[Federal Register Volume 66, Number 204 (Monday, October 22, 2001)]
[Rules and Regulations]
[Pages 53479-53483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26296]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONATICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 22, and 52

[FAC 2001-01; FAR Case 1997-613; Item I]
RIN 9000-AI47


Federal Acquisition Regulation; Application of the Davis-Bacon 
Act to Construction Contracts With Options To Extend the Term of the 
Contract

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on a final rule 
amending the Federal Acquisition Regulation (FAR) to implement the 
requirement of Department of Labor (DoL) All Agency Memorandum No. 157 
(AAM 157), as clarified in the Federal Register on November 20, 1998, 
at 63 FR 64542. The rule requires incorporation of the current Davis-
Bacon Act wage determination at the exercise of each option period in 
construction contracts.

DATES: Effective Date: December 21, 2001.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC, 20405, (202) 501-4755, for information 
pertaining to status or publication schedules. For clarification of 
content, contact Ms. Linda Nelson, Procurement Analyst, at (202) 501-
1900. Please cite FAC 2001-01, FAR case 1997-613.

SUPPLEMENTARY INFORMATION:

A. Background

    This final rule provides for incorporation of the current Davis-
Bacon Act wage determination at the exercise of each option to extend 
the term of a contract for construction, or a contract that includes 
substantial and segregable construction work. Unlike the Service 
Contract Act, the Davis-Bacon Act and its implementing regulations do 
not state that new or revised wage determinations must be incorporated 
at the exercise of each contract option period.
    On December 9, 1992, DoL issued AAM 157, which required 
incorporation of a current Davis-Bacon Act wage determination at the 
exercise of each option period in construction contracts containing 
options to extend the term of the contract. Following several years of 
controversy regarding the authority of the DoL to issue AAM 157, DoL 
Administrative Review Board confirmed on July 17,1997, the authority of 
the DoL Administrator's ruling that a current Davis-Bacon Act wage 
determination must be incorporated at the exercise of an option to 
extend the term of the contract. The Review Board also directed DoL to 
clarify the language of AAM 157 and to republish the memorandum in the 
Federal Register at 63 FR 64542, November 20, 1998.
    On December 3, 1999, DoD, GSA, and NASA published a proposed rule 
in the Federal Register at 64 FR 67986. Eight respondents submitted 
comments on the proposed rule. The comments were considered in the 
development of the final rule.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to 
this final rule. The Councils prepared a Final Regulatory Flexibility 
Analysis (FRFA). The FAR Secretariat has submitted a copy of the FRFA 
to the Chief Counsel for Advocacy of the Small Business Administration.
    The FRFA is summarized as follows:

    The final rule amends FAR Parts 1, 22, and 52 to implement the 
requirement of Department of Labor (DoL) All Agency Memorandum No. 
157 (AAM 157), as clarified in the Federal Register on November 20, 
1998. The rule requires incorporation of the current Davis-Bacon Act 
wage determination at the exercise of each option period in 
construction contracts. The rule provides four alternative methods 
of adjusting the contract price when exercising the option to extend 
the term of the contract.
    1. No adjustment in contract price (because the option prices 
may include an amount to cover estimated increases);
    2. Price adjustment based on a separately specified pricing 
method, such as application of a coefficient to an annually 
published unit pricing book incorporated at option exercise;
    3. A percentage price adjustment, based on a published economic 
indicator; and
    4. A price adjustment based on a specific calculation to reflect 
the annual increase or decrease in wages and fringe benefits as a 
result of incorporation of the new wage determination.
    The last method, applying calculations similar to the 
calculations of price

[[Page 53480]]

adjustments in contracts subject to the Service Contract Act, 
removes the risk to the contractor, but imposes some reporting 
requirements, to provide the required information upon which to base 
the price adjustment. However, the contractor is already required to 
keep payroll records upon which the calculations are based, so the 
burden is not significant. Data for fiscal year 1998 indicates the 
Government awarded 229 indefinite-delivery construction contracts, 
of which 121 were awarded to small businesses. Nearly all 
construction contracts with delivery contracts and most indefinite-
delivery contracts have options to extend the term. Although there 
is no database to determine the number of contracts for other than 
construction that have substantial and segregable construction 
requirements, we estimate 225 prime contractors and 675 
subcontractors, of which approximately 50 percent are small 
businesses.

