Brownfields RLF Webinar Series: Davis-Bacon Act January 24, 2013

1. Brownfields RLF Webinar Series: Davis-Bacon ActJanuary 24, 2013 Speakers: Joe Ferrari – EPA Region 1 Kate O’Hara – Land of Sky Regional Council, NC Laura Clark – Cuyahoga County Department of Development, OH

2. Topics • Background • Davis Bacon Related Acts • Cleanup Activities Subject to DBA • Petroleum Cleanups • Laborers and Mechanics • Site of the Work • Davis Bacon Process • Federal, RLF Recipient & Borrower/Subgrantee Roles • Contractor /Subcontractor Roles • Jobsite Postings, Forms & Interviews • Additional Resources

3. Background • Enacted in 1931 and amended in 1935 & 1964. • Applies to Federal construction contracts over $2,000. • The Act is “site-based”. • Covers alteration, repair, painting & decorating activities. • Applies to laborers & mechanics. • Requires payment of prevailing wages. • Requires weekly payment of wages.

4. Davis-Bacon Related Acts • Davis-Bacon requirements extend to numerous “Related Acts” that provide federal assistance: • Grants/Cooperative Agreements • Loans & Subgrants • Loan guarantees • Insurance

5. Cleanup Activities Subject to DBA • Excavation of Contaminated Soils • Construction of Caps and Barriers • Construction of structures to house treatment equipment • Abatement of Contamination in Buildings (Some Exceptions) • Demolition (if followed by new construction) • Installing Water Supply Wells/Piping/Connections

6. Petroleum Cleanups • Unless followed by paving or concrete replacement, the following petroleum cleanup actions generally don’t trigger DBA: • Tank removal • In situ remediation • Soil excavation/replacement • Site assessment activities

7. Laborers and Mechanics • Defined as workers whose duties are manual or physical in nature. • Includes Apprentices, Trainees and Helpers • Job types not covered: • Supervisory position at the job site (<20% time in skilled labor) • Clerical • Professionals • Volunteers

8. Site of the Work • Davis-Bacon applies only to laborers and mechanics employed “directly upon the site of the work.” • Site of the work is: • Physical place remediation occurs • Other site where significant portion of remediation occurs

9. Davis-Bacon Process • Cleanup Planning - Prevent labor and budget problems, set up protocols to ensure compliance • Cleanup Period - Follow posting, payroll, and monitoring protocols • Post Cleanup - Document payroll and certifications, and retain records

10. Planning Step #1 • Refer to the terms and conditions of your cooperative agreement. • Identify if DBA applies to your remediation tasks. • Identify the project State and County.

11. Planning Step #2 • Construction Types • Residential – houses, townhouses, and apartments up to 4 stories • Building – most other structures and apartments over 4 stories • Highway - roadways, sidewalks, parking areas, etc. • Heavy - other projects, generally public works • Most Brownfields cleanups will be classified as “Heavy” except for asbestos or lead paint removal which would most likely be classified as “Building”.

12. Planning Step #3 • Obtain Wage Determinations – Available at http://www.wdol.gov Wage Determinations online • Specific to geographic area (county or a group of counties) • Specific to 4 types of construction: Residential, Building, Highway, Heavy • Modified periodically • Include in bid documents and contract for construction

13. Planning Step #4 • All bid/contract documents for prime contractors and all applicable subcontractors must contain: • Applicable Davis-Bacon Wage Determination • Federal labor standards clauses • EPA Davis-Bacon T&Cs • Once the contracts are awarded, the Davis-Bacon wage rates are “locked” and stay in effect for the duration of the project.

14. Federal Government Role • EPA - Responsible for enforcement of Davis-Bacon and Davis-Bacon related acts for your RLF. • DOL – Establishes regulations and investigates compliance.

15. RLF Recipient Role • Conduct onsite interviews with laborers and mechanics • Within 2 weeks of initial and final payrolls. • Conduct spot-check payrolls/related records • Within 2 weeks of initial and final payrolls. • Report potential violations. • Maintain full documentation (3 years). • Grant recipients may request exceptions to the frequency of payroll spot checks and interviews.

16. Borrower/Subgrantee Role • Obtain wage determinations from DOL. • Ensure all bid/contract documents contain wage determination and labor provisions (prime and subcontractors). • Ensure no contracts are awarded to ineligible contractors. • Ensure submission of certified payrolls.

