Proposed Rule2024-25656
General Services Administration Acquisition Regulation (GSAR); Construction Labor Requirements for Lease Acquisitions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 6, 2024
Issuing agencies
General Services Administration
Abstract
The General Services Administration is proposing to amend the General Services Administration Acquisition Regulation to add a new section that adopts the amended definition of the term "public building or public work" from the Department of Labor's Updating the Davis-Bacon and Related Acts Regulations final rule and to include compliance with the minimum wage and sick leave Executive Orders, and other requirements for leasehold acquisitions when there is a qualifying construction event as defined in this rule.
Full Text
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<title>Federal Register, Volume 89 Issue 215 (Wednesday, November 6, 2024)</title>
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[Federal Register Volume 89, Number 215 (Wednesday, November 6, 2024)]
[Proposed Rules]
[Pages 87993-87998]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-25656]
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GENERAL SERVICES ADMINISTRATION
48 CFR Part 570
[GSAR Case 2021-G530; Docket No. GSA-GSAR 2024-0019; Sequence No. 1]
RIN 3090-AK51
General Services Administration Acquisition Regulation (GSAR);
Construction Labor Requirements for Lease Acquisitions
AGENCY: Office of Acquisition Policy, General Services Administration
(GSA).
ACTION: Proposed rule.
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SUMMARY: The General Services Administration is proposing to amend the
General Services Administration Acquisition Regulation to add a new
section that adopts the amended definition of the term ``public
building or public work'' from the Department of Labor's Updating the
Davis-Bacon and Related Acts Regulations final rule and to include
compliance with the minimum wage and sick leave Executive Orders, and
other requirements for leasehold acquisitions when there is a
qualifying construction event as defined in this rule.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at the address shown below on or before
January 6, 2025 to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to GSAR Case 2021-G530 to:
<a href="http://Regulations.gov">Regulations.gov</a>: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Submit comments via the
Federal eRulemaking portal by searching for ``GSAR Case 2021-G530''.
Select the link ``Comment Now'' that corresponds with GSAR Case 2021-
G530. Follow the instructions provided at the ``Comment Now'' screen.
Please include your name, company name (if any), and ``GSAR Case 2021-
G530'' on your attached document. If your comment cannot be submitted
using <a href="https://www.regulations.gov">https://www.regulations.gov</a>, call or email the points of contact
in the FOR FURTHER INFORMATION CONTACT section of this document for
alternate instructions.
Instructions: Please submit comments only and cite GSAR Case 2021-
G530 in all correspondence related to this case. Comments received
generally will be posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>,
including any personal and/or business confidential information
provided. To confirm receipt of your comment(s), please check <a href="https://www.regulations.gov">https://www.regulations.gov</a> approximately two to three days after submission to
verify posting.
[[Page 87994]]
FOR FURTHER INFORMATION CONTACT: Ms. Johnnie McDowell, Procurement
Analyst, at 202-718-6112 or <a href="/cdn-cgi/l/email-protection#c6a1b5a7b4b6a9aaafa5bf86a1b5a7e8a1a9b0"><span class="__cf_email__" data-cfemail="cea9bdafbcbea1a2a7adb78ea9bdafe0a9a1b8">[email protected]</span></a> for clarification of
content. For information pertaining to status or publication schedules,
contact the Regulatory Secretariat Division at 202-501-4755 or
<a href="/cdn-cgi/l/email-protection#c285918390a7a591a7a182a5b1a3eca5adb4"><span class="__cf_email__" data-cfemail="feb9adbfac9b99ad9b9dbe998d9fd0999188">[email protected]</span></a>. Please cite GSAR Case 2020-G530.
SUPPLEMENTARY INFORMATION:
I. Background
The Federal Government is the largest single lessee of space in the
United States. General Services Administration (GSA), as one of the
nation's largest public real estate organizations, provides workspace
for over one million Federal workers located in space owned by the
Federal government and in leased properties including buildings, land,
and sites across the country.
