Comprehensive Site Map

Posted On: Aug 22, 2014

P U B L I C W O R K S C O M P L I A N C E N E T W O R K

PUBLIC WORKS COMPLIANCE

NETWORK

WEB SITE MAP

Comprehensive Version

(Updated August 2014)

PUBLIC AREA:

Home Page

Introduction

Contributors and Staff

MEMBER AREA:

MEMBER HOME

Edit Your Settings

E-Mail Log-In

Recovery Act & Executive Orders

Recovery Act & Executive Orders Table of Contents

Recovery and Reinvestment Act

Useful Websites on the New Law

DOL Wage and Hour Division

Advisory Letters

All Agency Memorandum

New Executive Orders

Use of Project Labor Agreements for Federal Construction Projects – Executive Order 13502

Nondisplacement of Qualified Workers under Service Contracts – Executive Order 13495

Notification of Employee Rights Under Federal Labor Laws – Executive Order 13496

Economy in Government Contracting – Executive Order 13494

FEDERAL RESOURCES

1. Federal Competitive Bidding

Federal Competitive Bidding Table of Contents

A. Overview

1. The Process

2. Best Value Bidding

3. The Internet and Federal Public Contracting

4. Sole Source Contracting

a) Competition in Contracting Act Exceptions

b) Other Federal Procurement Laws

B. Federal Law and Regulations

1. Office of Federal Procurement Policy

2. Title 48 Federal Acquisition (FAR) Governing Bidding Requirements on Public Works Projects

3. Public Construction Contracts Let by Department of Defense

a) Tips for Navigating the DFARS

4. Public Construction Contracts Let by NASA

5. General Services Administration and Public Contracting

a) Tips for Navigating the General Services Administration Manual

6. Government Accountability Office (GAO)

C. FAQ about Federal Procurement

1. What is the Procurement Reference Library?

2. What is the Federal Acquisition Regulations System?

3. Who Issues the FAR?

4. What is the Best Way to Begin Online Research into Federal Contracts?

5. Where Can I Find Descriptions of Awards and Active Contracts?

6. Where Can I Find Other Federal Invitations for Bids on the

D. Conclusion

E. Statutes and Regulations

F. Case Digest

1. Case Law

a) General Principles

b) Discussions During the Bidding Process

c) Best Value Bidding

d) Sole Source Contracting

2. Government Accountability Office (GAO) Administrative Decisions

a) Solicitation or Request for Proposals (RFP)

