U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210 -
JULY 8 19822
MEMORANDUM NO. 133
TO: ALL GOVERNMENT CONTRACTING AGENCIES
OF THE FEDERAL GOVERNMENT AND THE
DISTRICT OF COLUMBIA
FROM: WILLIAM M. OTTER 
Administrator
SUBJECT: Revisions of Regulations, 29 CFR Part 1;
Part 3; and Part 5, Subpart A
On May 28, 1982, the Department of Labor issued the above final
regulations, which substantially revise a number of
provisions regarding the administration and enforcement
of the Davis-Bacon and Related Acts. Copies of the revised
regulations, which include a discussion in the preamble
outlining the major changes, are attached.
The purpose of this memorandum is to highlight these major
changes and to supplement the information contained in the
regulatory text and preamble sections, in order to assure that
contracting agencies are aware of their obligations as well as
DOL Operating policies under the Davis-Bacon and Related Acts.
In this regard, agencies will need to make appropriate changes
in their procurement regulations and contract documents to
conform to these revisions to the regulations.
Each major regulatory change is summarized below, followed
by explanatory material where necessary.
29 CFR PART 1
Effective Dates
The provisions of this Part are effective with respect to
wage surveys concluded on or after July 27, 1982, except for
the provisions of section 1.6, which are applicable to contracts
entered into pursuant to invitations for bids issued or
negotiations concluded on or after July 27.





















 2
Section 1.2(a) - Definition of Prevailing Wage
This section has been revised to eliminate the "30 percent
rule" contained in the previous regulations. Under the new
regulations, if a single rate is paid to a majority of the
employees in a given classification and locality, it is
adopted as prevailing. If no single rate is paid to a
majority, then the weighted average of all rates paid is
adopted as the prevailing wage.
Section 1.3 - Wage Data Considered
Section 1.3 now provides that wages paid on projects subject
to the Davis-Bacon Act will not be considered in developing
wage determinations for "building" and "residential" con-
struction projects unless the Department finds that there is
not sufficient data from privately financed projects of a
character similar to determine prevailing wages.
Under this revision, the Department will continue to collect
information on wages paid in all types of construction work.
However, parties submitting data regarding wages paid in
"building" and "residential" construction must now indicate
whether or not such wages were paid on projects subject to
Davis-Bacon prevailing wage determinations.
Section 1.6(a)(1) - Expiration Date of Project Wage
Determinations
This section now provides that project wage determinations
are effective for 180 days from their date of issuance, unless
an extension of the expiration date has been requested by an
agency and approved by the Administrator.
Section 1.6(b) - Use of Wage Determinations
Section 1.6(b) states that contracting agencies are responsible
for insuring that only the appropriate wage determinations are
incorporated in bid solicitations and contracts, and for
designating the work to which each wage determination applies.
This provision is intended to eliminate confusion regarding
the use of "multiple schedules" in certain contracts. The
section also provides that questions regarding the application
of wage schedules should be referred to the Administrator of
the Wage and Hour Division who shell give foremost considera-
tion to local area practices in resolving such questions.
Section 1.6(c) - "l0-day Rule"
The revised regulations require that contracting agencies
accept modifications to wage determinations received less
than 10 days before bid opening unless (in the case of
competitive procurements) the agency finds that there is not
sufficient time to notify bidders of the change, in which
case such finding must be incorporated in the contract file,











