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 

of per diem wages provided 

in Article 5159a, V. C. S. 

We quote, in part, from your letter requesting an opinion of 

our office, as follows: 

“The President’s proclamation of February 23, 

1971, suspended the provisions of the Davis-Bacon Act 

and the provisions of all other Acts providing for the 

payment of wages which provisions are dependent upon 

determinations by the Secretary of Labor, 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 no wage 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 of per diem wages 

as provided in Article 5159a, V. C. S. ? 

“The general prevailing rate of per diem wages 

will be included in Highway Construction projects financed entirely with State Highway Funds as provided in 

Article 5159a, V. C. S. . . . ” 

-3928- 
Honorable J. C. Dingwall, page 2 (M-809) 

Also, you have furnished us copies of a legal memorandum and administrative construction by the Solicitor of Labor, U.S. Department 

of Labor, dated March 1, 1971, addressed to all States’ Attorneys 

General (Appendix “A” attached hereto) and a legal 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 of the 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 at least the wage 

rate determined by the Secretary of Labor, U.S. Department of Labor, 

to be prevailing for their crafts. We also concur in the 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 on which 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., 12 U.S.C. 17Olq(c), 20 U.S.C. 848, 42 U.S.C. 2685, 3107), 

requiring the payment of wages determined in accordance with the DavisBacon Act, 46 Stat. 1494, as amended. 

You also have advised that the federal Department of Transportation has notified all Regional Federal Highway Administrators and Division 

Engineers that in order to comply with the federal contractual requirements 

for obtaining the construction funds on which bids are opened after March 

5, not only must the deletion of Davis-Bacon provisions be effected, but 

the bids 

f, 

. . * must contain no wage 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 of the President’s 

proclamation. The principle is well established in both the realm of federal 

law and federal-state relations that 

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Honorable J. C. Dingwall, page 3 (M-809) 

‘1. . . where Congress has authorized a 

public officer to take some specified legislative 

action when in his judgment that action is necessary or appropriate to carry out the policy of 

Congress, the judgment of the officer as to the 

existence of the facts calling for that action is not 

subject to review . . .‘I U.S. v. Bush, 310 U.S. 

37 1 ( 1940. ) 

In this Bush case, the President of the United States acted, as authorized under Act of Congress, by Proclamation to increase the duty and 

changes in classification of certain foreign imports. In the earlier case 

of Dakota Cent. Telephone Co. v. State of South Dakota, 250 U. S. 163 

(1919) the very broad powers of the President to take possession and 

control of telegraph, telephone, and other communication companies, 

and operate them, by Proclamation, under authorization of Congress 

and his wartime powers, was upheld. An Executive Order of the President 

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

given to a statute enacted by Congress. . ” 

Farkas v. Texas Instrument, Inc. 375 F. 2d 629 

(5th Cir. 1967, cert. den. 389 U.S. 977. ) 

The power of the President to act by the Proclamation under consideration is fully sustained by the authorities cited in support of the text 

in the 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 at pages 526-531. 

The interpretation of a federal statute subject to construction 

by the executive department charged with its administration and enforcement is entitled to the highest respect from the courts. 42 Am. Jur. 392, 

Public Administrative Law, Sec. 78; Roland Electric Co. v. Walling, 326 

U. S. 657 (1946); Mabee v. White Plains Pub. Co. , 327 U. S. 178 (1946); 

Boutell v. Walling, 327 U. 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) in our view precludes a state 

-3930- 
Honorable J. C. Dingwall, page 4 (M-809) 

from imposing its own “Davis-Bacon” requirements on construction otherwise subject to the Davis-Bacon statutes. The purpose of those statutes 

was to provide a federal wage floor on those affected construction contracts 

in which the federal government had an interest. This floor was removed 

by the President’s emergency proclamation in the national interest. lf the 

state were empowered to interpose its own wage floor on such federal construction contracts, such would frustrate and render impotent the essential 

purpose of the suspension provision, which was designed to permit the 

President to suspend any wage floor, whether federal or state, in the national 

interest. 

In Attorney General Opinion No. S-185 (19561, it was 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 a different 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 if there 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 if there is a conflict between these two statutes. ” 

In other words, the conditions of the grant were controlled by another and 

specific federal Act, outside the scope of the Davis-Bacon Act. 

We have concluded that the factual and legal situation presented by 

your request is legally distinguishable from that. presented in Attorney 

General Opinion No. S-185. In the present situation, the Davis-Bacon Act 

-3931- 
Honorable J. C. Dingwall, page 5 (M-809) 

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 of the construction contracts. Furthermdre, they 

have been interpreted by the Labor Department and Department of Justice to the effect that such state statutes were not applicable under the 

suspension provision. Since Article 5159a would, if applicable, 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 to those subjects within the scope of federal power. 

Contineital Radio Co. v. Continental Bank & Trust Co. , 369 S.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 a proprietary function of the federal government. If state policy were to prevail, a collision between it and federal policy would result and therefore, 

the latter policy must govern. See Paul v. United States, 371 U.S. 245 

(1963. 1 

In view of the 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 do not contain the general prevailing rate of per diem wages as provided in Article 5159a, Vernon’s Civil Statutes, in view of 

President Nixon’s emergency proclamation suspending the provisions of the Davis-Bacon Act (46 Stat. 

1494, as amended) as well as all other federal acts 

for the payment of wage rates on such projects which 

are dependent upon prevailing wage determinat.ions by 

th,e Secretary of Laborunder the Davis-Bacon Act. 

-3932- 
. . I. 

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 of wages as provided 

in the Davis-Bacon Act of March ‘3, 1931, as amended, 

or any other Acts calling for the payment of wages, 

the provisions of which 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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