b) Evaluation of Bids and Selection of Winning Bids

c) Price of Bids

d) Discussions with Bidders

e) Sole Source Contracting

f) Simplified Acquisitions

g) Federal Supply Schedule Purchases

h) Organizational Conflicts of Interest

i) Bid Bonds

2. Federal Bid Protest

Federal Bid Protest Table of Contents

A. OVERVIEW

1. Where to File

2. Who May File a Federal Bid Protest?

3. When to File

4. What to File

B. STANDING

1. Scanwell Doctrine

2. Unions Have Only Limited Standing

3. Prejudice

4. Pre-Award Standing

5. Post-Award Standing

C. THE LEGAL GROUNDS FOR PROTEST

1. Pre-Award Protests

2. Post-Award Grounds for Protest

3. Non-Responsive Bids

4. Non-Responsible Bidders

a. Responsibility Criteria

b. How to Determine Responsibility

5. Awarding Agency’s Discretion

6. Standard of Review

7. Best Value Bidding

D. WHAT TO INCLUDE

E. FILING WITH THE CONTRACTING AGENCY

1. Introduction

2. Process for Filing Bid Protest with Contracting Agency

a. Basic Approach

b. What to File

c. Where to File

d. When to File

3. What Happens After Filing the Agency Protest?

F. FILING WITH THE GAO

1. Background Information

2. Web Resources Focused on the GAO

3. When to File a Bid Protest with the GAO

4. How to File a Federal Bid Protest with the GAO

5. What Happens After Filing a Bid Protest with the GAO?

a. Immediate Government Response

b. Summary Dismissal

c. Notice to Federal Agency Involved in the Bidding Process

d. Immediate Corrective Action

e. Written Report by Contracting Agency

f. Protestor Comments

g. Intervening in a Bid Protest

h. GAO Determination

i. Corrective Action

j. Going to Court if Contracting Agency Does Not Comply with GAO Decision

k. Reconsideration by the GAO

l. Appealing a GAO Decision to Court

G. HOW TO RESEARCH PRIOR GAO DECISIONS

H. FILING WITH THE COFC

1. Introduction

2. Deciding Whether to File in the Court of Appeals of the U.S. Court of Claims

3. The Advantages of Filing Suit in the U.S. Court of Claims

a. Lengthier Deadlines

b. Better Discovery

c. Local Hearings

4. Drawbacks to Filing in the Court of Claims

a. Cost of Litigation

b. COFC Does Not Grant Automatic Stay

5. How To File A Bid Protest in the Court of Claims

a. Court Rules

b. Advance Notification of Intent to File Suit

c. Filing Procedures

6. What Happens When An Action is Filed in the Federal Court of Claims?

a. Initial Status Conference

b. Motions

c. Resolution of the Case

d. Appealing Unfavorable Decisions of COFC

I. FILING IN THE U.S. DISTRICT COURTS

J. CONCLUSION

K. STATUTES AND REGULATIONS

L. CASE DIGEST

1. General Principles

2. Standing to Sue or File a Bid Protest

3. Standard of Review

4. Cases Dealing With Specific Grounds for Bid Protests

a. Rejection of Lowest Bidder

b. Rejection of All Bids

c. Non-Responsive Bids

i. U.S. Court of Appeals, Federal Circuit

ii. Court of Federal Claims

d. Non-Responsible Bidders

i. Standard of Review

ii. Responsibility Criteria

(a)General

(b)Inadequate Financial Resources

(d)Lacking Capability to Perform - Lack of Integrity and Business Ethics

(e)Lacking Capability to Perform - Labor, Employment & Safety Matters

(f) Lacking Capability to Perform - Anti-Trust, Tax & Criminal Matters

iii. Contractor’s License Violations

e. Case Law Governing Avenues for Bid Protests

i. U.S. Court of Federal Claims

ii. U.S. District Courts

f. Case Law Governing the GAO

g. GAO Administrative Decisions

i. GAO: Jurisdiction

ii. GAO: Abuse of Discretion and Standard of Review

iii. GAO: Evaluation and Source Selection Record

iv. GAO: Non-Responsiveness and Non-Responsibility

(a)Non-Responsiveness

(b)Responsibility Criteria as General Standards

(d)Affirmative Determination of Responsibility

v. GAO: Best Value Contracting

vi. GAO: Clarity of Bid Solicitations

vii. GAO: Timeliness

h. Secondary Sources

3. Federal Wage Surveys

Federal Wage Surveys Table of Contents

A. OVERVIEW

B. SIGNIFICANCE OF PREVALING WAGES AND WAGE SURVEYS

C. USEFUL WEB RESOURCES: WHERE TO FIND SURVEY INFORMATION

D. DAVIS BACON WAGE SURVEY PROCESS

1. Timing of Surveys

2. Initial Steps in the Survey Process

3. Who Can Participate in Wage Surveys

4. How to Submit Wage Data to DOL on WD-10 Forms

5. Wages Must Be Reported on a Project-by-Project Basis

6. Figure Out the “Peak Week” for which Wages should be Reported

7. Submit Wage Data by the Deadline

8. Summary of DOL’s Internal Process for Conducting Davis Bacon Surveys

E. PREPARING FOR AND PARTICIPATING IN DAVIS BACON SURVEYS: PRACTICAL POINTERS

1. Learn the Rules

2. Between Surveys, Monitor Wage Determinations

a. Sign up for E-Alerts to Monitor Changes

3. Submit Collective Bargaining Agreements (CBAs)

4. Create a Wage Data Tracking System

a. Options

b. Information to Capture in Tracking System

5. Understand the Most Important Features of WD-10 Wage Data Reporting Forms

a. Legitimate Ways to Maximize Worker Calculations

F. WHEN IS THERE ENOUGH DATA TO ISSUE A WAGE DETERMINATION?

1. What is Enough Data?

2. What is the Impact of Not Having Enough Wage Data Submitted?

G. HOW AND WHEN TO CHALLENGE WAGE DETERMINATIONS

1. Grounds for Challenging Survey Results

H. CONCLUSION

I. STATUTES AND REGULATIONS

1. Statutes

2. Regulations

J. CASE DIGEST

1. Federal Administrative Cases

2. Federal Court Cases

3. Government Reports on Davis Bacon Surveys

4. Federal Wage Determinations

Federal Wage Determinations Table of Contents

A. OVERVIEW

B. WEB RESOURCES: RESEARCHING DAVIS BACON WAGE DETERMINATIONS

1. WDOL (Wage Determinations Online) Web Site

2. DOL Compliance Assistance Web Sites

3. Field Operations Handbook (FOH)

4. Prevailing Wage Resource Book

5. Frequently Asked Questions on Davis Bacon Wage Determinations

C. NON-DAVIS BACON LABOR STANDARDS

1. Overview

2. Web Resources on the Service Contract Act

a. Field Operations Handbook (FOH)

b. Compliance Assistance

c. Service Contract Act Wage Determinations

d. Prevailing Wage Resource Book

D. UNDERSTANDING DAVIS BACON DETERMINATIONS

1. Components of a Wage Determination

a. Basic Hourly Rate of Pay

b. Fringe Benefits

i. How may fringe benefits be provided under the Davis Bacon Act?