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and submitted to the Wage-Hour Administrator upon request.
This change emphasizes the responsibility of contracting
agencies to use wage determination modifications made before
award in all cases where it will not unduly disrupt the
procurement process.
Section 1.6(c) - "90-Day Rule"
Section 1.6(c) now provides that if a contract to which a
general wage determination has been applied is not awarded
within 90 days after bid opening, any modification published
prior to contract award shall be effective unless the agency
obtains an extension of the 90-day period from the
Administrator.
Section 1.6(e) - Correction of Wrong or Erroneous Wage
Determinations
This section provides that if the Department of Labor finds
that a bid solicitation contains the wrong wage determination
or wrong schedule, or if a wage determination is withdrawn
as a result of a decision by the Department's Wage Appeals
Board, notification to the contracting agency of such findings
shall be effective immediately, without regard to the
provisions of section 1.6(c), provided such notification is
made prior to contract award.
Section 1.6(f) - Incorporation of wage Determinations After Award
Section 1.6(f) requires contracting agencies to utilize a wage
determination after award if the Wage-Hour Administrator finds
that the agency has failed to include any wage determination
in a covered contract or has used a wage determination which
clearly does not apply to the contract. This is to be
accomplished through either termination and resolicitation
of the procurement or incorporation through contract
modification or change order. However, the regulation also
provides that the method of incorporation should be in accordance
with procurement law, and that if the wage determination is
incorporated through contract modification or change order, the
contractor must be compensated for any increases in wage costs
which may result.
Section 1.6(g) - Approval of Federal Funding After Contract
Award
Section 1.6(g) contains guidelines for the application of
wage determinations in situations where Federal funding or
assistance is not approved until after contract award (or
after the start of construction where there is no contract
award).













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Section 1.7(b) - Scope of Consideration
This section prohibits the use of wage data from projects
in metropolitan areas in making wage determinations for
rural areas, and vice versa.
Section 1.7(d) - Helpers
Under the terms of this section, the Department will issue
wage determinations containing rates for semi-skilled
classifications of helpers when such classifications are
"identifiable" in the area. This increased recognition of
helper classifications will reflect the widespread industry
practice of employing semi-skilled workers on construction
projects. (See also the discussion of related changes in
29 CFR Part 5 regarding the use of helpers.)
29 CFR PART 3
Effective Date
This revised regulation is effective with respect to
contracts entered into pursuant to invitations for bids
issued or negotiations concluded on or after July 27, 1982.
Section 3.3(b) - Submission of wage Payment Information
As discussed in the summary of changes in 29 CFR 5.5(a)(3)
(ii) and (iii), the revised regulations no longer require that
contractors and subcontractors submit weekly a copy of all
payrolls. As a result, Optional Form WH-347 used for sub-
mission of payroll information has been eliminated. However,
the requirement for weekly filing of statements certifying
compliance with the provisions of the Davis-Bacon and
Copeland Acts has been retained. To reflect these changes,
section 3.3(b) now incorporates the actual statements of
compliance to which contractors and subcontractors must
certify.
29 CFR PART 5
Effective Dates
The provisions of sections 5.2 and 5.5 of this part are
effective with respect to contracts entered into pursuant
to invitations for bids issued or negotiations concluded on
or after July 27, 1982 (except sections 5.5(a)(1)(ii),
5.5(a)(1)(iv), and a portion of 5.5(a)(3)(i), which contain
information collection requirements which are under review at OMB),
Provided, however, that section 5.5(a)(3)(ii) requiring
submission of a weekly "Statement of Compliance" will be
effective July 27, 1982 with respect to existing contracts
if the contracting agency and the contractor agree to amend














