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Davis-Bacon Act Compliance: Questions and Answers for the DOE Weatherization Assistance Program (WAP)

You can find answers to the following questions dealing with compliance with the Davis-Bacon Act requirements of the 2009 Recovery Act.

Where do I go for more help with Davis-Bacon Requirements?

  1. Where to Obtain Additional Information:

    For additional information, please visit the U.S. Department of Energy (DOE) Weatherization Assistance Program Web site or the DOE Office of Energy Efficiency and Renewable Energy Weatherization and Intergovernmental Program Web site.

    You may also visit the U.S. Department of Labor (DOL) Wage and Hour Division or call the DOL Wage-Hour Toll-Free Information and Helpline between 8 a.m. and 5 p.m. (in your time zone):  1-866-4US-WAGE (1-866-487-9243).

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General Questions

  1. Why does the DBA apply to the DOE Weatherization Assistance Program?

    The American Recovery and Reinvestment Act of 2009 (ARRA) provided approximately $5 billion in funding for DOE's weatherization program. Section 1606 of ARRA specifies that laborers and mechanics employed by contractors and subcontractors on construction projects funded directly by or assisted in whole or in part under ARRA, which includes the DOE-funded weatherization program, must be paid at least the wages rates prevailing in the locality in accordance with the DBA. State and local units of government are not considered contractors under the DBA when the construction is performed by their own employees. Community Action Agencies (CAAs) and other local non-profit groups are covered by DBA when their employees are used to perform the weatherization work. In addition, contractors and subcontractors of State and local units of government and CAAs are also DBA-covered.

  2. Does DBA apply to weatherization projects in the U.S. territories?

    No, the DBA only applies to weatherization projects within the fifty United States and the District of Columbia

  3. Does DBA apply to all WAP funds or just ARRA?

    The DBA applies to any project assisted in whole or in part with ARRA funds.

  4. Are local government providers employees subject to DBA?

    Local units of government are not considered by the Department of Labor to be contractors or subcontractors, and their workers are not covered by DBA. Any contracts awarded by the local government, however, must include the DBA labor clauses and applicable wage determination(s) for weatherization workers.

  5. When will DOE provide wage determinations for weatherization workers?

    DOE will provide wage determinations as soon as DOL has issued the applicable wage determination for that geographic area.

  6. Is the $2,000 Davis-Bacon Act threshold based on the entire amount of the contract, including equipment costs, or only on the labor costs?

    The $2,000 DBA threshold applies to the total cost of a contract; it is not based on contract labor costs alone.

  7. Is there a difference between a "project" and a "contract"? For example, if a community action agency (CAA) uses Recovery Act funding on weatherization of a house and has a contract for $2,000 for insulation for the house and a different contract for $1,900 with another company for weather stripping in the same house, do the Davis-Bacon requirements apply to both contracts since they are the same house, or just to the insulation because it is over $2,000?

    The "project" consists of all the homes to be weatherized as part of a single grant to the Subrecipient. Therefore, the subrecipient—the community action agency—is likely to have many homes to weatherize within its grant that will require many contracts. Unless the overall grant to the subrecipient is for an amount less than $2,000, the individual homes to be weatherized will always be covered by Davis-Bacon Act requirements regardless of how many contracts are required or how much is individually spent on a single home.

  8. If a CAA awards an $8,000 contract to an HVAC contractor to clean and tune the HVAC systems in 40 houses, a cost of $200 for each home's system, must the contractor pay DBA wages to his employees doing the work on the HVAC system?

    Yes, the HVAC contractor must pay DBA wages to the HVAC technicians. While the value of the weatherization work is less than $2,000 for each project (each home), the contract itself is for over $2,000 and the work will be subject to the Davis-Bacon Act.

  9. Since we are now locked into the DBA on the ARRA funding, am I correct in assuming that we would no longer need to follow any bidding or procurement processes or regulations for ARRA labor? If we have to follow the prevailing wages for labor, it would no longer make any sense to do a competitive or negotiated bidding process to see if we could get the best price for labor. Will we get something from DOE informing us that Labor procurement is no longer needed for ARRA?

    If we understand the question correctly, it is asking whether competition for goods and services need to be sought where wage rates are established by law, in this case the Davis-Bacon Act. The Competition in Contracting Act of 1984 established competition as the norm for buying goods and services under Federal contracts. The importance of competition in contracting was recently addressed by the Office of Management and Budget (OMB) in the Interim Implementation Guidance for the American Recovery and Reinvestment Act (ARRA) of 2009, which re-affirmed competition in contracting as a core acquisition principle when implementing the ARRA.