ii. Benefits must be “bona fide” fringe benefits

2. Union Rates and Non-Union Rates

a. Rates Based on Collective Bargaining Agreements

b. Survey Based Wage Rates

3. Types of Wage Determinations

a. Four Wage Determination Schedules: Type of Construction

b. General Wage Determinations and Project Wage Determinations

i. General (Area) Wage Determinations

(a)Official Source for General Wage Determinations

(b)Interpreting General Wage Determinations

(d)Changes in Wage Determinations

(e)Projects Involving Multiple Types of Construction

ii. Project Wage Determinations

E. CONTRACTING AGENCY WAGE DETERMINATION RESPONSIBILITIES

1. Select the Proper Wage Rates

2. Apply the Most Current Rate and Updated Rate When Contract Extended

3. Request Rates Before Bid Award if Appropriate Wage Determination is not Available

4. Correct Erroneous Wage Determinations

5. Include Labor Standard Clauses in the Contract Documents

6. Post the Wage Determinations

7. Requesting Rates for an Additional Classification or Subclassification After the Bid Award (Conformance)

a. What is a conformance request?

b. Where are the regulations found?

c. What is the process for requesting additional classifications for a project?

d. Who may request conformances?

e. Can an interested party object to a request for additional classifications?

f. What standards are used by DOL in granting or denying conformance requests?

g. What wage rates are used for new classifications?

h. Can conformance decisions be appealed?

F. SPECIALIZED CONCERNS REGARDING WAGE DETERMINATIONS

1. Harmonizing Federal and State Prevailing Wage Rates

2. Special Rules for Housing Projects

3. Use of Helper Classifications

G. CHALLENGES TO DAVIS BACON WAGE DETERMINATIONS

1. Overview

2. In What Situations May Wage Determinations be Challenged?

a. Challenge After Publication of a General Wage Determination

b. Challenging the Contracting Agency’s Choice of a Wage Determination

c. Challenging the Contracting Agency’s Designation of the Prevailing Wage After the Award

d. Department of Labor Limitations on Applying Wage Determinations after Award

e. Challenging Wage Determinations as Part of an Enforcement Action Under the Davis Bacon Act

3. Procedures For Challenging Davis Bacon Wage Determinations

a. Overview of Steps

b. Contact the Contracting Agency

c. Contact the Regional DOL/Wage and Hour Office

d. Ask the DOL Wage and Hour Administrator to Review and Reconsider the Wage Determination

e. File an Appeal with the Administrative Review Board (ARB)

i. What Does the ARB Do?

ii. When May An Appeal Be Filed with the ARB?

iii. How Are ARB Appeals Handled?

iv. What Standards Does the ARB Follow?

v. How to Research Past Administrative Review Board Decisions

f. File a Court Case

4. Important Principles in Challenging Wage Determinations

a. Who is Authorized to File Challenges to Wage Determinations?

b. When Must Challenges be Filed?

i. Initial Challenges to DOL

ii. Challenges Filed to the Administrative Review Board

iii. Best Practice Regarding Timely Challenges

c. Interested Person’s Duty to Stay Informed

d. Identifying Persuasive Grounds for Challenging Wage Determinations

e. Following the Proper Steps

5. Summary: Checklist

H. FEDERAL STATUTES AND REGULATIONS

I. FEDERAL CASES

1. Federal Administrative Cases

a. DOL Wage and Hour Division Abuse of Discretion (Violation of Rules)

b. Timeliness of Challenges to Wage Determinations

c. Modifying Contract After Award

d. Request for Additional Classifications (Conformance Request)

2. Federal Judicial Cases

a. Cases Involving Helper Classifications

b. Authority of the Courts regarding Review of Wage Determinations

c. Fringe Benefits

d. State v. Federal Prevailing Wage Laws

5. Federal Coverage

Federal Coverage Table of Contents

A. OVERVIEW

1. Who Decides Coverage?

2. Is The Project Covered?

3. Is the “Type of Work or Worker” Covered?

B. WHO DECIDES WHAT PROJECTS ARE COVERED?

1. Role of the DOL

2. Role of the Federal Contracting Agency

3. Practical Tips

C. IS THE PROJECT COVERED?

1. Coverage Under the Davis Bacon Act

2. Coverage Under the Related Acts

a. Practical Tip

D. IS THE TYPE OF WORK OR WORKER COVERED?

1. Is the Work Performed by Laborers or Mechanics?

a. Apprentices and Trainees

b. Helpers

2. Does the Project Involve a Contract for “Building” or “Work”?

a. Leases

b. Site of Work

E. RESOLVING AREAS OF CONFLICT BETWEEN DAVIS BACON AND SERVICE CONTRACT COVERAGE

1. Service Contract Act Coverage is Limited to Non-Construction

2. Mixed or Hybrid Contracts

3. HazMat, Excavation and Environmental Remediation

4. Asbestos and Paint Removal

F. POSSIBLE COVERAGE EXCEPTIONS

a. Volunteer Work

b. Federal Funding by “Earmarks”

c. Material Suppliers

G. SPECIAL COVERAGE SITUATIONS

1. Recent Developments in Financing under the Related Acts

a. Davis Bacon Coverage Proposed for State Revolving Fund for Clean Water Act 2007

