HOW TO MAKE A CONFORMANCE REQUEST SUBJECT TO THE DAVIS-BACON ACT Roofing contractors who work on public construction projects subject to the prevailing wage requirements of the Davis-Bacon Act may find themselves in a situation where the applicable wage determination for roofer classification, sheet metal worker classification or other job classification is missing from contract documents. In these instances, the Davis-Bacon Act provides a mechanism for the missing classification to be added to the wage determination. This mechanism is referred to as making a conformance request. A conformance request asks for additional classifications and wage rates to be added to the applicable wage determination. As soon as the contractor becomes aware a specific skill needed for the project is not listed in the wage determination, a conformance request should be made. A request for an additional classification and wage rate must be made in writing through the contract administrator. Subcontractors should make their requests through the prime contractor. CONFORMANCE REQUEST PROCEDURE The conformance request procedure for the unlisted class must be submitted by the contractor to the contracting officer no later than 30 days after the unlisted class of employee performs any contract work. The conformance request can be made using a government published SF-144 form (instructions about how to complete SF-144 are pre-printed on the form). A conformance request must identify the missing work classification and recommend a wage rate for that classification. The conformance request also should describe the work to be performed by the added classification, as well as an explanation why the work does not fit into one of the trade classifications already listed within the applicable wage determination. -1- CONFORMANCE REQUEST/2 Roofing contractors are encouraged to work with the contracting officer when making a conformance request because it is the contracting officer who makes the initial decision whether to approve the request. In order for the contracting officer to make an initial decision in response to a conformance request, the contracting officer will consult with all interested parties, including the prime contractor, subcontractor (if applicable), employees and union representative, to determine whether there is agreement regarding the classification to be added and the proposed wage rate. The contracting officer will approve an additional classification and wage rate when the following three conditions are met: the work to be performed by the classification requested is not performed by a classification already in the wage determination; the classification is used by the construction industry in the geographic area; and the proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. Generally, requests for additional classifications with a proposed wage rate below the unskilled laborer wage rate will not be approved. Indeed, in most instances, if the proposed wage rate for a skilled classification is less than the wage rate for the lowest skilled classification, the conformance request will not be accepted. When the interested parties disagree on the classification and wage rate, the contracting officer will attempt to resolve the dispute before forwarding his or her recommendation to the Department of Labor. Of course, there is a greater likelihood a conformance request will be approved if the evidence that establishes the classification is used by the construction industry in the geographic area comes from both the employer and the employee (and the union, if applicable). -2- CONFORMANCE REQUEST/3 Although the contracting officer may approve the conformance request, the officer’s decision is not final. The final decision must come from the Department of Labor. THE DEPARTMENT OF LABOR MUST APPROVE THE REQUEST The Department of Labor generally responds to a conformance request within 30 days of its receipt. The lack of a response from the Department of Labor within 30 days does not mean the request has been approved. Instead, if a response is not received within 30 days of submission, the roofing contractor should contact the Department of Labor to inquire about the status of the conformance request. If the request is approved by the Department of Labor, the prime contractor is charged with the responsibility of posting at the job site the approval notice with the wage determination, and the correct rate must be paid retroactively to the beginning of the project. If the Department of Labor denies the request, the contractor will be advised which job classification within the wage determination applies to the work being performed by the contractor’s employee(s). While waiting for a final decision from the Department of Labor, the contractor is required to pay its employee(s) in accordance with the proposed classification and wage rate. If the request is later denied and the correct classification is paid a higher wage rate than the wage rate proposed in the conformance request, back wages will be due to the employee(s). RECONSIDERATION FOR DENIED REQUESTS Contractors whose conformance requests are denied are not without recourse. The contractor may request reconsideration of the Department of Labor’s decision while also appealing the decision to the administrative review board, which is charged with hearing appeals under the Davis-Bacon Act. ### -3-