    Interested parties may obtain a copy of the FRFA from the FAR 
Secretariat.
    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 64 FR 67986, December 3, 1999. Eight respondents submitted 
comments on the proposed rule. No comments were received on the IRFA.

C. Paperwork Reduction Act

    The Paperwork Reduction Act applies. The FAR Secretariat submitted 
a request for approval of a revised information collection requirement 
concerning application of the Davis-Bacon Act to construction contracts 
with options to extend the term of the contract to the Office of 
Management andBudget (OMB). The burden associated with this rule has 
been approved under OMB Control No. 9000-0154.

List of Subjects in 48 CFR Parts 1, 22, and 52

    Government procurement.

    Dated: October 12, 2001.
Al Matera,
Director, Acquisition Policy Division.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 22, and 52 as 
set forth below:
    1. The authority citation for 48 CFR parts 1, 22, and 52 continues 
to read as follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and42 U.S.C. 
2473(c).

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM

    2. Amend section 1.106 in the table following the introductory 
paragraph by adding an entry to read as follows:


1.106  OMB approval under the Paperwork Reduction Act.

------------------------------------------------------------------------
 
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                  *        *        *        *        *
FAR segment............................  OMB Control No.
                  *        *        *        *        *
52.222-32..............................  9000-0154
 
                  *        *        *        *        *
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PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENTACQUISITIONS


22.403-4  [Amended]

    3. Amend section 22.403-4 in paragraph (b)(5) by removing the words 
``Wage Appeals'' and by adding ``Administrative Review'' in its place.

    4. Amend section 22.404-1(a)(1) by revising the third sentence; and 
paragraph (b) by revising the fourth sentence to read as follows:


22.404-1  Types of wage determinations.

    (a) General wage determinations. (1) * * * Once incorporated in a 
contract, a general wage determination normally remains effective for 
the life of the contract, unless the contracting officer exercises an 
option to extend the term of the contract (see 22.404-12). * * *
    (b) * * * Once incorporated in a contract, a project wage 
determination normally remains effective for the life of the contract, 
unless the contracting officer exercises an option to extend the term 
of the contract (see 22.404-12).

    5. Amend section 22.404-2 by revising paragraph (a) to read as 
follows:


22.404-2  General requirements.

    (a) The contracting officer must incorporate only the appropriate 
wage determinations in solicitations and contracts and must designate 
the work to which each determination or part thereof applies. The 
contracting officer must not include project wage determinations in 
contracts or options other than those for which they are issued. When 
exercising an option to extend the term of a contract, the contracting 
officer must select the most current wage determination(s) from the 
same schedule(s) as the wage determination(s) incorporated into the 
contract.
* * * * *

    6. In section 22.404-3, revise the last sentence of paragraph (c); 
remove paragraph (d); and redesignate paragraph (e) as (d) to read as 
follows:


22.404-3  Procedures for requesting wage determinations.

* * * * *
    (c) * * * Accordingly, agencies should submit requests to the 
Department of Labor at least 45 days (60 days if possible) before 
issuing the solicitation or exercising an option to extend the term of 
a contract.
* * * * *

    7. In section 22.404-6, revise paragraph (a); and add paragraph (d) 
to read as follows:


22.404-6  Modifications of wage determinations.