5
the contract to delete the clause contained in current section
5.5(a)(3)(ii) requiring weekly submission of payrolls, and
incorporate revised section 5.5(a)(3)(ii) and (iii) in its
place. (This provision is discussed below in greater detail
under the heading "Submission of Wage Payment Information.")
The revisions to sections 5.1 and 5.6 through 5.17 are procedural
or administrative in nature and are effective on July 27, 1982.
Section 5.2(1) - Definition of "Site of Work"
The regulations now incorporate the Department's longstanding
interpretation of the "site of work" on which Davis-Bacon
prevailing wages must be paid. The definition is essentially
similar to those contained in DAR 18-701(b)(2)-(4) and
FPR 1-18.701-l(b)(2), but specifies that operations of a
"commercial supplier" or "materialman" established in proximity
to but not on the actual site of the work prior to the
opening of bids are not covered by the Act even if dedicated
exclusively to the Federal project for a time.
Sections 5.2(n)(4), 5.5(a)(1)(ii)(A), and 5.5(a)(4)(iv) -
Use of Helpers
Section 5.2(n)(4) defines "helper" as a semi-skilled worker
(rather than a skilled journeyman mechanic) who, under the
direction and supervision of a journeyman, performs a variety
of duties to assist the journeyman. The helper may use
the tools of the trade to perform such duties, the scope of
which varies according to area practice.
Section 5.5(a)(1) (ii)(A) provides that where a helper rate is
not listed on an applicable wage determination, such a rate may
be established through the conformance process, if helpers are
utilized in the area, without regard to the requirement
(applicable to all other conformance actions) that the work
performed by the conformed class may not be work performed by
a class listed in the wage determination.
Section 5.5(a)(4)(iv) provides that helpers may be used in a
ratio of two helpers for every three journeymen employed by
the contractor or subcontractor on the job site. (The
application of this ratio is illustrated by a chart contained
in the preamble to 29 CFR Part 5.) However, as also explained in
the preamble, in order to assure that the 2:3 ratio does not
disrupt existing local practices in areas where wage determinations
currently contain helper classifications without restrictions
on the number which may be used, interested parties - including
contracting agencies - may, prior to bid opening, request an
appropriate variance from the 2:3 ratio in accordance with section
5.14 of the regulations, showing that there was a practice in the
area of utilizing such helpers on Davis-Bacon projects in excess
of a ratio of two to every three journeymen in the classification.










6
Section 5.5(al(1)(ii) - Conformance Procedures
This section has been revised to clarify the criteria which
must be met before a contracting officer may approve a
conformed rate, and to require that conformed rates must
be agreed to by the affected employees or their representa-
tives. It also provides that all proposed conformance
agreements must be forwarded to the Department of Labor for
approval, and that the Department will act upon such cases,
as well as those cases where the interested parties cannot
agree, within 30 days unless it advises the agency that additional
time is needed.
Sections 5.5(a)(2) and 5.5(b) (3) - Cross-Withholding
These sections provide that where the funds remaining on a
contract under which Davit-Bacon Act or Contract Work Hours
and Safety Standards Act violations are alleged to have
occurred are insufficient to cover the amount of back wages
due, the contracting agency shall, upon its own initiative
or at the request of the Department of Labor, withhold or
cause to be withheld such additional funds as may be necessary
from any other Federal contract or any other Federally assisted
contract subject to Davis-Bacon prevailing wage (or CWHSSA, as
appropriate) requirements which is held by the same prime
contractor.
Sections 5.5(a)(3)(ii) and (iii) and 5.6(a)(3) - Submission
of Wage Payment Information
As discussed in the summary of changes in 29 CFR 3.3(b),
these sections have been revised to eliminate the requirement
that contractors and subcontractors submit weekly a copy of
all payrolls. These sections continue the requirement that
such payrolls be kept by the contractor. The regulations now
require only a weekly submission certifying compliance with the
Davis-Bacon and Copeland Acts. The regulations also require
contractors to submit such payrolls upon request of contracting
agencies or DOL. Agencies are authorized to make such requests
as part of a specific compliance check or enforcement action.
As discussed above under the Effective Dates heading, the
preamble to Part 5 provides that effective July 27, 1982, the
contracting agency and the contractor may agree to delete from
existing contracts the clause set forth in current section
5.5(a)(3)(ii) requiring weekly submission of payrolls, and
substitute in its place revised section 5.5(a)(3)(ii)
requiring only submission of a weekly "Statement of Compliance."














