[Code of Federal Regulations]
[Title 29, Volume 1]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR4.4]

[Page 35-37]
 
                             TITLE 29--LABOR
 
PART 4_LABOR STANDARDS FOR FEDERAL SERVICE CONTRACTS--Table of Contents
 
  Subpart A_Service Contract Labor Standards Provisions and Procedures
 
Sec. 4.4  Notice of intention to make a service contract.

    (a)(1) For any contract exceeding $2,500 which may be subject to the 
Act, the contracting agency shall file with the Wage and Hour Division, 
Employment Standards Administration, Department of Labor, its notice of 
intention to make a service contract. With respect to recurring or known 
requirements, such notices shall be filed not less than 60 days (nor 
more than 120 days, except with the approval of the Wage and Hour 
Division) prior to: (i) Any invitation for bids, (ii) request for 
proposals, (iii) commencement of negotiations, (iv) exercise of option 
or contract extension, (v) annual anniversary date of a multi-year 
contract subject to annual fiscal appropriations of the Congress, or 
(vi) each biennial anniversary date of a multi-year contract not subject 
to such annual appropriations, if so authorized by the Wage and Hour

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Division. (See Sec. 4.4(d).) Notices with regard to solicitations where 
such planning is not feasible shall be submitted as soon as possible, 
but not later than 30 days prior to the above contracting actions. Such 
notice shall besubmitted on Standard Form 98, Notice of Intention to 
Make a Service Contract, and Standard Form 98-A or a statement 
containing the information in paragraph (b) of this section and shall be 
completed in accordance with the instruction provided and shall be 
supplemented by the information required under paragraphs (c) and (d) of 
this section. Supplies of Standard Forms 98 and 98-A are available in 
all GSA supply depots under stock numbers 7540-926-8972 and 7540-118-
1008, respectively. If there exists any question or doubt as to the 
possible application of the Act to a particular procurement, the 
contracting agency shall submit such question in a timely manner to the 
Administrator for determination.
    (2)(i) Where the place of performance of a contract for services 
subject to the Act is unknown at the time of solicitation, the 
solicitation need not initially contain a wage determination. The 
contracting agency shall, upon identification of firms participating in 
the procurement in response to an initial solicitation, file with the 
Wage and Hour Division, Employment Standards Administration, Department 
of Labor, its notice of intention to make a service contract. In 
addition to the requirements contained in paragraph (a)(1) of this 
section, such submission shall identify each location where the work may 
be performed as indicated by participating firms. Subsequent amendments 
to the solicitation setting forth the wage determinations and any 
necessary change in the date and time for submission of final bids shall 
be made upon receipt of wage determinations. An applicable wage 
determinationmust be obtained for each firm participating in the bidding 
for the location in which it would perform the contract. The appropriate 
wage determination shall be incorporated in the resultant contract 
documents and shall be applicable to all work performed thereunder 
(regardless of whether the successful contractor subsequently changes 
the place(s) of contract performance).
    (ii) There may be unusual situations, as determined by the 
Department of Labor upon consultation with a contracting agency, where 
the procedure in paragraph (a)(2)(i) of this section is not practicable 
in a particular situation, in which event the Department may authorize a 
modified procedure which may result in the subsequent issuance of wage 
determinations for one or more composite localities.
    (b) The contracting agency shall file with its Notice of Intention 
to Make a Service Contract (SF-98) either a Standard Form 98-A or a 
statement in writing, containing the following information concerning 
the service employees expected by the agency to be employed by the 
contractor and any subcontractors in performing the contract:
    (1) The number of such employees of all classes, or a statement 
indicating whether such number will or will not exceed 5, the number for 
which the inclusion of a wage determination in the contract is mandatory 
under the provisions of section 10 of the Act as set forth in Sec. 
4.3(a); and
    (2) A listing of those classes of service employees expected to be 
employed under the contract which, if employed by the agency, would be 
subject to the wage provisions of 5 U.S.C. 5341 or 5 U.S.C. 5332, 
together with a specification of the rates of wages and fringe benefits 
that would be paid by the Government to employees of each such class if 
such statute were applicable to them. (Under section 2(a)(5) of the Act 
and Sec. 4.6 the inclusion of such a statement in the service contract 
is also required.)
    (c) If the services to be furnished under the proposed contract will 
be substantially the same as services being furnished in the same 
locality by an incumbent contractor whose contract the proposed contract 
will succeed, and if such incumbent contractor is furnishing such 
services through the use of service employees whose wage rates and 
fringe benefits are the subject of one or more collective bargaining 
agreements, the contracting agency shall file with its Notice of 
Intention to Make a Service Contract (SF-98) a copy of each such 
collective bargaining agreement together with any related documents 
specifying the