    The OMB guidance reaffirmed that compliance with the Davis-Bacon Act was also mandatory. However, the Davis-Bacon Act and the Competition in Contracting Act are not discordant in their principles. The Davis-Bacon Act merely establishes the minimum wage and benefit rate that must be paid. Companies have the discretion to pay at a higher rate as part of its business strategy, e.g., situations where it intends to quickly recruit the best workers to meet an aggressive delivery schedule. The wage and benefit rate that a company chooses to pay is within the purview of the company as long as it is no less than the prevailing wage and benefit rates established by the Department of Labor. The Davis-Bacon Act does not obviate the competition requirements, nor does it negate the benefits of the competitive process.

  10. Can States use HUD Davis-Bacon forms?

    No. Please use the standard DOL forms. Forms are available on the www.wdol.gov webpage. For example the Certified Payroll form can be found at: http://www.dol.gov/esa/whd/forms/wh347.pdf

  11. Do we have to use different wage rates for mobile homes than single family or multifamily?

    Any residential structure, including a mobile home, under 5 stories is covered by the new residential weatherization rate. Any residential structure 5 stories and over is covered by the existing "building construction" rates.

  12. Does DBA apply to weatherization assistance grants to Native American tribal governments?

    Tribal governments are not considered by the Department of Labor to be contractors or subcontractors, and their workers are not covered by DBA. Any contracts for weatherization work awarded by the tribal government, however, must include the DBA labor clauses and applicable wage determinations for contract workers.

  13. Does the DBA apply to the Appliance Rebate Program?

    No, the DBA does not apply to the ENERGY STAR® Appliance Rebate Program. The DBA only applies to laborers and mechanics performing construction at a work site, and the Appliance Rebate Program does not involve the use of laborers and mechanics. Additionally, the DBA does not apply to workers of the material suppliers who deliver and set up energy efficient appliances such as refrigerators, for example, because they spend a minor amount of time working at the delivery site.

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Davis-Bacon and other Utility or LIHEAP Funding

  1. If an agency uses an HVAC contractor to install a furnace and the installation is paid for by utility funds, but is on an ARRA job, does the HVAC contractor have to pay DB wages? Same type questions if Low Income Home Energy Assistance Program (LIHEAP) funded under Health and Human Services (HHS) or other funding sources are paying for specific measures.

    Yes, if the work is completed at the same time the ARRA-funded work is ongoing. The Recovery Act provides that "all laborers and mechanics . . . on projects funded directly by or assisted in whole or in part" with Recovery Act funding are subject to the requirements of the Davis-Bacon Act. If work on the job utilizes any Recovery Act funds and other non-ARRA funded work is ongoing at the same time using the same contact, then workers must be paid DBA wages for the entire project.

    If, however, the ARRA-funded work and the non-ARRA funded work are separated, such that the work crews are not at the job site at the same time, the CAA uses separate contracts for each type of funding, and the non-ARRA funded work is not required in order to complete the WAP work, the non-ARRA funded work would not be subject to the DBA prevailing wage requirement.

  2. What precautions should an entity take if it is leveraging utility funds with ARRA funds?

    Utility funds should not be comingled with ARRA funds. They are not Federal funds and are not subject to any DBA provision.

  3. The CAA has Crisis Intervention Program (CIP) money, which it receives through the Low Income Home Energy Assistance Program (LIHEAP) and which is not subject to the DBA. The CIP money is used for heat emergencies; for example, if a home's furnace was broken and the family is without heat, the CAA would use CIP money to immediately install a new high efficiency furnace. If the CAA hires a contractor to do a CIP job on a house that is scheduled to be weatherized under the Weatherization Assistance Program (WAP), will the CIP work subject to the DBA?

    If, as in the example, the CIP work was completed prior to any ARRA-funded weatherization work, the CIP work would not be subject to the prevailing wage requirements of the Davis-Bacon Act. In this answer, the work crews doing the CIP work and the WAP ARRA-funded work are not working at the same time and the CIP work is not required to complete the WAP work. The CIP work on a home to be weatherized must be entirely separate in time from the WAP work and the funding must be kept separate and apart. Although the same contractor can be used, there must be two separate contracts for the two separate types of work (ARRA work and other work). The non-ARRA funded work may be completed within a day or two of the ARRA-funded work, but there must be an actual separation in time. If, however, the CIP work is necessary for the completion of the ARRA-funded work or occurs at the same time, then the CIP workers would be covered by the DBA and the CIP contractor must pay the CIP workers the appropriate DBA wages.

  4. If an agency uses an HVAC contractor to install a new air conditioner unit or furnace and the equipment and installation is paid for by utility funds, does the HVAC contractor have to pay DBA wages if the work occurs on a house which was weatherized using ARRA funding?

