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Davis-Bacon Act

REQUIREMENT

§ 24 of the Master Agreement delineates the Grantee's obligations to comply with the employee protection requirements of the Davis‑Bacon Act. For construction activities exceeding $2,000 performed in connection with an FTA‑funded Project, the Recipient of those funds agrees to comply with, and assure compliance with, the requirements of 49 U.S.C. § 5333(a), the Davis‑Bacon Act, [1] and the implementing regulations of the Department of Labor at 29 CFR Part 5. In addition to the requirements of the statute and regulations, the Recipient also agrees to report to the FTA every suspected or reported violation of the Davis‑Bacon Act or its Federal implementing Regulations.

DISCUSSION

The Davis‑Bacon Act (the Act) provides that contracts in excess of $2,000 to which the United States is a party (i.e., federal funds are involved) for construction, alteration, or repair (including painting and decorating) of public buildings or public works within the United States shall contain a clause that no laborer or mechanic employed directly upon the site of the work shall receive less than the prevailing wage rates as determined by the Secretary of Labor. [2] The clause mandated by the Act and its implementing federal regulations is found in Appendix A.1 of the Manual. The purpose of this section in the Manual is to discuss the practical issues surrounding the requirements of the Act and the regulations implementing it.

Best Practices

Federal Wage Determinations ‑ When a construction project is being performed with federal funds, laborers and mechanics employed directly upon the site of the work shall be paid a minimum wage which is determined by the Secretary of Labor. That rate of pay is referred to as the "Davis‑Bacon wage rate" and is specifically identified in the contract between the Recipient and the Contractor.

Types of Wage Determinations - Federal wage determinations are of two types: (a) General Wage Determinations and (b) Project Wage Determinations. General wage determinations contain prevailing wage rates for the types of construction designated in the determination, and they are used in contracts performed within a specified geographical area. They contain no expiration date and remain valid until modified, superseded, or canceled by a notice in the Federal Register by the Department of Labor. These determinations should be used whenever possible.

Project wage determinations are issued at the specific request of the grantee. They are used only when no general wage determination applies and they are effective for 180 days from the date of the determination.

It is the obligation of the contracting officer to ensure that a copy of the most current wage determination of the Department of Labor (DOL) is actually included in the solicitation and ensuing contract. The Wage and Hour Division of the DOL is responsible for the publication of wage determinations. Such determinations are numbered, dated, and issued as different rate schedules, depending upon the type of construction involved (building, residential, highway, or heavy construction). [3]

State Wage Determinations on Federally Funded Projects - Your state may also prescribe minimum wages and benefits for public works projects. If your state has established prevailing wages that are higher than Davis-Bacon Act rates, you should get advice of counsel to determine whether or not the state law or Davis-Bacon Act rate prevails, however in no event can rates be lower than Davis-Bacon Act rates.

Where to Obtain Wage Determinations ‑ General wage determinations may be found in the Government Printing Office document entitled General Wage Determinations Issued Under The Davis‑Bacon and Related Acts.

Subscriptions to this information are available electronically [4] and by hard‑copy. [5] The decisions are included in six different volumes, arranged by state. If ordering a hard‑copy subscription, only get the volume that includes your state. An annual edition is published in January or February of each year and then updated weekly throughout the year as part of the loose‑leaf service.

This publication is available at each of the 50 Regional Government Depository Libraries and many of the Government Depository Libraries across the country. In large metropolitan areas, this document may also be available in a central public library as well as through local offices of your state's department of transportation. In addition, The Davis-Bacon Act wage rates can be accessed on the Internet at http://www.wdol.gov/.

If you are involved in a project that will involve the issuance of multiple construction‑related solicitations over an extended period of time, you may want your own copy of this document. This is not only for convenience but also ensures that your solicitations and contracts contain the most up‑to‑date determinations. [6]

Requesting a Wage Determination ‑ As you start a project involving construction, one of the best personal contacts you can make is with the local DOL representative who will be monitoring your contract for compliance with the Davis‑Bacon minimum wage requirements. If a general wage determination is available for your area, you may use it without notifying the Department of Labor. If a general determination is not available for your area, you can work with your local DOL representative in requesting either a general wage determination or a project determination.[7] Do not hesitate to utilize the services of a project's design services professional to assist in obtaining information about the latest wage determinations. In all likelihood, that firm will know precisely what the requirements are and who to contact at the DOL.

Because the process to make a determination takes at least 45 days, it is important to know early in the project whether or not a determination is available for your area. The request to have a determination made needs to be submitted to the DOL 45 to 60 days before the solicitation is to be issued.

Wage Determinations and Your Solicitation/Contract ‑ The clause and regulations require that the wage determination be physically attached to the solicitation. The wage determination cannot be incorporated by reference. If the solicitation is issued without a wage determination included, bids may not be opened until a reasonable time after the wage determination has been furnished to all bidders and incorporated into the solicitation by amendment.

What if the wage determination expires before award? It should be noted that general wage determinations never expire and remain valid until modified, superseded or canceled by DOL. But project wage determinations do expire. In the event that your project wage determination expires or your general wage determination is superseded by a new determination before bids are received, you must request a new project determination (if using a project wage determination) and incorporate the new rates in a solicitation amendment in sufficient time for bidders to amend their bids. If the new determination does not change the wage rates and would not cause bidders to change their bid prices, you should amend the solicitation to include the number and date of the new determination.

If the wage determination expires after bid receipt but prior to award, you should request an extension of the determination from DOL's Wage and Hour Division. If necessary, award of the contract should be delayed until the request for extension has been granted or a new wage determination has been issued. If the request for extension is denied and a new wage determination issued that changes the wage rates for classifications to be used in the contract, the contracting officer may either cancel the solicitation and re‑advertise with the appropriate determination or award the contract and incorporate the new determination effective on the date of contract award. [8] If the new wage determination did not change any wage rate, the contracting officer should award the contract and modify it to include the number and date of the new determination. [9]

[1] - Act of March 3, 1931, 46 Stat. 1491, as amended; codified at 40 U.S.C. § 276a et seq.

[2] - For a thorough discussion of the labor standards for contracts involving construction, see FAR Subpart 22.4.

[3] - See generally, FAR § 22.404‑2(c) for discussion of the different types of construction.

[4] - In a Federal Register Notice of June 14, 1996, the Chief, Branch of Construction Wage Determinations advised that wage determinations issued under the Davis‑Bacon and related Acts are available electronically by subscription to the FedWorld Bulletin Board System of the National Technical Information Service (NTIS) of the U.S. Department of Commerce. A telephone contact is (703) 487‑4630.

[5] - The same Notice advised that hard-copy subscriptions may be purchased from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, with a telephone contact at (202) 512-1800.

[6] - The cost of the hard‑copy subscription (between $440 and $830 per volume) is a minuscule investment for your project library when considering the contractual impacts of the wage determinations, which will be discussed below.

[7] - The procedures to be followed in requesting these determinations are found in 29 CFR Part 1 and in FAR § 22.404‑3.

[8] - In this case, the grantee has the discretion, depending upon the terms of their solicitation documents, to either award to the low bidder at the price bid, or to equitably adjust the contract price for any increased or decreased cost of performance resulting from any changed wage rates.

[9] - Rules relating to expiration of wage determinations are discussed in detail at FAR § 22.404‑5.

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