b. Davis Bacon Coverage of State Infrastructure Banks for Transit Financing

2. Options and Task Orders

3. U.S. Housing and Urban Development (HUD) Projects and Prevailing Wages

H. WEB RESOURCES FOR RESEARCHING COVERAGE UNDER THE DAVIS BACON AND RELATED ACTS

I. CHALLENGING DAVIS BACON AND RELATED ACTS PREVAILING WAGE COVERAGE DETERMINATIONS

1. Preliminary Steps

2. Who May Challenge Prevailing Wage Coverage Determinations?

3. Timing of Appeals

4. What Information Should be Included in Appeal Regarding Coverage of Prevailing Wages?

5. Special Rules Governing Appeals on HUD Projects

J. COVERAGE CHECKLIST

K. STATUTES AND REGULATIONS

1. Statutes

2. Regulations

L. CASES

1. Federal Court Decisions

2. State Court Decisions

3. Administrative Review Board Decisions

M. CONCLUSION

6. Federal Investigations

Federal Investigations Table of Contents

A. OVERVIEW

B. WHAT KIND OF EVIDENCE IS CONSIDERED RELIABLE AND PERSUASIVE?

1. Hearsay Versus Direct Evidence

2. Common Exceptions to the Hearsay Rule

a. Business Records

b. Expressions Against Interest

C. WORKER WITNESSES

D. THE LEVEL PLAYING FIELD

E. ASSESS YOUR WITNESS’S CREDIBILITY

F. FOCUS ON THE FACTS

G. EXPLAIN HOW THE WITNESS KNEW A FACT

H. ON-SITE INVESTIGATIONS

1. Preparation

2. Observation

3. Note Taking

4. Follow Up

a. Law Enforcement

b. Workers

c. Contracting Agency

5. Tips for Monitoring Specific Kinds of Suspected Violations

a. Under-Reporting of Hours

b. Weekend Work

c. Partners Working

d. Misclassification

e. Apprenticeship and Helper Violations

I. ACCESS TO RECORDS

1. Overview

2. Federal Projects and Certified Payroll Access

3. Health and Safety Violations

4. The Freedom of Information Act

a. Overview

b. FOIA Resources on the Internet

c. Making an Effective FOIA Request

i. Where to Send the Request

ii. Form of the Request

iii. Sufficient Detail

iv. Government Must Provide, Not Create, Records

d. Timelines for Determinations

e. If The Agency Is Not Responsive

f. If the Agency Denies the Request or Remains Unresponsive

g. Appeals of Denials

h. If Your Appeal Is Denied

i. FOIA Exemptions

i. Matters That Another Law Provides Need Not Be Disclosed

ii. Trade Secrets and Commercial Information

iii. Personnel and Medical Files

iv. Law Enforcement Records

j. Attorneys’ Fees

k. Additional Information

J. FREEDOM OF INFORMATION ACT CASE DIGEST

1. Exemption 4: Trade secrets and confidential/financial information

2. Exemption 6: Personnel, medical and similar records, where disclosure would be an unwarranted invasion of personal privacy

3. Cases Involving Certified Payroll Records

7. Federal Enforcement

Federal Enforcement Table of Contents

A. OVERVIEW

1. Federal Laws Governing Labor Standards on Public Works

2. How Enforcement Issues Arise

3. General Web Resources

B. FEDERAL LAWS GOVERNING PUBLIC WORKS PROJECTS

1. Davis Bacon and Related Acts

a. Introduction (Davis Bacon)

i. Purpose of the Law

ii. Understanding Prevailing Wage Rates

(a)Basic Hourly Rate

(b)Fringe Benefits

(1)Basic Requirements

(2)Reasonable Relationship Test

1. General Description of Reasonable Relationship Test

(3)Annualization

1. Examples of Situations in Which the Principle of Annualization Need Not Be Followed

iii. Apprenticeship

(a)How do apprenticeship issues arise on federal public works projects?

(b)What are the governing laws and regulations?

(d)What are the legal requirements with regard to the use of apprentices on federal public works construction projects?

(e)Apprenticeship Wages

(f) Bona Fide Apprenticeship Programs

(g)Apprenticeship and Reasonably Related Costs

(h)Annualization and Apprenticeship Programs

(i) Helpers

(j) Enforcement of Apprenticeship Requirements

b. Statutes and Regulations (Davis Bacon)

c. Types of Violations (Davis Bacon)

d. Investigation Tips (Davis Bacon)

i. Tips on Reviewing Certified Payroll Records

e. Web Resources (Davis Bacon)

i. Davis Bacon and Related Acts

ii. Apprenticeship

f. Enforcement Strategies and Remedies (Davis Bacon)

i. Understand Possible Remedies for Violations of the Davis Bacon Act

(a)Withholding of Contract Payments

(b)Contract Termination

ii. Make Your Complaint Known to the Contracting Agency, and then Climb Up the Ladder

(a)Communicate with the Contracting Agency

(b)Contact the Federal Agency Labor Advisor

(d)Contact the Regional Office of DOL Wage and Hour Division

(e)Understand the Basics of Filing Lawsuits and Private Rights of Action

(1)Private Right of Action for Davis Bacon Violations

(f) Bonds and Miller Act Remedies

2. Contract Work Hours & Safety Standards Act (CWHSSA)

a. Introduction (CWHSSA)

b. Statutes and Regulations (CWHSSA)

c. Web Resources (CWHSSA)

d. Types of Violations (CWHSSA)

e. Investigation Tips (CWHSSA)

f. Enforcement Strategies and Remedies (CWHSSA)