    (a) General. (1) The Department of Labor may modify a wage 
determination to make it current by specifying only the items being 
changed or by reissuing the entire determination with changes 
incorporated.
    (2) All project wage determination modifications expire on the same 
day as the original determination. The need to include a modification 
of a project wage determination in a solicitation is determined by the 
time of receipt of the modification by the contracting agency. 
Therefore, the contracting agency must annotate the modification of the 
project wage determination with the date and time immediately upon 
receipt.
    (3) The need for inclusion of the modification of a general wage 
determination in a solicitation is determined by the publication date 
of the notice in the Federal Register, or by the time of receipt of the 
modification (annotated with the date and time immediately upon 
receipt) by the contracting agency, whichever occurs first. (Note the 
distinction between receipt by the agency (modification is effective) 
and receipt by the contracting officer, which may occur later.)
* * * * *
    (d) The following applies when modifying a contract to exercise an 
option to extend the term of a contract:
    (1) A modified wage determination is effective if--
    (i) The contracting agency receives a written action from the 
Department of Labor prior to exercise of the option, or within 45 days 
after submission of a wage determination request (22.404-3(c)), 
whichever is later; or
    (ii) The Department of Labor publishes notice of modifications to 
general wage determinations in the Federal Register before exercise of 
the option.
    (2) If the contracting officer receives an effective modified wage 
determination either before or after execution of the contract 
modification to exercise the option, the contracting officer must 
modify the contract to incorporate the modified wage determination, and 
any changed wage rates, effective as of the date that the option to 
extend was effective.

    8. Revise section 22.404-7 to read as follows:

[[Page 53481]]

22.404-7  Correction of wage determinations containing clerical errors.

    Upon the Department of Labor's own initiative or at the request of 
the contracting agency, the Administrator, Wage and Hour Division, may 
correct any wage determination found to contain clerical errors. Such 
corrections will be effective immediately, and will apply to any 
solicitation or active contract. Before contract award, the contracting 
officer must follow the procedures in 22.404-5(b)(1) or (2)(i) or (ii) 
in sealed bidding, and the procedures in 22.404-5(c)(3) or (4) in 
negotiations. After contract award, the contracting officer must follow 
the procedures at 22.404-6(b)(5), except that for contract 
modifications to exercise an option to extend the term of the contract, 
the contracting officer must follow the procedures at 22.404-6(d)(2).

    9. In section 22.404-10, revise the first sentence to read as 
follows:


22.404-10  Posting wage determinations and notice.

    The contractor must keep a copy of the applicable wage 
determination (and any approved additional classifications) posted at 
the site of the work in a prominent place where the workers can easily 
see it. * * *


22.404-11  [Amended]

    10. In section 22.404-11, amend the first sentence by removing ``a 
Wage Appeals'' and adding ``an Administrative Review'' in its place.

    11. Add section 22.404-12 to read as follows:


22.404-12  Labor standards for contracts containing construction 
requirements and option provisions that extend the term of the 
contract.

