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Comprehensive Version

(Updated March 2010)

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. Prevailing Wage Rationale

C. Service Contract Act Surveys (“SCA”)

D. Davis Bacon and Related Act Surveys

1. Overview

2. Initiating the Survey

3. Timing of Surveys

4. Survey Participants

5. Survey Transmittal Letter

6. Submission of Third Party Data

7. DOL Davis Bacon Wage Survey Form (WD-10)

8. Wage Data Must be Reported for the “Peak Week” on a Project for Each Classification of Workers

9. Summary of the DOL’s Process for Davis Bacon Surveys

E. STATUTES AND REGULATIONS

1. Statutes

2. Regulations

F. CASE DIGEST

1. Federal Administrative Cases

4. Federal Wage Determinations

Federal Wage Determinations Table of Contents

A. Overview

B. Web Resources For Researching Davis Bacon Wage Determinations

1. Web Resources Focused on Compliance Assistance

2. Web Resources Focused on Government Acquisition

3. GPO Access To Official DBA Wage Determinations

4. Field Operations Handbook (FOH)

5. Prevailing Wage Resource Manual

C. Non Davis-Bacon Labor Standards

1. Overview

2. Web Resources on the SCA

a. Field Operations Handbook (FOH)

b. Compliance Assistance

c. Service Contract Act Wage Determinations

d. Prevailing Wage Resource Manual

D. Understanding Davis-Bacon Determinations

1. Components of a Wage Determination

a. Basic Hourly Rate of Pay

b. Fringe Benefits

c. Costs of Providing Fringe Benefits

2. Federal Definition of the Prevailing Wage as “Weighted Average.”

a. Wage Determinations Issued Under DBA for Work of a “Similar Character”

b. Four Wage Determination Schedules

c. Two Types of Wage Determinations

i. General or Area Wage Determinations

(a)Interpreting the General Wage Determination

(b)Official Source of General Wage Determinations

ii. Project Wage Determinations

E. Contracting Agency Wage Determination Responsibilities

1. Select the Proper Wage Rates

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

3. Request Rates Before Bid Award

4. Request Rates After Bid Award (Conformance)

5. Include Labor Standard Clauses in the Contract Documents

6. Post the Wage Determinations

F. General Principles of Law Governing Federal Wage Determinations

1. Interested Person

2. Timely Challenges

a. Regulations Relating to Timeliness

i. Regulation Restricts Department of Labor Applying Wage Determinations After Award

ii. Timeliness of Appeals to Challenges to Wage Determinations

3. Untimely Challenges

4. Interested Persons Duty To Stay Informed

5. Review By The Administrative Review Board

a. Administrative Review Board Will Reverse DOL if the Law of Regulations are Misapplied.

b. Administrative Review Board Will Overturn DOL Prevailing Wage Determination if it Finds an Abuse of Discretion

6. Courts Have Jurisdiction to Review Regulatory Actions of the Secretary of Labor

a. Union Challenge to DOL Helper Regulation Upheld By Court

b. Current Helper Regulation on Federal Public Works

7. Harmonizing Federal and State Prevailing Wage Rates

8. Special Rules for Housing Projects

G. Grounds for Challenges to Davis Bacon Wage Determinations

1. Challenging the Contracting Agency’s Designation of the Prevailing Wage

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

3. Challenges in the Context of an Enforcement Action under the DBA

4. Challenge after Publication of a General Wage Determination

H. Procedures for Challenging Davis Bacon Wage Determinations

1. Preliminary Steps

2. Administrative Review

a. Applicable Regulations

b. The Administrative Review Board

c. Matters that the ARB May Review

I. Checklist

J. Frequently Asked Questions on Davis Bacon Requirements

K. Federal Statutes and Regulations

L. Federal Cases

1. Federal Administrative Cases

2. Federal Judicial Cases

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

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. 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

7. Federal Enforcement

Federal Enforcement Table of Contents

A. OVERVIEW

1. The Relevant Federal Laws

2. How Enforcement Issues Arise

3. Tools and Resources

B. FEDERAL LAWS GOVERNING PUBLIC WORKS PROJECTS

1. Davis Bacon and Related Acts (DBRA)

a. Introduction (DBRA)

i. Purpose of the Law

ii. Understanding Prevailing Wage Rates

(a)Basic Hourly Rate

(b)Fringe Benefits

(1)Basic Requirements

(2)Reasonable Relationship Test

(3)Annualization

iii. Apprenticeship

(a)Introduction

(b)Apprenticeship Wages

(d)Enforcement of Apprenticeship Requirements

(e)Helpers

b. Statutes and Regulations (DBRA)

c. Types of Violations (DBRA)

d. Investigation Tips (DBRA)

i. Tips on Reviewing Certified Payroll Records

e. Web Resources (DBRA)

i. Davis Bacon and Related Acts

ii. Apprenticeship

f. Enforcement Strategies and Remedies (DBRA)

i. Communicate with the Contracting Agency

ii. Contact the Federal Agency Labor Advisor

iii. Contact the Regional Office of the Department of Labor

iv. Filing Administrative Complaints

v. Termination of Contractor Rights

vi. Filing Lawsuits and Private Rights of Action

vii. 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. Statutes and Regulations (Copeland)

c. Web Resources (Copeland)

d. Types of Violations (Copeland)

e. Investigation Tips (Copeland)

f. Enforcement Strategies and Remedies (Copeland)

4. Service Contract Act (SCA)

a. Introduction (SCA)

b. Statutes and Regulations (SCA)

c. Web Resources (SCA)

d. Investigation Tips (SCA)

e. Enforcement Strategies and Remedies (SCA)

i. Communicate with the Contracting Agency

ii. Contact the Federal Agency Labor Advisor

iii. Contact the Regional Office of the Department of Labor

iv. Filing Formal Complaints Under the SCA

5. Walsh Healey Public Contracts Act (PCA)

a. Introduction (PCA)

6. Occupational Safety and Health Act

a. Introduction (OSHA)

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. OSHA Appeals

i. OSHA Citations

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

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. Tips for Filing Administrative Appeals

ii. Tips for the Content of Your Appeal

f. Administrative Remedies

i. Debarment

2. Filing Court Actions

a. Actions on Bonds

i. Overview of Miller Act Remedies

ii. Web Resources on Bond Remedies

3. Enforcement Strategies and Remedies for Dealing With Defenses Involving Misclassification of Workers as Independent Contractors

a. Web Resources

D. CONCLUSION

E. STATUTES AND REGULATIONS

F. CASES

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. DLSR 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