3. Copeland Anti-Kickback Act

a. Introduction (Copeland)

b. Types of Deductions Allowed to be Taken from Paychecks of Workers on Federal or Federally Assisted Construction Projects

c. Statutes and Regulations (Copeland)

d. Web Resources (Copeland)

e. Types of Violations (Copeland)

f. Investigation Tips (Copeland)

g. Enforcement Strategies and Remedies (Copeland)

4. Service Contract Act (SCA)

a. Introduction (SCA)

b. What Types of Contracts are Covered by the Service Contract Act?

c. Determining Which Contracts are Covered by the Davis Bacon Act, and Which Contracts are Covered by the Service Contract Act

d. Statutes and Regulations (SCA)

e. Web Resources (SCA)

f. Investigation Tips (SCA)

g. Enforcement Strategies and Remedies (SCA)

i. Communicate with the Contracting Agency

ii. Contact the Federal Agency Labor Advisor

iii. Contact the District Office of the Department of Labor

iv. Requesting an Investigation

v. Filing Formal Complaints Under the SCA

vi. Remedies under the SCA

5. Walsh Healey Public Contracts Act (PCA)

a. Introduction (PCA)

6. Occupational Safety and Health Act (OSHA)

a. Introduction (OSHA)

i. What Employers are Covered by OSHA?

ii. What Does the Occupational Safety and Health Administration Do?

iii. What Rights Does the Act Provide for Workers?

iv. What Health and Safety Records must Employers Keep?

b. Statutes and Regulations (OSHA)

c. Web Resources (OSHA)

d. Investigation Tips (OSHA)

e. Enforcement Strategies and Remedies (OSHA)

i. Filing Complaints Alleging OSHA Violations

f. What Happens after an OSHA Complaint is Filed?

i. Inspection Takes Place

ii. Citation Issued in Appropriate Cases

iii. Penalties

g. OSHA Appeals

h. Employer Requests for More Time to Correct Hazard

7. False Claims Act (FCA)

a. Introduction (FCA)

b. Statutes and Regulations (FCA)

c. Web Resources (FCA)

d. Investigation Tips (FCA)

e. Enforcement Strategies and Remedies (FCA)

i. Who May Bring a Claim Under the False Claims Act?

ii. Penalties and Damages

C. FEDERAL ENFORCEMENT

1. General Principles and Guidelines for Filing Administrative Complaints

a. Introduction (Administrative Complaints)

b. Where to File Complaints

c. Draft the Complaint and Include Necessary Information and Evidence

d. What Happens Next?

e. Appeals from Administrative Decisions

i. Overview

ii. Time Limits for Filing Appeals

iii. Filing a Request for Review and Reconsideration

iv. If the Request for Review and Reconsideration is Denied

v. Tips for Filing Administrative Appeals

vi. Tips Regarding the Content of Your Appeal

f. Administrative Remedies

i. Withholding of Contract Payments

ii. Termination of Government Contracts

iii. Debarment

2. Filing Court Actions

a. Introduction (Court Actions)

b. Private Right of Action

c. Writs of Mandate

i. What is a Writ of Mandate?

ii. What Can the Court Order in a Writ of Mandate?

d. Criteria for a Successful Request for a Writ of Mandate

i. General Requirements

ii. Distinguishing between Ministerial and Legislative Acts

iii. Abuses of Discretion

iv. Court Evaluations of Discretionary Acts of Public Officials

e. Summary: Writs of Mandate

3. Actions on Bonds

a. Overview of Miller Act Remedies

b. Steps to Take Before Filing a Miller Act Claim Based on the Nonpayment of Wages under the Davis Bacon Act

i. Administrative Determination

ii. What Parties Are Covered by Miller Act Bonds?

iii. What Special Requirements Apply to “Second-tier” Claimants?

iv. What About Subcontractors Who Are Neither First Nor Second-tier Claimants?

v. Who May Sue to Collect Against Miller Act Bonds?

c. Web Resources on Bond Remedies

4. Enforcement Strategies and Remedies for Misclassification of Workers as Independent Contractors

a. Web Resources (Misclassification of Employees

5. Misclassification by Craft

D. CONCLUSION

E. STATUTES AND REGULATIONS

F. FEDERAL ENFORCEMENT CASE DIGEST

1. Davis Bacon and Davis Bacon Related Acts

a. General Principles

i. Purpose of Davis Bacon Law

ii. Contractor Responsibility for Violations

iii. Enforcement Methods

b. Debarment

i. Court Authority to Review DOL Actions

ii. State vs. Federal Law

iii. Voluntary Agreement to Pay Prevailing Wages or More than Prevailing Wages

iv. Miscellaneous

c. Fringe Benefits

i. Room and Board Deductions

ii. Deductions for Tools, Equipment and Vehicle Expenses

iii. Annualization Rules

d. Apprenticeship

i. Rule regarding “Reasonably Related” Expenses

ii. Rate of Pay for Apprentices

e. Termination of Contractor Rights

2. Copeland Anti-Kickback Act

3. False Claims Act

a. General Requirements of the False Claims Act

b. Negligence and Innocent Mistakes

c. Failure to Investigate

d. False Claims Act and Davis Bacon/Service Contract Act Violations

4. Enforcement Strategies

a. General

b. Appeals from Administrative Decisions

c. Filing Court Actions

i. Private Rights of Action

(a)Cases Finding an Implied Private Right of Action under Federal Davis Bacon and Davis Bacon Related Acts

