(a)(1) Project wage determinations initially issued shall be
effective for 180 calendar days from the date of such determinations. If
such a wage determination is not used in the period of its effectiveness
it is void. Accordingly, if it appears that a wage determination may
expire between bid opening and contract award (or between initial
endorsement under the National Housing Act or the execution of an
agreement to enter into a housing assistance payments contract under
section 8 of the U.S. Housing Act of 1937, and the start of
construction) the agency shall request a new wage determination
sufficiently in advance of the bid opening to assure receipt prior
thereto. However, when due to unavoidable circumstances a determination
expires before award but after bid opening (or before the start of
construction, but after initial endorsement under the National Housing
Act, or before the start of construction but after the execution of an
agreement to enter into a housing assistance payments contract under
section 8 of the U.S. Housing Act of 1937), the head of the agency or
his or her designee may request the Administrator to extend the
expiration date of the wage determination in the bid specifications
instead of issuing a new wage determination. Such request shall be
supported by a written finding, which shall include a brief statement of
the factual support, that the extension of the expiration date of the
determination is necessary and proper in the public interest to prevent
injustice or undue hardship or to avoid serious impairment in the
conduct of Government business. The Administrator will either grant or
deny the request for an extension after consideration of all of the
circumstances, including an examination to determine if the previously
issued rates remain prevailing. If the request for extension is denied,
the Administrator will proceed to issue a new wage determination for the
project.
(2) General wage determinations issued pursuant to Sec. 1.5(b),
notice of which is published in the Federal Register, shall contain no
expiration date.
(b) Contracting agencies are responsible for insuring that only the
appropriate wage determination(s) are incorporated in bid solicitations
and contract specifications and for designating specifically the work to
which such wage determinations will apply. Any question regarding
application of wage rate schedules shall be referred to the
Administrator, who shall give foremost consideration to area practice in
resolving the question.
(c)(1) Project and general wage determinations may be modified from
time to time to keep them current. A modification may specify only the
items being changed, or may be in the form of a supersedeas wage
determination, which replaces the entire wage determination. Such
actions are distinguished from a determination by the Administrator
under paragraphs (d), (e) and (f) of this section that an erroneous wage
determination has been issued or that the wrong wage determination or
wage rate schedule has been utilized by the agency.
(2)(i) All actions modifying a project wage determination received
by the agency before contract award (or the start of construction where
there is no contract award) shall be effective except as follows:
(A) In the case of contracts entered into pursuant to competitive
bidding procedures, modifications received by the agency less than 10
days before the opening of bids shall be effective unless the agency
finds that there is not a reasonable time still available before bid
opening, to notify bidders of the modification and a report of the
finding is inserted in the contract file. A copy of such report shall be
made available to the Administrator upon request. No such report shall
be required if the modification is received after bid opening.
(B) In the case of projects assisted under the National Housing Act,
modifications shall be effective if received prior to the beginning of
construction or the date the mortgage is initially endorsed, whichever
occurs first.
(C) In the case of projects to receive housing assistance payments
under section 8 of the U.S. Housing Act of 1937, modifications shall be
effective if received prior to the beginning of construction or the date
the agreement to enter into a housing assistance payments contract is
executed, whichever occurs first.
(ii) Modifications to project wage determinations and supersedeas
wage determinations shall not be effective after contract award (or
after the beginning of construction where there is no contract award).
(iii) Actual written notice of a modification shall constitute
receipt.
(3) All actions modifying a general wage determination shall be
effective with respect to any project to which the determination
applies, if notice of such actions is published before contract award
(or the start of construction where there is no contract award), except
as follows:
(i) In the case of contracts entered into pursuant to competitive
bidding procedures, a modification, notice of which is published less
than 10 days before the opening of bids, shall be effective unles the
agency finds that there is not a reasonable time still available before
bid opening to notify bidders of the modification and a report of the
finding is inserted in the contract file. A copy of such report shall be
made available to the Administrator upon request. No such report shall
be required if notice of the modification is published after bid
opening.
(ii) In the case of projects assisted under the National Housing
Act, a modification shall be effective if notice of such modification is
published prior to the beginning of construction or the date the
mortgage is initially endorsed, whichever occurs first.
(iii) In the case of projects to receive housing assistance payments
under section 8 of the U.S. Housing Act of 1937, a modification shall be
effective if notice of such modification is published prior to the
beginning of construction or the date the agreement to enter into a
housing assistance payments contract is signed, whichever occurs first.
(iv) If under paragraph (c)(3)(i) of this section the contract has
not been awarded within 90 days after bid opening, or if under paragraph
(c)(3)(ii) or (iii) of this section construction has not begun within 90
days after initial endorsement or the signing of the agreement to enter
into a housing assistance payments contract, any modification, notice of
which is published in the Federal Register prior to award of the
contract or the beginning of construction, as appropriate, shall be
effective with respect to that contract unless the head of the agency or
his or her designee requests and obtains an extension of the 90-day
period from the Administrator. Such request shall be supported by a
written finding, which shall include a brief statement of the factual
support, that the extension is necessary and proper in the public
interest to prevent injustice or undue hardship or to avoid serious
impairment in the conduct of Government business. The Administrator will
either grant or deny the request for an extension after consideration of
all the circumstances.
(v) A modification to a general wage determination is ``published''
within the meaning of this section on the date of publication of notice
of such modification in the Federal Register, or on the date the agency
receives actual written notice of the modification from the Department
of Labor, whichever occurs first.
(vi) A supersedeas wage determination or a modification to an
applicable general wage determination, notice of which is published
after contract award (or after the beginning of construction where there
is no contract award) shall not be effective.
(d) Upon his/her own initiative or at the request of an agency, the
Administrator may correct any wage determination, without regard to
paragraph (c) of this section, whenever the Administrator finds such a
wage determination contains clerical errors. Such corrections shall be
included in any bid specifications containing the wage determination, or
in any on-going contract containing the wage determination in question,
retroactively to the start of construction.
(e) Written notification by the Department of Labor prior to the
award
of a contract (or the start of construction under the National Housing
Act, under section 8 of the U.S. Housing Act of 1937, or where there is
no contract award) that: (1) There is included in the bidding documents
or solicitation the wrong wage determination or the wrong schedule or
that (2) a wage determination is withdrawn by the Department of Labor as
a result of a decision by the Administrative Review Board, shall be
effective immediately without regard to paragraph (c) of this section.
(f) The Administrator may issue a wage determination after contract
award or after the beginning 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
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.
(g) If Federal funding or assistance under a statute requiring
payment of wages determined in accordance with the Davis-Bacon Act is
not approved prior to contract award (or the beginning of construction
where there is no contract award), the agency shall request a wage
determination prior to approval of such funds. Such a wage determination
shall be issued based upon the wages and fringe benefits found to be
prevailing on the date of award or the beginning of construction (under
the National Housing Act, under section 8 of the U.S. Housing Act of
1937 or where there is no contract award), as appropriate, and shall be
incorporated in the contract specifications retroactively to that date,
Provided, That upon the request of the head of the agency in individual
cases the Administrator may issue such a wage determination to be
effective on the date of approval of Federal funds or assistance
whenever the Administrator finds that it is necessary and proper in the
public interest to prevent injustice or undue hardship, Provided further
That the Administrator finds no evidence of intent to apply for Federal
funding or assistance prior to contract award or the start of
construction, as appropriate.
[48 FR 19533, Apr. 29, 1983, as amended at 50 FR 49823, Dec. 4, 1985]
