Id. at 8.
DISCUSSION
DEI's request for the addition of a new and separate heavy and highway
wage schedule was posed to the Administrator as a request for conformed classifications.
However, the request is more properly seen as a challenge to the sufficiency or substantive
correctness of the wage determination included in the BoP contract. DEI requested 67 additional
wage classifications (WD TX940014 listed 11 building construction classifications) with wage
rates generally identical to a Wage and Hour Division heavy and highway wage determination
and the State of Texas prevailing wage schedule for highway construction that applied locally.
Petitioner submitted these documents as evidence of the reasonableness of its request.
Before a request to modify a wage determination can be substantively
considered, it must meet procedural guidelines well-established by the regulations and Board
precedent. Specifically, all modifications to wage determinations must be published
before contract award. 29 C.F.R. § 1.6(c)(3)(vi). This is a position the Board has
consistently supported. Adequate remedies for challenging deficiencies in wage determinations
are available, but must be requested prior to the award of a contract. It is settled that the
conformance procedure cannot be used as a substitute for the obligation to timely challenge the
[Page 5]
correctness of a wage determination. Jordan and Nobles Construction Co. & W.R. Pierce
& Associates , supra ; Rite Landscape Construction Co. , WAB Case No. 83-
03, Oct. 18, 1983, slip op. at 5-6; see also J. A. Languet Construction , WAB
Case No. 94-18, Apr. 27, 1995, slip op. at 9.
A representative from DEI attended the BoP's pre-bid conference on
March 2, 1994. The contract was awarded on May 5, 1994 and DEI began work on June 10,
1994. But, it was not until August 11 (a full five months after learning of the content of the wage
determination; three months after contract award; and two months after construction work
began), that DEI requested additional wage classifications.
As the Board stated in another matter deemed to constitute an untimely
challenge to a wage determination, "retroactive modifications to the wage determinations
are unfair to losing bidders." Inland Waters Pollution Control Inc. , WAB Case
No. 94-12, Sept. 30, 1994, slip op. at 6. Thus, contractors may not rely on the conformance
process to relieve themselves of their obligation under the regulations to seek review and
reconsideration of a wage determination prior to contract award. See J. A. Languet
Construction , supra ; Rite Landscape Construction Co. , supra .
DEI argues it failed to request the appropriate review because the BoP's
Contracting Officer told them at the March 2, 1994 pre-bid conference that the Wage and Hour
Division had refused on two occasions to issue additional classifications before the contracts
were awarded, but would make adjustments after the contract was awarded. (Petition for Review
at 11-12.) Based on this statement, DEI maintains the Administrator should be equitably
estopped from denying Duke's request. Id. Further, according to DEI, it would have
been futile at that time to challenge the sufficiency of the wage determination. Id.
These arguments fail for several reasons. First, BoP's Contracting
Officer's comments were in reference to a conformance request. DEI seeks a post-
award modification of the wage determination. Second, at least one of the elements of an
equitable estoppel argument, justifiable reliance, is absent from the current case. See
Williston, Samuel; A Treatise on the Law of Contracts 3d , Vol. 1, Section 11-29(b),
Baker, Voorhis and Co., Inc. (1957). DEI claims to have relied on the BoP Contracting Officer's
statement regarding the Department's position on pre-contract award adjustments. Yet, DEI
ignored the rest of the BoP Contracting Officer's advice regarding acceptable wage rates.
Specifically, the BoP's Contracting Officer advised DEI that the Wage and Hour Division
required the contractor's final proposed rates "be equal to, or exceed, the lowest paid skill
rate on the wage determination." AR Tab H, Flap E, Enclosure No. 5. DEI's proposed
rates (see discussion, infra ) were below the level suggested by the BoP's Contracting
Officer. AR Tab H, Flap D, Enclosure No. 3.
More importantly, it has long been Board precedent that a contracting
officer's (or other contracting agency's) advice is not binding on the Administrator. See
Tollefson Plumbing and Heating , WAB Case No. 78-17, Sept. 24, 1979, slip op. at 8.
As the Board found in Languet , in a different context, "there is no element of
equitable reliance under the conformance process." Languet , supra at 8.
[Page 6]
We similarly conclude that a successful bidder may not estop the Administrator's enforcement
of DBA prevailing wage provisions by claiming equitable reliance on another agency's
representations. In this regard, we note that only the Administrator (or his or her delegatee) can
issue authoritative and binding rulings and opinions (and then only in writing) under the
DBA (and its related Acts). See Werzalit of America, Inc., WAB Case No. 85-
19, Apr. 7, 1986.
