HVAC work on non-building

What is the storage facility? Is it a prefabricated warehouse? Is it bolted to a concrete foundation slab?

If so, why do you think it's not real property?

Not on property records. Not maintained by CE. No foundation. Think mobile home but bigger. CE won't touch as they say it's an equipment item.

Because the HVAC units are not going in real property, are you buying this as a commodity with incidental installation even if it require trademan such as plumbers, electrician and HVAC techs to do the install?

If the storage facility is not attached to a foundation, just resting on the ground, then I agree that it's not real estate.

I don't know what you mean by "HVAC" in this context. I don't know enough about your requirement and the market to make any suggestions. Do some market research. One thing -- don't refer to such heating and cooling equipment as a "commodity". They're differentiated products. Corn, raw production materials, crude oil, and coffee are commodities.

Reading between the lines of your question I think you are asking if Davis Bacon applies and I would say Yes.

Reference FAR 22.4 which provides that “repair” to a public building and public works Davis Bacon is applicable. Just because the crazy policies of your agency does not have it on the property records I am betting DOL might consider it to be a “public work”. To carry it further a union local, should the prevailing rate be based on the locals rates and policies of that union where the work is being completed, would consider the repair covered by that performed by the local.

As another reference for you to research per Vern’s comment look up the definition of “public work”.

If the storage facility is not attached to a foundation, just resting on the ground, then I agree that it's not real estate.

I don't know what you mean by "HVAC" in this context. I don't know enough about your requirement and the market to make any suggestions. Do some market research. One thing -- don't refer to such heating and cooling equipment as a "commodity". They're differentiated products. Corn, raw production materials, crude oil, and coffee are commodities.

Split A/C system where there is a blower (air handler) and a condensing unit, much like in a residential home. The work requires 75' of freon lines, 240V electric, and connection to ductwork.

Reading between the lines of your question I think you are asking if Davis Bacon applies and I would say Yes.

Reference FAR 22.4 which provides that “repair” to a public building and public works Davis Bacon is applicable. Just because the crazy policies of your agency does not have it on the property records I am betting DOL might consider it to be a “public work”. To carry it further a union local, should the prevailing rate be based on the locals rates and policies of that union where the work is being completed, would consider the repair covered by that performed by the local.

As another reference for you to research per Vern’s comment look up the definition of “public work”.

Why would Daviss Bacon apply if it is not considered construction?

Regor, what Org. or Department do you work for? Army relocatable buildings that are categorized as personal property would use the using organizations operating funding (See DA Pamphlet 420-11, paragraph 2-8 (g) for repairs. See also ACSIM powerpoint presentation at http://www.lce.com/pdfs/14-Relocatable-Buildings-White-166.pdf , which says that operations, repairs and maintenace to the actual buildings are the user's responsibility, not the Director of Public Works' . It also indicates that the DPW or USACE can supervise this under a reimbursable arrangement. I would imagine that DoD, Air Force and Navy regulations are similar. For that matter, real property vs. personal property laws might be fairly consistently applied across the government.

As for labor, according to my copy of a Corps of Engineers Labor Relations Regulation at ER 1180-1-8, labor on supply contracts that require significant trade labor with typical construction type operations might be subject to the Davis-Bacon Act labor requirements and questions should be addressed to the Dept. of Labor.

My advice is to contact someone in your legal office for some help on researching this.

If you call residential A/C manufacturer/installers, like Trane, and tell them you're going to apply Davis-Bacon to them, I suspect that they will think you're crazy.

If you call residential A/C manufacturer/installers, like Trane, and tell them you're going to apply Davis-Bacon to them, I suspect that they will think you're crazy.

According to the OP, it looks like the installation costs are about 50% of the estimate. If you called an manufacturer such as Trane Corp, I would also consider you crazy. Local HVAC supplier/installation contractors that are used to dealing with federal contracts (military installation?) would be the ones that would normally perform this kind of work. Looks like a simplified acquisition method would be appropriate?

As for DBA, I suspect that the local labor rates will probably meet or exceed the DBA rates. If one wants to know, they can determine the DBA rates and check with some local contractors to see if they meet or exceed those rates. Generally, the payroll records administrative requirements are the biggest pain in the butt. I didn't make the rules or laws on applicability of federal labor law requirements to federal contracting. I don't know what DOL would say anyway.

Just looking for how others are handling. There is a storage facility that apparently was bought as equipment and was not a construction. Haven't seen it but it must be pretty decent size. A/C went out. There are 3 each 5 -ton systems with separate air handlers and condensing units. Same type of units in your average home. However, since the engineers don't have it on their real property books, they won't touch it. Gov't estimate comes is aroung $30K with price of 3 units abot $15K and the rest labor. Labor requires fiitting to existing ductwork, electrical disconnects, approximately 75' of refrigerant lines. Because the HVAC units are not going in real property, are you buying this as a commodity with incidental installation even if it require trademan such as plumbers, electrician and HVAC techs to do the install?

Regor, roughly how old are these units that all 3 went out of service? Has anyone called a local repair contractor to fix or evaluate whether repairs would feasible?

Regor – Why D-B? Because if you would have taken time to read my post and the reference I provided it says Davis Bacon applies to “repair”. And for the heck of it is it one more reference for the widely held opinion I expressed in my first post.

“The Service Contract Act Desktop Guide” dated December 2006, most current edition I believe for the Air Force. Found here - https://dap.dau.mil/aphome/das/Lists/Guidebooks%20and%20Handbooks/All.aspx?ggroup=All

I quote “ Repair vs. Maintenance - SCA also covers routine, regularly recurring maintenance of public works, buildings and building systems (electrical, plumbing, HVAC, fire suppression, etc.). But, repair of these systems is subject to Davis-Bacon Act (DBA) labor standards. “

Joel and Vern – Where are your references to suggest putting in D-B is crazy (Vern?) or that you have to go to some or any length to “suspect” (Joel)? Or in other words where are your references that repair of HVAC it is NOT D-B covered work!

Carl:

The OP didn't say anything about repair in his opening post. You were the first person to use that word in this thread. In fact, the OP has never used that word except when quoting you. The OP asked about the purchase and installation of equipment.

I didn't suggest that DB was crazy. I said that if the OP went to a certain type of equipment manufacturer and said he was going to apply DB the contractor would think he is crazy. Am I wrong?

Anyway, I wonder if the purchase and installation of air conditioning equipment might be a supply contract, instead of a construction contract. Is that a nutso thought?

As for Joel, I don't know why he thinks hiring Trane to install its equipment would be crazy. I did it. It worked fine for me. They advertise sales and installation.