    (a) Each time the contracting officer exercises an option to extend 
the term of a contract for construction, or a contract that includes 
substantial and segregable construction work, the contracting officer 
must modify the contract to incorporate the most current wage 
determination.
    (b) If a contract with an option to extend the term of the contract 
has indefinite-delivery or indefinite-quantity construction 
requirements, the contracting officer must incorporate the wage 
determination incorporated into the contract at the exercise of the 
option into task orders issued during that option period. The wage 
determination will be effective for the complete period of performance 
of those task orders without further revision.
    (c) The contracting officer must include in fixed-price contracts a 
clause that specifies one of the following methods, suitable to the 
interest of the Government, to provide an allowance for any increases 
or decreases in labor costs that result from the inclusion of the 
current wage determination at the exercise of an option to extend the 
term of the contract:
    (1) The contracting officer may provide the offerors the 
opportunity to bid or propose separate prices for each option period. 
The contracting officer must not further adjust the contract price as a 
result of the incorporation of a new or revised wage determination at 
the exercise of each option to extend the term of the contract. 
Generally, this method is used in construction-only contracts (with 
options to extend the term) that are not expected to exceed a total of 
3 years.
    (2) The contracting officer may include in the contract a 
separately specified pricing method that permits an adjustment to the 
contract price or contract labor unit price at the exercise of each 
option to extend the term of the contract. At the time of option 
exercise, the contracting officer must incorporate a new wage 
determination into the contract, and must apply the specific pricing 
method to calculate the contract price adjustment. An example of a 
contract pricing method that the contracting officer might separately 
specify is incorporation in the solicitation and resulting contract of 
the pricing data from an annually published unit pricing book (e.g., 
the R.S. Means Cost Estimating System, or the U.S. Army Computer-Aided 
Cost Estimating System), which is multiplied in the contract by a 
factor proposed by the contractor (e.g., .95 or 1.1). At option 
exercise, the contracting officer incorporates the pricing data from 
the latest annual edition of the unit pricing book, multiplied by the 
factor agreed to in the basic contract. The contracting officer must 
not further adjust the contract price as a result of the incorporation 
of the new or revised wage determination.
    (3) The contracting officer may provide for a contract price 
adjustment based solely on a percentage rate determined by the 
contracting officer using a published economic indicator incorporated 
into the solicitation and resulting contract. At the exercise of each 
option to extend the term of the contract, the contracting officer will 
apply the percentage rate, based on the economic indicator, to the 
portion of the contract price or contract unit price designated in the 
contract clause as labor costs subject to the provisions of the Davis-
Bacon Act. The contracting officer must insert 50 percent as the 
estimated portion of the contract price that is labor unless the 
contracting officer determines, prior to issuance of the solicitation, 
that a different percentage is more appropriate for a particular 
contract or requirement. This percentage adjustment to the designated 
labor costs must be the only adjustment made to cover increases in 
wages and/or benefits resulting from the incorporation of a new or 
revised wage determination at the exercise of the option.
    (4) The contracting officer may provide a computation method to 
adjust the contract price to reflect the contractor's actual increase 
or decrease in wages and fringe benefits (combined) to the extent that 
the increase is made to comply with, or the decrease is voluntarily 
made by the contractor as a result of incorporation of, a new or 
revised wage determination at the exercise of the option to extend the 
term of the contract. Generally, this method is appropriate for use 
only if contract requirements are predominately services subject to the 
Service Contract Act and the construction requirements are substantial 
and segregable. The methods used to adjust the contract price for the 
service requirements and the construction requirements would be 
similar.

    12. In section 22.406-3, add paragraph (e) to read as follows:


22.406-3  Additional classifications.

* * * * *
    (e) In each option to extend the term of the contract, if any 
laborer or mechanic is to be employed during the option in a 
classification that is not listed (or no longer listed) on the wage 
determination incorporated in that option, the contracting officer must 
require that the contractor submit a request for conformance using the 
procedures noted in paragraphs (a) through (d) of this section.


22.406-10  [Amended]

    13. Amend section 22.406-10 in the last sentence of paragraph (e) 
by removing the words ``Wage Appeals'' and by adding ``Administrative 
Review'' in its place.

    14. In section 22.407, add paragraphs (e), (f), and (g) to read as 
follows:


22.407  Contract clauses.

* * * * *
    (e) Insert the clause at 52.222-30, Davis-Bacon Act--Price 
Adjustment (None or Separately Specified Pricing Method), in 
solicitations and contracts if the contract is expected to be--
    (1) A fixed-price contract subject to the Davis-Bacon Act that will 
contain option provisions by which the

[[Page 53482]]

contracting officer may extend the term of the contract, and the 
contracting officer determines the most appropriate contract price 
adjustment method is the method at 22.404-12(c)(1) or (2); or
    (2) A cost-reimbursable type contract subject to the Davis-Bacon 
Act that will contain option provisions by which the contracting 
officer may extend the term of the contract.
    (f) Insert the clause at 52.222-31, Davis-Bacon Act--Price 
Adjustment (Percentage Method), in solicitations and contracts if the 
contract is expected to be a fixed-price contract subject to the Davis-
Bacon Act that will contain option provisions by which the contracting 
officer may extend the term of the contract, and the contracting 
officer determines the most appropriate contract price adjustment 
method is the method at 22.404-12(c)(3).
    (g) Insert the clause at 52.222-32, Davis-Bacon Act--Price 
Adjustment (Actual Method), in solicitations and contracts if the 
contract is expected to be a fixed-price contract subject to the Davis-
Bacon Act that will contain option provisions by which the contracting 
officer may extend the term of the contract, and the contracting 
officer determines the most appropriate method to establish contract 
price is the method at 22.404-12(c)(4).