(b)Cases Finding No Implied Private Right of Action under Federal Davis Bacon and Davis Bacon Related Acts

(d)Cases Finding No Private Right of Action under State Law Theories

ii. Writs of Mandate

(a)Standard of Review

(b)Administrative Agency Discretion

d. Miller Act

i. Who May Sue

ii. Who May Be Sued

iii. Requirements for Bringing Suit Under the Miller Act

iv. Notice to Prime Contractor by Second-tier Claimants

e. Misclassification of Independent Contractors

8. Federal Sample Letters

Federal Sample Letters Table of Contents

A. FEDERAL BID PROTESTS BEFORE GAO

1. Sample Federal Bid Protest to Specifications (Pre-Award)

2. Sample Federal Bid Protest to Low Bidder (Post-Award)

B. PREVAILING WAGE DETERMINATIONS

1. Federal Petition for Review of Prevailing Wage Determination

C. ACCESS TO DOCUMENTS

1. Sample Request for Documents under FOIA

2. Sample Request for Certified Payroll Records to Contracting Agency

3. Sample Letter on Exhaustion of Administrative Remedies re. Certified Payroll Records Request to Contracting Agency

4. Sample Follow-Up on Request for Certified Payroll Records to Contracting Agency

5. Sample Appeal of Agency Denial of Request for Certified Payroll Requests

D. PREVAILING WAGE ENFORCEMENT

1. Sample Complaint to DOL for Non-payment of Prevailing Wage

STATE RESOURCES

9. State Laws Governing Fair Contracting

Index to States

STATE RESOURCES: CALIFORNIA

10. California Competitive Bidding

A. Summary and Index

B. Overview

1. How Competitive Bidding Works

2. California Statutes (Laws) Governing Competitive Bidding

3. Typical Issues in the Competitive Bidding Process

C. Areas of Agency Discretion

1. Prequalification Procedures

a. Overview of Prequalification

b. Types of Prequalification Procedures

c. Requirements of Prequalification Procedures

d. More Information on Prequalification in California

e. Agency Investigations and Privacy Issues

f. Legal Requirements for Appeals Processes in the Event of Disqualification from Prequalification

2. Agency Determinations that the Bid is Non-Responsive

3. Agency Determinations that the Bidder is Non-Responsible

4. Non-Responsible Bidder or “Best Value” Statutes and Ordinances

5. “Or Equal” Clauses

6. Decision to Reject All Bids

7. Decision to Re-bid the Contract

8. Local Labor Standards

9. Bid Mistakes

a. Overview

b. Procedure for Withdrawing a Bid Without Loss of Bond

D. Special Requirements of Competitive Bidding

1. Bid Bonds

a. Bonding Requirements

b. Types of Bonds

i. License Bonds

ii. Bid Bonds

iii. Performance Bonds

iv. Payment Bonds

2. Licensing

a. Requirements of the Law

b. Licensing and Responsible Bidders

c. Types of Violations

d. Remedies

e. Investigating License Violations

3. Subcontracting

a. Licensing of Subcontractors

b. Bid Shopping/Bid Peddling

c. Substitution of Contractors

d. Remedies

4. Bid Splitting

5. Apprenticeship Requirements on Public Works

6. Affirmative Action Programs and Competitive Bidding

a. Understanding Proposition 209

b. Exceptions to the Prohibition on Affirmative Action under 209

i. Federal Requirements

ii. Outreach

iii. Contracts that Contain Impermissible Components

E. Possible Exceptions to Competitive Bidding

1. Force Account Limits

a. General Information

i. [Link: California Uniform Cost Accounting Commission]

2. Emergencies

3. Charter Cities

a. [Link: Charter Cities checklist]

