March 16,1971

Honorable J.C. Dingwall State Highway Engineer Opinion No. M-809 State Highway Department Austin, Texas 78701

Dear Mr. Dingwall: Re: Whether the State Highway Department may legally advertise and award Highway Construction projects financed with both state and federal funds without provision for the general rate ofper diem wages provided inArticle 5159a, V. C.S. We quote, inpart, from your letter requesting an opinion of our office, as follows:

“The President’s proclamation of February 23, 1971, suspended the provisions ofthe Davis-Bacon Act and the provisions of all other Acts providing for the payment ofwages which provisions are dependent upon determinations by the Secretary ofLabor, under the Davis-Bacon Act. The Federal Highway Administrator has advised that proposals for Federal-Aid projects on which bids are opened after March 5th, 1971, must contain nowage determinations made under the provisions of State Statutes or other wage determination processes.

“Can the State Highway Department legally advertise and award Highway Construction projects financed with both State and Federal Funds that do not contain the general prevailing rate ofper diem wages as provided in Article 5159a, V. C.S.?

“The general prevailing rate ofper diem wages will be included inHighway Construction projects financed entirely with State Highway Funds as provided in Article 5159a, V. C. S.
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Also, you have furnished us copies ofalegal memorandum and administrative construction by the Solicitor ofLabor, U.S. Department of Labor, dated March 1, 1971, addressed to all States’ Attorneys General (Appendix “A” attached hereto) and alegal opinion dated March 1, 1971, from the Attorney General’s Office, to the Solicitor of Labor (Appendix “B” attached hereto. )

We are in agreement with their interpretation ofthe effect of President Nixon’s action and emergency proclamation, which was to remove from the federally involved construction contracts entered into on or after February 23, 1971, all otherwise applicable federal requirements that laborers and mechanics be paid atleast the wage rate determined by the Secretary of Labor, U.S. Department of Labor, to be prevailing for their crafts. We also concur inthe Attorney General’s interpretation that all state-required wage standards provisions have been rendered inapplicable for the duration of such suspension to federally involved construction contracts onwhich the wage payment requirements of the federal statutes and regulations have been suspended. As we construe that interpretation, it is limited to federallyassisted construction projects which are subject to statutory provisions (e. g., 12U.S.C. 17Olq(c), 20U.S.C. 848, 42 U.S.C. 2685, 3107), requiring the payment ofwages determined in accordance with the DavisBacon Act, 46Stat. 1494, as amended.

You also have advised that the federal Department of Transportation has notified all Regional Federal Highway Administrators and Division Engineers that inorder to comply with the federal contractual requirements for obtaining the construction funds onwhich bids are opened after March 5, not only must the deletion of Davis-Bacon provisions be effected, but the bids f,

. . * must contain nowage determinations made

under the provisions of state statutes or other wage determination processes. I’ Such are the conditions of the federal grant, and failure to comply therewith will apparently preclude the state from obtaining such federal monies.

First, we will consider the standing and effect ofthe President’s proclamation. The principle is well established inboth the realm offederal law and federal-state relations that
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‘1.
. . where Congress has authorized a public officer to take some specified legislative action when inhis judgment that action is necessary or appropriate to carry out the policy of Congress, thejudgment ofthe officer as tothe existence of the facts calling for that action is not subject to review
. . .‘I U.S. v. Bush, 310U.S. 371(1940. ) Inthis Bush case, the President ofthe United States acted, as authorized under Act of Congress, by Proclamation to increase the duty and changes inclassification of certain foreign imports. Inthe earlier case of Dakota Cent. Telephone Co. v. State ofSouth Dakota, 250 U.S. 163 (1919) the very broad powers of the President to take possession and control oftelegraph, telephone, and other communication companies, and operate them, by Proclamation, under authorization of Congress and his wartime powers, was upheld. An Executive Order ofthe President

‘1.
. is to be accorded the force and effect

given to a statute enacted by Congress.
.” Farkas v. Texas Instrument, Inc. 375F. 2d629 (5th Cir. 1967, cert. den. 389U.S. 977. ) The power ofthe President to act by the Proclamation under consideration is fully sustained by the authorities cited in support of the text inthe text book entitled Modern Constitutional Law, by Chester J. Antieau, Volume II, Section 11:21 at pages 222-231, and Sections 13:22 through 13:25 atpages 526-531.