Carl, I don't know if a relocatable building is a public work or public building. In DOD, It is personal property not real property. That is why (for the DOD) the facility engineer is not responsible for maintenance or repairs. GAO found many problems with how these buildings were being purchased back in 2006-2008 time frame and it was obvious that the services weren't keeping very good track of the inventory. These seemed to be in "limbo" at the time.

I did say that repair work on relocatable buildings, which are personal property, by trade labor (exceeding the DBA threshold) might be subject to the DBA if done under a supply contract but to contact DOL for their opinion. I suggested that the OP have a lawyer research the whole thing.

I didn't mean to imply that applying DBA would be crazy. I indicated that if you called the Trane Corporation (the manufacturer) and told them that you were going to apply the DBA to them for three residential sized A/C units, EDIT: I would think you were crazy for bothering them.

EDIT: Trane doesn't install their products (at least in this State). Trane sells its products to various wholesale distributors, who then sell the equipment "in the box" to authorized Trane dealers/installers. The distributors might sell to other mechanical contractors or might not. Due to various factors, the dealers don't like it when the distributors sell to other licensed mechanical contractors plus there are warranty and protection of workmanship reputation considerations. The authorized dealers are licensed contractors who install the units. In this area and as far as one of my friends who works for an authorized dealer knows, Trane Distributors and dealers are usually independently owned companies. According to my friend, Trane doesn't get involved as a direct installation contractor due to State contractor licensing regulations, bonding, insurance, labor markets and all the other state specific contractor requirements. My friend said that it might be possible that Trane would get involved at the Distributor level in some markets just to maintain market share.

Trane A/C and Heating Systems is but one example of a manufacturer; this is not an endorsement of Trane. The point is that authorized dealers who are licensed mechanical contractors sell and install them if you have to replace a residential type system, as was described here. You won't contract with a manufacturer like Trane, especially for a small job.

Vern - So what is your definition when A/C goes out and you are putting in new?

Joel - Do you think DOL cares about what agency policy says about whether something is on pr off property records?

When the AC goes out and you put in new, I define that as purchase and installation or replacement. I do not define that as repair, and it doesn't seem right to define it as construction.

I'm not arguing with you, Carl. I'm simply suggesting that purchasing AC units and installing them into a manufactured storage unit might be classified as a supply contract, but I'm not insisting on it. It may be that DOL has issued guidance on this or made an administrative decision of some kind, but I don't have the time or inclination to research it.

Vern - So what is your definition when A/C goes out and you are putting in new?

Joel - Do you think DOL cares about what agency policy says about whether something is on pr off property records?

No, they care about whether or not construction is part of the contract. This is a repair using construction type trade labor, not a service - but it is being made to personal property, not to real property, so I don't know if it is considered a public building or public works or what. If it were a public building or public work the installation work would be construction (repair) in my estimation and the non-equipment share is estimated at 50% of total price. Further, the typical firm that would likely supply the equipment and perform the installation work would be an authorized A/C dealer who is usually a State licensed contractor or an independant mechanical contractor.

I think Vern is correct that this might be classified as a supply contract.

Here are some reasons why the contract classification and work classifications are confusing here. Even if it is a supply contract. I think that a firm that does business as a dealer/installer/construction company would likely be the Contractor and will supply and install the new equipment. A manufacturer generally won't contract to supply and install three residential A/C Systems and be responsible for warranties, workmanship, etc. Its authorized dealers provide and perform all of those functions that we would contract for. The question to me would be "Is this a public building or public work or is it not for purposes of application of the DBA?"

1. What constitutes "construction" as a type of acquisition (e.g., a constructon contract or construction as an activity within a broader scope of work) from the definition of "construction" in FAR 2.101 (emphasis added):

“ 'Construction' means construction, alteration, or repair (including dredging, excavating, and painting) of buildings, structures, or other real property. For purposes of this definition, the terms “buildings, structures, or other real property” include, but are not limited to, improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, cemeteries, pumping stations, railways, airport facilities, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, and channels..."

2. BUT - a relocatable building is classified as personal property under (at least) DoD and the individual services' regulations. For Army, see AR 420-1, Chapter 6, Section IV. Note that exterior utilities, permanent foundations and other supporting work for the relocatable may be classified as real property. We don't know if this is a DoD storage facility. But I bet that there is some consistency within many of the federal government agencies.

3. Now, continue reading the definition of construction in FAR 2.101. It excludes repairs to personal property from the definition of "construction" contracting:

Construction does not include the manufacture, production, furnishing, construction, alteration, repair, processing, or assembling of vessels, aircraft, or other kinds of personal property (except that for use in Subpart 22.5, see definition at 22.502).

4. The DoD and the Services classify replacement of a failed air conditioning system in a building that is real property as "repair" as distinct from "construction" for reasons other than contracting under FAR. Due to various statutory, regulatory, and administrative restrictions on types and sources of funding, "a clear distinction must be made between maintenance, repair, and construction work". As stated above, both repairs and construction related to real property would normally be classified as construction for purposes of contracting under FAR. For Army, see the classification and discussion of "repairs" to facilities under Army Pamphlet 420-11, "Project Definition and Work Classification" at http://www.apd.army.mil/jw2/xmldemo/p420_11/head.asp

"1-6. Definitions

a. Repair. Repair means "to restore a real property facility, system or component to such a condition that it may effectively used for its designated functional purpose."

(1) When repairing a facility, the components of the facility may be repaired by replacement, and the replacement can be up to current standards or codes. For example, heating, ventilation, and air conditioning (HVAC) equipment can be repaired by replacement, can be state-of-the-art, and provide for more capacity than the original unit due to increased demand/standards. Interior rearrangements (except for load-bearing walls) and restoration of an existing facility to allow for effective use of existing space or to meet current building code requirements (for example, accessibility, health, safety, or environmental) may be included as repair.

(2) Correction of deficiencies in failed or failing components of existing facilities or systems to meet current Army standards and codes where such work, for reasons of economy, should be done concurrently with restoration of failed or failing components. When the facility is in an overall failing condition corrective work may involve increases in quantities or capacities and inclusion of systems or components not previously present in the facility. "

5. So, I think that replacing failed A/C systems in personal property could (should?) be performed under a supply contract, bearing in mind that there will be significant associated installation work performed by trades persons that resembles construction or repairs of air conditioning systems for real property buildings.

7. So -unless somebody can define what a "public building" or "Public Work" is, I think that one ought to check with the DOL to see if the DBA applies to the installation effort. I haven't been able to find the definitions yet. Can someone point me to the definition? Thanks.