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wage rates and fringe benefits currently or prospectively payable under 
such agreement. If the place of contract performance is unknown, the 
contracting agency will submit the collective bargaining agreement of 
the incumbent contractor for incorporation into a wage determination 
applicable to a potential bidder located in the same geographic area as 
the predecessor contractor (section 4.4(a)(2)). If such services are 
being furnished at more than one locality and the collectively bargained 
wagerates and fringe benefits are different at different localities or 
do not apply to one or more localities, the agency shall identify the 
localities to which such agreements have application. If the collective 
bargaining agreement does not apply to all service employees under the 
contract, the agency shall identify the employees and/or work subject to 
the collective bargaining agreement. In the event that the agency has 
reason to believe that any such collective bargaining agreement was not 
entered into as a result of arm's-length negotiations, a full statement 
of the facts so indicating shall betransmitted with the copy of such 
agreement. See Sec. 4.11. If the agency has information indicating that 
any such collectively bargained wage rates and fringe benefits are 
substantially at variance with those prevailing for services of a 
similar character in the locality, the agency shall so advise the Wage 
and Hour Division and, if it believes a hearing thereon pursuant to 
section 4(c) of the Act is warranted, shall file its request for such 
hearing pursuant to Sec. 4.10 at the time of filing the Notice of 
Intention to Make a Service Contract (Form SF-98).
    (d) If the proposed contract is for a multi-year period subject to 
other than annual appropriations, the contracting agency shall file with 
its Standard Form 98 a statement in writing concerning the type of 
funding and the contemplated term of the proposed contract. Unless 
otherwise advised by the Wage and Hour Division that a Standard Form 98 
must be filed on the annual anniversary date, a new Standard Form 98 
shall be submitted on each biennial anniversary date of the proposed 
multi-year contract in the event its term is for a period in excess of 
two years.
    (e) Any Standard Form 98 submitted by a contracting agency without 
the information required under paragraphs (b), (c), or (d) of this 
section will be returned to the agency for further action.
    (f) If exceptional circumstances prevent the filing of the notice of 
intention and supplemental information required by this section on a 
date at least 60 days (or 30 days in the case of unplanned procurements) 
prior to any invitation for bids, request for proposals, or commencement 
of negotiations, the notice shall be submitted to the Wage and Hour 
Division as soon as practicable with a detailed explanation of the 
special circumstances which prevented timely submission. In the event 
the proposed contract involves performance by more than 5 service 
employees and an emergency situation requires an immediate award, the 
contracting agency shall contact the Wage and Hour Division by telephone 
for guidance prior to any such award. In no event may a contract subject 
to the act on which more than 5 service employees are contemplated to be 
employed be awarded without an appropriate wage determination. (Section 
10 of the Act.)
    (g) If any invitation for bids, request for proposals, bid opening, 
or commencement of negotiations for a proposed contract for which a wage 
determination was provided in response to a Standard Form 98 has been 
delayed, for whatever reason, more than 60 days from the date of such 
procurement action as indicated on the submitted Standard Form 98, the 
contracting agency shall contact the Wage and Hour Division for the 
purpose of determining whether the wage determination issued pursuant to 
the initial submission is still current. Any revision of a wage 
determination received by the contracting agency as a result of such 
communication or upon discovery by the Department of Labor of a delay, 
shall supersede and replace the earlier response as the wage 
determination applicable to such procurement, subject to the time frames 
set forth in Sec. 4.5(a)(2).

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