    No, in your example the DBA wages need not be paid unless the installation of the air conditioning unit, furnace, or other type of equipment is performed at the same time that the ARRA-funded weatherization work is ongoing. Moreover, the CAA must enter into two separate contract—one for the ARRA-funded weatherization work and another for the non-ARRA funded work—and the crews performing the separate work cannot be working at home or building at the same time.

    If, however, the non-ARRA funded work is necessary for the completion of the ARRA-funded work or occurs at the same time, then the HVAC contractor would be subject to the DBA and would be required to pay the CIP workers the appropriate DBA wages.

  5. If a provider performed some weatherization work on a project with non-ARRA funds without paying DBA wages, and the provider now returns to that project to perform additional work using ARRA funds, does it need to retroactively pay those who worked on the project previously for any difference between their prior rate and the DBA rate.

    No. The weatherization work performed without ARRA funds is not subject to the DBA.

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Who is covered by the Davis-Bacon Act?

  1. Which WAP workers are covered by DBA and which are not?

    The DBA applies to laborers and mechanics employed at the work site. Auditors, inspectors, and other personnel not performing physical or manual work at the site of the work are not covered by DBA. For details, see the U.S. Department of Labor online Wage Determinations.

  2. Are working foreman covered by the DBA?

    Yes, working foremen are covered for the time they spend working as a laborer or mechanic. Time spent filling our forms or ordering supplies is not DBA-covered work.

  3. Are workers classified as independent contractors or "1099 workers" covered by DBA?

    Yes, workers performing the duties of laborers or mechanics on DBA-covered projects are entitled to DBA wages and must be listed on the contractor's certified payroll record.

  4. Exactly what activities are covered by DBA? Travel time to the job site; time spent loading and unloading trucks; time spent in the warehouse or classroom training?

    The DBA requirements apply to laborers and mechanics employed on the site of work. Time spent at the home office, picking up supplies, traveling to the work site, etc., are not DBA hours. However, the non-DBA hours may count towards overtime for covered workers if DBA hours and non-DBA hours exceed 40 hours in a week.

  5. How do you track overtime if a subcontractor only works a fraction of his hours on weatherization, but works more than 40 hours/week?

    The DOL Wage and Hour Division is responsible for enforcement of Federal overtime pay requirements under the Fair Labor Standards Act and the Contract Work Hours and Safety Standards Act. Additional information is available on the Wage and Hour website at http://www.dol.gov/esa/whd/overtime_pay.htm.

  6. Does DBA apply to workers of material suppliers who might deliver refrigerators or weatherization materials to a job site?

    No. Material suppliers are not DBA-covered if they spend only an incidental amount of time performing work at the weatherization site.

  7. Can employers report all activities (labor and non-labor hours) for employees who spend part of their day on an ARRA job site on the certified payroll or must they separate out and list only the labor hours for the reporting requirement?

    Employers must separate out the DBA covered hours from the non-DBA covered hours. Only the hours that a laborer or mechanic performs work on a DBA covered project on the certified payroll; however, the employees entire earnings and deductions are also indicated on the certified payroll.

  8. If an employee is performing work described under Weatherization Worker but also installs windows and doors, are the agencies required to separate out the window and door installation for reporting requirement (assuming the Weatherization Worker wage is equal to or higher than the Window and Door installer wage)?

    Yes, if an employee performs work under two separate wage classifications then the agencies must separate out the work and make two separate entries on the Certified Payroll indicating the appropriate hours and the wage rate for each classification.

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Davis-Bacon Wages

  1. Are employers able to take fringe benefit credit against the DBA prevailing wage requirements?

    Wages under the DBA include both the cash wages and "bona fide" fringe benefits that are provided to laborers and mechanics. A covered employer may discharge its prevailing wage obligation for the payment of both straight time wages and fringe benefits by (1) paying both in cash, (2) making payments or incurring costs for "bona fide" fringe benefits, or, (3) by a combination thereof. Examples of fringe benefits include health insurance, pension contributions, and paid time off. The use of a company truck or employer required payments into Social Security or worker's compensation insurance are not examples of fringe benefits. Employers can take credit for their bona fide fringe benefit costs towards meeting the applicable prevailing wage rate.

  2. If I am a local agency working in multiple counties (and the wage rates are not the same in every county), what wage rate should I use.

    The payment of DBA wages is based upon the site where the weatherization work is performed. If an employer is performing weatherization work in different counties with differing wage rates, the employer must assure that the employee is paid at least the prevailing wage rate that applies where the work is performed.

    You may pay the workers at the highest county wage for all work performed in all the counties to make the record keeping simpler. Davis-Bacon wage rates are the minimum that must be paid.