Joel - Do you think DOL cares about what agency policy says about whether something is on pr off property records?

Carl, please clarify the point of your question. Were you asking me if DOL cares whether DOD considers a trailer , a series of trailers attached to each other or a portable storage module to be real property or personal property? Or were you asking if they care what USACE policy says about application of DBA to supply contracts when trade labor that would exceed the DBA threshold is involved during installation? The USACE policy that I referred to simply says to contact DOL through channels. DOL is located not far from USACE Headquarters in DC. They talk to each other. The Office of Counsel is the proponent for the Labor Relations Reg that I cited. There is an attorney who is labor relations specialist at USACE HQ. DOD is the overall proponent for "agency policy" about whether something is on or off property records. Each service then implements the policy in its regulations and guidance. I have read the three Services' policy on relocatables in the past when we were acquiring such modules on a large scale and they were similar. The DBA applies to construction of or repairs to public buildings and to public works. I can't find a statutory or regulatory definition of public buildings or public works due to my limited research abilities and don't have ready access to a USACE attorney. I don't know whether relocatables in general or this specific warehouse trailer or trailers would be considered to be public works/public buildings for purposes of the DBA or not. The significant use of such construction is a recent trend that is in a gray area. Plus the growing use of permanent, modular factory built construction presents other challenges. In addition, DOD and Congress are not big fans of having such large numbers of these Spartan looking, modern day equivalents to WWII temporary buildings around, which aren't accountable real property. Who ya gonna call here? "Labor Busters"!

joel,

"Building or work" is defined at FAR 2.101:

“Building or work” means construction activity as distinguished from manufacturing, furnishing of materials, or servicing and maintenance work. The terms include, without limitation, buildings, structures, and improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, dredging, shoring, rehabilitation and reactivation of plants, scaffolding, drilling, blasting, excavating, clearing, and landscaping. The manufacture or furnishing of materials, articles, supplies, or equipment (whether or not a Federal or State agency acquires title to such materials, articles, supplies, or equipment during the course of the manufacture or furnishing, or owns the materials from which they are manufactured or furnished) is not “building” or “work” within the meaning of this definition unless conducted in connection with and at the site of such building or work as is described in the foregoing sentence, or under the United States Housing Act of 1937 and the Housing Act of 1949 in the construction or development of the project.

Thanks, Don.

So, does the DBA apply to the installation work (50%) of a replacement air conditioning system in a trailer or large movable fabric type storage structure that is classified as personal property?

I am not arguing just concerned in the lack of any references, I thought we should be better than that!

And finally for the good of the order because I do read the comments and then chase the thoughts down as best I can…..

From DOL’s Rev. 660 FIELD OPERATIONS HANDBOOK – 10/25/2010 Chapter 15…..

15d13 Supply and installation contracts.

(a) Installation work performed in conjunction with supply or service (e.g., base support) contracts is covered by the DBRA where it involves more than an incidental amount of construction activity (i.e., the contract contains specific requirements for substantial amounts of construction, reconstruction, alteration, or repair work, and such work is physically or functionally separate from and can be performed on a segregated basis from the other nonconstruction work called for by the contract (see 29 CFR § 4.116©(2)). For example, D-B coverage has been extended to installing a security system or an intrusion detection system, installing permanent shelving which is attached to a structure, installing air-conditioning ducts, excavating outside cable trenches and laying cable, installing heavy generators, mounting radar antenna, and installing instrumentation grounding systems, where a substantial amount of construction work is involved.

( Whether installation work involves more than an incidental amount of construction activity depends upon the specific circumstances of each particular case and no fixed rules can be established which would address every fact situation. Factors requiring consideration include the nature of the prime contract work, the type of work performed by the employees installing the equipment on the project site (i.e., the techniques, materials, and equipment used and the skills called for in its performance), the extent to which structural modifications to buildings are needed to accommodate the equipment (such as widening entrances, relocating walls, or installing wiring), and the cost of the installation work, either in terms of absolute amount or in relation to the cost of the equipment and the total project cost.

© DBRA does not apply to construction work which is incidental to the furnishing of supplies or equipment, if the construction work is so merged with nonconstruction work or so fragmented in terms of the locations or time spans of its performance that the construction work is not capable of being segregated as a separate contractual requirement.

Carl, I read thT too. However that same desk guide also states that one of the four requirements for DBA is that the work be done on a public building or public work. Is a trailer or a Sprung type storage structure a public building or public work? It is definitely personal property under the regulations and probably under the statutes and was likely originally bought under a supply contract, not that the latter controls.

So the AC in the OP’s storage unit doesn’t work and his outfit wants to replace it. The work has been estimated to cost about $45,000.

Here is the original question:

Because the HVAC units are not going in real property, are you buying this as a commodity with incidental installation even if it require trademan such as plumbers, electrician and HVAC techs to do the install?

In other words, should the replacement be a supply contract or a construction contract?

Now look at the definition of “building or work” that Don provided from FAR 2.101. It’s only three sentences long. First, a building or work is a “construction activity,” not a thing. Specifically, its construction activity that relates to a list of things as diverse as lighthouses and buoys (??? do you “construct” buoys???).

Now look at the first sentence of the definition of “construction” as defined in FAR 2.101:

“Construction” means construction, alteration, or repair (including dredging, excavating, and painting) of buildings, structures, or other real property. For purposes of this definition, the terms “buildings, structures, or other real property” include, but are not limited to, improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, cemeteries, pumping stations, railways, airport facilities, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, and channels. Construction does not include the manufacture, production, furnishing, construction, alteration, repair, processing, or assembling of vessels, aircraft, or other kinds of personal property (except that for use in subpart 22.5, see the definition at 22.502).

Emphasis added. So, what’s the definition of construction in FAR 22.502?

“Construction” means construction, rehabilitation, alteration, conversion, extension, repair, or improvement of buildings, highways, or other real property.

Emphasis added. Now look at the definition of supplies from FAR 2.101:

“Supplies” means all property except land or interest in land. It includes (but is not limited to) public works, buildings, and facilities; ships, floating equipment, and vessels of every character, type, and description, together with parts and accessories; aircraft and aircraft parts, accessories, and equipment; machine tools; and the alteration or installation of any of the foregoing.

Emphasis added.

Hmmm, my real property people say that the manufactured storage (facility, structure, unit, building, shed, etc., whatever) is not real property. Black’s Law Dictionary 9th ed. defines real property as follows:

Land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land.

Emphasis added.

