(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
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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.
