FAR Revised to Adopt DOL Regulations on Site of Work and Union Dues Notices
On June 8, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) issued a final rule amending the Federal Acquisition Regulation (FAR) to implement the definitions of “construction” and “site of the work” in Davis-Bacon Act regulations promulgated three years ago by the Department of Labor (DOL).
AGC filed comments opposing the proposed changes to the FAR in February 2004 as well as comments opposing the DOL regulation in October 2000, arguing that the changes improperly expand coverage of the Davis-Bacon Act. AGC maintains that, although the changes were purportedly made to conform DOL regulations with federal appellate court decisions, they actually expand the affected definitions beyond the boundaries established by the courts and by the statute itself by requiring prevailing wage coverage to some workers who are not “employed directly upon the site of the work.”
In kind with the DOL regulation, the FAR amendments define “construction, alteration, or repair” to include the transportation of materials and supplies between the “site of the work” and a facility which is dedicated to the construction of the building or work, as well as transportation of portions of the building or work between a secondary site where a significant portion of the building or work is constructed and the place where the building or work will remain. “Site of the work” includes:
(1) the primary site of the work, which is the physical place or places where the construction will remain when completed, and
(2) any secondary site of the work, which is any other site located in the U.S. where a significant portion of the building or work is constructed, provided that the site is established specifically for the performance of the contract or project.
The definition of secondary site includes fabrication plants, mobile factories, batch plants, borrow pits, job headquarters, tool yards, and the like which are (a) dedicated exclusively or nearly exclusively to performance of the contract or project, and (b) adjacent or virtually adjacent to the primary site of the work. It excludes permanent home offices, branch plants, fabrication plans, and tool yards that continue in operation without regard to a particular contract or project. It also excludes batch plants, fabrication plants, borrow pits, yards, job headquarters, and the like which are established by a supplier prior to the opening of bids and not on the project site, even if they are dedicated to a particular project for a period of time. In the introduction to the rule, the Councils explain that the definition “does not cover the manufacture or sale of construction material to be used at the site, but only actual construction that is unique and integrally related to the final building or work. The Councils anticipate that very few construction projects will have a secondary site of the work.”
The rule requires the offeror to notify the government if the offeror intends to perform work at any secondary site. If the offeror is unsure whether a planned work site constitutes a “secondary site of the work,” then the offeror shall request a determination from the contracting officer. If the wage determination for the primary site of the work is not applicable to the secondary site, then the offeror shall request a wage determination from the contracting officer.
The effective date of the rule is July 8, 2005. To view the full text of the FAR amendment, click here. For more information about the DOL rule, click here.
The Councils also issued a final rule implementing Executive Order 13201 and DOL regulations addressing the notification of employee rights regarding the payment of union membership and dues (so-called “Beck rights”). Like the DOL rule, which took effect in April 2004, the FAR amendment requires federal contractors to post certain notices in all plants and offices, whether or not used in performing work that supports a federal contract, informing employees that they cannot be required to join a union or maintain membership in a union to retain their jobs. The required notice also advises employees who are not union members that they can object to the use of their union dues for certain purposes. To view the text of the FAR amendment, click here and here. For more information about the DOL rule, including a copy of the required poster, click here and scroll down to “Union Dues/Beck Rights.”
In addition, the Councils issued five other final rules and one interim rule on June 8. They address:
(1) telecommuting for federal contractors;
(2) incentives for the use of performance-based contracting for services;
(3) submission of cost or pricing data on noncommercial modifications of commercial items;
(4) applicability of Small Disadvantaged Businesses and HUBZone price evaluation factor;
(5) deferred compensation and post-retirement benefits other than pensions; and
(6) gains and losses on disposition or impairment of depreciable property or other capital assets, depreciation costs, and rental costs.
To view an index to the online text of those rules, click here.
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