FAR 22.402—Applicability.
Plain-English Summary
FAR 22.402 explains when the Construction Wage Rate Requirements subpart applies and, just as importantly, when it does not. It covers construction contracts performed at a particular site, including site work by laborers and mechanics, dismantling/demolition/removal when tied to construction, on-site manufacture or fabrication of construction materials and components, and painting of public buildings or public works. It also identifies exclusions for off-site manufacturing, certain research and development work, railroad employees covered by the Railway Labor Act, and work performed at permanent home offices, fabrication shops, or tool yards unless employees actually go to the site and perform construction there. The section then extends the rule to nonconstruction contracts that include construction work, but only when the work is on a public building or public work, is substantial and above the statutory threshold, and is physically or functionally separable from the rest of the contract. In practice, this section is the gateway for deciding whether Davis-Bacon/Construction Wage Rate Requirements coverage applies, so it drives wage determinations, solicitation clauses, subcontract flowdown, and compliance planning.
Key Rules
Site-based construction only
The subpart applies only when the construction work is, or reasonably can be foreseen to be, performed at a particular site where local wage rates can be determined. It applies only to work performed by laborers and mechanics at the site of the work.
Covered construction activities
The rule expressly includes dismantling, demolition, or removal of improvements when part of the construction contract or when future construction at the site is anticipated under subpart 37.3. It also covers on-site manufacture or fabrication of construction materials and components by the contractor or subcontractor, and painting of public buildings or public works whether part of original construction or later alteration/repair.
Off-site manufacturing excluded
The subpart does not apply to manufacturing of components or materials off the site of the work, or to their later delivery to the site by a commercial supplier or materialman. Off-site production is outside coverage even if the materials are ultimately used in a covered construction project.
Special exclusions for certain workers
Employees of railroads operating under collective bargaining agreements subject to the Railway Labor Act are excluded. Employees at contractors’ or subcontractors’ permanent home offices, fabrication shops, or tool yards are also excluded unless they go to the site and perform construction activities there, in which case coverage applies only for the actual time spent on-site.
R&D construction exception
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, is excluded from coverage. The section points readers to paragraph (b) for R&D contracts that include separate construction, alteration, or repair of a public building or public work.
Nonconstruction contracts can be covered
Supply, service, research and development, and similar contracts are covered if they include construction work on a public building or public work, the contract requires a substantial amount of construction above the statutory threshold, and the construction is physically or functionally separate and capable of being segregated from the rest of the work.
Incidental or inseparable work excluded
The subpart does not apply when construction is merely incidental to furnishing supplies, equipment, or services, such as simple installation or minor alteration under a supply contract. It also does not apply when the construction is so merged with nonconstruction work, or so fragmented by location or time, that it cannot be treated as a separate contractual requirement.
Responsibilities
Contracting Officer
Determine whether the contract or portion of the contract falls within Davis-Bacon/Construction Wage Rate Requirements coverage under this section. The contracting officer must identify covered construction, decide whether any exclusions apply, include the proper wage determination and clauses when coverage exists, and separate covered construction from noncovered work when a mixed contract is involved.
Contractor
Assess whether its performance includes covered construction activities, especially on-site labor by laborers and mechanics, and comply with the applicable wage and recordkeeping requirements when coverage applies. The contractor must also flow down requirements to subcontractors performing covered work and avoid treating covered on-site work as exempt simply because the overall contract is nonconstruction.
Subcontractor
Follow the same wage and coverage rules for any covered construction work performed under a prime contract subject to this subpart. Subcontractors must distinguish between on-site covered work and excluded off-site or home-office work, and pay attention to the limited coverage that applies when employees only occasionally go to the site.
Agency/Program Office
Describe the scope of work accurately so the contracting officer can determine whether construction is substantial, segregable, and on a public building or public work. The agency should avoid structuring requirements in a way that improperly fragments covered construction or obscures the need for wage coverage.
Laborers and Mechanics
Perform covered on-site construction work in accordance with the wage and labor standards that apply to the project. Workers at excluded locations remain outside coverage unless they actually perform construction activities at the site, in which case coverage applies for the time spent on-site.
Practical Implications
This section is the threshold coverage test: if you misclassify the work, you may omit the wage determination and clauses or apply them when they are not required. That can create bid protests, contract administration problems, and wage underpayment risk.
Mixed contracts are a common trap. A supply or service contract can still trigger coverage if it includes a substantial, segregable construction element on a public building or public work, so the contracting officer must analyze the construction portion separately.
Off-site fabrication is generally outside coverage, but on-site fabrication or assembly can be covered. Contractors should track where the work is actually performed, not just what the work is called in the contract.
Incidental installation is not the same as substantial construction. Simple equipment installation may be exempt, but large-scale installation, plant modification, or rearrangement can cross the line into covered construction.
For contractors with home offices, shops, or yards, the location of the work matters. Employees are usually excluded until they go to the site and perform construction there, at which point coverage applies only to the actual on-site time, excluding travel unless they are transporting materials or supplies.
Official Regulatory Text
(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.