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Davis-Bacon and Weekly Payroll

  1. What is a certified payroll and where can I find a copy with instructions for completing it?

    All laborers and mechanics employed on the work site must be paid, unconditionally, at least once a week. Covered employers must submit a certified payroll on a weekly basis. The employer must sign the certified payroll, affirming that the information is complete and accurate. Falsification of the certified payroll record can result in debarment from future contracts for up to three years and /or criminal penalties.

    A copy of a certified payroll form (WH-347) can be found on the Labor Department's Wage and Hour Division ARRA website at http://www.dol.gov/esa/whd/recovery/.

  2. Are no work payrolls mandatory?

    No. If no work has been performed by the contractor for an entire week, then a certified payroll is not required. When there is work, the next certified payroll number would be inserted in the payroll number box. If there is going to be a long period of no work, it would be good to attach a note to the last payroll indicating that there is no work for how many weeks or that this is the end of the contract to make it easier for an auditor to understand why there is a lapse or an end to the certified payrolls from a specific contractor.

  3. Clause 1.D.(1) of the required DBA clauses states that the Recipient, Subrecipient and Contractor shall maintain the social security numbers of all workers covered by DBA. Some of our agencies do not believe they or the State are allowed to keep social security numbers. What is the policy?

    On December 19, 2008, the DOL issued its Final Rule, 73 FR 77504, entitled Protecting the Privacy of Workers: Labor standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction. This Final Rule (the Rule) revised its regulations issued purusant to the Davis-Bacon and Related Acts and the Copeland Anti-Kickback Act to better protect the personal privacy of laborers and mechanics employed on covered construction contracts. The effective date of the Rule was January 18, 2009, and changed the regulations at 29 C.F.R 5.5(a)(3)(i), (ii). The DOL decided that weekly certified payrolls no longer require complete social security numbers and home addresses for individual workers and that not including such information would better protect the personal information of the workers.

    As a result, 29 CFR 5,5(a)(3)(ii)(A) specifically provides for submission of the certified payroll "shall set out accurately and completely all information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's social security number)."

    Therefore, the contractor must maintain full social security number and home address, should an audit become necessary, but that information is no longer to be submitted on the weekly certified payroll. This should resolve the issue as to whether a State may retain the social security numbers.

  4. Does the owner of a contracting or weatherization company have to be listed on the certified payroll record if they also perform the duties of a laborer or mechanic at the work site? Are owners of the business covered by the DBA?

    Bona fide owners who are exempt pursuant to Department of Labor regulations, found at 29 CFR Part 541, are not laborers and mechanics and are not subject to the DBA. DOE recommends that owners of a business who also perform construction work list themselves on the certified payroll and under the column for "Work Classification" insert the word "owner." Additionally, the owner of a contracting or subcontracting company, or authorized officer or employee who supervises the payment of wages must sign the Statement of Compliance for the certified payroll.

  5. Are employers able to take fringe benefit credit against the DBA prevailing wage requirements?

    Wages under the DBA include both the cash wages and "bona fide" fringe benefits that are provided to laborers and mechanics. A covered employer may discharge its prevailing wage obligation for the payment of both straight time wages and fringe benefits by (1) paying both in cash, (2) making payments or incurring costs for "bona fide" fringe benefits, or, (3) by a combination thereof. Examples of fringe benefits include health insurance, pension contributions, and paid time off. The use of a company truck or employer required payments into Social Security or worker's compensation insurance are not examples of fringe benefits. Employers can take credit for their bona fide fringe benefit costs towards meeting the applicable prevailing wage rate.

  6. How do you track overtime if a subcontractor only works a fraction of his hours on weatherization, but works more than 40 hours/week?

    The DOL Wage and Hour Division is responsible for enforcement of Federal overtime pay requirements under the Fair Labor Standards Act and the Contract Work Hours and Safety Standards Act. Additional information is available on the Wage and Hour website at http://www.dol.gov/esa/whd/overtime_pay.htm.

  7. Will an agency be required to submit retroactive certified payroll records if they started ARRA funded work prior to receiving the DOL wage determinations?

    After any reimbursements have been made to satisfy the wage rates in the DOL weatherization worker determinations, the employer should submit certified payrolls from the beginning of the ARRA funding to certify that the correct wage rates have been paid.

  8. Will it be permissible for weekly certified payrolls to be aggregated and submitted to the Contract Administrator on a monthly basis?

    No. Certified payrolls are required to be submitted weekly.

  9. Is it acceptable for a Recipient to receive an electronically created certified payroll from a Community Action Agency (CAA) or Contractor, if the document has a proper electronic signature?