Since 1994, GSA has applied the Construction Wage Rate Requirements
(CWRR), also known as the Davis-Bacon Act (DBA), clauses in contracts
and subcontracts specifically for new building construction, whether
planned lease construction or the complete rehabilitation or
reconstruction of an existing building, where the Government is the
sole or predominant tenant of the facility.
On August 23, 2023, the Department of Labor (DOL) published a final
rule updating the regulations that implement the Davis-Bacon and
Related Acts (DBRA) (see 88 FR 57526). The DOL rule, among other
things, clarified the regulatory definitions of a ``building or work''
and ``public building or public work'' to include a portion of a
building or work, or the installation of equipment or components into a
building or work, even where the entire building or work is not owned,
leased, or used by a Federal agency, so long as other requirements for
coverage are met. Examples of other requirements for coverage include
the Federal government's sufficient involvement with the lease, and the
existence of a contract for construction that is authorized or financed
by the Federal government.
In reviewing the clarifying language in DOL's recent revisions to
the DBRA regulations, the Federal Acquisition Regulation (FAR) subpart
22.4 Labor Standards for Contracts Involving Construction, and GSAR
Part 570 Acquiring Leasehold Interests in Real Property, GSA determined
that proposing a new subpart addressing all of the requirements for
lease contracts with a CWRR qualifying construction event was
necessary.
II. Discussion and Analysis
The rule proposes to amend GSAR Subpart 570.1, General by creating
a new section GSAR 570.119 Construction labor requirements for lease
acquisitions to assist the leasing acquisition workforce in
implementing the changes to the CWRR clauses. The new subpart will
identify:
<bullet> When CWRR applies;
<bullet> Common terminology to ensure the Government, offeror,
lessor, and subcontractors clearly understand the application and
associated requirements;
<bullet> Why the Service Contract Labor Standards usually does not
apply to lease contracts;
<bullet> Procedures for compliance monitoring and reporting; and
<bullet> All applicable clauses and executive orders required for
lease contracts with a qualifying construction event.
A. Identify When CWRR Applies
The rule will require the application of the CWRR in all new and
existing lease contracts with a qualifying construction event provided
that the construction work itself is performed in whole or in part
within the United States, District of Columbia, or the Commonwealth of
Northern Mariana Islands.
B. Common Terminology
The key component of the rule is defining a qualifying construction
event which prompts a lease contract to include the CWRR requirements.
This rule also defines ancillary terms including tenant improvements,
building shell and building specific amortized capital. These terms
have long been used in GSA lease contracts.
C. Service Contract Labor Standards
The rule clarifies that the Service Contract Labor Standards
(SCLS), also known as Service Contract Act (SCA), generally does not
apply to contracts for the lease of space for government occupancy
because these contracts usually do not have the principal purpose of
furnishing services, as required for coverage under the SCLS. (See 41
U.S.C. 6702, 29 CFR 4.134(b)). In addition, workers carrying out the
construction activities on lease contracts with a qualifying
construction event are covered by the CWRR and therefore are exempt
from coverage under the SCLS. (See 29 CFR 4.115(b)).
D. Procedures for Requirements, Compliance Monitoring and Reporting
The rule directs contracting officers to the Federal Acquisition
Regulation (FAR) guidance to implement CWRR requirements in lease
acquisitions involving qualifying construction events, including wage
determinations (FAR 22.404), payroll certification and work safety and
health (FAR 22.407), and compliance and monitoring (FAR 22.406-7).
E. List of All Applicable Clauses
The rule will add CWRR labor clauses to GSAR section 570.701 FAR
provisions and clauses for all lease contracts with a qualifying
construction event including the clauses that incorporate Executive
Order (E.O.) 13706, Establishing Paid Sick Leave for Federal Contracts,
and E.O. 14026, Increasing the Minimum Wage for Federal Contractors.