Petitioner also argues that it would have been futile to make a pre-bid
request to modify the wage determination. A portion of this Board's jurisdiction consists of the
pre-award challenges to wage determinations. See 29 C.F.R. §§ 1.6, 7.4.
Historically, when made, such challenges have been treated expeditiously in order to satisfy
contract solicitation and award schedules established by contracting agencies. Thus, pre-award
challenges to wage determinations are not futile and this Board's predecessor, the WAB, has
entertained such appeals.
As noted, the Administrator conformed six of DEI's requested
classifications and rates to the applicable wage determination. Three of the proposed
classifications and rates (for carpenter, common laborer and utility laborer) were denied on the
ground that the duties for the proposed classifications were performed by classifications already
listed in the wage determination. The Administrator refused to approve the rates for the
remaining classifications because they did not bear a "reasonable relationship" to the
rates in the wage determination. AR Tab A, 7-8. We now address the question of the
Administrator's ruling regarding this factor of the conformance regulation.
The governing regulation at 29 C.F.R. § 5.5(a)(1)(v)(A) provides
three criteria to be satisfied before a conformance may be approved:
(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.
Emphasis supplied. DEI challenges the Administrator's conformance ruling only with
respect to criterion 3, i.e. , whether the rates requested bear a "reasonable
relationship" to the wage rates listed in the applicable wage determination. Petition at 12-
[Page 7]
15. Specifically, and in spite of the fact that the BoP's Contracting Officer cautioned all bidders
on this issue at the pre-bid conference, DEI objects to the Administrator's conforming rates for
skilled classifications at rates no lower than the lowest rate for skilled classifications contained
in the contact wage determination. DEI argues that "the wage determination omitted so
many of the classifications necessary for performance that [the wage determination] is an
inadequate baseline against which to gauge the reasonableness of the additional rates."
Petition at 13. But given our foregoing conclusion affirming the Administrator's determination
that DEI's request for a wage determination modification was untimely, it is our further
determination that the Administrator acted well within the bounds of her discretionary authority
under the conformance regulation in conforming DEI's requested skilled classifications to the
lowest skilled rated in the wage determination applicable to the BoP contract.
DEI cites M. Z. Contractors Co., Inc. (I) , WAB Case No. 92-06,
Aug. 25, 1992, in support of its argument that the Administrator was not required to apply the
Wage and Hour Division's general policy of conforming skilled wage classifications to the
lowest skilled classifications in the applicable wage determination. Petition at 14. In that case,
the Board rejected a strict application of this policy because the wage determination's lowest rate
for a skilled classification was below the rate listed for unskilled laborers. Id. at 4. But
M. Z. Contractors is distinguishable from the present matter on the facts. As noted, in
M. Z. Contractors , the lowest wage determination rate for a skilled classification
(painter) was below the listed rate for laborers. Id. at 4. That is not true in this case.
Here, the rate for the lowest skilled craft (sheet metal worker) was $11.00, while the laborer's
rate was $7.88.
Finally, DEI argues its requested rates were reasonably related to those in
the wage determination by submitting several documents; including (by way of example) an
affidavit of Jon Kingsley, AR at Tab E, Attachment 13, the President of one DEI's
subcontractors. But such information is not relevant to analysis of the conformance process,
since none of these documents is relevant to the issue of whether the requested rates are
reasonably related to the applicable wage determination. Such wage information might have
been relevant in a pre-contract award challenge -- based on DEI's version of purported state of
current Jefferson County, Texas area practice -- to the correctness of the BoP contract's wage
determination, but not in deciding appropriate wage rates to be conformed in "reasonable
relationship" to the rates contained in the wage determination.