7
However, the preamble contains a clerical error and should
have stated that both revised section 5.5(a)(3)(ii) and
revised section 5.5(a)(3)(iii) regarding examination of
records and submission of payrolls upon request must be
substituted in place of current section 5.5(a){3)(ii). The
Department will publish a notice in the Feder&1 Register in
the near future to correct this error. In addition, as a
matter of policy, the Department will allow contracting
agencies to amend solicitations issued prior to July 27, 1982
which have not yet resulted in contract award in order to
provide for the above-described deletion and substitution,
provided, that no such action may be made effective until
July 27.
Sections 5.5(a)(4)(i) and (ii) - Apprentices and Trainees
Sections 5.5(a)(4)(i) and (ii) now codify the Department's
policy that if an apprenticeship or trainee program is silent
with regard to payment of fringe benefits, such employees
must be paid the full amount of fringe benefits for the
corresponding journeyman classifications as listed on the wage
determination unless DOL determines that a different practice
prevails. This section has also been revised to allow con-
tractors to follow the ratios and wage rates (percentages) for
approved apprentice and trainee programs in their "home" area
rather than requiring contractors to observe the ratios and wage
rates in the area where the construction project is performed.
Section 5.5(a)(9) - Disputes concerning Labor Standards
Section 5.5(a)(9) specifies that disputes arising out of the
Labor standards provisions of the contract are not subject
to the general disputes clause of the contract, but rather
to the procedures in 29 CFR Parts 5, 6., and 7.
Section 5.5(a)(10) - Certification of Eligibility
This section requires contractors to certify that they are
not ineligible to be awarded a contract by virtue of
debarment under section 3(a) of the Davis-Bacon Act or
29 CFR 5.12(a)(1), and prohibits contractors from awarding
subcontracts to debarred firms.
Sections 5.6(b) and 5.7(a)
Section 5.6(b) provides that the Department of Labor will
submit reports of its investigations to the contracting agency
where violations total $1,000 or more, or here liquidated
damages may be assessed under the Contract Work Hours and
Safety Standards Act, or where debarment may be considered.
In other violation cases, a letter summarizing the investi-
gation findings will be submitted.












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Section 5.7(a) requires contracting agencies to submit
detailed reports of their investigations in all cases where
wage underpayments total $1,000 or more. Where the amount
of violations is less than $1,000, a factual summary will
suffice if back wages have been paid and future compliance
assured, and if the criteria for consideration of debarment
are not present, unless the investigation was initiated at
the request of the Department of Labor, in which case a full
report is required to be submitted.
Section 5.8 - Liquidated Damages Under the Contract Work
Hours and Safety Standards Act
Section 5.8 now provides that where the Agency Head finds that
the criteria for a reduction or waiver of liquidated damages
have been met, the concurrence of the Department of Labor in
such reduction or waiver must be sought only if the amount of
the damages exceeds $500.
Section 5.11 - Disputes Concerning Payment of Wages
As revised, this section provides that in all cases involving a
dispute concerning prevailing wage rates, overtime pay, or
classification where there are relevant facts at issue, the
contractor or subcontractor will be offered an opportunity
for a hearing before an Administrative Law Judge in accordance
with procedures set forth in proposed 29 CFR Part 6, which
should be published in the Federal Register as a final rule in
the near future. It also provides that debarment may be
considered at such hearings where appropriate.
Sections 5.12 (a) and (b) - Debarment Proceedings
These sections contain revised rules for debarment proceedings.
They specify that in all cases where debarment may occur, the
contractor or subcontractor will be offered an opportunity for
a hearing before an Administrative Law Judge in accordance with
29 CFR Part 6. As noted under section 5.11 above, such hearings
will be held in conjunction with hearings on disputes concerning
payment of wages, etc. where it is appropriate to do so. In
addition, these sections provide that debarred persons and firms are
ineligible to perform contract work as either a prime contractor
or a subcontractor while on the debarred bidders list.
Section 5.12(c) - Removal From Debarred List
Section 5.12(c) provides that any person or firm debarred under
section 5.12(a) for violations of a Davis-Bacon Related Act (but
not those debarred under the Davis-Bacon Act itself) may petition
the Administrator for removal from the debarment list after a
period of six months. The section also sets forth the criteria
to be used in deciding whether requests for removal will be
granted.











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Section 5.12(d) - Debarment of Affiliated Firms
This section contains the procedures to be used in determining
whether a person or firm debarred under the Davis-Bacon Act
has "an interest" in another firm, corporation, partnership,
or association, and whether a person or firm debarred under
29 CFR 5.12(a) has "a substantial interest" in another firm,
corporation, etc. As provided in section 3(a) of the Davis-
Bacon Act and in 29 CFR 5.12(a)(1), if a debarred person or firm
is found to have "an interest" or "a substantial interest",
respectively, in such other firm, corporation, etc., that
other firm or corporation shall also be placed on the
debarment list.
Attachments