F. Statutes and Regulations

1. Statutes

a. Competitive Bidding Statutes with Statewide Application

i. California Public Contract Code

ii. State Contract Act (“SCA”)

iii. Affirmative Action

iv. Apprenticeship Requirements

v. Bid Splitting

vi. Bond Requirements

vii. Cities

viii. Colleges and Universities

(a)California State University

(b)Community College Districts

ix. Counties

x. Earthquake Relief

xi. Emergency Exemptions to Competitive Bidding

xii. Flood Control/Water Conservation Districts

xiii. Force Account Statutes

(a)Boulevard Districts

(b)Counties

(d)Joint Highway Districts

(e)Levee Districts

(f) Schools

(g)Harbors and Ports

(h)Highways and Roads

(i) Municipal Lighting Maintenance Districts (1927)

xiv. General Provisions

xv. Harbors and Ports

xvi. Lighting

xvii. Licensing Requirements

xviii. Other Public Improvements

xix. Prevailing Wages

xx. Public Leaseback Projects

xxi. Schools

xxii. Responsible Bidder

xxiii. State Agencies

xxiv. Subletting and Subcontracting

xxv. Transportation

xxvi. Tree Planting

xxvii. Uniform Construction Cost Accounting

xxviii.Utilities

xxix. Water and Sanitation Districts

b. Statutes Regulating Competitive Bidding for Specific Localities

i. Emergency Exceptions

ii. Flood Control/Water Conservation Districts

iii. Transportation

iv. Sanitation and Sewers

v. Transit, Transportation and Highways

vi. Water Systems

G. Case Digest

1. General Principles

2. Non-Responsive Bids

3. Non-Responsible Bidders

4. Prequalification of Bidders

5. Rejection of All Bids

6. Force Account

7. Emergency Exceptions

8. Charter Cities

9. Bid Splitting

10. Bonds

11. Licensing

12. Subcontracting

13. Affirmative Action Programs

14. Severability of Illegal Contract Provisions

11. California Bid Protest

California Bid Protest Table of Contents

A. OVERVIEW

B. TIMING IS EVERYTHING

C. FACTS THAT SUPPORT BID PROTESTS

1. Non-Responsive Bids

2. Non-Responsible Bidders

3. Unlicensed Contractors

a. General Requirements

b. New Requirement for Certification of Electrical Workers

4. Violations of the Subcontracting and Subletting Fair Practices Act

5. Violations of Apprenticeship Requirements on Public Works

6. Insufficient Funds to Meet Legal Requirements

D. INFORMAL INQUIRIES

E. INFORMAL BID PROTESTS

F. FORMAL BID PROTESTS

1. Legal Actions Authorized by Labor Code § 1750 for the Protection of Second Lowest Bidders

a. What Actions May be Brought

b. When to File

c. Where to File

d. Who May File

2. Formal Written Bid Protests Directly to the Agency

a. Obtain the Agency’s Bid Protest Procedures

b. How to File

c. What to Include

d. Frivolous Bid Protests

e. Appeals by Contractors Not Awarded Contracts

f. What Happens After a Protest is Filed with the Agency?