Although the majority of the required CWRR labor clauses were
previously included in leasing contract templates per the DOL's All
Agency Memorandum 176 and the remaining clauses were included as a
result of the two applicable E.O.s, the application of the CWRR
affected only a small number of lease contracts. The DOL DBRA final
rule's clarification of the term ``public building or public works''
expanded GSA's application of CWRR for lease contracts involving
construction and prompted this change.
F. Severability
If any portion (e.g., section, clause, sentence) of this rule, as
finalized, is held to be invalid or unenforceable facially, or as
applied to any entity or circumstance, it shall be severable from the
remainder of the rule, and shall not affect the remainder thereof, or
its application to entities not similarly situated or to other
dissimilar circumstances. The various portions of this proposed rule
are independent and serve distinct purposes. Even if one aspect as
finalized were rendered invalid, the other benefits of the rule would
still be applicable. As an illustrative but not exhaustive example,
were a court to stay or invalidate any changes to GSAR subpart 570.1 as
finalized regarding the definition of ``public building or public
works'', GSA would intend the broader proposed restructuring of GSAR
570 to remain effective.
III. Expected Impact of the Rule
This section is divided into an analysis of the qualitative and
quantitative impact the rule will have on the public and the
Government. The associated costs were calculated by analyzing Fiscal
Years 2021 through Fiscal Year 2023 data from the Real
[[Page 87995]]
Estate Across the United States (REXUS) database.
According to the review of REXUS data, the estimated annual number
of lease contract actions with a qualifying construction event is 727,
of which 70 percent, or 509, were with small business entities. In this
section, GSA based the calculations for the Regulatory Impact Analysis
on the 2024 General Schedule Grade 12 Step 5 pay scale (using the rate
for the rest of the United States) with a burden of 100% for fringe
benefits. The following paragraphs detail activities which are required
by this rule for lease contracts with a qualifying construction event:
A. Overall Impact
Although the rule will expand GSA's application of CWRR from less
than 10 lease contracts per year to an estimated average of 727
annually, existing resources will greatly reduce the impact of this
rule. Specifically, existing DOL training resources, GSA leasing guide
and templates, and stakeholders' familiarity with the CWRR requirements
and the two E.O.s will significantly reduce the impact of this rule.
GSA analyzed the effects of the rule in four significant areas:
<bullet> Wage determinations;
<bullet> Payroll reviews and certifications;
<bullet> Familiarization of applicable clauses; and
<bullet> Monitoring and reporting.
A.1. Wage Determinations
First, GSA reviewed the process for incorporating the appropriate
wage determinations throughout the lease contract with a qualifying
construction event's life cycle. This rule will require the contracting
officer to incorporate the wage determinations with the solicitation
package and update with the most recent wage determinations at the time
of a qualifying construction event. Lessors and their subcontractors
are responsible for ensuring laborers and mechanics are being paid in
accordance with the CWRR wage determination, accrue the correct sick
time, and are paid at or above the E.O. 14026 minimum wage rate.
GSA estimates that lessors with qualifying construction events may
initially take an average of 2 hours to implement the procedures for
ensuring the wage determinations are included in any subcontract
awarded to carry out the qualifying construction event. The 2 hours
estimation is based on historical estimates from GSA construction
contractors. GSA estimates that there will be an average of 1
subcontractor for each qualifying construction event, which takes into
consideration circumstances in which lessors use their own employees to
carry out the construction and circumstances in which more than one
subcontractor work on the project. GSA estimated the regulatory cost
for this part of the rule to be $137,316 (= 2 hours x $94.44 x 727
(rounded)).
A.2. Payroll Reviews and Certifications
Next GSA reviewed the CWRR requirement for contractors and
subcontractors to submit weekly certified payroll to the contracting
agency. (See FAR clause 52.222-8(b)). In analyzing the impact of the
rule on payroll reviews and certifications, GSA found that most
businesses use automated payroll software to process their payrolls.
