March/April 2022 - 110

linear nature, work performed in actual or virtual adjacency
to " one portion of the long continuous project is to be
considered adjacent to the entire project. " Consequently, the
board held that the batch plants were located in virtual
adjacency to the site of the work so that it would be
reasonable to include them as the " site of the work. "
The DOL considers the Bechtel matters persuasive, even
though they were decided prior to the 2001 amendment to the
DBA's definition of " site of the work " which added the terms
" adjacent " and " virtually adjacent, " because they illustrate the
" difficulties inherent in establishing a specific distance for
defining the terms, 'virtually adjacent.' " Because temporary
batch plants constructed for the purpose of supplying asphalt
for a project are likely to be located somewhere near the
project, instead of directly on the site and in the way of the
project, the DOL believes such batch plants exemplify the
necessity of performing a factually specific analysis based on
the size and nature of the project in determining whether a
work site is " virtually adjacent " for purposes of the DBA. The
principle behind the extending DBA coverage to these off-site
facilities is captured in DOL's determination that " [w]here to
locate a storage area or a batch plant along such a project is a
matter of the contractor's convenience and is not a basis for
excluding the work from the DBA. "
Board decisions after Bechtel I, Bechtel II, and the 2001
amendment to the definition of " site of the work " provide some
guidance as to the boundaries of coverage of off-site facilities.
The decisions in Forrest M. Sanders, 2007 WL 4248530 and Gary
J. Wicke, 2008 WL 4462982) inform us that 1,000-1,500 yards
from the project site is " arguably " " virtually adjacent, "
whereas three to five miles from the project site is not.
Additional guidance regarding whether a work site is
" adjacent " or " virtually adjacent " for purposes of the DBA may
be found in state department of transportation ( " DOT " )
materials. For instance, several state DOTs have offered
guidance regarding what is considered " virtually adjacent "
with the general consensus being that any work areas located
within one half mile to one mile (as the crow flies) of the
closest point of the site of the work will be considered
" virtually adjacent " for purposes of the DBA. On the other hand,
a few state DOTs have declined placing a geographic limitation
on the applications of " adjacent " or " virtually adjacent " and
have instead defined " adjacent " as a " common boundary
between the project and plant site " and " virtually adjacent " as
a " plant site is separated from the project site by a narrow strip
of land such as a local road between a project and a plant site. "
The takeaway: the fact that a batch plant or pile staging yard
for a project is not located on the project site does not mean that
the contractor or subcontractor is not required to pay
prevailing wages to workers at those off-site facilities. A
prudent contract should assume prevailing wages are
required.
110 * DEEP FOUNDATIONS * MAR/APR 2022
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March/April 2022

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