The interpretation of afederal statute subject to construction by the executive department charged with its administration and enforcement is entitled to the highest respect from the courts. 42Am. Jur. 392, Public Administrative Law, Sec. 78; Roland Electric Co. v. Walling, 326 U.S. 657 (1946); Mabee v. White Plains Pub. Co. , 327U.S. 178(1946); Boutell v. Walling, 327U.S. 463 (1946. )

Article 5159a, Vernon’s Civil Statutes, which provides for wage standards provisions in Texas, is thus inapplicable to the above mentioned federally involved construction contracts for the duration of such suspension. The suspension provision (40 U.S.C. 276a-5) inour view precludes a state
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from imposing its own “Davis-Bacon” requirements on construction otherwise subject to the Davis-Bacon statutes. The purpose ofthose statutes was to provide afederal wage floor on those affected construction contracts inwhich the federal government had an interest. This floor was removed by the President’s emergency proclamation inthe national interest. lfthe state were empowered to interpose its own wage floor on such federal construction contracts, such would frustrate and render impotent the essential purpose ofthe suspension provision, which was designed to permit the President to suspend any wage floor, whether federal or state, inthe national interest. InAttorney General Opinion No. S-185 (19561, itwas held that Article 5159a was in conflict with the Davis-Bacon Act, as applied to the construction of armories by the Texas National Guard Armory Board. However, as that Opinion makes clear that construction was being carried out under adifferent Act of Congress, the National Defense Facilities Act of 1950, Section bb, as amended, which expressly recognized that the construction “shall be done in accordance with the laws of such state . . .” Furthermore, the amendment had been interpreted by the Department of Defense

‘1.
. . to mean that State laws and procedures control the letting of construction contracts only insofar as such laws are in conflict with Federal Statutes and procedures and that the Federal laws apply ifthere is no such conflict. ” The Attorney General thereupon concluded:

“Accepting this interpretation, the Davis-Bacon Act will apply if it is not in conflict with the State law, but Article 5159a will apply ifthere is aconflict between these two statutes. ” Inother words, the conditions ofthe grant were controlled by another and specific federal Act, outside the scope ofthe Davis-Bacon Act.

We have concluded that the factual and legal situation presented by your request is legally distinguishable from that.presented inAttorney General Opinion No. S-185. Inthe present situation, the Davis-Bacon Act

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and federal laws and regulations under which the construction work is being performed do not expressly provide for state laws and pro~cedures to control the letting ofthe construction contracts. Furthermdre, they have been interpreted by the Labor Department andDepartment ofJustice to the effect that such state statutes were not applicable under the suspension provision. Since Article 5159a would, ifapplicable, necessarily conflict with the federal law, we are not required to hold that the state law controls, as was held in Opinion S-185.

It is our opinion that our state statute must yield to any conflicting provisions of congressional acts and federal regulations pursuant thereto pertaining tothose subjects within the scope offederal power. Contineital Radio Co. v. Continental Bank &Trust Co. , 369S.W. 2d 359 (Tex. Civ.App. 1963, error ref., n.r.e.); Free v. Bland, 369 U.S. 663 (1962, revg. 344S.W.Zd435, Tex.Sup., 1961, and conformed to 359 S.W. 2d 27) holding that any state law, however clearly within state acknowledged power, which interferes with or is contrary to federal law, must yield. The Davis-Bacon Act and its related statutes involve aproprietary function ofthe federal government. If state policy were to prevail, a collision between it andfederal policy would result and therefore, the latter policy must govern. See Paul v. United States, 371U.S. 245 (1963. 1Inview ofthe foregoing, we answer your question in the affirmative. SUMMARY

The State Highway Department may legally advertise and award federally involved highway construction contracts, financed with both state and federal funds, which donot contain the general prevailing rate of per diem wages as provided inArticle 5159a, Vernon’s Civil Statutes, inview of President Nixon’s emergency proclamation suspending the provisions ofthe Davis-Bacon Act (46 Stat. 1494, as amended) as well as all other federal acts for the payment ofwage rates on such projects which are dependent upon prevailing wage determinat.ions by th,eSecretary of Laborunder the Davis-Bacon Act.

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Honorable J.C. Dingwall, page 

### 6 (M-809)

Article 5159a, V. C.S., has been rendered inapplicable, for the duration of such suspension to all federal construction contracts entered into on or subsequent to February 23, 1971, and until otherwise provided, calling for the payment ofwages as provided in the Davis-Bacon Act of March ‘3, 1931, as amended, or any other Acts calling for the payment ofwages, the provisions ofwhich are dependent upon determinations by the Secretary of Labor under the Davis-Bacon Act. Very truly yours, CRAWFORD C. MARTIN Attorney General of Texas 

# By:&a

NOLA WHITE ’ First Assistant Prepared by Kerns Taylor Assistant Attorney General APPROVED: OPINION COMMITTEE W.E. Allen, Acting Chairman J.C. Davis Pat Bailey John Reeves Jack Goodman MEADE F. GRIFFIN Staff Legal Assistant ALFRED WALKER Executive Assistant

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