Opinion Letter
PW-2009-03-7.15.09

In our telephone conversation on June 25, 2009, you requested the Division of Occupational Safety's ("DOS") determination on several issues concerning the XXXX High School project (the "Project"). Specifically, the issues are as follows:

  1. Is the prevailing wage schedule issued on and dated February 26, 2008, applicable to current scopes of work bid at the XXXX High School construction project ("the Project"), or must the wage schedule be updated?
  2. Would an updated prevailing wage schedule be applicable to all subsequent trade contractor bid packages?
  3. What is the proper date of an "updated" prevailing wage schedule that DOS would issue for current use on the Project?
  4. Is XXXX required to obtain updated prevailing wage rates for this project annually?

As you know, Construction Manager ("CM") at Risk projects, bid pursuant to G.L. c.149A, are subject to the Massachusetts Prevailing Wage law. Chapter 149A, section 10 states "Sections 26, 27… of chapter 149… shall apply to all building projects using the construction management at risk delivery method as provided in this chapter." Section 26 and 27 of Chapter 149 require that prevailing wage rates be paid to persons engaged "in the construction of public works."

1. Is the prevailing wage schedule issued on and dated February 26, 2008, applicable to current scopes of work bid at the XXXX High School construction project ("the Project"), or must the wage schedule be updated?

The February 26, 2008 prevailing wage schedule is not valid and must be updated. The appropriate date for the issuance of a prevailing wage schedule for CM at Risk projects is no sooner than 90 days before the earlier of a) the execution date of the GMP Amendment, or b) the bid opening date of the first fast track "trade contractor" bid package. Consistent with DOS' determination, via email, on November 25, 2005, a CM at Risk project is not officially a contract for construction until the GMP Amendment is executed, or the first fast track "trade contractor" bid procurement date. Based upon the information you have provided, the GMP Amendment has not been executed, and the City of XXXX opened bids for the first "trade contractor" bid package on November 19, 2008. Since the first "trade contractor" bid package was opened on November 19, 2008, XXXX should have requested a prevailing wage schedule no sooner than 90 days prior to that date. Thus the February 26, 2008 prevailing wage schedule is not valid for use in setting current prevailing wage rates on the Project, and must be updated.

2. Would an updated prevailing wage schedule be applicable to all subsequent trade contractor bid packages?

Yes. Again, consistent with DOS determination in November 2005, a prevailing wage schedule properly issued for a CM at risk project is applicable for all subsequent trade contractor bid packages. Therefore, if XXXX were to obtain an updated prevailing wage rate schedule, it would be applicable to all subsequent "trade contractor" bid packages until the one year anniversary date of the execution of the fast track "trade contractor" contract.

3. What is the proper date of an "updated" prevailing wage schedule that DOS would issue for current use on the Project?

Had XXXX requested prevailing wage schedules at the appropriate time and incorporated them into the contract for which bids were opened on November 19, 2008, those rates would have been effective for all subsequent trade contractor packages until the required annual update. However, because new rates must be requested for the current trade contractor package, DOS will use the date of the current bid package and will issue rates effective on the date of the request.

4. Is XXXX required to obtain updated prevailing wage rates for this project annually?

Yes. Pursuant to G.L. c. 149 § 27, as amended, for projects bid on or after August 8, 2008 the rates must be updated annually. Therefore, the new rates that the City of XXXX must request for the current trade contractor package must be updated annually on the anniversary date of the execution of the contract for the work.


Consistent with this determination, the City of XXXX should immediately request a new prevailing wage rate schedule and must request an updated schedule two weeks prior to the anniversary date of the execution of the contract, and annually each year thereafter.

I hope this information has been helpful. If you have any further questions, please feel free to contact me.

Sincerely,
Nicholas Arienti
Deputy General Counsel