The OP said that the storage thingy has no foundation (Post #3), so it is not attached to the land and presumably can be removed without injury to the land. Bottom line -- it’s personal property. Well, then, doing something to it cannot be construction according to the definition in FAR 2.101, which means that doing something to it cannot be a “construction activity” as used in the definition of “building or work,” which means that doing something to it is not a “building or work.”

Now, let me think, what would be easier to award and administer – a $45,000 construction contract or a $45,000 supply contract? Would classifying the acquisition as for supplies be clearly wrong? Not to my mind. In fact, it appears that calling it construction would be clearly wrong.

If I’m in charge of that contracting office I know what I’d do. I’d proceed with an acquisition of commercial items in a quick minute and with no doubts or regrets, unless someone showed me something quite specific and persuasive to the effect that DOL has already found that kind of project to be subject to Davis-Bacon.

Could I be wrong? Sure, I've been in this business long enough to know that things are complicated. But I'm not wrong until someone proves it.

joel,

I think that the definition of "building or work" is broad enough to encompass prefabricated/temporary buildings. According to All-Agency Memorandum No. 130 issued by the DoL, "Building Construction" includes prefabricated buildings. Also, in a letter to the Postal Service, the Comptroller General said that it didn't matter whether a structure was permanent or temporary for the DBA to apply. The decision stated as follows:

WITH RESPECT TO WHETHER THE MAILBOXES IN QUESTION ARE PUBLIC WORKS, THE DEFINITIONS SUPPLIED BY LABOR'S REGULATION AT 29 CFR 5.2(F) PROVIDE THAT THE TERMS ‘BUILDING‘ OR ‘WORK‘ INCLUDE WITHOUT LIMITATION BUILDINGS, STRUCTURES AND IMPROVEMENTS OF ALL TYPES, SUCH AS BRIDGES, DAMS, PLANTS, HIGHWAYS, PARKWAYS, STREETS, SUBWAYS, TUNNELS, SEWERS, MAINS, POWER LINES, PUMPING STATIONS, RAILWAYS, AIRPORTS, TERMINALS, DOCKS, PIERS, WHARVES, WAYS, LIGHTHOUSES, BUOYS, JETTIES, BREAKWATERS, LEVEES, CANALS, DREDGING, SHORING, REHABILITATION AND REACTIVATION OF PLANTS, SCAFFOLDING, DRILLING, BLASTING, EXCAVATING, CLEARING, AND LANDSCAPING. THESE ILLUSTRATIONS APPEAR TO CONTEMPLATE THAT THE TERM ‘PUBLIC WORK‘ SHOULD ENCOMPASS ANY GOVERNMENT-OWNED FACILITY NECESSARY FOR CARRYING ON COMMUNITY LIFE AND TO COVER ANY ARTICLE OR STRUCTURE WHICH IS PLACED, EITHER PERMANENTLY OR TEMPORARILY, AT A PARTICULAR LOCATION TO SERVE A PUBLIC PURPOSE. WE FIND NO REASON TO DISAGREE WITH THIS CONCEPT, AND ANY ATTEMPT TO FURTHER DISTINGUISH BETWEEN MANUFACTURED AND CONSTRUCTED ITEMS IN THESE CIRCUMSTANCES (AS CONTENDED BY YOUR GENERAL COUNSEL) WOULD THEREFORE BE UNWARRANTED, SINCE IT IS OUR OPINION THAT A MANUFACTURED OBJECT MAY, UPON BEING INSTALLED AT A SPECIFIC LOCATION FOR A PUBLIC USE OR PURPOSE, BECOME A PUBLIC WORK.

Both the memorandum and the letter date back to the 1970s, so it's possible that the DoL and/or the GAO have changed their minds. I could not find evidence of this, however.

Wow, it isn't easy is it - after the 2 posts above with opposite views. Of course, the manufacturing of the units off-site isn't subject to DBA and I'm certain that the manufacturing process isn't considered to be construction.

I am guessing that the mail boxes in question are those familiar post office boxes with the push in drop slots that are still out on the streets. They are bolted down to a sidewalk or concrete pad.

Vern, not that it matters, but the total estimate is $30k with $15k being the price of the 3 units "and the rest labor".

I will try contacting Wage and Hour Division if nobody else will.

I spoke with Don on the phone. I will not be persuaded by a 1071 GAO advisory opinion. The GAO did not then and has not now the authority to interpret Davis-Bacon; GAO procurement decisions are not binding; and we don't know what 29 CFR 5.2(f) said in 1971.

Don has more to say about other aspects of the issue, but I'll let him say it.

Joel, you're right about the government estimate. Thanks. But I want to discourage you from calling the wage and hour division. You might put the OP in a bad spot. Let him do that if he wants to. It's not really your business. Besides, why should we be persuaded by an informal discussion with who knows who at wage and hour?

With the total estimate being $30k with $15k being the price of the 3 units "and the rest labor", then the labor wouldn't be incidental to the purchasing of supplies, and if performed on Government property would have to be covered by either DBA or SCA. Since it's not a building or public work, then it would not be DBA. The definition of 23410 HEATING, VENTILATION, AND AIR-CONDITIONING MECHANIC, in the SCA DIRECTORY OF OCCUPATIONS reads: "The Heating, Ventilation, and Air-Conditioning Mechanic installs, services and repairs environmental-control systems..." So I would say the installation would be considered service work covered by SCA.

I think Vern is correct that this might be classified as a supply contract.

Here are some reasons why the contract classification and work classifications are confusing here. Even if it is a supply contract. I think that a firm that does business as a dealer/installer/construction company would likely be the Contractor and will supply and install the new equipment. A manufacturer generally won't contract to supply and install three residential A/C Systems and be responsible for warranties, workmanship, etc. Its authorized dealers provide and perform all of those functions that we would contract for. The question to me would be "Is this a public building or public work or is it not for purposes of application of the DBA?"

1. What constitutes "construction" as a type of acquisition (e.g., a constructon contract or construction as an activity within a broader scope of work) from the definition of "construction" in FAR 2.101 (emphasis added):

“ 'Construction' means construction, alteration, or repair (including dredging, excavating, and painting) of buildings, structures, or other real property. For purposes of this definition, the terms “buildings, structures, or other real property” include, but are not limited to, improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, cemeteries, pumping stations, railways, airport facilities, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, and channels..."

2. BUT - a relocatable building is classified as personal property under (at least) DoD and the individual services' regulations. For Army, see AR 420-1, Chapter 6, Section IV. Note that exterior utilities, permanent foundations and other supporting work for the relocatable may be classified as real property. We don't know if this is a DoD storage facility. But I bet that there is some consistency within many of the federal government agencies.

