“If you don’t know where you are going, you’ll end up someplace else.”  

― Yogi Berra

The following are some pre-award best practices to follow when  looking at solicitations for prevailing wage covered work  -- specifically Davis-Bacon Act (“DBA”) or Service Contract Act (“SCA”) covered contracts:  

·        Review the wage determination (“WD”) included in the solicitation: 

o   If there is no DBA or SCA wage determination in the RFP and the work involves more than $2,000 of construction work or $2,500 of services, ask the Contracting Officer to clarify the application and add a WD if required.

o   Make sure the wage determination is from the correct locality (DBA: same city or county as the project) or SCA (Same cluster of counties as where the work is being performed).

o   For DBA, make sure the wage determination is the right type for the project (types are residential, heavy, highway, building).

o   Make sure the wage determination is current as of the date of the bid.

o   Check for obvious missing job classifications on the WD, and if there are missing classifications do a mini-conformance prior to bidding to estimate the labor costs. 

o   Figure out the prevailing wages and benefits due workers before you bid and make sure you have the skilled personnel available to perform the work at those rates. Don’t over promise or under promise compensation.

·        If the service work is being performed by a unionized predecessor contract, examine the wage and fringe benefit provisions of the Collective Bargaining Agreement (“CBA”) carefully, and seek legal advice as to any ambiguity regarding the wages and fringe benefits due thereunder. Not everything economic are deemed to be SCA mandated wages or benefits. Things like overtime premiums, expense reimbursement, show up pay, and ERISA required retirement plan deficit payments may not be deemed to apply.  

·        If  the WD or CBA is missing or wrong, immediately bring that to the attention of the contracting officer, and in the event that the contracting agency fails to take corrective action, consider bringing any necessary challenges to either Government Accountability Office (“GAO”) or the US Department of Labor (“DOL”) in a timely manner. Be aware there can be strict time limitations on any challenge. 

·        In service contracts, if the predecessor contractor’s CBA was not negotiated at arms’ length or is the rates are not substantially justified, initiate a challenge at the DOL  immediately, as there are strict timeliness rules.  

·        Figure out what workers are exempt from the prevailing wage requirements (inspectors, off-site personnel, certain supervisors, administrative personnel, professionals, etc.).  

·        If there are questions about wage and hour coverage, submit a written request for clarification to the contracting officer or follow up on any Q&As attached to the solicitation. Remember, some dispute resolution forums say that the contractor has a duty to seek clarification of solicitation ambiguities.  

·        In pricing your offer, verify subcontractor pricing where appropriate. For bids from subcontractors which are more than unreasonably lower than the next competitive offer, confirm the use of the proper wage scale and request the subcontractor to verify quotes. Emphasize the application of the prevailing wage laws and specifically point the offeror to the applicable WDs. Remember, the prime contractor is always  financially liable for back wages owed by its subcontractors. 

Of course, this checklist is hardly exhaustive. Indeed, it is just some of the things you need to consider before submitting your offer.