May 31, 2009
New Jersey design professionals that do public work need to be aware that a long time practice of theirs concerning the inclusion of hard copies of prevailing wage determinations in their project specifications may no longer be advisable. As you are aware, New Jersey law requires the payment of prevailing wages on public projects. Accordingly, design professionals always include provisions in their specifications regarding the need for contractors to comply with the law in this regard. However, many design professionals do not include an actual hard copy of the actual prevailing wage determination obtained from the Department of Labor in their bid documents. Instead, they incorporate the relevant prevailing wage determination by reference, or file it with the public body, and then require the contractor to verify the prevailing wage with the Department of Labor before bidding the job or commencing work.
Recently, this office obtained a favorable trial court verdict for an engineer in a case which involved, in part, the duty of a mechanical engineer to include a hard copy of a prevailing wage determination in their project bid specifications. While that favorable verdict made it clear that any failure on the part of the engineer to do so was not the proximate cause of the damages complained of by the Plaintiff contractor, the trial court made the following finding of fact on that issue:
The Court does not consider the testimony of the experts on the issue of whether a design professional, acting on behalf of a public entity, must physically include the NJDOL’s prevailing wage determination in its specification, where the specification includes the contract that will bind the selected contractor and the public entity. The Court concludes that State law fully addresses this issue and sets the applicable standard. The law requires physical inclusion of the determination.
The public body, … undertaking any public work shall ascertain from the commissioner the prevailing wage rate in the locality in which the public work is to be performed for each craft or trade needed to perform the contract and shall specify in the contract itself what the prevailing wage rate in the locality is for each craft or trade or classification of all workers needed to perform the contract during the anticipated term thereof. Nothing in this act however shall prohibit the payment of more than the prevailing wage rate to any worker employed on a public work. N.J. S .A. 34:11-56.28 [emphasis added] .
While this is an unpublished opinion of a trial court, counsel for contractors are sure to become aware of this trial court dictum and start citing it in cases where the failure of a design professional to actually include a hard copy of the prevailing wage determination in their bid specifications is an issue. Accordingly, to be safe, you should include a hard copy of the prevailing wage determination in your bid specifications.
Lawrence Powers is counsel to AIA-NJ, NJSPE and NJASLA, and is the co-partner in charge of the New Brunswick, New Jersey based law firm of Hoagland Longo Moran Dunst & Doukas, LLP.
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