(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
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(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.