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    15. Add sections 52.222-30, 52.222-31, and 52.222-32 to read as 
follows:


52.222-30  Davis-Bacon Act--Price Adjustment (None or Separately 
Specified Method).

    As prescribed in 22.407(e), insert the following clause:

Davis-Bacon Act--Price Adjustment (None or Separately Specified Method) 
(Dec 2001)

    (a) The wage determination issued under the Davis-Bacon Act by 
the Administrator, Wage and Hour Division, Employment Standards 
Administration, U.S. Department of Labor, that is effective for an 
option to extend the term of the contract, will apply to that option 
period.
    (b) The Contracting Officer will make no adjustment in contract 
price, other than provided for elsewhere in this contract, to cover 
any increases or decreases in wages and benefits as a result of--
    (1) Incorporation of the Department of Labor's wage 
determination applicable at the exercise of the option to extend the 
term of the contract;
    (2) Incorporation of a wage determination otherwise applied to 
the contract by operation of law; or
    (3) An increase in wages and benefits resulting from any other 
requirement applicable to workers subject to the Davis-Bacon Act.

(End of clause)


52.222-31  Davis-Bacon Act--Price Adjustment (Percentage Method).

    As prescribed in 22.407(f), insert the following clause:

Davis-Bacon Act--Price Adjustment (Percentage Method) (Dec 2001)

    (a) The wage determination issued under the Davis-Bacon Act by 
the Administrator, Wage and Hour Division, Employment Standards 
Administration, U.S. Department of Labor, that is effective for an 
option to extend the term of the contract, will apply to that option 
period.
    (b) The Contracting Officer will adjust the portion of the 
contract price or contract unit price(s) containing the labor costs 
subject to the Davis-Bacon Act to provide for an increase in wages 
and fringe benefits at the exercise of each option to extend the 
term of the contract in accordance with the following procedures:
    (1) The Contracting Officer has determined that the portion of 
the contract price or contract unit price(s) containing labor costs 
subject to the Davis-Bacon Act is ____________ [Contracting Officer 
insert percentage rate] percent.
    (2) The Contracting Officer will increase the portion of the 
contract price or contract unit price(s) containing the labor costs 
subject to the Davis-Bacon Act by the percentage rate published in 
____________[ContractingOfficer insert publication].
    (c) The Contracting Officer will make the price adjustment at 
the exercise of each option to extend the term of the contract. This 
adjustment is the only adjustment that the Contracting Officer will 
make to cover any increases in wages and benefits as a result of--
    (1) Incorporation of the Department of Labor's wage 
determination applicable at the exercise of the option to extend the 
term of the contract;
    (2) Incorporation of a wage determination otherwise applied to 
the contract by operation of law; or
    (3) An increase in wages and benefits resulting from any other 
requirement applicable to workers subject to the Davis-Bacon Act.

(End of clause)


52.222-32  Davis-Bacon Act--Price Adjustment (Actual Method).

    As prescribed in 22.407(g), insert the following clause:

Davis-Bacon Act--Price Adjustment (Actual Method) (Dec 2001)