Our final observations and conclusions regarding DEI's Petition for
Review -- to the extent that it is a post-award challenge to the correctness of the BoP contract
wage determination -- are as follows. First, we find no significance whatsoever in the
Administrator's statement in her final ruling that it "would have been appropriate for the
[Page 8]
highway wage determination to have been incorporated. . ." in the BoP project's bid
specifications. AR Tab A at 4. In that passage of the determination, the Administrator was
merely opining as to the outcome of a timely request for modification of the applicable wage
determination, had DEI followed the requirements of the regulations and challenged the
correctness of the single bid specification wage determination, No. TX940014, prior to the award
of the contract. Nor is the Administrator's citation to the area practice information
"[h]istorically" available to the Wage and Hour Division of any import. This Board,
as does the Administrator, presumes that bidders on contracts subject to the Act are familiar with
the area practice currently prevailing in a given jurisdiction. In this regard, we note that if
bidders on the BoP project believed the wage determination was "cursory" or
otherwise obviously deficient, it was incumbent upon the bidders to raise a timely challenge to
the Act's wage determination. Moreover, if bidders on a federal construction project choose to
forego their regulatory right to pre-award challenges to a wage determination (clearly delineated
in the applicable regulations at 29 C.F.R. Part 1), and instead rely on the conformance process,
they must do so at their own risk, given the Administrator's discretionary authority under 29
C.F.R. § 5.5(a)(1).
We finally note that Petitioner's reliance on the WAB's decision in
Hawk View Apartments , WAB Case No. 85-20, Apr. 24, 1986, is in our opinion
misplaced.5 In Hawk View , the
WAB reversed the Administrator's ruling in a conformance matter, thereby permitting the prime
contractor and subcontractor to utilize, without back wage liability, the wage rates listed as
prevailing in a State of Nevada prevailing wage determination. However, in that case, unlike
here, the State wage determination had actually been incorporated into the bid specifications and
contract for construction of an apartment complex funded or assisted partially by federal monies,
thus bringing into play both State and federal prevailing wage requirements. Moreover, in that
case there was record evidence that the State of Nevada's prevailing wage schedule was more
consistent with the current locally prevailing wage standards than the classifications and wages
reflected in the DBA wage determination. (In fact, the WAB noted in its decision that the record
demonstrated that all bidders based their submissions to the contracting agency on the basis of
the Nevada wage determination.) In this case where only the DBA wage determination was
incorporated in the bid specifications and contract and the BoP's contracting officer placed all
bidders on notice of the Wage and Hour Division's "de facto floor" policy --
as characterized by DEI -- concerning the minimum wage rate acceptable for a skilled
classification utilized in constructing the BoP project. 6
[Page 9]
For the foregoing reasons, the Administrator's final ruling is
AFFIRMED .
SO ORDERED.
DAVID A. O'BRIEN
Chair
KARL J. SANDSTROM
Member
JOYCE D. MILLER
Alternate Member
[ENDNOTES]
1 On April 17, 1996, the Secretary of Labor
redelegated authority to issue final agency decisions under, inter alia , the Davis-Bacon and Related
Acts and their implementing regulations to the newly created Administrative Review Board. Secretary's
Order 2-96 (Apr. 17, 1996), 61 Fed. Reg. 19978, May 3, 1996. See also , 29 C.F.R. Part 7 (1996).
Secretary's Order 2-96 contains a comprehensive list of the statutes, executive order, and regulations under
which the Administrative Review Board now issues final agency decisions. Final procedural revisions to
the regulations (61 Fed. Reg. 19982), implementing this reorganization were also issued on that date.
2 See footnote 1,
supra ; 29 C.F.R. Part 7 (1995).
3 The Administrator also noted that
at least with regard to the concrete paving work and the incidental site work, it would have been appropriate
to include the highway construction wage rate schedule in the bid specifications. And if prior to the contract
award, had the issue of an additional wage schedule been raised, Wage and Hour could have ruled on that
question.
4 DEI does not challenge the
Administrator's final determination denying conformed helper classifications in this proceeding.
5 While noting the distinctions
between Hawk View Apartments and the situation presented by DEI's Petition for Review, we
emphasize that the Board expresses no opinion concerning any future matter factually similar to
Hawk View Apartments .
6 With respect to Petitioner's
allegation that the BoP erred in interpreting the Administrator's final ruling so as to preclude use of the
$11.00 hourly minimum rate for the requested conformed classification of "Ironworker,
reinforcing," we note that the applicable wage determination contained the classification of
"Ironworker, structural," with the accompanying hourly wage rate of $12.79. As with the
remainder of DEI's proposed classifications, no timely evidence was presented to the Wage and Hour
Division as to whether there should be a separate classification for "Ironworker, reinforcing."
Accordingly, we affirm the application of the "Ironworker, structural" classification and
wage rate to the disputed duties performed on the BoP contract.