When work on a Davis-Bacon project does not fit any classification on the wage determination, the contractor requests an additional classification through the conformance process on Standard Form 1444, submitted via the contracting officer to the Department of Labor. Under 29 CFR 5.5(a)(1)(iii) a conformance is approved only if the work is not performed by any listed classification, the classification is used in the area by the construction industry, and the proposed rate bears a reasonable relationship to the rates already on the determination. The Wage and Hour Administrator responds within 30 days of receipt.
When you need a conformance — and when you do not
A conformance is for work genuinely not covered by any classification on the determination. It is not for work that is covered by a classification you would rather not pay.
Before requesting one, check whether the work fits an existing line under a different name. Determination vocabulary is often broader than it looks: "Laborer: Common or General" absorbs a great deal of work, and specialty lines frequently cover tasks their titles do not obviously suggest.
The three criteria
All three must be met. The third is where most requests are negotiated: a proposed rate well below comparable classifications on the same determination will not clear "reasonable relationship".
- The work to be performed by the requested classification is not performed by any classification already in the wage determination.
- The classification is used in the area by the construction industry.
- The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates already contained in the wage determination.
Who does what
| Step | Who | What |
|---|---|---|
| 1 | Contractor | Identifies uncovered work, proposes a classification and rate, and gets the affected workers' or their representative's views on the proposal. |
| 2 | Contractor | Completes SF-1444 and submits it to the contracting officer. |
| 3 | Contracting officer | Reviews, adds a recommendation, and forwards to the Wage and Hour Division Administrator. |
| 4 | WHD Administrator | Approves, modifies or disapproves within 30 days of receipt, and advises the contracting officer. |
| 5 | Contracting officer | Notifies the contractor. The approved rate applies from the first day work in that classification was performed. |
What to pay while the request is pending
Work does not have to stop. Pay the proposed rate in the meantime, and understand that the approved rate applies retroactively to the first day work in that classification was performed on the contract.
If the Administrator approves a higher rate than you proposed, you owe the difference for every hour already worked in that classification. Budget for that possibility rather than assuming your proposed number will stand.
Making a request that gets approved
- Describe the work, not the job title. The Administrator is deciding whether the tasks are already covered.
- Show your work on the "not already covered" point — name the classifications you considered and why each does not fit.
- Anchor the proposed rate to comparable classifications on the same determination, and say which ones you used.
- Include the affected workers' views, or evidence you sought them. A request without this is incomplete.
- Submit early. Thirty days runs from WHD receipt, not from when you handed it to the contracting officer.
Frequently asked questions
How long does a conformance take?
The Wage and Hour Administrator approves, modifies or disapproves within 30 days of receiving the request. That clock starts when WHD receives it, not when you submit it to the contracting officer, so the real elapsed time is longer.
Can I submit a conformance request directly to the Department of Labor?
No. It goes through the contracting officer, who reviews it and forwards it to the Wage and Hour Division with a recommendation.
What rate do I pay while waiting for a decision?
Pay the rate you proposed. If the approved rate is higher, the difference is owed retroactively to the first day the work was performed, so treat your proposed rate as a floor rather than a settled cost.
Can a conformance be used to create a lower-paid helper classification?
Only if it genuinely meets all three criteria, and it usually does not. The process cannot be used to subdivide work already covered by a listed classification, which is what most helper proposals amount to.
Sources
- DOL — DBRA conformance process
- 29 CFR 5.5 — Contract provisions and related matters
- Standard Form 1444 (GSA)
WageFinder publishes wage data and plain-English explanations. This is not legal advice, and it does not replace the wage determination on your contract or guidance from the contracting agency.
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