3. Now, continue reading the definition of construction in FAR 2.101. It excludes repairs to personal property from the definition of "construction" contracting:

Construction does not include the manufacture, production, furnishing, construction, alteration, repair, processing, or assembling of vessels, aircraft, or other kinds of personal property (except that for use in Subpart 22.5, see definition at 22.502).

4. The DoD and the Services classify replacement of a failed air conditioning system in a building that is real property as "repair" as distinct from "construction" for reasons other than contracting under FAR. Due to various statutory, regulatory, and administrative restrictions on types and sources of funding, "a clear distinction must be made between maintenance, repair, and construction work". As stated above, both repairs and construction related to real property would normally be classified as construction for purposes of contracting under FAR. For Army, see the classification and discussion of "repairs" to facilities under Army Pamphlet 420-11, "Project Definition and Work Classification" at http://www.apd.army.mil/jw2/xmldemo/p420_11/head.asp

"1-6. Definitions

a. Repair. Repair means "to restore a real property facility, system or component to such a condition that it may effectively used for its designated functional purpose."

(1) When repairing a facility, the components of the facility may be repaired by replacement, and the replacement can be up to current standards or codes. For example, heating, ventilation, and air conditioning (HVAC) equipment can be repaired by replacement, can be state-of-the-art, and provide for more capacity than the original unit due to increased demand/standards. Interior rearrangements (except for load-bearing walls) and restoration of an existing facility to allow for effective use of existing space or to meet current building code requirements (for example, accessibility, health, safety, or environmental) may be included as repair.

(2) Correction of deficiencies in failed or failing components of existing facilities or systems to meet current Army standards and codes where such work, for reasons of economy, should be done concurrently with restoration of failed or failing components. When the facility is in an overall failing condition corrective work may involve increases in quantities or capacities and inclusion of systems or components not previously present in the facility. "

5. So, I think that replacing failed A/C systems in personal property could (should?) be performed under a supply contract, bearing in mind that there will be significant associated installation work performed by trades persons that resembles construction or repairs of air conditioning systems for real property buildings.

7. So -unless somebody can define what a "public building" or "Public Work" is, I think that one ought to check with the DOL to see if the DBA applies to the installation effort. I haven't been able to find the definitions yet. Can someone point me to the definition? Thanks.

This is what we came up with as well. To answer the questions people had, in no particular order, we are DoD and treat it like Joel said, personal property. The modular building is used as a supply wharehouse. it is treated by civil engineering as personal property and they won't touch it, (even though it is assigned a builiding number). To the person who replied that I should read his post, I did, and this work is not a repair of real property or public facility; it is classified as personal property as I said. The modular trailer was bought about 12 years ago under GSA contract. Guess it was a way to beat the system by obtaining warehouse space w/o real property. In retrospect it probably wasn't proper at the time but someone probably won an award for it or at least was a bullet on their performance report.

Turns out the IGE was way off and not that much labor was really involved. Had to run new refrigerant lines but electrical was already there and sheet metal was really not needed as they just needed to hook up to exisiting ducts. Was done as supply w/installation. Local HVAC firms, same ones that would work on your home systems, were the potential sources. Since it's now below $25K, we're just getting local SBs to provide lump sum quote to provide and install.

Thanks for the responses. My main concern was the construction aspect and D-B applicability. Even though the engineers classified as personal property, I wasn't convinnced that it still wasn't construction as the engineers are quick to make any determination that reduces their involvment or amount of effort on their part. The IGE was based on someone in engineering using RS Means but wasn't really appropriate for the actual requirements based on configuration. So, it is not awarded yet, but the way ahead is very simple.

I disagree with Vern's assertion that a "building or work" cannot be a "thing". The definition of "building or work" lists what the terms include and they are all things. Further, the use of "building or work" in some instances in the FAR cannot reasonably be interpreted as the activity of "building or work". For example, the definition of "construction, alteration, or repair" at FAR 22.401 states:

“Construction, alteration, or repair” means all types of work done by laborers and mechanics employed by the construction contractor or construction subcontractor on a particular building or work at the site thereof, including without limitations—

(1) Altering, remodeling, installation (if appropriate) on the site of the work of items fabricated off-site;

(2) Painting and decorating;

(3) Manufacturing or furnishing of materials, articles, supplies, or equipment on the site of the building or work;

(4) Transportation of materials and supplies between the site of the work within the meaning of paragraphs (1)(i) and (ii) of the “site of the work” definition of this section, and a facility which is dedicated to the construction of the building or work and is deemed part of the site of the work within the meaning of paragraph (2) of the “site of work” definition of this section; and

(5) Transportation of portions of the building or work between a secondary site where a significant portion of the building or work is constructed, which is part of the “site of the work” definition in paragraph (1)(ii) of this section, and the physical place or places where the building or work will remain (paragraph (1)(i) in the “site of the work” definition of this section).

From the definition of "site of work" at FAR 52.222-6(a)(1):

(ii) The secondary site of the work, if any. Any other site where a significant portion of the building or work is constructed, provided that such site is—

From FAR 52.222-6( b )--

Laborers employed by the construction Contractor or construction subcontractor that are transporting portions of the building or work between the secondary site of the work and the primary site of the work shall be paid in accordance with the wage determination applicable to the primary site of the work.

From FAR 25.003--

“Construction material” means an article, material, or supply brought to the construction site by a contractor or subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies, not construction material.

Lastly, from FAR 23.206(d)

Unless exempt pursuant to 23.204, insert the clause at 52.223-15, Energy Efficiency in Energy-Consuming Products, in solicitations and contracts when energy-consuming products listed in the ENERGY STAR® Program or FEMP will be—

[...]

(d) Specified in the design of a building or work, or incorporated during its construction, renovation, or maintenance.

I agree with Vern that replacement of the air conditioning system would be an acquisition of "supplies" as that term is defined at FAR 2.101. However, that is not conclusive as to the applicability of the Davis-Bacon Act. I think that a CO should consider the DoL guidance that Carl posted (see post #24 above) and make a judgment call.

To clarify somewhat, there are differences between prefab, modular buildings. Those which are simply trucked in and set up on their wheels or jacked up on simple precast piers or concrete blocks and hooked up to utility lines are trailers and remain trailers because they are not permanent construction. Then there is "permanent modular construction where the modules are shipped in and mounted on permanent - usually perimeter type - foundations. There are some other distinctions too but I don't have access to those today. Those are not personal property. Other prefab permanent modular construction includes things such as trusses, wall sections and stacked modules, which all become parts of a permanent building.

