- Request Procedures And Relevant Time Frames

The following information on section 4(c) appeals discusses the use of the ALJ and the ARB hearing processes to adjudicate "substantial variance" or "arm's-length negotiations" issues.

"Substantial Variance" Hearing and "Arm's-Length" Determination Requests

Either request can be submitted by any affected interested party, including, but not limited to, contracting agencies, incumbent contractors, prospective contractors, contractor and employer associations, employees or their representatives, or other interested government agencies. The interested party submits a written request for the "substantial variance" hearing or "arm's-length" determination to the WHD Administrator.

The request must contain information as specified in the regulations at 29 C.F.R. § 4.10(b)(1)(i) for "substantial variance" proceedings, and at 29 C.F.R. § 4.11(b)(1) for "arm's-length" determinations, including the following information:

  1. The number of all wage determinations at issue, name of the contracting agency involved, and a brief description of the services to be performed under the contract ("substantial variance" request only).
  2. A statement regarding the status of the procurement and any estimated procurement dates, such as bid opening, contract award, or commencement date of the contract or its follow-up option period.
  3. That the applicable CBA wage rates and fringe benefits contained therein were not reached as a result of "arm's-length negotiations," or that the CBA rates substantially vary from those prevailing in the locality.

    (Note: Supportive evidence such as data concerning wages and/or fringe benefits prevailing in the locality or information concerning "arm's-length negotia-tions" should be included. If the only information submitted concerning a "substantial variance" of fringe benefits is an SCA wage determination, it is insufficient, and the party requesting the hearing will be so advised.)

  4. Names and addresses (to the extent known) of any interested parties.

For either type of request, information must be submitted as follows (according to 29 C.F.R. § 4.10(b)(3) for "substantial variance" hearing requests; and 29 C.F.R. § 4.11(b)(2) for "arm's-length" determinations):

  1. Prior to 10 days before contract award of an advertised contract; or
  2. Prior to the contract or option period start date, if a negotiated contract, or existing contract with an option extension period.

Administrator's "Arm's-Length" Ruling

  1. The WHD Administrator, on his or her own motion or after receipt of a request for a determination, may make a finding on the issue of arm's-length negotiations
  2. For "arm's-length" determination requests, the WHD Administrator issues findings as to whether the wages and fringe benefits at issue were reached as a result of "arm's-length negotiations" or that such negotiations did not take place, or a finding that there is insufficient evidence to make a determination, and the Administrator may refer the case to an ALJ hearing.
  3. If the Administrator determines that there may not have been arm's-length negotiations, but finds that there is insufficient evidence to render a final decision, the Administrator may refer the case to an ALJ hearing.
  4. The regulations do not state a required response time frame for the Administrator's decision.

"Arm's-Length" Hearing Requests

For those cases not referred by the WHD Administrator for a hearing before an ALJ, any interested party may subsequently request a hearing, as follows:

  1. Submit a written request for a hearing to the Administrator within 20 days of the Administrator's ruling.
  2. Include in the request a detailed statement of the following:
    1. Reasons why the Administrator's finding is incorrect.
    2. Facts alleged to be disputed.

If no hearing is requested within the time limit, the Administrator's ruling stands.

If an arm's-length hearing is requested, the Administrator refers the request:

  1. If the Administrator finds facts to be in dispute, to the Chief ALJ for designation of an ALJ to conduct a hearing, or
  2. To the ARB if the Administrator determines that no material facts are in dispute.

ALJ Hearing Granted

  1. Once a hearing is granted by the Administrator, an Order of Reference, with supporting documentation attached, is submitted by the Administrator to the Chief ALJ and served on all interested parties. Hearings are conducted by a designated ALJ in accordance with procedures outlined in 29 C.F.R. Part 6.
  2. Within 20 days of the Order of Reference mailing date as indicated by the Certificate of Service, interested parties wishing to participate in the hearing must submit a hearing response to the Chief ALJ. The Chief ALJ appoints an ALJ to hear the case who will then notify all interested parties of the time and place for the prehearing conference and subsequent hearing. These must be scheduled within 60 days from the mailing date of the Order of Reference.
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