Davis-Bacon conformance: what to do when your trade is not listed

If a worker on your federal job does work that is not on the wage determination, you cannot just pick a rate. You ask for a “conformance,” which adds a classification and a wage rate to the contract. The Department of Labor (DOL) decides whether to approve it. The process is set out in 29 CFR 5.5 and explained on the SAM.gov conformance page.

What is a Davis-Bacon conformance?

A wage determination lists the job classifications and minimum rates for a project. Sometimes your crew does work that does not fit any line. A conformance adds the missing classification, with its wage and fringe rates, to the contract you are working under.

If you are new to the document itself, start with our guide on how to read a Davis-Bacon wage determination.

When does a classification qualify?

Under 29 CFR 5.5(a)(1)(iii), an additional classification can be approved only when all three tests are met:

1. The work is not performed by a classification already on the wage determination.
2. The classification is used in the area by the construction industry.
3. The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates on the determination.

SAM.gov adds that a request cannot be for a trainee role. It also says helper classifications generally are not approved, and that roles outside laborers and mechanics are excluded. Read the SAM.gov page for the current wording.

Who files the request, and when?

The contractor starts it. According to SAM.gov, the awarded contractor submits the request when it first employs the unlisted classification on the contract. The form is the SF-1444, “Request for Authorization of Additional Classification and Rate.”

The steps on SAM.gov look like this:

• The contractor fills out the form.
• The workers, or their representative, mark whether they agree or disagree with the proposed rate.
• The contractor sends the request to the contracting officer.
• The contracting officer checks that the request is complete, notes agreement or disagreement, and forwards it to DOL with a recommendation.
• DOL approves or rejects it.

A worker disagreement does not stop the request. Do not hide it, because the form gives workers a place to say a rate looks low. SAM.gov says a request can go without the form if it has the required information. It also says a brief job description and supporting documents are needed when the classification is not common in the area.

How long does DOL take?

The regulation says the DOL Administrator must approve, modify or disapprove an additional classification request within 30 days of receipt. If DOL needs more time, it must tell the contracting officer within that same 30 days. Where the parties disagree on the rate, the Administrator issues a determination, also within 30 days of receipt, again with a notice if more time is needed (29 CFR 5.5(a)(1)(iii)).

Plan for the process to take weeks, not days. Ask your contracting officer how they handle it on your project.

What do you pay while you wait?

SAM.gov states that the contractor is obligated to pay the proposed wage and benefit rates pending a response from DOL. The regulation also says the approved rate must be paid to all workers doing work in that classification under the contract from the first day work is performed in it (29 CFR 5.5(a)(1)(iii)).

Here is an illustrative example, with made-up numbers. Say you propose $38.00 an hour plus $9.00 in fringes for a classification, and DOL approves $40.00 plus $9.00. You would owe the $2.00 an hour difference for the hours already worked in that classification. Check with a professional about how this applies to your job.

What are common conformance mistakes?

Most problems come from timing and from skipping the tests. These follow from the rules above:

• Waiting too long. SAM.gov says the request is made when the unlisted classification is first employed. Waiting until payroll is due leaves weeks of hours at an unapproved rate.
• Asking for a role that is already listed. The first test says the work cannot be done by a classification already on the determination. Read every line, including the ones with similar names, before you file.
• Proposing a rate with no basis. The third test asks for a reasonable relationship to the determination’s rates. Point to the listed rates you compared against.
• Leaving out fringes. The proposed rate includes any bona fide fringe benefits, so state both the wage and the fringe amounts.
• Losing the paperwork. The approval is part of the support for what you reported. Keep it with your payroll file for the retention period in our guide on how long to keep certified payroll records.

How should the classification show on certified payroll?

Your payroll records must show each worker’s job classification and pay rate (29 CFR 5.5(a)(3)(i)). Once a conformed classification is approved, use the exact name and rates from the approval, and keep a copy with your payroll file. Our WH-347 guide shows where classification and rate go on the form.

A short checklist:

• Check the wage determination first. Is the work really missing?
• Raise the need with the contracting officer before the work starts, if you can.
• Keep the SF-1444, any job description and the approval together.
• Pay the proposed rate from the first day.
• Re-check your reports when DOL’s answer arrives.

Where Payrung fits

Payrung is being built to turn your payroll export into submission-ready certified payroll, so classifications and rates carry through to the report without retyping. It is not built yet. Join the waitlist.

This article is general information, not legal or tax advice. Prevailing wage rules vary by contract, so check your contract and talk with a qualified professional.