Don, please don't rely solely on Carl's extract from the DBA guidebook. It was taken out of the full context of the discussion. I think that it was referring to a supply type repair or installation to real property not to personal property. And the first part of construction definition at FAR 2.101links public buildings, public works OR OTHER real property together as ALL things which are real property. The DBA only applies to public buildings or works, which I think would be considered real property. I don't think that a temporarily placed trailer is real property. They are not considered to be real property or a permanent improvement in Alabama or other states that I lived in. They are taxed as personal property.

Of course all of this is conjecture without some specific written policy or guidance from the agency that makes the decisions concerning the DBA - the Department of labor. As the guidebook states, each project stands on its own according to the circumstances.

Don wrote:

I disagree with Vern's assertion that a "building or work" cannot be a "thing".

I had to read my posts two or three times to verify that I never said any such thing as "A building or work cannot be a thing." What I did say was that FAR does not define them as things.

Here is the first sentence of the definition of "building or work" as it appears in FAR 2.101:

“Building or work” means construction activity as distinguished from manufacturing, furnishing of materials, or servicing and maintenance work.

Note that the words are "building" and "work", both in the singular, and that both words can be understood to refer to the activities of building something and working on something. The clincher for me is that FAR EXPRESSLY states that the words building and work refer to a kind of activity -- construction.

The second sentence says:

The terms include, without limitation, buildings, structures, and improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, dredging, shoring, rehabilitation and reactivation of plants, scaffolding, drilling, blasting, excavating, clearing, and landscaping.

Note that the sentence lists both nouns ("buildings, structures, and improvements of all types...") etc., and verbals ("dredging, shoring, rehabilitation and reactivation... drilling, blasting... ") etc.

The third sentence says:

The manufacture or furnishing of materials, articles, supplies, or equipment (whether or not a Federal or State agency acquires title to such materials, articles, supplies, or equipment during the course of the manufacture or furnishing, or owns the materials from which they are manufactured or furnished) is not “building” or “work” within the meaning of this definition unless conducted in connection with and at the site of such building or work as is described in the foregoing sentence, or under the United States Housing Act of 1937 and the Housing Act of 1949 in the construction or development of the project.

In short, some kinds of activities, like manufacturing, are not "building" and "work" as defined by FAR.

Don believes that the words "building" and "work" refer to things. I say that FAR EXPRESSLY says that the words refer to activities with respect to various kinds of things. I did not say that the words "building" and "work" cannot refer to things (and I'm sure that they do in some contexts), but that FAR 2.101, which Don brought to our attention, expressly defines them as "construction activity." That is simply undeniable.

And that's all I've got to say about that.

In post #26 Vern wrote "First, a building or work is a “construction activity,” not a thing." That's what I was responding to.

Further, I don't think that Vern's interpretation of the definition of "building or work" at FAR 2.101 is in harmony with how that term is used, in some places, in the FAR. If we are always to interpret the term as the act of constructing something, then there would be illogical consequences. My post #32 cites examples within the FAR of a building or work "being constructed" or transporting portions of "buildings or works" from one place to another. We cannot reasonably interpret the term to mean the act of construction in these instances.

In post #26 Vern wrote "First, a building or work is a “construction activity,” not a thing." That's what I was responding to.

Further, I don't think that Vern's interpretation of the definition of "building or work" at FAR 2.101 is in harmony with how that term is used, in some places, in the FAR. If we are always to interpret the term as the act of constructing something, then there would be illogical consequences. My post #32 cites examples within the FAR of a building or work "being constructed" or transporting portions of "buildings or works" from one place to another. We cannot reasonably interpret the term to mean the act of construction in these instances.

Why not? Transporting materials or assemblies within the site of the work between adjacent storage areas or fab shops and the immediate building or construction site or transporting materials or assemblies from a secondary site that meets the definition of a secondary site of the work (e.g., an off-site fab shop set up specicially for the project off base to avoid base security restrictions or other on-base inefficiencies and government delays) to the building site is certainly part of the construction activity. Transporting fill material between the borrow area to the site is certainly part of the construction activity. DOL does make certain distinctions about when DBA applies to truckers or transportation of materials from suppliers but that isnt what was being described above.

So the AC in the OP’s storage unit doesn’t work and his outfit wants to replace it. The work has been estimated to cost about $45,000.

Here is the original question:

In other words, should the replacement be a supply contract or a construction contract?

Now look at the definition of “building or work” that Don provided from FAR 2.101. It’s only three sentences long. First, a building or work is a “construction activity,” not a thing. Specifically, its construction activity that relates to a list of things as diverse as lighthouses and buoys (??? do you “construct” buoys???).

Now look at the first sentence of the definition of “construction” as defined in FAR 2.101:

Emphasis added. So, what’s the definition of construction in FAR 22.502?

Emphasis added. Now look at the definition of supplies from FAR 2.101:

Emphasis added.

Hmmm, my real property people say that the manufactured storage (facility, structure, unit, building, shed, etc., whatever) is not real property. Black’s Law Dictionary 9th ed. defines real property as follows:

Emphasis added.

The OP said that the storage thingy has no foundation (Post #3), so it is not attached to the land and presumably can be removed without injury to the land. Bottom line -- it’s personal property. Well, then, doing something to it cannot be construction according to the definition in FAR 2.101, which means that doing something to it cannot be a “construction activity” as used in the definition of “building or work,” which means that doing something to it is not a “building or work.”

Now, let me think, what would be easier to award and administer – a $45,000 construction contract or a $45,000 supply contract? Would classifying the acquisition as for supplies be clearly wrong? Not to my mind. In fact, it appears that calling it construction would be clearly wrong.

If I’m in charge of that contracting office I know what I’d do. I’d proceed with an acquisition of commercial items in a quick minute and with no doubts or regrets, unless someone showed me something quite specific and persuasive to the effect that DOL has already found that kind of project to be subject to Davis-Bacon.

Could I be wrong? Sure, I've been in this business long enough to know that things are complicated. But I'm not wrong until someone proves it.

Thank you Vern. That is a well thought out and complete breakdown of real property.