17. Prime Contractor Role • Prepares and submits certified payrolls for its own employees. • Submits certified payrolls for all subcontractor employees. • Reviews wage determination and requests additional classifications when needed. • Provides subcontractors with forms and guidance concerning Davis-Bacon requirements. • Provides Davis-Bacon Poster and interviewer confidential access to employees on site. • Instructs lower-tier subcontractors of their responsibilities.

18. Subcontractor Role • Prepares & submits certified payrolls each week for its own employees. • Instructs any lower-tier subcontractors of responsibilities. • Reviews wage determination and requests additional classifications if needed. • Provides Davis-Bacon Poster and interviewer confidential access to employees on-site.

19. If Federal and State Wages Apply • Contract must contain both Federal and State wage decisions/contract standards. • Employers must pay higher of two rates. • Payrolls must carry Federal statement of compliance (reverse of payroll form WH-347).

20. Job Site Postings • Notice to All Employees (WH1321) • Protected from elements • Accessible to all laborers and mechanics • Easy for all parties to see

21. Job Site Postings • Davis-Bacon wage decision OR Project Wage Rate Sheet • Protected from elements • Accessible to all laborers and mechanics • Easy for all parties to see • Prepared after wage decision locked in

22. Certified Payroll • Optional form WH 347, Payroll • Compliance statement (w/original signature of corporate official or designee) • Payrolls required weekly • Identify first and final payroll • Prime contractor reviews prior to submission • Payroll retention = 3 years

23. Interviews • Perform on-site verification interviews with workers • Use SF 1445 to document interviews • Conduct within 2 weeks after start of work and 2 weeks prior to scheduled end of work

24. Common Problems • Misclassification of laborers and mechanics. • Failure to pay full prevailing wage, including fringe benefits, for all hours worked (including overtime). • Inadequate recordkeeping. • Failure to submit certified weekly payrolls. • Failure to post the Davis-Bacon poster and applicable wage determination.

25. Tips • Make sure your RLF funded cleanup contracts are separate from your redevelopment contracts. • When in doubt, check it out at www.dol.gov . • Ask your EPA Project Officer for help if you are not sure what to do. • Get your environmental professional to help you.

26. Additional Resources • EPA Davis-Bacon Regional Coordinators: • Region 1 - Ms. Valerie Marshall 617-918-1674  marshall.valerie@epa.gov • Region 2 - Mr. Anthony Tao 212-637-3372 tao.anthony@epa.gov • Region 3 - Ms. Lorraine Fleury 215-814-2341 fleury.lorraine@epa.gov • Region 4 - Ms. Dorothy Rayfield 404-562-9278 rayfield.dorothy@epa.gov • Region 5 - Ms. Sharon Green 312-353-5661  Green.Sharon@epa.gov • Region 6 - Mr. Dannell Brown 214-665-7279  Brown.Dannell@epa.gov • Region 7 - Ms. Lee A. Thomas 913-551-7739 thomas.leea@epa.gov • Region 8 - Ms. Maria Houston 303-312-7022  Houston.Maria@epa.gov • Region 9 - Mr. Joe Ochab 415-972-3761 ochab.joe@epa.gov • Region 10 - Ms. Socorro Rodriguez 206-553-6296  rodriguez.socorro@epa.gov • Headquarters – Ms. Julie Milazzo 415-972-3687 milazzo.julie@epa.gov • Brownfields Program - Debi Morey 202-566-2735 morey.debi@epa.gov

27. Additional Resources • EPA Administrative and Davis-Bacon Cooperative Agreement Terms and Conditions >www.epa.gov/ogd/tc.htm • DOL Davis-Bacon Fact Sheet >www.dol.gov/esa/whd/regs/compliance/whdfs66.pdf • General Davis-Bacon Act requirements and applicability >www.dol.gov/compliance/laws/comp-dbra.htm • Wage determinations on line >www.wdol.gov/ • Selecting a wage determination > www.wdol.gov/dba.aspx#0 • Wage rate posting requirements > www.dol.gov/esa/whd/programs/dbra/wh1321.htm

28. Additional Resources • Performing a review of certified payrolls >http://www.dol.gov/esa/whd/forms/wh347.pdf • Conducting labor interviews >http://contacts.gsa.gov/webforms.nsf/0/12BF5D0E2DC4484685256CBC0062F375/$file/sf1445.pdf • Davis-Bacon Reference Material > http://www.gpo.gov/davisbacon/referencemat.html • Prevailing Wage Resource Book > http://www.dol.gov/esa/whd/recovery/pwrb/toc.htm

