Document 174162

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