What the prime contractor is responsible for on a sub's certified payroll

Certified payroll flows in one direction: from each subcontractor to the prime, and from the prime to the contracting agency. The regulation puts the prime in the middle of that flow and holds it responsible for what comes out the other end.

The prime collects and forwards

Under 29 CFR 5.5(a)(3)(ii)(A), each contractor and subcontractor submits its weekly payroll to the contracting agency, or, where the agency is not a party to the contract, to the applicant, sponsor, owner, or other entity that will transmit them. Then the rule that shapes everyone's workflow: the prime contractor "is responsible for the submission of all certified payrolls by all subcontractors."

In practice every sub sends its payroll to the prime, and the prime transmits the package. Agencies deal with the prime. A missing sub payroll is a deficiency on the prime's project, and the prime's progress payment is what gets held.

The prime flows down the clauses

Section 5.5(a)(6) requires the prime to insert the Davis-Bacon clauses, including the certified payroll clause, into every subcontract, and requires each subcontractor to do the same in any lower-tier subcontract. A sub that never saw the clauses in its subcontract is still bound by them if the prime contract contains them, and the prime is in breach for omitting them.

The prime is liable for the subs

The same section says the prime contractor "is responsible for the compliance by any subcontractor or lower tier subcontractor" with all the contract clauses. Since October 2023 the clause also makes any responsible upper-tier subcontractor liable, with the prime, for back wages owed to workers of lower-tier subs.

Responsibility here is financial. If a second-tier sub underpays its crew and does not make it right, the contracting agency withholds the back wages from the prime's payments under 5.5(a)(2), and the prime pays the workers. The prime's recourse is against the sub under the subcontract. Debarment under 5.12 can reach the prime as well where it is found to have disregarded its obligations.

This is why primes review sub payrolls. The regulation does not require a prime to audit them, but a prime that forwards a sub's payroll with an obvious rate below the determination has paid for that mistake before.

What the prime may ask a sub for

Full worker information. The certified payroll clause allows a prime to require subs to provide full Social Security numbers and last known addresses, telephone numbers, and email addresses for the prime's own records, as long as the sub does not have to put them on the weekly submission to the agency. A one-time worker information form from the prime is permitted. The identifying-number rule.

Timely payrolls. The regulation says weekly, for each week in which contract work is performed, and the prime sets the cutoff that lets it assemble the package. Subcontracts commonly require the sub's payroll within a few days of the week ending.

Backup documents. Apprenticeship registrations, fringe plan documents, deduction authorizations, and the sub's own timecards on request. These are the records the sub must keep under 5.5(a)(3)(i), and the prime is entitled to see what it is being held responsible for.

Corrections. A prime that spots an error may return the payroll and ask for a revised one before transmitting it. Correcting a payroll.

What the prime does not do

The prime does not certify the sub's payroll. Each Statement of Compliance is signed by the contractor or subcontractor whose workers appear on it, or by its agent who pays or supervises payment. The prime's signature on its own statement certifies its own workers, not the subs'. A prime that signs a sub's statement has certified facts it cannot know. The Statement of Compliance.

The prime does not set the rates. The wage determination in the prime contract governs everyone on the site. The prime's obligation is to pass it down and to make sure each sub has the classifications and rates, including any conformances the prime obtained.

The prime does not decide the sub's classifications. The work performed decides them. A prime can question a classification and ask for the daily logs, and the sub answers from the records.

Conformances go through the prime

A sub whose work is not covered by any classification on the determination cannot apply to the Department of Labor directly. The request on Standard Form 1444 typically goes to the contracting agency through the prime, with the proposed classification and rate and the sub's and the workers' agreement or disagreement noted. The prime should route it promptly; until the conformance is approved, the sub's payroll carries the proposed rate with a note. Conformances.

A sub's checklist for working with a prime

• Get the wage determination and its modification number from the prime before the first payroll, with any conformance decisions.
• Confirm the prime's payroll cutoff and how it wants the file delivered.
• Ask which identifying number the prime's system expects (last 4 or an employee number) and use it every week.
• Complete the worker information form once, through a secure channel, if the prime asks.
• Send no-work payrolls for idle weeks so the prime's sequence stays whole. No-work weeks.
• Respond to a returned payroll within the prime's window, with a revised payroll and a new statement.
• Keep your own copies. The prime's file is not your record.