    Yes, current law establishes that the proper use of electronic signatures on certified payrolls and related compliance statements carry the same legal effect as handwritten signatures. Electronic certification documents are sufficient for compliance purposes under the DBA and may be accepted and maintained by the Recipient in compliance with its requirement to maintain the records on behalf of DOE. The Recipient's are responsible for ensuring the accuracy of the electronic signature process, and the proper retention and accessibility of the electronically transmitted documents.

  10. Is it acceptable for a CAA to scan the certified payrolls and send the scanned copy to the Recipient?

    No, scanned documents do not carry the same legal effect as handwritten signatures for DOL enforcement purposes. As such, a CAA may not simply scan the certified payroll and forward to the Recipient. The Recipient, in turn, may not maintain such scanned certified payrolls as fulfillment of its requirements to maintain the records on behalf of DOE.

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Davis-Bacon Compliance

  1. Is it appropriate for States, in certain instances, to conduct some on-site reviews at the local agency and contractor levels to ensure contract compliance?

    Yes, it is appropriate for the State to conduct on-site reviews at the local agency and contractor levels. As set forth in the Davis-Bacon Act Requirements clause and the Recipient Functions clause that will be added to existing weatherization grants that already have been awarded to State/Recipients, Recipients are responsible for ensuring compliance with DBA requirements by Community Action Agencies, local agencies, contractors and their lower-tier subcontractors. On-site reviews are useful in ensuring compliance.

  2. Can DOL provide a sample of every report required for each level of management and instructions for each so we don't miss any reporting requirement and can assess administrative costs?

    DOL reporting requirements and forms are available on the DOL web site www.dol.gov. Additional information can be obtained by contacting your respective DOE Project Management Center. The DOE Project Management Centers are as follows:

    The National Energy Test Laboratory at Pittsburgh, 626 Cochrans Mill Road, P.O. Box 10940, Pittsburgh, PA 15236-0940

    The National Energy Test Laboratory at Morgantown, 3610 Collins Ferry Road, P.O. Box 880, Morgantown, WV 26507-0880

    The Department of Energy Golden Field Office, Mail Stop 1501, 1617 Cole Boulevard, Golden, Colorado 80401

  3. Will DOE and DOL provide some moratorium for compliance to allow for training and oversight to be initiated and completed in all sections of the country?

    No. DBA requirements are effective from the start of the ARRA grant period and no moratorium period is permitted. Once the States have incorporated the DBA labor clauses and wage determination into an agreement, employers should immediately begin complying with the DBA and make any retroactive back wage calculations and restitution as quickly as possible. While DOL is conducting its surveys and developing project-specific wage determinations for weatherization work, DOE and DOL will focus on assisting WAP grantees and weatherization contractors in understanding their obligations under the DBA.

  4. When does oversight begin at the State and Federal levels once compliance is required and work takes place using ARRA funds?

    State and Federal oversight begins with ensuring that the proper DBA provisions appear in advertised specifications. Immediately upon the start of work using ARRA funds, State and Federal agencies must ensure that all employees are paid the proper wage and that other DBA requirements are met.

  5. Can States use HUD Davis-Bacon forms?

    No. Please use the standard DOL forms. Forms are available on the www.wdol.gov webpage. For example the Certified Payroll form can be found at: http://www.dol.gov/esa/whd/forms/wh347.pdf

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Davis-Bacon Grant Clause Questions

  1. What is the definition or meaning of "the head of the federal contracting activity or a representative expressly designated for this purpose"?

    The head of the federal contracting activity is the person designated as such by a federal agency. For the purpose of Section M, the representative will be the Contracting Officer for a grant.

  2. Do the requirements of Section M require Subrecipients or Contractors who wish to pay laborers and mechanics wage rates that exceed the recently released wage rates, for residential weatherization workers or other building construction prevailing wage rates, mean that grant Recipients cannot pay wage rates that exceed these recently released wage rates?

    No. When States were awarded Recovery Act funded grants to perform weatherization work, the DOL wage determinations for this work not included in the grants. At the time of award, however, the Contracting Officer reviewed and approved the costs that would be reimbursable for a certain number of weatherization units based on proposed wage rates. If Subrecipients or Contractors can perform the work under the grant as previously approved with the higher wage rates, the Contracting Officer's prior approval of the grant should be construed as constituting approval of the Contracting Officer for payment of the higher wage rate. However, if the work cannot be performed (i.e., the number of units to be weatherized), as previously approved, because a Subrecipient or Contractor pays a laborer or mechanic a rate that is in excess of the DOL wage rate in the DOL wage determination, the approved "Weatherization Annual File Worksheet" for the award would have to be revised and the Recipient would have to obtain approval from the Contracting Officer in order for the rates to be reimbursable.