The impact of this rule associated with the use of these automated
systems will be reduced because the majority of the data such as
employee identifiers, number of withholdings/exemptions, hours worked,
and rate of pay is already being captured.
GSA recognizes that for leasing, the payroll review and
certification process will only apply to lease contracts with a
qualifying construction event and will terminate at the successful
completion of the qualifying construction event work. Therefore,
lessors will not necessarily be required to review and submit the
payroll data for an entire 52-week timeframe.
GSA also discovered, due to the frequency of the payroll data
submissions, that after the completion of the first payroll review and
certification, subsequent reviews required less time and effort. This
reduction in review and certification time could be traced back to the
lack of variances or major changes to the contractor payroll data. Most
changes were due to employee turnover, new hires, and apprenticeship to
journeyman ratios. Currently, GSA is looking at an enterprise-type
solution to the payroll review and certification process through the
procurement of commercial off-the-shelf products.
GSA estimates that lessors with qualifying construction events may
initially take an average of 1.5 hours to develop and implement
procedures for reviewing and certifying payroll data. GSA's calculation
also includes the average weeks a qualifying construction event takes
to complete the work, which is 24 weeks . GSA estimated the regulatory
cost for the above scenario to be $2,471,684 (= 1.5 hours x $94.44 x
727 x 24 weeks (rounded)).
A.3. Labor Clause Familiarization
In analyzing the impact of the rule associated with the need to
become familiar with the added clauses, GSA found that all of the
clauses being applied through GSAR 570.701 already exist in current
leasing contract templates. Therefore, the leasing acquisition
workforce and the lessor community have general familiarity with the
majority of the changes proposed in the rule.
GSA estimates that lessors with qualifying construction events may
initially take an average of 2 hours to familiarize themselves with
CWRR. The 2 hours estimation is based on historical information,
complexity of the clause and the detailed training available to the
lessor. GSA estimated the regulatory cost for this part of the rule to
be $137,316 (= 2 hours x $94.44 x 727 (rounded)).
In addition, lessors are estimated to require 5 additional hours
based on the complexity of the information to familiarize themselves
with E.O. 13706. GSA estimated the regulatory cost for this part of the
rule to be $343,289 (= 5 staff hours x $94.44 x 727).
Lessors were also estimated to take 3 hours to familiarize
themselves with E.O. 14026. Minimum wage requirements have been part of
the Federal, State and local laws for decades. The 3 hours accounts for
some of the nuances made in the E.O. application. GSA estimated the
regulatory cost for this part of the rule to be $205,974 (= 2 hours x
$94.44 x 727).
A.4. Monitoring and Reporting
In analyzing the monitoring and reporting requirements, GSA found
the initial impact would be on the increased number of leasing
contracting officers, lessors, and subcontractors affected by the
updated DOL rule. Although the CWRR clauses were in GSA templates, GSA
did not apply the CWRR requirements to the majority of the lease
contracts and did not require the development of internal processes to
resolve payroll discrepancies, if needed, or reporting to DOL.
GSA will be responsible for submitting two enforcement or
compliance reports annually, as necessary, to DOL. These reports
include the submission or updating of the 3-year forecast report and
the submission of semi or annual compliance reports.
GSA estimates that lessors with qualifying construction events may
take an average of 1.5 hours to provide responses to payroll
discrepancies with
[[Page 87996]]
supplemental payroll review documents or other information if required
for investigations, which can be generated from databases very quickly.
GSA estimated the regulatory cost for this part of the rule to be
$102,987 (= 1.5 hours x $94.44 x 727 (rounded)).
B. Benefits
GSA believes that applying the DOL DBRA final rule through the CWRR
statute to lease contracts with a qualifying construction event will
result in benefits to the government, laborers and mechanics, and
lessors and their subcontractors. Some possible benefits for each group
are provided below:
B.1. For the Government
In updating its regulation, the DOL clearly explained the benefits
to the Federal Government. For GSA, this change will ensure GSA leases
are performed in accordance with current regulations. GSA has an
interest in only contracting with those lessors that comply with all
applicable Federal regulations, for that provides the greatest
confidence that they will support the requirements of their lease
contract.