29. Questions?

30. Davis Bacon ComplianceGrantee Tips EPA Brownfields Webinar Series January 24, 2013

31. Who are we? The Regional Brownfields Initiative (RBI) provides : • Technical and financial assistance to prospective developers for Phase I & Phase II assessments. • Low interest loans to non-causative developers for remediation of Brownfields (soil, groundwater, lead paint, asbestos). • Subgrants to local municipalities and non-profits; and • We serve four counties & their 19 municipalities in western North Carolina for assessment assistance. • We serve all areas west of I-77 in North Carolina for RLF projects*

32. Grantee Responsibilities • Designate appropriate staff. • Ensure that bid documents, contracts, and subcontracts contain labor standard provisions & the applicable wage decision. • Ensure that no work is awarded to an ineligible (debarred) contractor. • Conduct onsite interviews. • Review payroll reports. • Maintain good documentation. • Follow up with contractor on issues; follow DB guidance for complex issues.

33. Working with Sub-grantees Local governments & non-profits Often inexperienced or understaffed Grantee may need to help! Time charged to loan or grant operations* * check with your PO

34. Check to make sure remediation contractor is eligible: The General Services Administration discontinued the Excluded Parties List System on November 21, 2012. Exclusions can now be found at www.sam.gov. • System for Awards Management Davis Bacon Quick Guide

35. www.sam.gov Register for an Account Select User Name & Password Once registered: Search Records by: DUNS Number (nine-digit identification number provided by the commercial company Dun & Bradstreet (D&B) Business Name CAGE Code (used by Feds)

36. Sample Contractor Approval Letter “Upon the Brownfields cleanup award recommendation made by Dudley Doright PE, I ran a check on Tigermix, Inc. on the System for Awards Management (SAM). SAM is the Internet web site which lists contractors who are debarred from dealing with the federal government (or being paid by federal funds). As shown on the attached printout from the search I made, Tigermix, Inc. has a clean record on SAM. Therefore, I concur with Mr. Doright’s recommendation to award the contract to Tigermix, Inc. “ Attach printout to letter

37. Debarment: SAMPLE FORM Federal Executive Order (E.O.) 12549 “Debarment and Suspension” requires that all contractors receiving individual awards, using federal funds, and all sub recipients certify that the organization and its principals are not debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any Federal department or agency from doing business with the Federal Government. Your signature certifies that neither you nor your principal is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any Federal department or agency. • Name • Company • Address • Phone/ Fax • Email • Signature, Date

38. Get wage rates at: http://www.wdol.gov/dba.aspx • Click on most recent dates & print. • Give a copy of rates & other DB language to your Engineer or Qualified Environmental Professional to include in cleanup specs. • Payroll, debarment and other forms are available through the Dept. of Labor website: www.dol.gov

39. Enter State Enter County Enter Type of Construction from dropdown menu Most BF projects are “Heavy” Lead & Asbestos are “Building” **

40. Davis Bacon & Your Contractor • If necessary, conduct a preconstruction meeting to go over Davis Bacon regulations. • Provide the wages poster- DB DavisBacon and Related Acts Poster for the worksite. • Forms & instructions available at DOL website. • Payroll forms can be filled in & submitted electronically. • DB applies to subcontractors too.

41. Conducting Employee Interviews Conduct interviews regularly, or if there are new people working on site- (new employees or subcontractor); individual agency requirements may vary. SF- 1445 Labor Standards Interview Interview employees performing different jobs (truck driver, laborer, equipment operator). Interview form can be translated into Spanish/other; ask employee to read & fill out or ask another employee to help.

42. Wage Verification & Documentation • Check employee interview answers regarding number of hours worked & hourly rate against wage determinations & contractor payroll. • Identify discrepancies or violations & make corrections; • Refer potential criminal or complex investigations to EPA/DOL; • Prepare & submit Labor Standards Enforcement Report to DOL as required (29 CRF Part 5 §5.7); • Maintain full documentation.

43. General Tips Ask contractors to submit payroll directly to you. Withhold payment if no payroll is received. Verify payroll often. Don’t count on QEP to conduct interviews. If possible, show your subgrantee how to perform these tasks. Questions? Contact your PO or EPA DB Regional Coordinator.

44. For more information on Davis Bacon: “Making Davis Bacon Work: A Practical Guide for State, Indian Tribes and Local Agencies” available at: ftp://ftp.epa.gov/r8/brownfields/2009_National_RLF_Meeting/ Kate O'Hara Senior Planner/Brownfields Project Manager Land of Sky Regional Council 339 New Leicester Highway, Suite 140 Asheville, NC 28806 828-251-6622 828-251-7454 (direct)   828-251-6353 (fax) www.landofsky.org