3. Timeliness of Bid Protests

G. REQUESTING A WRIT OF MANDATE

1. What is a Writ of Mandate?

2. Who May Seek a Writ of Mandate?

3. What Can the Court Order in a Writ of Mandate?

4. Criteria for a Successful Request for a Writ of Mandate

a. General Requirements

b. Distinguishing between Ministerial & Legislative Acts

c. Abuses of Discretion

d. Court Evaluations of Discretionary Acts of Public Officials

H. REMEDIES

1. Findings that Contracts are Unenforceable

2. Award of Contracts

3. Remedies under Injunctions

4. Writs of Mandate

5. Damages

I. CONCLUSION

J. CALIFORNIA STATUTES

1. Actions by Second Lowest Bidders

2. Arbitration of Public Contracts

3. Bid Splitting

4. California Public Contract Act

5. Contractor Licensing

6. Prequalification Procedures

7. Responsible Bidder Definition

8. Violations of Unemployment Insurance or Workers’ Compensation Requirements, Rebuttable Presumption

9. Writ of Mandate/Mandamus

K. CALIFORNIA CASES

1. Facts That Support Bid Protests

a. Non-Responsive Bids

b. Non-Responsible Bidders

c. Unlicensed Contractors

2. Formal Bid Protests

a. What Actions May be Brought

b. Appeals by Contractors Not Awarded Contracts

c. Requesting a Writ of Mandate

12. California Wage Surveys

California Wage Surveys Table of Contents

A. OVERVIEW

B. California Department of Industrial Relations (DIR) Prevailing Wage Surveys

1. Director’s Discretion to Conduct Surveys

2. General Survey

3. Area Practice Surveys

4. Surveys Initiated by the Director

5. Use of Wage Data Public Construction Projects

C. Conclusion

D. Statutes and Regulations

1. Statutes

2. Regulations

E. CASE DIGEST

13. California Wage Determinations

California Wage Determinations Table of Contents

A. Overview

B. Web ResourceS

1. OPRL Prevailing Wage Determinations

2. Public Works: General Information

3. Prevailing Wage FAQ

4. Prevailing Wage Regulation Web Site

C. Understanding Wage Determinations

1. California Definition of the Prevailing Wage

2. Components of DIR Prevailing Wage Determinations

a. Basic Hourly Rate of Pay

b. Fringe Benefits

3. Special Aspects of California Prevailing Wages

a. Expiration Dates and Mid-Contract Updates

i. Single Asterisk

ii. Double Asterisk Means “Predetermined Increases” Apply

b. Scope of Work Provisions

c. Shift Differential

4. Types of Prevailing Wage Determinations

a. General Prevailing Wage Determinations

b. Special Determinations

c. Apprentice Prevailing Wage Determinations

d. Superseded Prevailing Wage Determinations

D. Contracting Agency Responsibilities

E. Principles of Law

1. Minimum Labor Standard

2. Quasi-Legislative Authority

3. Wage Determinations Initiated by DIR

F. Challenge to DIR

G. Online Wage Determinations

H. Checklists

1. General Prevailing Wage Determination

2. Awarding Agency Actions

I. California Statutes and Regulations

1. Statutes

2. Regulations

J. California Cases

14. California Coverage

California Coverage Table of Contents

A. Overview

B. What Projects Are Covered by California Prevailing Wages Laws?

1. Coverage Decisions under California Prevailing Wage Laws

2. State Prevailing Wage Coverage

3. Department of Industrial Relations Role in Determining Coverage

4. The “Modal Rate”

5. Coverage Extends to Undocumented Workers

6. Coverage under Labor Code Section 1720

a. Construction, Alteration, Demolition, Installation, or Repair

b. “Under Contract”

c. Paid for out of Public Funds

i. Exemptions from “paid for in whole or in part out of public funds”

7. Coverage under Labor Code Section 1720.2

8. Coverage under Labor Code Section 1720.3

9. Coverage under Labor Code Section 1771

10. Coverage under Labor Code Section 1772

C. Additional Concepts Concerning Coverage

D. POTENTIAL Exemptions from Coverage

1. Charter City

2. University of California

3. Contracts under the Exclusive Control of the Federal Government

4. Volunteers

5. Operation of Irrigation or Drainage System

6. Material Supplier

7. Public Agency’s Own Forces

E. Web Resources on Prevailing Wage Coverage

F. Awarding Agency Responsibility re: Coverage

G. Contesting Coverage Decisions

1. Petition to Review a Coverage Determination

2. Appeal of a Determination of Coverage

H. Statutes and Regulations

1. Statutes

2. Regulations

I. Case Digest

1. Appellate Cases

2. Office of the Attorney General Cases

3. Department of Industrial Relations Coverage Determinations

15. California Investigations

California Investigations Table of Contents

A. OVERVIEW

B. ACCESS TO CERTIFIED PAYROLL RECORDS UNDER CALIFORNIA LAW

1. California Public Records Act

a. Overview

b. What Government Entities Are Covered?

c. What Documents Are Covered?

d. What Are The Government Agencies Required To Do To Assist in Records Requests?

e. Timelines

f. Fees

g. What Records Are Exempt From Disclosure?

2. Tips for Making Effective Information Requests for Public Records

3. If Your Request is Denied

16. California Sample Letters

California Sample Letters Table of Contents

A. CALIFORNIA STATE AND LOCAL GOVERNMENT BID PROTESTS

1. Sample State Bid Protest to Specifications

2. Sample Local Government Bid Protest to Specifications

3. Sample Bid Protest to Agency re: Agency’s Change in Requirements after the Mandatory Pre-bid Meeting

4. Sample Bid Protest to Agency re: Non-Responsive and Non-Responsible Low Bidder

5. Sample State Bid Protest to Awarding Agency based on Subcontracting Violations

B. INSUFFICIENT FUNDS TO MEET LEGAL REQUIREMENTS

1. Sample Letter on Potential Owner Liability

C. Prevailing Wage determinations

1. California Petition for Review of Wage Rate on Public Works Job

D. CALIFORNIA COVERAGE

1. Sample Letter to the Director of DIR: Request for Coverage

2. Sample Letter to a Local Entity: Request for Coverage

E. PUBLIC ACCESS TO DOCUMENTS

1. Sample Request for Documents under the California Public Records Act

2. Sample Follow-up Letter on California Public Records Act Request

3. Sample Certified Payroll Records Request to Agency

4. Sample DLSE Request for Assistance to Obtain Certified Payroll Records

5. Sample Follow-up Letter to DLSE

F. FILING A CALIFORNIA CONTRACTOR’S LICENSE COMPLAINT

1. Sample Complaint to CSLB: Contractor Has No Current License

2. Sample Complaint to CSLB re: Subcontractor Has No Current License

3. Sample Complaint to CSLB re: Incorrect Classification

4. Sample Request to CSLB for Information

5. Sample Complaint to DLSE: Contractor Has No Current License

6. Sample Complaint to DLSE: Subcontractor Has No Current License

G. PREVAILING WAGE ENFORCEMENT

1. Sample Complaint to DLSE for Non-payment of Prevailing Wages

2. Sample Declaration of Worker re: Failure to Pay Prevailing Wages

3. On-site Investigations: Sample Request to Conduct On-Site Monitoring

H. APPRENTICESHIP ENFORCEMENT

1. Sample Notice to Awarding Agency re: Contractor’s Use of Apprentices

2. Sample Notice to Awarding Agency re: Subcontractor’s Use of Apprentices

3. Sample Complaint to Division of Apprenticeship Standards

4. Apprenticeship: Sample Joint Apprenticeship Committee Inquiry Letter