to nine other buildings at the school. At the
same time the prime contractor awarded a subcontract to TRL for
installation of a fire alarm system in the school. The prime
contract and the subcontract were subject to wage determination
CA84-5007.[1]
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[2] Petitioner promptly notified the prime contractor that the
wage determination did not contain a wage rate for protective
system installer or fire alarm technician. TRL claimed that a
rate between $6 and $10 was being paid for this classification
in Riverside County and nearby counties. TRL advised the
Department of Labor by a letter dated November 26, 1985 that
since it expected approval of the proposed classification and
proposed wage rate, it began hiring and placing employees on
the job, classifying them as fire alarm technicians and paying
them approximately $8 per hour, soon after receiving its sub-
contract.
The prime contractor was advised in August, 1985, that the
minimum wage rate [for] protective signal installer (fire alarm
technician) would be $21.10 per hour, including fringe benefits.
This information was immediately conveyed to petitioner.
TRL requested reconsideration by BIA of this determination
and completed its subcontract paying its protective signal
installers approximately $8 per hour. BIA forwarded the request for
reconsideration to the Wage and Hour Division and advised the
prime contractor that the request for the additional classification
had been denied because the appropriate classification
for the work to be performed under the subcontract was the
electrician classification, which was contained in wage
determination CA84-5007.[2]
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[3] In February, 1986, the Assistant Administrator, Wage and
Hour Division, denied TRL's request for reconsideration. The
Assistant Administrator based his ruling on the fact that the
Department of Labor's regulation permits a new classification
to be added to a wage determination only when the work in question
is not being performed by any classification already contained
in the wage determination. The Assistant Administrator ruled
that the protective signal installer's duties were "within the
scope of duties being performed by the journeyman electrician
classification as contained in wage determination CA84-5007".
On March 3, 1986, the firm of Personnel Dynamics, representing
TRL Systems, filed a Petition for Review with the Wage
Appeals Board. In its petition, TRL disputes that the work
performed on its subcontract is generally performed by electricians
in the vicinity of the project.
The Wage Appeals Board considered this appeal on the basis
of the Petition for Review and a Rebuttal Brief filed by TRL,
and a Statement on Behalf of the Assistant Administrator and
the record of the appeal before the Wage and Hour Division,
filed by the Solicitor of Labor. Petitioner withdrew its
request for an oral hearing.
* * *
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[4] The Wage Appeals Board has held in numerous decisions that
the time to have come to the contracting agency and/or the Wage
and Hour Division to show that the classifications and wage
rates furnished for a project were not those actually prevailing
was prior to bid opening and contract award. To do so after
bid opening and contract award was untimely. See Warren Oliver
Company, WAB Case No. 84-8, (November 20, 1984) and Rite Landscape
Construction Co., WAB Case No. 83-3 (October 18, 1983).
However, a party may challenge a wage determination after
contract award under those circumstances which come within the
Department of Labor's regulation 29 CFR [sec] 1.6(f). This
regulation reads as follows:
(f) The Administrator may issue a wage determination
after contract award or after the beginning of
of construction if the agency has failed to incorporate
a wage determination in a contract required to
contain prevailing wage rates determined in accordance
with the Davis-Bacon Act, or has used a wage determination
which by its terms or the provisions of this part clearly
does not apply to the contract. Further, the Administrator
may issue a wage determination which shall be applicable
to a contract after contract award or after the beginning of
construction when it is found that the wrong wage
determination has been incorporated in the contract because
of an inaccurate description of the project or its
location in the agency's request for the wage determination.
Under any of the above circumstances, the agency shall either
terminate and resolicit the contract with the valid wage
determination or incorporate the valid wage determination
retroactive to the beginning of construction through
supplemental agreement or [4]
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[5] through change order, provided that the contractor is
compensated for any increases in wages resulting from such
change. The method of incorporation of the valid wage
determination, and adjustment in contract price, where
appropriate, should be in accordance with applicable
procurement law.
The record indicates that the project in question encompasses
more than the installation of a fire alarm system. Therefore, the
Board is [*] not [*] confronted by a situation where an agency is
advertising a contract for some specialized construction work
utilizing an area or general wage determination which may not be
applicable to the work in question. [Emphasis in original]. Also,
there is no indication that a wrong wage determination has been
incorporated in the contract because of an inaccurate description
or location of the project. Under the factual circumstances of this
case the provisions of 29 CFR [sec] 1.6(f) would not apply.
Since this contract has been awarded and the factual situation
does not come within relief under 29 CFR [sec] 1.6(f), there
is only one method by which a contracting agency or the Wage and
Hour Division can provide additional classifications which have
not been listed in the wage determination made applicable to the
contract and which the contractor needs to perform the contract.
That method is provided for in the Department of Labor's regulation
at 29 CFR [sec] 5.5(a)(1)(ii)(A) which reads as follows:
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[6] (ii)(a) The contracting officer shall require
that any class of laborers or mechanics which is
not listed in the wage determination and which
is to be employed under the contract shall be
classified in conformance with the wage
determination. The contracting officer shall approve
an additional classification and wage rate and
fringe benefits therefor only when the following
criteria have been met:
(1) The work to be performed by the classification
requested is not performed by a classification in
the wage determination; and
(2) The classification is 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.
There is ample evidence in the record that the work to be
performed by the classification to be added is also performed by
a classification already contained in the wage determination
made applicable to the project. It is therefore readily apparent
that criterion (1) set forth in 29 CFR [sec] 5.5(a)(1)(ii)(A) has
not been met, i.e., the work performed by the classification
requested is not performed by a classification in the wage
determination.
In Warren Oliver Company, supra, the Board further held that
it is not a standard or even necessary that the classification
in the wage determination be the prevailing one, but only that
work in the area be performed by that classification of work.
The record in this case satisfies this requirement and, there-
fore, the additional classification request must be denied.[6]
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[7] In view of the foregoing, the decision of the Assistant
Administrator is affirmed and the petition herein is dismissed.
* * *
Member Rothman, concurring
The applicable Department of Labor Davis-Bacon regulations
require that the difficulties encountered by the petitioner be
straightened out before contract award. I, accordingly, concur
in the result reached herein. However, I further believe it to
be of some value to point out that a knowledgeable contracting
agency concerned with project cost and about to award a contract
in localities in which specialty contractors (such as protective
system installers using fire alarm technicians with specialized
wage rates) predominate should determine in advance and let the
Administrator of the Wage and Hour Division know what the
appropriate wage rate and the appropriate classification should be,
even if it requires a special field survey. The Wage and Hour
Division in those cases in which it is itself aware of these
specialty contractors ought to make sure, on its own initiative,
that the predetermined schedule carries the realistic
classifications and wage rates in the locality. The Wage and Hour
Division's inability to keep up with the times and conditions in
localities in which the nature and structure of the construction
industry may be [7]
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[8] changing, is not justification to require the federal government or
sponsors with federal assistance to pay more than local prevailing
market conditions require under Davis-Bacon Act prevailing wage rate
principles.
BY ORDER OF THE BOARD:
Craig Bulger,
Executive Secretary
Wage Appeals Board [8]
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