  3. If Subrecipients or Contractors wish to pay laborers or mechanics wage rates greater than the new wage rates, can they use Recovery Act funds to do so?

    Yes, subject to any necessary prior approvals as discussed above.

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Davis-Bacon and Multifamily Home

  1. Will the new Weatherization Wage Determinations that DOL will be issuing apply to weatherization activities for all structures, including multi-family units, such as apartment buildings and/or public housing units.

    Weatherization activities on structures that are five stories or more in height are subject to the existing "building construction" general wage determinations rather than the "residential weatherization worker" wage determinations that DOL will be issuing. 
    Greater than 4 story multifamily homes: Use existing "Building Construction" Rates (see www.wdol.gov)

    Four stories and less multifamily homes: Use new residential weatherization determinations.

  2. Do we have to use different wage rates for mobile homes than single family or multifamily?

    Any residential structure, including a mobile home, under 5 stories is covered by the new residential weatherization rate. Any residential structure 5 stories and over is covered by the existing "building construction" rates.

  3. Where does Davis-Bacon begin and end with WAP projects, as part of a comprehensive rehab?

    The DOE Weatherization Assistance Program (WAP) does not allow WAP funding to be used until after all rehab work is completed. As such, the DBA covered weatherization work would not begin until after any and all HUD rehab work has been completed. Once any and all rehab work is completed, and the unit has been referred to weatherization for energy efficiency improvements under the DOE-WAP using Recovery Act funds, then compliance with DBA for the weatherization work would be necessary. At the time the weatherization measures are started, the appropriate DOL wage determination must be used. If the building at issue is over 5 stories, the DOL Residential Weatherization Wage Determination would not apply to that work.

    DOE cannot provide guidance as whether the rehab work would be subject to DBA requirements. The CAA must contact the HUD representative for this information.

  4. If there is a situation where a CAA has non-ARRA funding to rehabilitate a large multistory multifamily building ($50,000/unit) and DOE's ARRA-funded Weatherization Assistance Program (WAP) will contribute an additional $4,000/unit, and the work is done together, is the AARA-funded WAP work considered a separate project, or does the entire project fall under Davis Bacon requirements?

    If the ARRA-funded WAP work is done at the same time as non-ARRA funded rehab work, then the whole project is subject to the DBA. The performance of the work together is the key to determining whether the AARA-funded WAP work is a separate project. In this example, the entire project will be subject to the DBA even where only a very small portion ($4,000/unit) of the overall cost ($54,000/unit) is attributable to the ARRA-funded WAP work because the work is being done together. The ARRA provides that "all laborers and mechanics . . . on projects funded directly by or assisted in whole or in part" with ARRA funding are subject to the DBA.

    If, however, the work is separated into two separate and distinct projects and not performed together (i.e., the rehab work using non-ARRA funds is completed prior to or after the ARRA-funded WAP work, the work crews are not working together, and separate contracts are used for the two types of work), the non-ARRA funded work would not be subject to the DBA.

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Davis-Bacon and Travel Time

  1. Exactly what activities are covered by DBA? Travel time to the job site? Loading and unloading trucks? Time spent in the warehouse or classroom training?

    The DBA requirements apply to laborers and mechanics employed on the site of work. Time spent at the home office, picking up supplies, traveling to the work site, etc., are not DBA hours. However, the non-DBA hours may count towards overtime for covered workers if DBA hours and non-DBA hours exceed 40 hours in a week.

  2. Do prevailing wage requirements apply to travel time between individual homes where weatherization and/or other energy efficiency improvements are installed?

    The DBA requirements apply to laborers and mechanics employed on the site of work. Time spent traveling away from one DB job site to another DB job site in connection with weatherization or other energy efficiency work would not count as DBA hours, provided that the time spent in such travel is accurately documented. However, such travel time may count towards overtime under the Fair Labor Standards Act if a worker's DBA hours and non-DBA hours exceed 40 hours in a week.

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Davis-Bacon and Training Programs

  1. Are there going to be exemptions from DBA pay requirements for workers in training?  For example, can local agencies pay a training wage and then have that wage modified to meet the prevailing wage rate once training is completed and the worker starts actual production? 

    A training or apprentice wage can be paid only if the trainee is registered in a DOL approved apprenticeship or training program or with a State Apprenticeship Agency recognized by DOL.  Otherwise, the individual is to be paid the DBA rate for the classification of work that they are performing regardless of their skill level.

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Davis-Bacon and Volunteer Organizations

  1. Do AmeriCorps volunteers need to have Davis-Bacon wages or be registered as apprentices or should they be exempt as they're government employees?