    (a) The wage determination issued under the Davis-Bacon Act by 
the Administrator, Wage and Hour Division, Employment Standards 
Administration, U.S. Department of Labor, that is effective for an 
option to extend the term of the contract, will apply to that option 
period.
    (b)(1) The Contractor states that if the prices in this contract 
contain an allowance for wage or benefit increases, such allowance 
will not be included in any request for contract price adjustment 
submitted under this clause.
    (2) The Contractor shall provide with each request for contract 
price adjustment under this clause a statement that the prices in 
the contract do not include any allowance for any increased cost for 
which adjustment is being requested.
    (c) The Contracting Officer will adjust the contract price or 
contract unit price labor rates to reflect the Contractor's actual 
increase or decrease in wages and fringe benefits to the extent that 
the increase is made to comply with, or the decrease is voluntarily 
made by the Contractor as a result of--
    (1) Incorporation of the Department of Labor's Davis-Bacon Act 
wage determination applicable at the exercise of an option to extend 
the term of the contract; or
    (2) Incorporation of a Davis-Bacon Act wage determination 
otherwise applied to the contract by operation of law.
    (d) Any adjustment will be limited to increases or decreases in 
wages and fringe benefits as described in paragraph (c) of this 
clause, and the accompanying increases or decreases in social 
security and unemployment taxes and workers' compensation insurance, 
but will not otherwise include any amount for general and 
administrative costs, overhead, or profit.
    (e) The Contractor shall notify the Contracting Officer of any 
increase claimed under this clause within 30 days after receiving a 
revised wage determination unless this notification period is 
extended in writing by the Contracting Officer. The Contractor shall 
notify the Contracting Officer promptly of any decrease under this 
clause, but nothing in this clause precludes the Government from 
asserting a claim within the period permitted by law. The notice 
shall contain a statement of the amount claimed and any relevant 
supporting data, including payroll records that the Contracting 
Officer may reasonably require. Upon agreement of the parties, the 
Contracting Officer will modify the contract price or contract unit 
price in writing. The Contractor shall continue performance pending 
agreement on or determination of any such adjustment and its 
effective date.
    (f) Contract price adjustment computations shall be computed as 
follows:
    (1) Computation for contract unit price per single craft hour 
for schedule of indefinite-quantity work. For each labor 
classification, the difference between the actual wage and benefit 
rates (combined) paid and the wage and benefit rates (combined) 
required by the new wage determination shall be added to the 
original contract unit price if the difference results in a combined 
increase. If the difference computed results in a combined decrease, 
the contract unit price shall be decreased by that amount if the 
Contractor provides notification as provided in paragraph (e) of 
this clause.
    (2) Computation for contract unit price containing multiple 
craft hours for schedule of indefinite-quantity work. For each labor 
classification, the difference between the actual wage and benefit 
rates (combined) paid and the wage and benefit rates (combined) 
required by the new wage

[[Page 53483]]

determination shall be multiplied by the actual number of hours 
expended for each craft involved in accomplishing the unit-priced 
work item. The product of this computation will then be divided by 
the actual number of units ordered in the preceding contract period. 
The total of these computations for each craft will be added to the 
current contract unit price to obtain the new contract unit price. 
The extended amount for the contract line item will be obtained by 
multiplying the new unit price by the estimated quantity. If actual 
hours are not available from the preceding contract period for 
computation of the adjustment for a specific contract unit of work, 
the Contractor, in agreement with the Contracting Officer, shall 
estimate the total hours per craft per contract unit of work.

                                              Example: Asphalt Paving--Current Price $3.38 per Square Yard
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       Hourly                                                                                  Increase/
              DBA craft                 New WD       rate paid        Diff.             Actual hrs.           Actual units (sq. yard)          sq. yard
--------------------------------------------------------------------------------------------------------------------------------------------------------
Equip. Opr..........................     $18.50   -     $18.00   =      $.50   x  600 hrs./               3,000 sq. yrd.                   =        $.10
 
Truck Driver........................     $19.00   -     $18.25   =      $.75   x  525 hrs./               3,000 sq. yrd.                   =        $.13
 
Laborer.............................     $11.50   -     $11.25   =      $.25   x  750 hrs./               3,000 sq. yrd.                   =        $.06
 
                                                                                                                                             -----------
    Total increase per square yard..........................................................................................................      * $.29
* Note: Adjustment for labor rate increases or decreases may be accompanied by social security and unemployment taxes and workers' compensation
 insurance.
Current unit price (per square yard)      $3.38
Add DBA price adj...................       +.29
New unit price (per square yard)....      $3.67
--------------------------------------------------------------------------------------------------------------------------------------------------------

(End of clause)
[FR Doc. 01-26296 Filed 10-19-01; 8:45 am]
BILLING CODE 6820-EP-P