B.2. For Laborers and Mechanics
Affected laborers and mechanics are expected to significantly
benefit from the implementation of the changes to CWRR to the extent
they increase the wages and fringe benefits paid to these workers. Any
increase in wages will increase their ability to buy groceries, pay for
housing (i.e., rent or mortgage payments), purchase gasoline and other
necessities as well as entertainment. In addition, laborers and
mechanics will be provided with compliance and protections that may
increase worker's job satisfaction and productivity levels.
B.3. For Lessors and Subcontractors
Lessors and their subcontractors, especially small businesses, will
be knowledgeable of the regulations and well positioned to comply thus
avoiding the risk of enforcement action from the DOL. Also, some
proponents to modernizing DBA argue that DBA, also known as CWRR,
payment of no less than prevailing wages to eligible workers may
attract a more experienced level of laborers and mechanics to work on
Government construction contracts.
C. Summary of Total Costs
The overall annual total cost, including both Public and Government
costs, is outlined in the table below:
----------------------------------------------------------------------------------------------------------------
Number of
Number of Cost per qualifying
Action hours qualifying lease Total cost
event contracts
----------------------------------------------------------------------------------------------------------------
Updating Wage Determinations (Public)............... 2 $94.44 727 $137,316
Payroll Reviews and Certification (Public).......... * 1.5 94.44 727 2,471,684
Familiarization with DBA Requirements (Public)...... 2 94.44 727 137,316
Familiarization With E.O. 13706 Establishing Paid 5 94.44 727 343,289
Sick Leave for Federal Contractors (Public)........
Familiarization With E.O. Executive Order 14026 3 94.44 727 205,974
Increasing the Minimum Wage for Federal Contractors
(Public)............................................
-----------------------------------------------------------
Total (Public).................................. .............. .............. .............. 3,295,579
Updating Wage Determinations (Government)........... .5 94.44 727 34,329
Payroll Reviews and Certifications (Government)..... 2 94.44 727 137,316
Monitoring and Reporting CWRR,and Paid Sick 1.5 94.44 727 102,987
Leave(Government)..................................
-----------------------------------------------------------
Total Government................................ .............. .............. .............. 274,632
-----------------------------------------------------------
Total Public + Total Government............. .............. .............. .............. 3,570,211
----------------------------------------------------------------------------------------------------------------
* For 24 weeks.
Although there are no quantifiable cost savings in implementing
this proposed rule, the majority of the costs incurred (95%) are
associated with the conducting of weekly payroll reviews and
certification. GSA expects to have an automated resolution in the near
future which is expected to significantly reduce the cost of performing
this activity.
IV. Executive Orders 12866, 13563, and 14094
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
E.O. 14094 (Modernizing Regulatory Review) supplements and reaffirms
the principles, structures, and definitions governing contemporary
regulatory review established in E.O. 12866 and E.O. 13563.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993.
V. Regulatory Flexibility Act
The change may have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act 5 U.S.C. 601, et seq. because of the application of the
CWRR to a larger number of leases. An Initial Regulatory Flexibility
Analysis (IRFA) has been prepared consistent with 5 U.S.C. 603.
The Regulatory Secretariat will be submitting a copy of the Initial
Regulatory Flexibility Analysis (IRFA) to the Chief Counsel for
Advocacy of the Small Business Administration. A copy of the IRFA may
be obtained from the Regulatory Secretariat Division. GSA invites
comments from small business concerns and other interested parties on
the expected impact of this rule on small entities.
GSA will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (GSAR Case 2021-G530) in
correspondence.