Why not? Transporting materials or assemblies within the site of the work between adjacent storage areas or fab shops and the immediate building or construction site or transporting materials or assemblies from a secondary site that meets the definition of a secondary site of the work (e.g., an off-site fab shop set up specicially for the project off base to avoid base security restrictions or other on-base inefficiencies and government delays) to the building site is certainly part of the construction activity. Transporting fill material between the borrow area to the site is certainly part of the construction activity. DOL does make certain distinctions about when DBA applies to truckers or transportation of materials from suppliers but that isnt what was being described above.

i would add that pieces could be built off site and if later assembled into real property it defiitely is all considered "construction" and subject to FAR 36. But in my case it is personal property and not real property so it is not relevant in this particular instance.

i would add that pieces could be built off site and if later assembled into real property it defiitely is all considered "construction" and subject to FAR 36. But in my case it is personal property and not real property so it is not relevant in this particular instance.

i agree, Regor and I agree with your approach. I thought that $30k for replacing 3 residential split A/C units seemed a bit high depending upon how much of the original equipment must be replaced and the locale in addition, the government pucker factor has to be considered.

...Joel, you're right about the government estimate. Thanks. But I want to discourage you from calling the wage and hour division. You might put the OP in a bad spot. Let him do that if he wants to. It's not really your business. Besides, why should we be persuaded by an informal discussion with who knows who at wage and hour?

Vern, I didn't call DOL. but if I had called WHD, I would have asked for a written policy source on whether or not repairs to relocatable buildings that are classified as personal property (not permanent modular construction) are subject to the DBA under a supply contract. I'm kind of surprised that no one here piped in because the Army bought millions of square feet of these relocatables during the early stages of Army Transformation Program in the 2006-2008 timeframe. This approach was controversial and was scrutinized by Congress, the GAO and some IG organization, as I recall.

At any rate, the research effort here was an interesting endeavor for my dog and me.

Surely someone has made repairs to these relocatables during their usage.

My bet is that the treatment has been inconsistent. Some have handled it as construction and some have handled it as supplies not subject to the DBA.

When I ran an Air Force base procurement office, this kind of question came up occasionally. Is it supples with installation, services, or construction? In those days there was no internet and we couldn't do the kind of research and "harmonizing" that we can today. The boss (me) made a decision, usually favoring the easiest way, and got on with it. Just like Regor. If somebody official came along later and said we were wrong, we'd look surprised and say, "No $%@* !?"

But you gotta love the definition of "building and work". It is now my favorite goofy FAR definition. We should make a list.

My final thoughts....

I appreciate all the comments and it has helped my view.

One missing link that leaves me curious based on experience of dealing with labor issues and the DOL (and that I mentioned in my first post) is the view of organized labor if prevailing rates in the area are based on organized labor, orgainzed labors view of where the work would fall and how organized labor's view would impact how the DOL might view whether the work is subject to Davis Bacon, SCA or neither. Important? Who knows.

I do question any reliance on the FAR definition found in Part 2 with regard to the issue of application of D-B. All defnintions would be those that are found in FAR Part 22 or FAR Part 22's underlying CFR. As such here are a couple of quotes from 29 CFR 5.2.

"(i) The terms building or work generally include construction activity as distinguished from manufacturing, furnishing of materials, or servicing and maintenance work. The terms include without limitation, buildings, structures, and improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, dredging, shoring, rehabilitation and reactivation of plants, scaffolding, drilling, blasting, excavating, clearing, and landscaping. The manufacture or furnishing of materials, articles, supplies or equipment (whether or not a Federal or State agency acquires title to such materials, articles, supplies, or equipment during the course of the manufacture or furnishing, or owns the materials from which they are manufactured or furnished) is not a building or work within the meaning of the regulations in this part unless conducted in connection with and at the site of such a building or work as is described in the foregoing sentence, or under the United States Housing Act of 1937 and the Housing Act of 1949 in the construction or development of the project.

(j) The terms construction, prosecution, completion, or repair mean the following:

(1) All types of work done on a particular building or work at the site thereof, including work at a facility which is deemed a part of the site of the work within the meaning of (paragraph (l) of this section by laborers and mechanics employed by a construction contractor or construction subcontractor (or, under the United States Housing Act of 1937; the Housing Act of 1949; and the Native American Housing Assistance and Self-Determination Act of 1996, all work done in the construction or development of the project), including without limitation—

(i) Altering, remodeling, installation (where appropriate) on the site of the work of items fabricated off-site;

(ii) Painting and decorating;

(iii) Manufacturing or furnishing of materials, articles, supplies or equipment on the site of the building or work (or, under the United States Housing Act of 1937; the Housing Act of 1949; and the Native American Housing Assistance and Self-Determination Act of 1996 in the construction or development of the project);

(iv)(A) Transportation between the site of the work within the meaning of paragraph (l)(1) of this section and a facility which is dedicated to the construction of the building or work and deemed a part of the site of the work within the meaning of paragraph (l)(2) of this section; and

( Transportation of portion(s) of the building or work between a site where a significant portion of such building or work is constructed, which is a part of the site of the work within the meaning of paragraph (l)(1) of this section, and the physical place or places where the building or work will remain."

and.....

"(k) The term public building or public work includes building or work, the construction, prosecution, completion, or repair of which, as defined above, is carried on directly by authority of or with funds of a Federal agency to serve the interest of the general public regardless of whether title thereof is in a Federal agency."

Interesting absence of "personal" and "real".

In the end it is DOL's enforcement issue and while Regor has done due diligence to determine what is applicable in the end Regor should not be surprised if during a DOL review for whatever reason that D-B might be found applicable.

Yeah, we get it, Carl. You think that DBA applies. You may be right.

Regor should be surprised if he hears from DOL on a $45,000 procurement. If he does, it is likely to be waaay after the job is done, and if they say that he should have applied DB, he should say, "No $%@* !? Well, write me up."

In response to the Senate Committee on Armed Services direction In Senate Report 110-77 to GAO to review the subject of management and oversight of relocatable facilities, here is the Report number 09-585, dated June 2009, entitled "DOD Needs to Improve Oversght of Relocable Facilities and Develop a Strategy for Managing Their Use Across the Military Services". Because they are personal property, it seems that DoD had no idea how many there where or where they were. Some Installations either didnt know how many they have or incorrectly reported the numbers to OSD in preparation for the GAO report. Very interesting report. Several Congressional Committees had expressed interest and concern over the vast numbers of these trailers and other types of relocatables and what the Services were going to do with them. Installations that had no further use for them didnt share the inventory information with OSD. As a result, we now have the 21st Century version of WWII temporary facilities that may well be around for decades. All the Services have some with Army and Marine Corps having the most.

