Emergency Sections An agency may adopt a new or amended section or repeal an existing section on an emergency basis if it determines that such action is necessary for the public health, safety, or welfare of this state. The section may become effective immediately upon filing with the Texas Register, or on a stated date less than 20 days after filing, for no more than 120 days. The emergency action is renewable once for no more than 60 days. Symbology in amended emergency sections. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part VI. Texas Department of Criminal Justice Chapter 155. Reports and Information Gathering Subchapter A. Construction Matters Procedures for Determination of Prevailing Wages 37 TAC sec.155.1 The Texas Department of Criminal Justice adopts on an emergency basis new sec.155.1, concerning Procedures for the Determination of Prevailing Wage Rates. The amendment is adopted on an emergency basis to bring the department's internal wage setting procedures into conformity with the practices of the General Services Commission quickly enough to accommodate the department's construction schedules. Delay in the department's construction schedules would imperil the public welfare, given the size of the sate-wide felony backlog and the impending fines in Alberti. et. al v Sheriff of Harris County, et. al. CA H- 72-1094 (United States District Court for the Southern District of Texas, Houston Division.) The new section is adopted on an emergency basis under Texas Civil Statutes, Article 5159a, which impose a duty on the Texas Department of Criminal Justice to set wage rates for state construction projects, and under the Texas Government Code, sec.492.013, which confers authority of the Board of Criminal Justice to adopt rules for the operation of the department. sec.155.1. Procedures to Determine Prevailing Wage Rates (a) Requirements. The specifications and the contract for each construction project (Project) administered by the Department's Contract Construction Division (Division) shall include a schedule of wages (Prevailing Wage Rates) to be paid on the Project. The Prevailing Wage Rates determined by the Division shall be final and will not be changed except as hereinafter provided. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the contents clearly indicates otherwise. (1) Prevailing wage rates-Wages ascertained by the Division as prevailing in the locality of the Project for each craft or type of worker needed to execute the contract. It is mandatory that the contractor to whom the contract is awarded, and any subcontractor under such contractor, pay not less than the wages specified by the Prevailing Wage Rates in the execution of the contract. (2) Wages-The basic hourly rate of pay plus payments made to or on behalf of employees for health insurance, pension plans, death benefits, workers' compensation insurance, unemployment benefits, and vacation pay. (c) Data Gathering Procedures. (1) The Division shall conduct a survey of contractors, labor organizations, and other interested parties in the locality in which the Project is performed to determine the wages paid to various classifications of workers and the number of workers receiving such wages. (2) If information is presented to the Division and the Division determines that a survey for a particular locality is not sufficiently representative due to the lack of construction projects of comparable size in that locality or, in the sole judgment of the Division, the survey data is otherwise insufficient, the Division may extend the area of a survey to contiguous counties. If the data is still insufficient, the Division may survey the uniform service region established under Chapter 19, Article V, Rider 120 to the Appropriations Act, 72nd Legislature, First Called Session, (1991), in which the county of the Project is located. (3) To support primary survey data or as a data source when surveys are impractical, the Division may include data from the following: (A) other public contracting authorities constructing, planning to construct, or having recently constructed projects in the locality; (B) the U.S. Division of Labor Wage Determinations; (C) labor and construction related organizations which publish wage rates. (D) relevant data from entities issuing building permits in the locality when such data is beneficial in confirming prevailing rates. (4) The survey procedure is as follows. (A) The Division will prepare master lists of contractors doing business in the locality of Project. (B) The master lists shall be compiled from sources available to the Division including, but not limited to: (i) yellow pages of the telephone book in the locality; (ii) contractor associations and labor organizations which maintain an office in the locality being surveyed; (iii) such other source that will provide the most complete list of all contractors doing business in the locality. If no office is maintained by a contractor association or labor organization in the locality, the Division may contact statewide organizations for names of additional contractors in the locality. (C) Master lists shall be as complete as possible but may exclude those contractors whose contribution to the local work force is deemed negligible by the Division. (D) Master lists will contain the following categories: (i) general and building contractors; (ii) site work, paving, grading, excavation contractors; (iii) utility (water, gas, sewer utilities) contractors; (iv) plumbing (building systems) contractors; (v) mechanical (HVAC) contractors; (vi) electrical contractors; (vii) roofing contractors; (viii) painting contractors; (ix) other contractors as applicable to specific projects or localities. (E) Contractors within the listed categories will not be classified as to size of operation. Whether a contractor confines its operations to projects of a particular type or size (residential, commercial, industrial, etc.) will be considered when it is apparent that such specialization is common in the locality and is reflected in the wages prevailing therein. (F) The Division will attempt to contact each contractor and labor organization on the master list to obtain wages being paid and an estimate of the contractor's work force. Contact will be by mail or personal interview using a standard questionnaire devised by the Division. Wage rates established by signed collective bargaining agreements for construction projects within the locality shall be considered in determining Prevailing Wage Rates. (G) Surveys will be conducted in a timely manner for the locality in which a construction project is scheduled to assure that the Prevailing Wage Rates included in the Division's project manual for the Project are accurate. Such survey will be completed within a six-month period prior to publication of the project manual for a particular project. (H) After questionnaires are mailed, the Division of will allow 30 days for responses. All data received up to that time will be compiled and a Prevailing Wage Rate determined. (d) Ascertaining Prevailing Wage Rates. (1) Data from the wage rate questionnaires will be compiled and analyzed to determine the prevailing wage rates being paid for the various classifications of labor. Criteria used to determine the Prevailing Wage Rates will include: (A) when 50% or more of workers within a given classification are all reported to have received the exact same wages, that rate will be considered as prevailing for that classification; (B) when more than 50% of workers within a given classification are all reported to have received wages within $1.00 of each other, the weighted average rate will be considered as prevailing. The term "weighted average rate" means the wage rate for a given classification produced by multiplying each rate reported times the number of employees receiving that rate, and dividing the cumulative products by the total number of workers reported for that classification; (C) when a prevailing wage rate cannot be determined by either subparagraph (A) or (B) of this paragraph, the weighted average of all reported wages within a given classification will be considered as prevailing. (2) The project schedule of Prevailing Wage Rates will be determined in accordance with the procedures of subsection (a) of this section, provided that if federal funds are to be used in any aspect of a particular construction project, the wage rates determined by the U.S. Department of Labor shall be used for the entire project. (e) Use of Determination. (1) The Prevailing Wage Rates determined for a construction project shall be included in the project manual for that particular project. (2) Following determination of the Prevailing Wage Rates for a particular project, such Prevailing Wage Rates will not be changed unless: (A) it is necessary to add omitted wage rates; or (B) if prior to bid date for that project, substantial evidence is presented to the Division that the survey data on which determination was based does not reflect actual prevailing wages in the relevant labor market in the locality. (f) Protests. The Division will respond to any person who protests a wage rate determination prior to the date bids are received for that project, provided: (1) protest is made in writing listing the rate(s) which is believed to be in error, reasons why the rate(s) is believed incorrect, and the person's name. If the protester is representing an aggrieved person, then that interest must be disclosed and the aggrieved person named; (2) upon receipt of a protest, staff personnel of the Division will review its determination, ascertain whether an error has been made, and report to the protesting person what action, if any, is to be taken. (3) in the event the staff report is not found satisfactory, the protesting person may request that the matter be subjected to review by the Construction Committee of the Texas Board of Criminal Justice, the findings of which shall be final. Issued in Austin, Texas, on November 18, 1992. TRD-9215495 Jackee Cox General Counsel Texas Department of Criminal Justice Effective date: November 18, 1992 Expiration date: February 16, 1993 For further information, please call: (512) 463-9988