The analysis is summarized as follows:
The General Services Administration (GSA) is proposing to amend
the General Services Administration Acquisition Regulation (GSAR) to
add a new section to adopt the amended definition of the term
``public building or public work'' from the Department of Labor's
(DOL) Updating the Davis-Bacon Acts Regulations final rule and to
include compliance with the minimum wage and sick leave Executive
Orders and
[[Page 87997]]
other requirements for leasehold acquisitions of real property when
there is a qualifying construction event as defined in this rule.
The objective of the rule is to amend GSAR Subpart 570.1,
General, by creating section 571.119 Construction Labor requirements
for lease acquisition and adding applicable labor clauses at 570.701
FAR provisions and clauses to clarify when GSA's lease contracts
with a qualifying construction event would need to apply
Construction Wage Rate Requirements (CWRR).
Title 40 of the United States Code (U.S.C.) Section 121
authorizes GSA to issue regulations, including the GSAR, to control
the relationship between GSA and contractors.
The rule will apply to large and small businesses. For purposes
of this assessment, information generated from the Real Estate
Across the United States (REXUS) has been used as the basis for
estimating the number of contractors that may be involved. GSA
estimates that of the 7,618 lease contracts in its inventory
approximately 727 annual lease contracts are projected annually to
have a qualifying construction event of which over 509 (70 percent)
are estimated to involve small business entities.
It is anticipated that these changes will ensure both large and
small businesses comply with CWRR statutory requirements for lease
contracts with a qualifying construction event. These changes will
clarify the requirements for the acquisition workforce, offerors and
lessors and ensure that all laborers and mechanics receive the
appropriate wages, protections provided by the statute, and receive
the paid sick leave and minimum wages provided by executive orders.
Overall, the implementation of the changes to the application of
CWRR will ensure small businesses can compete equally with large
businesses when recruiting qualified and experienced laborers and
mechanics.
The rule will not impose any additional reporting, recordkeeping
and other compliance requirements than those required by the CWRR
statute as updated in the DOL DBRA final rule.
There are no known significant alternative approaches to the
rule. The changes to the Davis-Bacon and Related Acts final rule
clarify that the definition of ``building or work'' and ``public
building (or public work)'' applies to lease contracts involving
public construction over $2,000.
VI. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply;
however these changes to the GSAR do not impose additional information
collection requirements to the paperwork burden previously approved
under the Office of Management and Budget Control Numbers 1235-0008 and
1235-0018 (Davis-Bacon Certified Payroll); and OMB control number 1235-
0023 (Requests to Approve Conformed Wage Classifications and
Unconventional Fringe Benefit Plans Under the Davis-Bacon and Related
Acts/Contract Work Hours and Safety Standards Act).
List of Subjects in 48 CFR Part 570
Government procurement.
Jeffrey A. Koses,
Senior Procurement Executive, Office of Acquisition Policy, Office of
Government-wide Policy, General Services Administration.
Therefore, GSA proposes amending 48 CFR part 570 as set forth
below:
0
1. The authority citation for 48 CFR part 570 continues to read as
follows:
Authority: 40 U.S.C. 121(c).
PART 570--ACQUIRING LEASEHOLD INTERESTS IN REAL PROPERTY
0
2. Add section 570.119 to read as follows:
570.119 Construction labor requirements for lease acquisitions.
This section applies to all new and existing leases with a
qualifying construction event where the work is performed in whole or
in part within the 50 states, District of Columbia, or the Commonwealth
of Northern Mariana Islands. See FAR subpart 22.4, GSAR Subpart 522.4,
and the Public Buildings Service (PBS) Pricing Desk Guide located at
<a href="https://www.gsa.gov/real-estate/pricing-policy">https://www.gsa.gov/real-estate/pricing-policy</a> for additional guidance,
as applicable.
570.119-1 Definitions.
As used in this section--
Building specific amortized capital (BSAC) improvements means
security items that are a separate capital investment in the property.