See the report at: http://www.gao.gov/assets/300/290862.pdf

Why not? Transporting materials or assemblies within the site of the work between adjacent storage areas or fab shops and the immediate building or construction site or transporting materials or assemblies from a secondary site that meets the definition of a secondary site of the work (e.g., an off-site fab shop set up specicially for the project off base to avoid base security restrictions or other on-base inefficiencies and government delays) to the building site is certainly part of the construction activity. Transporting fill material between the borrow area to the site is certainly part of the construction activity. DOL does make certain distinctions about when DBA applies to truckers or transportation of materials from suppliers but that isnt what was being described above.

joel,

I wasn't trying to say that those activities are not construction activities. I was trying to point out that when the FAR uses the term "building or work" in a sentence like this:

"Transportation of portions of the building or work between a secondary site where a significant portion of the building or work is constructed..."

the term is referring to a tangible thing rather than an activity.

I agree -- when FAR uses them in a sentence like that. In such a case the "context" rule in FAR 2.101(a)(1) kicks in, and the definition of "building or work" in FAR 2.101( b ) -- which says that "building or work" means "construction activity" as opposed to other kinds of activities -- does not apply.

So why did you quote the definition in FR 2.101( b ) in Post #21?

I agree -- when FAR uses them in a sentence like that. In such a case the "context" rule in FAR 2.101(a)(1) kicks in, and the definition of "building or work" in FAR 2.101( b ) -- which says that "building or work" means "construction activity" as opposed to other kinds of activities -- does not apply.

So why did you quote the definition in FR 2.101( b ) in Post #21?

I don't agree with that. The second sentence of the definition says the term includes, without limitation, a list of both things and activities. No need to invoke the context rule.

I quoted the definition in FAR 2.101 because in post #20 joel said he didn't have a regulatory or statutory definition of "public building or public work", so I was helping him out.

Actually, the FAR just quotes the definition that originated in 29 CFR many years ago.

I hope you know that the point that I am making is that the definition is lousy. You can say all you want that the definition says that buildings and works are things, but the fact is that it doesn't. It refers to things in the second sentence, but it also refers to activities, and in the third sentence it makes a distinction between one set of activities and another. You are interpreting it to refer to things, and while I think that's what the definition writers meant, that's not what they said. I won't let the definition writers off the hook, and as a professor, you shouldn't either. We should give them as much trouble as we can. When they start a definition with a sentence as clear and as strange as the one they have written, they deserve all the trouble we can give them. I'm done arguing with you about it. We've beaten it to death. I won't concede anything, and neither will you, and I'm content to leave it at that.

Frankly, I love that definition, and I think it's a great teaching tool.

Vern - I know you are done but I have to clarify something important with regard to your post #43.

DOL won't care what Regor thought and I would bet DOL would say not one dang thing to Regor. What would actually happen, again by experience, is DOL would tell the contractor what the classifications should be, or have been, and require the contractor to pay any additional amounts due the employees, as applicable.

Even if you may think the value is too small for DOL to worry about stranger things have happened especially when a employee files a complaint with DOL regarding proper classification, D-B or SCA, and wages. Again by experience. Bottom line Joel was on track with regard to conversing with DOL but I would offer that the contractor might in fact be the one to do so as in the end the contractor will be the one held responsible.

Carl:

Okay.

Actually, the FAR just quotes the definition that originated in 29 CFR many years ago.

I hope you know that the point that I am making is that the definition is lousy. You can say all you want that the definition says that buildings and works are things, but the fact is that it doesn't. It refers to things in the second sentence, but it also refers to activities, and in the third sentence it makes a distinction between one set of activities and another. You are interpreting it to refer to things, and while I think that's what the definition writers meant, that's not what they said. I won't let the definition writers off the hook, and as a professor, you shouldn't either. We should give them as much trouble as we can. When they start a definition with a sentence as clear and as strange as the one they have written, they deserve all the trouble we can give them. I'm done arguing with you about it. We've beaten it to death. I won't concede anything, and neither will you, and I'm content to leave it at that.

Frankly, I love that definition, and I think it's a great teaching tool.

There are several aspects related to construction contracting that are out of date in the FAR and/or federal stautes. Many of the rules and definitions seem to date or originate back in the old DoD or Corps of Engineer construction regulations of decades ago.

Gone are the days where many or most general contractors own a lot of capital construction equipment. Rental equipment is prevalent now. Many don't self-perform a significant amount of general construction. This requires significant investment in permanent mangement staff and management systems. Many construction company headquarters are located in office suites vs. traditional true home office complexes with yards, equipment and tool shops and inventories.

Construction management firms are becoming common. These type firms often don't self-perform any construction. They hire subs to do all the work, so often can't meet the self-performance requirements or come up with "novel ways" to meet the minimums. Their management control and effectiveness is often less than the tradional firms thast have a heavy personal interest and manage risk in the schedule and quality of the construction. Safety often suffers from this dimished hands on approach.

The contract clause 52.236-1 Performance of Work by the Contractor only credits self-performed work performed "on the site". There is no consideration for off-site fabrication shops or pre-fabbed construction assembled at the home office or a permanent, modular factory.

Permanent modular construction and pre-fabricated assemblies are now becoming common types of construction and the labor regulations sometimes don't keep up.

As stated here, the definition of public works and public buildings is obsolete and leaves many questions unanswered. Permanent and relocable modular construction and pre-fabricated assemblies are now becoming common types of construction. The Government doesn't even track how many relocatable structures it owns, where they are or have clear rules on how to fix them.

I know this will do nothing to convince Vern, but I asked someone on the FAR Team responsible for Labor Law if they thought a mobile storage unit (as described by the OP) was a public work for purposes of the Wage Rate Requirements (Construction) statute. This was the response I received:

In reviewing your question and without knowing the history, I would say the mobile storage facility is considered a public building/work.

Don,

In your question, were you abundantly clear that the storage unit is not bolted to a foundation or otherwise fastened to the ground? Any ambiguity on that matter could have led to an assumption on the part of your correspondent, which assumption would have led to the answer he or she gave.

As I recall, the original poster said it was not bolted to a foundation, but I don't recall him or her going so far as to say whether the unit was still on wheels or on a skid, for example.

ji20874,

No, I didn't specify. This was what I wrote:

Would a mobile storage facility (think mobile home but bigger) owned by the Government be considered a public building or public work? Assume the item is accounted for as personal property as opposed to real property.

Don:

It would convince me if the assertion that a mobile storage unit is a public work/building were accompanied by a convincing argument: major premise, minor premise, and conclusion. No argument, no convincement.

In these kinds of discussions I don't care what answer is right. I care about the argument. To show you just how unconvincing your correspondent is, you asked about a "mobile" unit and he/she answered without even asking you if the thing was on wheels and attached to a pickup (like one I saw on the ranch last weekend) or resting on the ground without wheels.