U.S. Department of Transportation
Federal Highway Administration
|Subject:||ACTION: Wage Rate Amendments, 10-Day Rule 29 CFR, Section 1.6(c) (3)||Date:||May 24, 1995|
|From:||Director, Office of Engineering||Refer To:||HCC-32
Federal Lands Highway Program Administrator
The purpose of this memorandum is to advise you of a change in the FHWA's position regarding the U.S. Department of Labor (DOL) requirement on the incorporation of amendments for general wage rate determinations into Federal-aid construction contract proposals prior to bid opening.
The DOL regulatory policy requires, for contracts entered into pursuant to competitive bidding procedures, that an amendment for a general wage rate determination be incorporated if notification of the change is published in the Federal Register 10 days or more prior to the opening of bids. If published less than 10 days an exception is possible (i.e., "10-day"). In 1989, an FHWA survey of State highway agencies (SHA's) identified a number of States which were experiencing problems receiving amendments for general wage rate determinations in a timely manner. This was resulting in postponement of bid openings and issuances of numerous addendums, causing projects to be delayed, and increased administrative costs.
Responding to the study findings, the FHWA by memorandum, dated August 30, 1990, modified the DOL requirement for the Federal-aid highway program application. The modification established the date an SHA received the wage rate change, rather than the publication date in the Federal Register of the notification, as the governing date for the "10-day rule." A copy of the FHWA policy memorandum was subsequently furnished to the DOL to advise them.
During the past year, the FHWA's modified "10-day rule" policy has been challenged by a third party as not being in conformance with the DOL regulatory requirement. Subsequently, the DOL notified the FHWA of its disagreement with the FHWA's modification of their "10-day rule." A meeting and exchange of correspondence has since followed.
While the DOL acknowledges that adhering to their regulation may have been difficult at times in the past, due to delays in distribution of the text of modifications, they advise that such delays have now been virtually eliminated. Wage rate determinations are presently delivered more timely through a new electronic information bulletin board established by the Department of Commerce, called "FedWorld." This electronic information tool provides public access to the information networks of many of many government agencies including the DOL. Within this system, updated wage rate determinations are available to recipients through a subscription service similar to the paper version provided through the Government Printing Office (GPO). Information on this electronic subscription service is attached. For those contracting agencies who maintain the paper subscription service, GPO maintains an overnight mail service.
As a result of our discussions with DOL, it is our determination that the FHWA can no longer justify a "10-day rule" policy that does not conform to the DOL regulatory requirement. Therefore, effective immediately, the DOL "10-day rule" policy as contained in 29 CFR 1.6(c) (3) shall govern for Federal-aid projects. A copy of this policy is attached for your reference.
If there are any questions concerning this policy guidance, please contact Mr. Robert S. Wright (HNG-22) at (202) 366-1558, or Mr. Wilbert Baccus (HCC-32) at (202) 366-1395.
/s/ original signed by
Stanley Gordon for
William A. Weseman