See PBS Pricing Desk Guide for additional information at <a href="https://www.gsa.gov/real-estate/pricing-policy">https://www.gsa.gov/real-estate/pricing-policy</a>.
Building shell improvements means improvements to provide the
complete enveloping structure, the base building systems, and the
finished common areas (e.g., building common and floor common) of a
building that adjoin the occupant areas. See PBS Pricing Desk Guide for
additional information at <a href="https://www.gsa.gov/real-estate/pricing-policy">https://www.gsa.gov/real-estate/pricing-policy</a>.
Public Building or Public Works includes construction activity
involving just a portion of a building or work, including the
installation, where appropriate, of equipment or components into a
building or work, and even where the entire building or work is not
owned, leased by, or to be used by a Federal agency so long as the
other requirements for coverage are met. Examples of other requirements
for coverage include the Federal government's sufficient involvement
with the lease, and the existence of a contract for construction that
is authorized or financed by the Federal government.
Qualifying construction event means an event that requires
construction, alteration, or repair work as defined in FAR 22.401, in
excess of $2,000 of Federal funds, required by the Government in or in
connection with leases of real property. There may be one or more
qualifying construction events during the lease term. A qualifying
construction event exists where the construction, alteration, or repair
work--
(1) Is carried on by authority of or with funds of a Federal agency
to serve the interest of the general public, and there is sufficient
involvement of the Federal government in the lease and specified
construction so as to satisfy the definition of a public building or
public work and supplemental language included in this section;
(2) Has a defined begin and end date; and
(3) Includes, at a minimum, one or more of the following:
(i) Initial occupancy build-out (e.g., building shell improvements,
tenant improvements, BSAC improvements-construction portions only);
(ii) Build-out projects associated with expansion or reduction in
square footage;
(iii) Stand-alone alterations projects; or
(iv) Cyclical carpet replacement and re-painting required by the
lease contract, not including maintenance.
Tenant improvements (TI) means finishes and fixtures that typically
take space from the shell condition to a finished, usable condition.
The resulting space is complete, meets applicable building codes, and
meets the customer agency's functional needs. See PBS Pricing Desk
Guide for additional information at <a href="https://www.gsa.gov/real-estate/pricing-policy">https://www.gsa.gov/real-estate/pricing-policy</a>.
570.119-2 Inapplicability.
The following paragraphs specify circumstances in which certain
labor standards do not apply paragraphs specify circumstances in which
certain labor standards do not apply:
(a) Service Contract Labor Standards (SCLS). The SCLS, also known
as Service Contract Act (SCA), does not apply per 41 U.S.C.6702, 29 CFR
4.115(b), and 29 CFR 4.134(b)to lease contracts for government
occupancy.
(b) Construction wage rate requirements (CWRR). The CWRR does not
apply to the following work:
(1) Maintenance services which are regularly scheduled, routine, or
[[Page 87998]]
recurring tasks provided on an incidental basis and not performed as
part of a qualifying construction event associated with the lease.
Examples include--
(i) Janitorial services;
(ii) Utility services; and
(iii) Landscaping services.
(2) Repair or replacement work required under the lease contract
which is not substantial or segregable. Examples include work of the
following type where such work is not substantial or segregable--
(i) Repairing or replacing broken or damaged improvements
(e.g.,locks, partitioning, flooring, or ceiling tiles);
(ii) Repairing or replacing building systems (e.g., mechanical,
electrical, plumbing); and
(iii) Repairing or replacing finishes in common areas (e.g.,
carpet, paint, or ceiling tiles).
(3) Alteration or repair work within the Government's space which
were not requested by the Government;
(4) Design work for a qualifying construction event; and
(5) Leases or projects in Guam, Puerto Rico, U.S. Virgin Islands,
U.S. Territories or foreign countries.
570.119-3 Procedures.
(a) Requirements. Contracting officers must ensure solicitations
and resultant contracts with an anticipated qualifying construction
event include the appropriate labor clauses and wage determination(s).
