22.402 Applicability
Source: FAR 22.402 on acquisition.gov
FAR 22.402 defines when federal labor standards apply to construction activities, ensuring contractors and agencies correctly identify covered work and avoid compliance errors.
Overview
FAR 22.402 outlines when the labor standards requirements of Subpart 22.4 apply to federal contracts involving construction work. It clarifies the types of construction activities and contract scenarios that trigger these requirements, as well as specific exclusions. The section distinguishes between contracts primarily for construction and nonconstruction contracts that include substantial construction work, providing detailed guidance on applicability based on the nature, location, and segregation of the work involved.
Key Rules
- Applicability to Construction Contracts
- Labor standards apply if construction is performed at a specific site by laborers and mechanics, including on-site fabrication, demolition, and painting.
- Exclusions from Applicability
- Off-site manufacturing, incidental construction tied to research and development, railroad employees under the Railway Labor Act, and employees at permanent off-site facilities are excluded.
- Nonconstruction Contracts with Construction Work
- Labor standards apply if the contract includes substantial, segregable construction work on a public building or work, exceeding the monetary threshold.
- Exclusions for Nonconstruction Contracts
- Incidental or non-segregable construction work does not trigger the requirements.
Responsibilities
- Contracting Officers: Must determine if the contract or portions thereof meet the criteria for labor standards applicability and ensure proper clauses are included.
- Contractors: Must comply with labor standards when their work falls within the defined scope, especially for on-site construction activities.
- Agencies: Oversee compliance and ensure correct application of labor standards to relevant contracts.
Practical Implications
- This section helps contracting professionals identify when labor standards apply, preventing misapplication or omission of required wage determinations. It impacts contract structuring, clause inclusion, and compliance monitoring. Common pitfalls include misclassifying incidental construction or failing to recognize segregable construction work in nonconstruction contracts.
(a) Contracts for construction work.
(1) The requirements of this subpart apply-
(i) Only if the construction work is, or reasonably can be foreseen to be, performed at a particular site so that wage rates can be determined for the locality, and only to construction work that is performed by laborers and mechanics at the site of the work;
(ii) To dismantling, demolition, or removal of improvements if a part of the construction contract, or if construction at that site is anticipated by another contract as provided in subpart 37.3;
(iii) To the manufacture or fabrication of construction materials and components conducted in connection with the construction and on the site of the work by the contractor or a subcontractor under a contract otherwise subject to this subpart; and
(iv) To painting of public buildings or public works, whether performed in connection with the original construction or as alteration or repair of an existing structure.
(2) The requirements of this subpart do not apply to-
(i) The manufacturing of components or materials off the site of the work or their subsequent delivery to the site by the commercial supplier or materialman;
(ii) Contracts requiring construction work that is so closely related to research, experiment, and development that it cannot be performed separately, or that is itself the subject of research, experiment, or development (see paragraph (b) of this section for applicability of this subpart to research and development contracts or portions thereof involving construction, alteration, or repair of a public building or public work);
(iii) Employees of railroads operating under collective bargaining agreements that are subject to the Railway Labor Act; or
(iv) Employees who work at contractors’ or subcontractors’ permanent home offices, fabrication shops, or tool yards not located at the site of the work. However, if the employees go to the site of the work and perform construction activities there, the requirements of this subpart are applicable for the actual time so spent, not including travel unless the employees transport materials or supplies to or from the site of the work.
(b) Nonconstruction contracts involving some construction work.
(1) The requirements of this subpart apply to construction work to be performed as part of nonconstruction contracts (supply, service, research and development, etc.) if-
(i) The construction work is to be performed on a public building or public work;
(ii) The contract contains specific requirements for a substantial amount of construction work exceeding the monetary threshold for application of the Construction Wage Rate Requirements statute (the word "substantial" relates to the type and quantity of construction work to be performed and not merely to the total value of construction work as compared to the total value of the contract); and
(iii) The construction work is physically or functionally separate from, and is capable of being performed on a segregated basis from, the other work required by the contract.
(2) The requirements of this subpart do not apply if-
(i) The construction work is incidental to the furnishing of supplies, equipment, or services (for example, the requirements do not apply to simple installation or alteration at a public building or public work that is incidental to furnishing supplies or equipment under a supply contract; however, if a substantial and segregable amount of construction, alteration, or repair is required, such as for installation of heavy generators or large refrigerator systems or for plant modification or rearrangement, the requirements of this subpart apply); or
(ii) The construction work is so merged with non- construction work or so fragmented in terms of the locations or time spans in which it is to be performed, that it is not capable of being segregated as a separate contractual requirement.