    The DBA provides that it does not supersede or impair any authority otherwise granted by Federal law to provide for the establishment of specific wage rates. The authorizing statutes for the Youth Conservation Corps, 16 U.S.C. 1703(a)(3), and the Public Land Corps, 16 U.S.C. 1726, for example, specifically require the Secretaries of Interior and Agriculture to set the rates of pay or living allowances for the Corps' participants. Other youth programs, such as the American Conservation and Youth Service Corps (AmeriCorps), 42 U.S.C. 126551, and Volunteers in Service to America (VISTA), 42 U.S.C. 4955, specify in the statutory language the living allowances and other benefits that must be provided to each participant. Therefore, since these Federal youth programs have established specific compensation to be paid to participants, such participants would not be covered by Davis-Bacon labor standards.

  2. How should agencies seek Davis-Bacon exemption for locally based volunteer organizations?

    To determine whether any other Volunteer Organizations may be exempt, a written request for a determination should be accompanied with appropriate supporting documentation and must be sent to Mr. John L. McKeon, Deputy Administrator, Wage and Hour Division, 200 Constitution Avenue, N.W., Room S-3502, Washington, D.C. 20210.

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Davis-Bacon and Multi-County Work

  1. What does an employer do if the contractor is working in different counties with different wage determinations and different rates for the same classification of worker?

    The payment of DBA wages is based upon the site where the weatherization work is performed. If an employer is performing weatherization work in different counties with differing wage rates, the employer must assure that the employee is paid at least the prevailing wage rate that applies where the work is performed.

    You may pay the workers at the highest county wage for all work performed in all the counties to make the record keeping simpler.  Davis-Bacon wage rates are the minimum that must be paid.

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State Oversight of Davis-Bacon Requirements

  1. What is the State's role in overseeing agency DBA compliance? Do they include reporting and recordkeeping requirements?

    As set forth in the Davis-Bacon Act Requirements clause and the Recipient Functions clause that will be added to existing weatherization grants that already have been awarded to State/Recipients, Recipients are responsible as part of their oversight role for ensuring compliance with DBA requirements by Community Action Agencies, local agencies, contractors and subcontractors. These clauses will specifically identify and clarify the responsibilities of Recipients under the weatherization grants. These responsibilities include reporting and recordkeeping requirements; obtaining, maintaining, monitoring and reviewing the payroll records of the Community Action Agencies, local agencies, contractors, and subcontractors; and assisting DOE in its DBA enforcement responsibilities. DOE is ultimately responsible for ensuring DBA compliance on ARRA funded weatherization projects. Recipient oversight functions are similar to prime and subcontractor DBA compliance responsibilities under a Federal contract. Costs associated with the State's responsibilities for DBA compliance will usually be allowable costs in accordance with the terms of the weatherization grant, which has been funded in whole or in part with ARRA funds.

  2. Who is responsible for ensuring contractor compliance as well as timely and accurate reporting from contractors?

    Recipients are responsible for ensuring compliance with DBA requirements by Community Action Agencies, contractors and lower-tier subcontractors. Many of the requirements, including reporting and recordkeeping, flow down to the Community Action Agencies and their contractors and lower-tier subcontractors. Therefore, the Community Action Agencies will also be responsible for ensuring compliance by its contractors and lower- tier subcontractors with DBA requirements, including reporting and recordkeeping requirements. Contractors hired by Community Action Agencies to perform weatherization work also have compliance responsibilities as well as reporting requirements. The specific responsibilities will be set forth in the DBA clauses, which will be included in the weatherization grants and the subawards issued to the Community Action Agencies and local agencies as well as the contracts issued to contractors and lower tier subcontractors. However, DOE is ultimately responsible for ensuring compliance and enforcement of DBA on ARRA funded weatherization projects.

  3. Who is the "contracting agency" and who is the "administering agency"? See the bolded portion of Page 5 of the program notice. Is the state the "administering agency" and the CAA the contracting agency?

    The State is the Recipient of the ARRA funds and may assign an entity of the State, such as the State Weatherization Program, the responsibility for administering the overall weatherization program. It is the State's decision regarding which entity it wants to perform the administration of the weatherization program for the State, including contract administration. In some instances the State entity will be both the Contracting Agency and the Administrating Agency. If the State decides that the CAA's will be the contracting agency then the CAA's will be the contracting agency for that State.

  4. Our State agency has a policy of retaining Davis-Bacon records in its offices for a period of one year and then in an off-site secure storage area for 3 years. Is the 3 year retention for Weatherization on site or off site?