Contracting officers must also ensure that all existing lease contracts
with qualifying construction events (whether ordered by lease
amendments or other methods) are formalized in a contract modification,
extension, or option that includes the appropriate labor clauses and
wage determination(s).
(1) Appropriate construction labor clauses. Contracting officers
shall include Construction Wage Rate Requirements (CWRR), also known as
Davis-Bacon Act (DBA), clauses in any solicitation, resulting contract,
and contract modification involving anticipated qualifying construction
events (see 570.701(d)).
(2) Wage determination requirements. Contracting officers shall
follow compliance outlined in FAR 22.404 and this section.
(i) Contracting officers shall include the most recent wage
determination(s) for the applicable location(s) and the type(s) of
construction work (e.g., building, heavy, highway, residential) in
solicitations, before requesting final proposal revisions, or, for
qualifying construction events associated with lease modifications,
with the initial pricing request to the lessor.
(ii) Contracting officers shall provide the most recent wage
determination(s) to the apparent successful offeror if the wage
determination(s) changes after the final proposal revisions are
received but prior to the award of the lease contract.
(b) Compliance monitoring procedures. Contracting officers shall
follow compliance and reporting requirements outlined in FAR 22.406-7,
FAR 22.2109, or FAR 22.1905 for lease acquisitions with qualifying
construction events:
(1) Compliance Monitoring. (i) The contracting officer must take
reasonable steps during and after each qualifying construction event to
ensure compliance with the requirements outlined in this section to
include the:
(A) Payment of correct wage determination or minimum wage rates
during each qualifying construction event.
(B) Receipt of payroll records from the lessor from each qualifying
construction event, as required.
(C) Accessibility of all payroll records to the DOL during the 3-
year retention period for investigation or audits.
(ii) The contracting officer is responsible for tracking
discrepancies for qualifying construction events, including
investigation, reporting, and resolution. Outstanding discrepancies
unresolved at the completion of the construction work shall be followed
up until resolved.
(2) Reporting. The PBS Leasing Office is responsible for the timely
submission of reports to DOL including enforcement and forecasting
reports (see FAR 22.406-13 and 522.406-13). The PBS Leasing Office
shall submit a copy of these reports to the GSA Labor Advisor at
<a href="/cdn-cgi/l/email-protection#165145575a777479645772607f6579645671657738717960"><span class="__cf_email__" data-cfemail="236470626f42414c516247554a504c51634450420d444c55">[email protected]</span></a>.
0
3. Amend section 570.701 by adding paragraph (1) to the table to read
as follows:
570.701 FAR provisions and clauses.
* * * * *
------------------------------------------------------------------------
If . . . Then include . . .
------------------------------------------------------------------------
* * * * * * *
(1) Insert the following clauses in the 52.222-4 Contract Work Hours
solicitation, resulting contract or and Safety Standards--Overtime
contract modification that involve a Compensation.
qualifying construction event in 52.222-5 Construction Wage Rate
excess of $2,000:. Requirements Secondary Site of
the Work.
52.222-6 Construction Wage Rate
Requirements.
52.222-7 Withholding of Funds.
52.222-8 Payrolls and Basic
Records.
52.222-9 Apprentices and
Trainees.
52.222-10 Compliance with
Copeland Act Requirements.
52.222-11 Subcontracts (Labor
Standards).
52.222-12 Contract Termination-
Debarment.
52.222-13 Compliance with
Construction Wage Rate
Requirements and Related
Regulations.
52.222-14 Disputes Concerning
Labor Standards.
52.222-15 Certification of
Eligibility.
52.222-55 Minimum Wages for
Contractor Workers Under
Executive Order 14026.
52.222-62 Paid Sick Leave Under
Executive Order 13706.
------------------------------------------------------------------------
[FR Doc. 2024-25656 Filed 11-5-24; 8:45 am]
BILLING CODE 6820-61-P
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</html>Indexed from Federal Register on November 6, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.