    All weatherization work payroll records must be retained for a period of 3-years. The State agency may store the records at an off-site secure storage area out of its on-site offices once it has reviewed the records for accuracy. The records may be maintained either on-site or off-site for the 3-year retention period. The State agency may determine how long the records will be maintained at a particular location. There is no need to maintain the payroll records for more than a total of 3 years after the project is complete. The records, whether stored on-site or off-site should be maintained so as to be easily retrieved should DOE, DOL, or an authorized agent require the records for an audit.

  5. According to WPN 09-9, certified weekly payroll must be submitted to the "contracting and administering agency." In our State the State Agency will be the "administering agency" and the CAA is generally the "contracting agency." Therefore, will each of the many certified weekly payroll sheets have to be submitted to the State administering agency for each of the CAAs as well as each of their subcontractors? Or do they only get submitted up one level.As in, the HVAC contractor will submit his payroll to the CAA, and the CAA will submit just the CAA employees' payroll to the state. Either way, at that point, are they submitted to DOL? And if so, how often? Or, is it none of the above, and all paperwork is just held at the local level to be inspected by monitors at the appropriate time?

    The certified weekly payroll sheets are submitted from the contractor to the State contracting agency. The contracting agency reviews the certified payroll from its contractors and then forwards the contractor's certified payroll to the State Agency. If the CAA is using its own employees to perform the weatherization work, the CAA submits its certified payroll to the State. Thus, if the CAA is using both its own employees and a contractor it would submit both certified payrolls to the State on a weekly basis.

    The certified payrolls are not submitted to either DOL or to DOE. The State maintains the certified payroll on behalf of DOE and makes them available for DOE's use. The State must maintain records of its monitoring of DBA compliance and make those records available to DOE as part of the compliance checking undertaken by DOE. The States are also required to maintain all certified weekly payrolls on behalf of DOE for a period of three years after completion of the project.

  6. Is it acceptable under 29 CFR 5.5 for States to require its sub-grantees to obtain independent weekly certification of its and its contractors' payroll to ensure compliance with Davis-Bacon?

    Yes, it is acceptable. Sub-grantees are not required to have the payrolls certified independently; however, States may require its sub-grantees to obtain independent weekly certification if the State believes there is a high risk of the sub-grantee's non compliance. It is the State's ultimate responsibility to review the records and ensure compliance with Davis-Bacon. Payroll must be calculated and paid weekly to employees. Laborers and mechanics are paid on an hourly basis and the DOL wage rate will contain both an hourly rate and an amount for bona fide fringe benefits. This is a question as to whether it is an allowable expense under the Grant.

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Davis-Bacon Compliance Costs to the State and Local Agencies

  1. How will DBA compliance costs be charged at both the State and local level?

    For States, the costs associated with DBA compliance can generally be charged either as an administrative expense or as a training and technical expense, if training for implementation of DBA is conducted by the State for its subrecipients. For local agencies (subrecipients), these costs can generally also be charged as an administrative expense. However, States should contact their respective DOE Project Management Center Project Officer or Administrator for specific guidance on budgeting and charging costs associated with DBA compliance.

  2. Who will pay for any back wages that might result from the new wage determinations?

    Recipients may use ARRA weatherization funds to pay contractors for any additional wage costs that result from the retroactive incorporation of the wage determinations.

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Wage rates for hot water heater installation

  1. What work classification should be used under the weatherization wage determination for installation of a hot water heater during a weatherization project?

    The installation of hot water heaters on WAP projects is not covered under the revised weatherization wage determinations wage determinations. It appears the initial weatherization wage determinations for some states included language that the installation of hot water heaters was part of the specialty work; however, we have been informed that this was a mistake that has been corrected on the revised weatherization wage determinations. All individuals performing work installing a hot water heater should be paid at the plumber or electrician rate, depending on local code, in accordance with the residential construction wage determination.

    Please Note: The U.S. Department of Labor has informed the DOE that previous responses to the weatherization surveys that claimed the performance of this work were disallowed.

  2. What about where the water heater unit is electric and the local code specifies installation must be done by a licensed electrician?

    You should hire the most qualified individual as required by state and local code. All individuals performing this work where the code requires the use of an electrician must be paid the electrician wage rate in accordance with the residential construction wage determination.

  3. What about homes in which a solar unit will be installed for use on the hot water heater?

    With respect to solar, the described work would meet the description of residential construction if it is being performed on a single family residence or apartment/condominium, etc. of 4 stories or less and the general wage determination for residential construction for the applicable county would apply. If the structure is more than 4 stories or is a building, not a residence, then the general wage determination for building construction for the applicable county would apply. All individuals performing this work should be paid at the plumber or electrician rate, depending on local code, in accordance with the residential or building construction wage determination.

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